Antitrust Risk Allocation in Merger Agreements: Anticipating and Managing Risks of Deal Delay or Non-Completion
Negotiating Divestiture, Hell or High Water, and Reverse Breakup Fee Provisions; Navigating Interplay With Non-Antitrust Risk-Shifting Clauses
Recording of a 90-minute CLE webinar with Q&A
This CLE course will guide counsel in assessing and allocating antitrust risks in merger agreements. The panel will examine commonly negotiated antitrust risk-shifting provisions and explain the legal implications of including risk-shifting provisions in the merger agreement when dealing with the antitrust enforcement agencies. The panel will also address the important role corporate deal attorneys play in coordinating the antitrust risk-shifting provisions with other clauses in the merger agreement.
Outline
- Types of antitrust risk-shifting provisions
- Implications of including antitrust risk-shifting provisions on DOJ and FTC merger review
- Best practices and practical considerations for drafting and negotiating risk-shifting provisions
- Interplay of antitrust risk-shifting provisions with other clauses in the merger agreement
Benefits
The panel will review these and other key questions:
- What are the key considerations in deciding whether to include antitrust risk-shifting provisions in merger agreements?
- What factors should antitrust counsel take into account when deciding which risk-shifting provisions are appropriate to include in merger agreements?
- What are the recent trends in DOJ and FTC regulation of mergers that include risk-shifting provisions, and what lessons can be learned from these trends?
- How can the perspectives of corporate deal attorneys help inform the drafting and negotiation of the antitrust risk-shifting provisions?
Faculty
Mark J. Botti
Partner
Squire Patton Boggs (US)
Mr. Botti focuses on antitrust matters. He has extensive experience involving the antitrust review of mergers and... | Read More
Mr. Botti focuses on antitrust matters. He has extensive experience involving the antitrust review of mergers and acquisitions. He served as Department of Justice Litigation I Section Chief and litigated complex antitrust claims, bringing monopolization cases, horizontal conspiracy suits and merger challenges.
CloseKeith A. Pagnani
Partner
Sullivan & Cromwell
Recognized as a “Dealmaker of the Year” by The American Lawyer for his role advising Alcon,... | Read More
Recognized as a “Dealmaker of the Year” by The American Lawyer for his role advising Alcon, Inc.’s independent directors committee in Alcon’s acquisition by Novartis AG, Mr. Pagnani is actively involved in the firm’s Corporate Practice and has broad experience representing buyers, sellers, special committees of independent directors and financial advisers on a wide range of domestic and international M&A transactions. Mr. Pagnani frequently speaks on M&A and corporate matters.
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Melissa Sawyer
Partner
Sullivan & Cromwell
Ms. Sawyer is a partner in the firm’s M&A Group, focusing her practice on a variety of corporate... | Read More
Ms. Sawyer is a partner in the firm’s M&A Group, focusing her practice on a variety of corporate governance, M&A and private equity matters in the U.S. and abroad. Among other things, she is experienced in dealing with activist shareholders, takeover offense and defense, poison pills, carve-out transactions and joint ventures. Ms. Sawyer is currently a Lecturer in Law at Columbia Law School and often speaks on corporate governance and M&A matters.
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