Antitrust-Related Reverse Break-Up Fees in 2016 | Practical Law

Antitrust-Related Reverse Break-Up Fees in 2016 | Practical Law

A review of private acquisition and public merger agreements in Practical Law's Antitrust Risk-Shifting Database from 2016 that contain an antitrust-related reverse break-up fee. The Article discusses sizes of reverse break-up fees, fee triggers, the industry breakdown, interaction with other antitrust-risk provisions, and other issues relating to antitrust-risk allocation.

Antitrust-Related Reverse Break-Up Fees in 2016

Practical Law Article w-005-3737 (Approx. 14 pages)

Antitrust-Related Reverse Break-Up Fees in 2016

by Practical Law Antitrust
Law stated as of 22 Feb 2017 • USA (National/Federal)
A review of private acquisition and public merger agreements in Practical Law's Antitrust Risk-Shifting Database from 2016 that contain an antitrust-related reverse break-up fee. The Article discusses sizes of reverse break-up fees, fee triggers, the industry breakdown, interaction with other antitrust-risk provisions, and other issues relating to antitrust-risk allocation.
In M&A transactions with foreseeable risk that the buyer will be unable to close, buyers and sellers often negotiate for the possible payment of a reverse break-up fee. Antitrust-related reverse break-up fees are termination fees payable by the buyer to the seller in a private acquisition deal or to the target company in a public merger, if the deal cannot close because of either:
  • A failure to obtain antitrust approvals required for the deal, including under the Hart-Scott-Rodino (HSR) Act.
  • A governmental authority enjoining the transaction under the antitrust laws.
Reverse break-up fees are a primary way to allocate antitrust risk in a purchase agreement where the parties are particularly concerned about obtaining antitrust approval, usually because the parties are competitors. If one of the antitrust agencies investigates or challenges a deal, the risk of not closing lies with the seller if there is no reverse break-up fee. This is because the seller may experience pre-closing losses during the investigation or litigation period, including:
  • Loss of customers.
  • Decline in valuation.
  • Departure of employees.
By charging the buyer a reverse break-up fee, the parties attempt to quantify these losses and allocate them to the buyer while also incentivizing the buyer to exert maximal efforts to obtain antitrust approval for the transaction.
Practical Law's Antitrust Risk-Shifting Database gathers and summarizes both private acquisition agreements and public merger agreements that contemplate a reverse break-up fee payable for antitrust failure. The Antitrust Risk-Shifting Database covers:
  • all public merger agreements for the acquisition of US reporting companies valued at $100 million or more and entered into since November 1, 2012; and
  • all publicly filed acquisition agreements entered into since June 1, 2012, valued at $25 million and involving the acquisition of:
    • all or substantially all of the assets of private US companies;
    • at least a majority of the outstanding stock of private US companies; or
    • at least a majority of the business units of US companies;
in each case where an HSR or other premerger filing is required and the agreement specifies the parties' efforts to get antitrust approval.
In 2016, the database found 36 deals that contained antitrust-related reverse break-up fees. For each of those 36 deals, this Article reviews and discusses:
  • The size of the fees.
  • The antitrust triggers for the fees.
  • Deals with tiered fees, in which different fee amounts are payable under different circumstances, all having to do with antitrust approval.
  • Deals with both an antitrust and non-antitrust triggered fee.
  • The interaction of the fees with other risk-shifting provisions in the agreement.
  • The industries in which the deals with antitrust-triggered fees are found.
For more information on antitrust-related reverse break-up fees, see Standard Clause, Purchase Agreement: Reverse Break-Up Fee for Antitrust Failure and Practice Note, What's Market: Reverse Break-Up Fees for Antitrust Failure.
To review the similar study performed in 2015, see Article, Antitrust-Related Reverse Break-Up Fees in 2015.

