Are Antitrust Risk Allocation Provisions In Merger Agreements Worthless?

The Delaware Chancery Court Seems to Think So

Megamergers that deprive the American consumer of competition are illegal.  But the urge to merge is often so strong that antitrust risks rarely prevent behemoths from the attempt.  Long before parties sign deals, issue press releases, and file for government approval, they must decide who will bear the risk that the FTC or DOJ will put the kibosh on the deal. 

For sellers, in particular, the failure to obtain adequate protections against that risk can be catastrophic, as employees start looking for their next gig, or else turn their attention to "integration" activities that will curry good favor, not with their current owner, but the prospective new one.  To address this, parties often negotiate antitrust risk allocation provisions, such as the obligation to use best efforts to obtain government approval, to divest overlapping assets, or to pay hefty termination fees if approval cannot be secured.