MAC carve-outs

Definition

A MAC clause without carve-outs is a deal-killer for sellers: any market movement between signing and closing can theoretically become grounds to terminate. During COVID-19 numerous Benelux deals tested this principle: the outcome was largely that general pandemic effects didn't qualify as MAC unless specifically named, but that ruling came only after months of litigation. Good MAC carve-outs prevent that path by stating up front what does NOT count as MAC.

Benelux market norm in 2026 includes six standard carve-outs. First, "industry-wide events": events affecting the whole sector (not specifically the target) don't count as MAC. Second, "general economic conditions": macroeconomic shocks (recession, currency volatility, interest-rate change). Third, "pandemics and public health events": explicit exclusion of pandemic-related market disruption (standard in Benelux SPAs since 2021 post-COVID). Fourth, "armed conflict and terrorism": geopolitical shocks without target-specific effect. Fifth, "regulatory changes": general legal changes affecting all market participants evenly. Sixth, "actions taken at buyer's request": if the buyer specifically requested action, they cannot later invoke that action as MAC.

The legal technique: these carve-outs are framed as "unless disproportionate": meaning general events don't count AS MAC unless the target is disproportionately hit compared to sector peers. This framing, the "disproportionate effect carve-out", is the balance negotiation between full seller protection and zero buyer protection.

The 2020 COVID-19 test proved good carve-outs work. Belgian and Dutch courts confirmed in dozens of cases that a MAC with explicit pandemic carve-out blocks walk-away even on significant short-term revenue shocks. Only when the target was disproportionately hit (e.g. restaurants during lockdown vs other food sectors) did MAC risk remain open.

Worked example

An Antwerp retail chain of 6 stores was signed in January 2020 for €4.2m, with closing scheduled for March 2020. March 2020: COVID lockdown. The buyer tried to invoke the MAC clause. The SPA however contained an explicit pandemic carve-out with disproportionate-effect test. The Antwerp commercial court ruled: the retail chain was hit roughly equally to other Belgian non-essential retail (all forced closure), so disproportionate effect wasn't demonstrated. MAC couldn't be invoked; deal was renegotiated on price (€500k reduction) instead of walk-away. Without the carve-out the buyer could likely have forced full walk-away, with €4m loss for the seller and years of litigation. With carve-out: deal closed, €500k chip. Lesson: the pandemic carve-out has been a non-negotiable seller must since 2020.

When it matters

In every SPA with time between signing and closing (typically 4-12 weeks for Benelux mid-market). Five carve-outs every seller must demand: (1) general economic conditions, (2) pandemics and public health events, (3) industry-wide regulatory changes, (4) geopolitical and conflict events, (5) actions at the buyer's request. Also negotiate the disproportionate-effect test: that's the balance point distinguishing an unacceptable seller position from a reasonable buyer position.

Frequently asked

Which carve-outs became standard after COVID-19?

Pandemic and public-health events are the clearest new standard since 2021. Plus carve-outs for "industry-wide regulatory changes" and "supply chain disruptions" are increasingly common. Pre-2020 SPAs lacking these get routinely updated on renegotiation.

What is a "disproportionate effect" test?

The condition that a carve-out only protects when the target isn't disproportionately hit compared to sector peers. Example: a pandemic carve-out protects restaurants from MAC despite lockdown impact, PROVIDED other restaurants are hit equally. If one specific restaurant loses 80% revenue while peers lose 40%, it falls outside the carve-out.

Can the buyer invoke MAC without carve-outs?

Theoretically yes, but Benelux court practice in 2020-2024 showed that even without explicit carve-outs, general market events rarely qualify as MAC: courts demand "durable, material, target-specific" deterioration. Without carve-outs the seller depends on judicial discretion, meaning 12-24 months of uncertainty. Explicit carve-outs are the practical protection.