Size of Antitrust-Related Reverse Break-Up Fees

Image 1 within Antitrust-Related Reverse Break-Up Fees in 2016​
Figure A illustrates the value of the antitrust-related reverse break-up fees for all 36 public and private deals covered in the Antitrust Risk-Shifting Database in 2016. The figure shows that of those fees:
  • Nine were set at six percent of the equity value or higher, including six public deals and three private deals. Of those fees, six were over seven percent, including in three public deals and three private deals.
  • Nineteen were set between four percent and six percent of the equity value, including 13 public deals and six private deals.
  • Four were set at three to four percent of the equity value, including four public deals and no private deals.
  • Eight were set at less than three percent of the equity value, including six public deals and two private deals.
Figure A shows that the size of the deal does not affect the size of the reverse break-up fee. Fees set at over six percent of the deal value were seen in deals valued at over $5 billion (the Tianjin Tianhai Investment Company, Ltd./Ingram Micro Inc. deal) and under $500 million (the Boyd Gaming Corporation/ALST Casino Holdco, LLC deal).
Two deals are included twice and one deal is included three times in Figure A (resulting in a total of 40 entries) because they contained separate antitrust-related reverse break-up fees. These deals were:
  • The Apex Technology Co., Ltd./PAG Asia Capital/Legend Capital Management Co., Ltd. and Lexmark International, Inc. public merger deal, which had two potential antitrust-related fees of $95 million (2.64% of the deal value) and $150 million (4.17% of the deal value), the latter fee payable if a governmental order in the People's Republic of China (PRC) prohibiting the merger was issued or if required PRC antitrust approvals were not obtained (so long as other governmental orders were not issued in certain material jurisdictions). This deal is counted twice in the $1 billion–$5 billion category, as a fee of less than 3% and as a fee between 4% and 6%.
  • The Varian Medical Systems, Inc./PerkinElmer, Inc. private deal, which had two potential antitrust-related fees of $13.8 million (5% of the deal value) or $22.08 million (8% of the deal value), the former fee payable after Varian's completion of a spin-off of a separate entity. This deal is counted twice in the $100 million–$500 million category, as a fee between 4% and 6% and a fee of 6% or more.
  • The Tianjin Tianhai Investment Company, Ltd./Ingram Micro Inc. public merger deal, which had three potential antitrust-related fees, depending on when the deal was terminated, of $200 million (3.33% of the deal value), $300 million (5% of the deal value), or $400 million (6.67% of the deal value). This deal is counted three times in the $5 billion or more category, as a fee between 3% and 4%, a fee between 4% and 6%, and a fee of 6% or more.
(See Deals with Tiered Antitrust-Related Reverse Break-Up Fees.)
The largest antitrust-related reverse break-up fees of 2016 on a dollar basis were in:
The largest antitrust-related fees in terms of the percentage of the total deal value were in:
The average amount of all 2016 antitrust-related fees was approximately 4.67% of the respective deal value, down up slightly from 5.05% in 2015. A total of nine (23%) out of the year's 40 reverse break-up fees payable for antitrust failure were set at six percent or more of the respective deal value. In 2015, a similar total of 12 (23%) of the year's 52 reverse break-up fees for antitrust failure were set at six percent or more of the respective deal value.
Image 2 within Antitrust-Related Reverse Break-Up Fees in 2016​
Figure B illustrates the value of the antitrust-related reverse break-up fees in the 26 public mergers covered in the Antitrust Risk-Shifting Database in 2016. Of these:
Of the 26 public M&A deals containing antitrust-related reverse break-up fees, the largest:
Figure B indicates that while fees of all percentage amounts are observed in deals large and small, once deals reach the mega-sized bracket of $5 billion or more, reverse break-up fees payable for antitrust failure level off as a percentage of equity value. In 2016, in deals valued at $5 billion or more:
In the $1 billion to $5 billion category, by contrast, approximately 21% of the 14 reverse break-up fees payable for antitrust failure were priced at six percent or more of the deal's equity value. In 2015, in that same category, half of the eight reverse break-up fees payable for antitrust failure were priced at six percent or more of the deal's equity value.
As in 2015, reverse break-up fees payable for antitrust failure in the four percent to six percent of the deal's equity value category appeared in deals in each size category.
In smaller public deals, buyers and target companies generally do not bother with small antitrust-triggered reverse break-up fees. In 2016, in the $100 million to $500 million or $500 million to $1 billion equity-value brackets:
In 2015, only one fee valued below three percent of equity value and one fee between three and four percent of equity value similarly were observed in either the $100 million to $500 million or $500 million to $1 billion equity-value brackets.
The average size of antitrust-related reverse break-up fees in public M&A deals in 2016, as calculated from the 26 public M&A deals in the study sample, was approximately 4.27% of the respective deal's equity value, down slightly from the 2015 average of 4.57%.
Image 3 within Antitrust-Related Reverse Break-Up Fees in 2016​
Figure C includes the value of the antitrust-related reverse break-up fees in the ten private deals covered in the Antitrust Risk-Shifting Database in 2016. Of these:
  • Six deals were valued at $1 billion or more, none of which were valued at greater than $5 billion.
  • One deal was valued from $500 million to $1 billion.
  • Three deals were valued from $100 million to $500 million (the Varian Medical Systems, Inc./PerkinElmer, Inc. deal appears twice in this column because the agreement provided for two antitrust-related reverse break-up fees).
  • No deals were valued at up to $100 million.
Of the ten private deals containing antitrust-related reverse break-up fees, the largest:
As in 2015, the spread of reverse break-up fees across deal-size brackets in private acquisition agreements resembles the spread in public M&A deals.
Fees priced below three percent of deal value were not observed in the smallest deal-size brackets, as was the case in 2015. However, in 2016, fees of up to three percent of deal value were observed in the $500 million to $1 billion and $1 billion to $5 billion categories. In 2015, fees of this size were observed in deals ranging in value from $100 million to more than $1 billion.
Three (30%) of the ten private deals contained fees priced at six percent of the deal value or higher, with only one of those deals valued at $1 billion or more (the ICU Medical, Inc./Pfizer Inc. deal). The remaining two deals were valued from $275 million to $400 million. In 2015, seven (30%) of the 23 private deals contained fees of six percent of the deal value or higher, with only one of those deals valued over $5 billion and the remaining six deals valued from $40 million to $2.2 billion.

