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Antitrust in M&A: Allocating Risk and Responsibility in Merger Agreements

Efforts Clauses, End Dates, Termination Fees, MAC Clauses, Control of Investigation Strategy

Recording of a 90-minute premium CLE webinar with Q&A

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Conducted on Wednesday, February 12, 2020

Recorded event now available

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This CLE course will examine provisions that are commonly used to allocate antitrust risk in M&As and how to ensure compliance with those provisions. The panel will provide some real world examples of how these provisions have played out in recent high profile cases when a deal fails to close.


Determining how antitrust risk is shared can be critical in negotiations of a merger agreement. Many tools are commonplace for addressing antitrust risk. Because provisions may determine who takes on the cost of the failed deal, they must be drafted with care.

Efforts clauses govern what the parties have agreed to do to obtain antitrust clearance for the transaction. Clauses typically include a "best efforts," "reasonable best efforts" or "commercially reasonable best efforts" provision, or, where the buyer is obligated to undertake any actions necessary to gain antitrust clearance, a "hell-or-highwater" provision.

Extended investigations can impact financing and the ongoing business of the parties. End-date provisions put a limit on how long the parties must pursue approval, but which party has the right to terminate at the end of a prescribed period, and on what basis, must be negotiated. Reverse termination fees--where a buyer agrees to pay the seller a fixed fee if the deal terminates because of the failure to obtain antitrust approvals--can also come into play.

A buyer will typically want full control and final decisionmaking authority to the extent the buyer is assuming all or substantial antitrust risk. Where the risk is more evenly shared, parties typically agree to share control of the antitrust strategy. In each case, parties will usually agree to work cooperatively towards the end goal of securing antitrust clearance. Material adverse effect thresholds may be employed to limit the level of divestitures a buyer is required to make to gain antitrust clearance.

Listen as our authoritative panel discusses the provisions used in M&A agreements to allocate antitrust risk between the parties, and some recent cases ruling on the enforceability of these provisions.



  1. How antitrust issues can derail an M&A transaction
  2. Efforts clauses
  3. End dates and break or termination fees
  4. Material adverse effect/change (MAC) clauses
  5. Control of investigation strategy
  6. Cooperation provisions, clean teams, joint defense agreements


The panel will review these and other noteworthy topics:

  • What antitrust risks should be addressed in a merger agreement?
  • How should the parties determine the level of "efforts" each is obligated to exercise to gain antitrust approval?
  • How are end date provisions and termination fees used to allocate risk?
  • What factors should be considered in deciding who should control the antitrust investigation strategy?
  • What level of cooperation should be required, and when is joint defense agreeement appropriate?


Buchert, Brian
Brian Buchert
Vice President, Corporate Strategy and M&A
Church & Dwight Co.

Mr. Buchert is Vice President and head of M&A and Corporate Strategy for Church & Dwight, a $4.3 Billion...  |  Read More

Desai, Rucha
Rucha A. Desai

Proskauer Rose

Ms. Desai earned her J.D. from New York University School of Law, where she was a staff editor for Moot Court and...  |  Read More

Ellis, Michael E.
Michael E. Ellis

Proskauer Rose

Mr. Ellis is a partner in Proskauer Rose LLP’s Corporate Department. He is a general corporate lawyer with a...  |  Read More

Ingrassia, John
John R. Ingrassia

Proskauer Rose

Mr. Ingrassia advises on the full range of antitrust matters in diverse industries, including chemicals,...  |  Read More

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