Hexion/Apollo's Courtship of Huntsman Corporation (A)
After several failed attempts to acquire Huntsman Corporation, in July 2007 Hexion/ Apollo prevailed in a bidding war for the company and signed a definitive merger agreement. Apollo had down bid Huntsman during previous attempts to acquire the company and Huntsman was suspicious. That suspicion, coupled with Huntsman's leverage that resulted from a competitive bid situation, prompted and enabled Huntsman to negotiate seller-friendly terms. For example, there was no financing contingency, and although the merger agreement contained both a material adverse effect (MAE) clause and a reverse termination fee, the potential damages if Hexion/Apollo breached the agreement were uncapped. As the credit markets deteriorated in late 2007 and into 2008 and Huntsman turned in disappointing financial results, the Huntsman deal no longer looked attractive to Hexion/Apollo. Hexion/Apollo wanted out. Would the MAC clause in the merger agreement permit Hexion/Apollo to simply walk away? Even if the MAE clause were not applicable, could Hexion/Apollo walk away by paying the reverse termination fee? Or were potential damages uncapped?