Industries

Figure D illustrates the target company's industry for the 36 deals covered in the Antitrust Risk-Shifting Database that contained antitrust-related reverse break-up fees.
Image 4 within Antitrust-Related Reverse Break-Up Fees in 2016​
Within the Antitrust Risk-Shifting Database, those deals in 2016 that contained antitrust-related reverse break-up fees fell mainly within the following industries:
  • Computer and electronic equipment, which includes IT management software, data storage and management solutions, and other technological products (nine deals).
  • Manufacturing and machinery, which includes the design and marketing of lasers, the manufacture and sale of components for use in powertrain and safety platforms, the manufacture and servicing of mining equipment, and the manufacture and sale of x-ray systems (four deals).
  • Services, which includes safety assessment and contract development services to biopharmaceutical companies, product distribution and supply chain services, uniform and facility services programs, and loss prevention, inventory management, and labeling solutions for retail industries (four deals).
  • Oil and gas, which includes rights to fossil portfolios in certain markets, natural gas companies, and oil field services companies (three deals).
  • Utilities, which includes electricity, natural gas, and water services (three deals).
The remainder of deals that contained antitrust-related reverse break-up fees were spread across a wide variety of industries in 2016.
In 2015, the breakdown of deals with antitrust-related reverse break-up fees was slightly different. A large number of the 2015 deals fell in similar industries as in 2016, including the computer and electronic equipment (eight deals) and services (four deals) industries. However, several industries that comprised the bulk of the deals in 2015 saw substantially fewer relevant deals in 2016. For example, from 2015 to 2016, the number of deals with antitrust-related reverse break-up fees for:
  • Medical devices and healthcare fell from six deals to one.
  • Banking and financial services declined from five deals to one.
  • Pharmaceuticals and biotechnology fell from four deals to none.

