Recently, Nixon Peabody posted its “2015 MAC Survey.” Here is an excerpt:
Our inaugural survey, which covered 2001 to 2002, reflected the effects of the September 11, 2001, terrorist attacks on dealmaking. The next year’s study indicated a trend toward bidder-friendly MAC clauses during 2002–2003 and significant expansions of the exclusions focused on acts of terrorism and war and on broad-based market volatility. As economic activity picked up between 2004 and 2007, our surveys reported increasingly pro-target formulations with robust lists of exclusions. The economic downturn and credit crisis halted this pro-target trend, and our 2008 and 2009 surveys showed another increase in the negotiating strength of bidders through the marked decrease in the use of exclusions to MAC provisions. But as the nation began its climb out of the recession, our surveys from 2010 through 2012 signaled a return in target negotiating strength.
However, the ongoing economic recovery has been gradual, and our recent surveys note the cautious optimism of dealmakers. While our 2013 survey reflected increases in both pro-target and pro-bidder trends, the 2014 survey indicated the development of pro-bidder trends, which were continued in the 2015 survey.