個案總覽

The sudden departure to Hewlett- Packard of a top level EMC Corporation executive who had full knowledge of EMC's operations, business plans, and key personnel ignited a bi-coastal battle between two fierce rivals that was played out in courts competing for jurisdiction and states with diametrically opposed laws and public policies concerning non-competition agreements. The enforceability of the employment contract at the core of the case is explored in the context of motion pleading and preliminary relief and litigation strategy is presented as part of a company's overall business strategy.

The sudden departure to Hewlett- Packard of a top level EMC Corporation executive who had full knowledge of EMC's operations, business plans, and key personnel ignited a bi-coastal battle between two fierce rivals that was played out in courts competing for jurisdiction and states with diametrically opposed laws and public policies concerning non-competition agreements. The enforceability of the employment contract at the core of the case is explored in the context of motion pleading and preliminary relief and litigation strategy is presented as part of a company's overall business strategy.

In July 2007, after several failed attempts to acquire Huntsman Corporation, 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 material adverse change (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?

To be used with Hexion/Apollo's Courtship of Huntsman Corporation (A) 316-028.