2/26/2023 0 Comments Hexio level 49The answer to that question turns on whether the buyer committed a knowing and intentional breach of any of its covenants found in the merger agreement that caused damages in excess of the contractual limit. In that event, and in the absence of a material adverse effect relating to Huntsman s business as a whole, the issue becomes whether the buyer s liability to the seller for failing to close the transaction is limited to $325 million by contract or, instead, is uncapped. In other words, if the financing the buyer arranged (or equivalent alternative financing) is not available at the closing, the buyer is not excused from performing under the contract. Because the buyer and its parent were eager to be the winning bidder in a competitive bidding situation, they agreed to pay a substantially higher price than the competition and to commit to stringent deal terms, including no financing out. The buyer is a privately held corporation, 92% owned by a large private equity group. In July 2007, just before the onset of the ongoing crisis affecting the national and international credit markets, two large chemical companies entered into a merger agreement contemplating a leveraged cash acquisition of one by the other. Boatright, Esquire, GIBBS & BRUNS, L.L.P., Houston, Texas, Attorneys for Defendant/Counterclaim Plaintiff. Goudiss, Esquire, Jaculin Aaron, Esquire, SHEARMAN & STERLING LLP, New York, New York Kathy D. Holmes, Esquire, VINSON & ELKINS, L.L.P., Houston, Texas Alan S. Thomas, Esquire, YOUNG CONAWAY STARGATT & TAYLOR, LLP, Wilmington, Delaware Harry M. Jones, Esquire, Kristen Salvatore DePalma, Esquire, Tammy L. Bissell, Esquire, Danielle Gibbs, Esquire, Christian Douglas Wright, Esquire, Dawn M. Call, Esquire, SNOW CHRISTENSEN & MARTINEAU, Salt Lake City, Utah, Attorneys for Plaintiffs/Counterclaim Defendants. Cheung, Esquire, WACHTELL, LIPTON, ROSEN & KATZ, New York, New York Vineet Bhatia, Esquire, SUSMAN GODFREY, LLP, Houston, Texas Keith A. Fourmaux, Esquire, David Gruenstein, Esquire, Douglas K. Hein, Esquire, Marc Wolinsky, Esquire, Jeffrey C. Ashman, Jr., Esquire, POTTER ANDERSON & CORROON LLP, Wilmington, Delaware Peter C. 3841-VCL OPINION Submitted: SeptemDecided: SeptemRevised: NovemDonald J. ) ) HUNTSMAN CORP., ) ) Defendant/Counterclaim Plaintiff. AND APOLLO GLOBAL MANAGEMENT, LLC, ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) Plaintiffs/Counterclaim Defendants, ) ) v. APOLLO OVERSEAS PARTNERS (GERMANY) VI, L.P. APOLLO OVERSEAS PARTNERS (DELAWARE 892) VI, L.P. APOLLO OVERSEAS PARTNERS (DELAWARE) VI, L.P. IN THE COURT OF CHANCERY OF THE STATE OF DELAWARE HEXION SPECIALTY CHEMICALS, INC.
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