Roundtable Discussion
Antitrust Provisions in Mergers

Tuesday, December 11, 2007
Videoconference in Washington, DC, New York, Houston, Los Angeles, London and Frankfurt

Discussion Leaders
Scott Perlman
Gillian Sproul
Jonathan Lewis

Allocation of Antitrust Risk in Mergers
An issue that frequently arises in mergers is how to allocate between the parties the risk of possible divestitures or other remedies required by antitrust enforcement authorities. This generally is addressed through contractual language in the merger agreements, ranging from "hell or high water" clauses requiring the buyer to make any divestiture necessary to obtain approval, to divestitures limited by material adverse effects language, to minimal or no divestiture obligations. This discussion will look at the different types of risk allocation clauses and the factors that corporate counsel should consider regarding each type whether representing the buyer or target.

Non-competition Provisions in Merger Agreements
Merger agreements often contain clauses placing obligations on the seller (and less frequently the buyer), not to compete with the business being sold for some period of time. These clauses can raise antitrust concerns, particularly if they are overbroad as to time, the type of business being sold or geography. This session will provide an overview of the antitrust parameters regarding such clauses and the factors corporate counsel should consider in drafting and negotiating these clauses.

Related Files
Presentation Slides (PDF)
Article: Getting the Deal Through: Private Antitrust Litigation in 27 Jurisdictions Worldwide (Global Competition Review 2008)