This note updates and expands the sample of antitrust-related provisions in M&A agreements over the one we posted in November 2014. As in the earlier edition, the sample provisions have been taken (sometimes with a little modification) from actual M&A agreements.
This sample will give you with a good idea of the wide variety of provisions parties have used, including:
- the jurisdictions and the timing where merger control filings are to be made;
- the level of cooperation the parties owe each other in defending the transaction;
- who controls the defense strategy
- the antitrust-related conditions precedent
- whether the parties are obligated to litigate an adverse agency decision and, if so, who controls the litigation strategy and how long will the parties have to litigate before the drop-dead date;
- whether the buyer is obligated to "fix" any antitrust concerns through consent decree relief and how far this obligations goes;
- whether an antitrust reverse termination fee is to be paid in the event of a failure of the antitrust conditions; and
- the conditions under which the agreement may be terminated or the drop-dead date extended
Of course, every deal stands on its own. The language that has been used in one deal may not be appropriate for another deal, and inclusion of a provision in this sample does not constitute an endorsement of the language. Still, I find the collection helpful in drafting and negotiating the antitrust provisions in M&A agreements.
Downloads: Sample Antitrust Risk-Shifting Provisions in M&A Transactions--2018 Edition
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.