Sample Antitrust Risk-Shifting Provisions In M&A Transactions--2018 Edition

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;