In the context of an irrevocable undertaking, a shareholder, especially an institutional shareholder, will usually expect to be released if a competing offer is made at any higher price (a soft undertaking) or, more usually in practice, at a price/value which equals or exceeds a specified price or percentage of the original offer price (a semi-hard undertaking). Increasingly in the case of a soft or semi-hard irrevocable, an offeror will request the opportunity to revise the terms of the offer so that it is at least as favourable (a matching right), as the value of the competing offer, in which case the undertaking will not lapse. Matching rights may also refer to an arrangement whereby an offeree grants the potential offeror the right, within an agreed timescale, to equal or better any competing bid that might be announced during the offer period and undertakes to recommend that revised offer (subject to certain limited exceptions). These types of matching rights are likely to be caught by the general prohibition on offer-related arrangements under Rule 21.2. For further information see PCP 2011/1, para 3.6 and PCP 2010/2, para 9.19.

A fact that is known, or ought to be known by an insured, is material to be disclosed to insurers if it would affect their assessment of the risk, the terms on which they are willing to underwrite it, or the premium they require to do so.

Usually a covenant in finance documents referring to a serious change to the business/company, eg change of ownership.

Thus gives the buyer a right to terminate the SPA/APA if there is a MAC which affects the business between exchange and completion. This will usually be something which is of significance to the buyer and will be aimed at addressing unforeseen risks, other than breaches of warranties or covenants given by the seller, which may have a materially adverse effect on the business. These risks may include changes in financial markets, economic conditions, interest rates, exchange rates, increases in costs and natural disasters. MAC clauses traditionally can either take the form of: • a condition to completion which entitles the buyer not to complete if the business suffers a MAC between the date of the agreement and completion, or • a warranty/representation from the seller that the business has not suffered a MAC between the date of the agreement and completion, with the buyer given the right to terminate the agreement if the warranty/representation is breached

A ‘material adverse change’ or ‘MAC’ condition is a condition whereby an offeror can allow an offer to lapse in the event of a material adverse change in the business or prospects of the offeree in the period after announcement of the Offer. As with other conditions to an offer, any MAC condition must not normally be in subjective terms (Rule 13.1) and can be invoked by the offeror only where the circumstances are of material significance to the offeror in the context of the offer.

The concepts of material adverse change (MAC) and material adverse effect (MAE) are used in different but related ways in a typical facility agreement: • Material adverse change—a material adverse change in the circumstances of the borrower is often included as a separate event of default. This clause is typically negotiated extensively and there are several variations in scope. One common formulation of the MAC event of default is to refer back to the definition of material adverse effect. The borrower is also required to make a representation (which can be a repeating representation) that there has been no material adverse change to its business or financial condition since the date of the last financial statements provided to the lender • Material adverse effect—it is common for a facility agreement to include a definition of material adverse effect. The principal use of the material adverse effect definition is to qualify certain representations, undertakings and events of default The drafting of the

This Practice Note sets out certain key cases and associated relevant content relating to material adverse change clauses (MAC) in a financing context. The cases are divided by topic area and include: • interpreting a MAC clause • acceleration based on a MAC clause Interpreting a MAC clause Names of parties Judgment date Case summary Relevant content BM Brazil I Fundo De Investimento EM Participacoes Multistrategia v Sibanye BM Brazil (Pty) Limited [2024] EWHC 2566 (Comm) 10 October 2024 Following a blast resulting from drilling, a slope at a mine in Brazil was displaced by up to two metres, the ground moving as a block. The main question was whether this was an event having a ‘material adverse effect’ within the definition used in the contract for the sale and acquisition of the company that owned the mine, enabling the buyer to pull out of the purchase.Butcher J held that the event was not a ‘material adverse event’ because the change was not material in the context of the acquisition. In reaching

Dispute Resolution analysis: Travelport and 12 others sought declarations and specific performance to the effect that Wex was contractually obliged to complete the purchase of two groups of companies engaged in the business of facilitating payments in the travel industry. The agreed price for the purchase was approximately $US 1.77bn. The court had ordered the trial of 11 preliminary issues (some of which included sub-issues) on an expedited basis because the completion date was imminent. The contract included a material adverse effects (MAE) clause. Wex sought to invoke this clause in order to avoid completion, relying on the effects of the coronavirus (COVID-19) pandemic. This analysis is concerned only with the burden of proof and with issues surrounding the proper construction of a MAE clause. Written by Charles Joseph, barrister, at Tanfield Chambers.

Material adverse effect is a concept commonly used in facilities agreements to qualify representations, undertakings and events of default. Material adverse change may be included in facilities agreements as an event of default and mandate letters as a condition to financing.

This Practice Note provides a high level summary of key themes of divergence between the UK and EU in relation to the extent of their data protection regimes, where these have arisen since the end of the Brexit transition period on 31 December 2020 (IP Completion Day). Specifically, this Practice Note considers the material and territorial scope of the regimes under the UK’s General Data Protection Regulation, Assimilated Regulation (EU) 2016/679 (UK GDPR) and the EU’s General Data Protection Regulation, Regulation (EU) 2016/679 (EU GDPR). Background In this Practice Note, the term ‘divergence’ refers to differences in the legislation, guidance or required standards that have arisen following IP Completion Day which, prior to IP Completion Day, were aligned. A parallel but identical or substantially similar regime would not constitute divergence. The UK GDPR is largely derived from the EU GDPR, which applied in the UK when the UK was still a Member State of the EU. At the end of the Brexit transition period

This Practice Note considers the relevance of material breach in the context of construction projects, looks at contractual definitions of material breach and identifies key case law on the meaning of the term in the absence of a contractual definition. Relevance of material breach on construction projects The term ‘material breach’ is found in various types of contract. In the context of construction contracts, material breach provisions are most likely to be found in relation to termination and/or suspension—ie the contract may provide that: • the contractor and/or employer is able to terminate, and/or • the contractor is able to suspend work if the other party is in ‘material breach’. In relation to the ability to terminate, there is often a grace period during which the party in material breach is afforded the opportunity to remedy the breach before the contract is terminated. It is also common to see material breach provisions in PFI/PF2 contracts (see Practice Note: Termination of PFI/PF2 contracts). In addition, material breach may be relevant to the question of whether works

Control of development Pursuant to section 57 of the Town and Country Planning Act 1990 (TCPA 1990), planning permission is required for ‘the carrying out of any development of land’. ‘Land’ is defined in TCPA 1990, s 336(1) as ‘any corporeal hereditament including a building’. The court has held that the geographical scope of planning control under TCPA 1990 in coastal areas extends to the mean low water mark only, so that the sea bed beyond the low water mark is not subject to planning control. ’Development’ is defined in TCPA 1990, s 55(1) as: • the carrying out of building, engineering, mining or other operations in, on, over or under land, or • the making of any material change in the use of any buildings or other land TCPA 1990 therefore controls two distinct types of development: operational development and material changes of use. This Practice Note deals with material changes of use. For information on operational development, see Practice Note: Operational development. It is worth noting at the outset that TCPA 1990, s 55