Managers and the Legal Environment 7th Edition by David Madsen, Constance Bagley

Exercise 11

Tyson Foods, a chicken distributor, and IBP, a beef and pork distributor, signed a merger agreement after an active auction for IBP. Before signing the agreement, Tyson conducted extensive due diligence and learned that IBP was facing business and financial problems, including a downturn in the beef industry, evidence of accounting fraud in an IBP subsidiary, and recently reduced cash flow. The agreement contained a material adverse change (MAC) clause, which relieved Tyson of its obligation to consummate the merger if there were "any event, occurrence, or development of a state of circumstances or facts which had or reasonably could be expected to have a Material Adverse Effect." After the merger agreement was signed, both Tyson and IBP reported disappointing earnings for two quarters. Tyson then purported to terminate the merger agreement, and IBP sued for specific performance. Does IBP's poor performance in subsequent quarters constitute a Material Adverse Effect giving Tyson the right to terminate the merger agreement? [IBP v. Tyson, 789 A.2d 14 (Del. Ch. 2001).]