Antitrust Triggers for Reverse Break-Up Fees

In the 36 deals with reverse break-up fees, the most common triggers included a fee that was payable if:
  • Either party terminated the agreement because of a final non-appealable order prohibiting or restraining the closing under an antitrust law (and, in some cases, at the time of termination, the antitrust approval conditions were also not satisfied). This trigger was found in 32 deals, or approximately 89% of the time (in 2015, this provision was found approximately 86% of the time).
  • Closing did not occur by the drop-dead date and certain antitrust closing conditions were not satisfied, such as if antitrust approvals were not obtained or an injunction or other order under antitrust laws was issued, and where certain other closing conditions were satisfied or waived. This trigger was found in 32 deals, or approximately 89% of the time (in 2015, this provision was found approximately 84% of the time).
Unique or notable antitrust triggers appeared in several deals.
In the KAR Auction Services, Inc./Brasher's Auto Auctions deal, a reverse break-up fee was payable if KAR terminated the purchase agreement because the FTC, the DOJ, or any other governmental authority issued a Second Request under the HSR Act or any other applicable antitrust laws.
Several deals specified that the antitrust-related reverse break-up fee was payable because of a final non-appealable order under certain specified antitrust laws outside the US. For example:
Two deals contained provisions stating that the antitrust-related reverse break-up fee was payable if a final non-appealable order prohibited a material portion of the acquisition under antitrust law (the Open Text Corporation/EMC Corporation and Evonik Industries AG/Air Products and Chemicals, Inc. deals).
In the AMC Entertainment Holdings, Inc./Carmike Cinemas, Inc. deal, the reverse break-up fee was payable if either party terminated the merger agreement because the antitrust approval closing conditions were not satisfied by the drop-dead date, including because AMC would not divest either party's or their affiliates' businesses or assets as required by a governmental authority that would result in the loss of adjusted theater-level cash flows over $25 million in the aggregate for the 12 months ending with December 31, 2015 (as determined under the agreement).
Several deals also contained provisions specifying that the reverse break-up fee was not payable if the seller or target failed to take action, causing the failure to obtain antitrust approval. For example, in:
  • The Google Inc./Apigee Corporation deal, the reverse break-up fee was payable if either party terminated the merger agreement because:
    • either the drop-dead date passed or a law or final non-appealable order permanently prohibited or made the merger illegal;
    • at the time of termination, the only closing conditions not satisfied were the antitrust approvals conditions because of failure to receive required antitrust approvals or because a governmental authority had taken action (including an order, law, or proceeding) that enjoined or made the merger illegal under antitrust laws; and
    • at the time of termination, Apigee, its subsidiaries, or their respective officers, directors, or employees had taken action or failed to take any action, principally causing that antitrust failure.
  • The Bayer Aktiengesellschaft/Monsanto Company deal, Bayer was not required to pay the reverse break-up fee if Monsanto's willful or material breach of its antitrust obligations under the merger agreement contributed materially and substantially to the failure of the antitrust closing conditions.
A similar provision was found in the Anthem, Inc./Cigna Corporation deal in 2015, where a reverse break-up fee was not payable if Cigna's willful breach of its regulatory efforts covenant caused the failure to obtain antitrust approval. In February 2017, the DOJ successfully blocked the Anthem/Cigna deal in federal district court. The parties are currently litigating over payment of the $1.85 billion reverse break-up fee, termination of the merger, and other issues.
In several deals, the antitrust-triggered reverse break-up fee was payable if the seller or target terminated the agreement because the buyer breached its antitrust efforts covenant. For example, in:
  • The General Electric Company/Baker Hughes Incorporated deal, General Electric was required to pay the reverse break-up fee if Baker Hughes terminated the merger agreement because General Electric materially breached its reasonable best efforts and antitrust filing covenant, making the antitrust approvals conditions incapable of being satisfied.
  • The Stanley Black & Decker, Inc./Newell Brands Inc. deal, Stanley Black & Decker was required to pay the reverse break-up fee if Newell Brands terminated the purchase agreement because Stanley Black & Decker willfully and materially breached its covenants and agreements pertaining to efforts to close that resulted in the antitrust approvals conditions becoming incapable of being satisfied.
  • The ICU Medical, Inc./Pfizer Inc. deal, ICU Medical was required to pay the reverse break-up fee if Pfizer terminated the agreement because of ICU Medical materially and intentionally breaching its antitrust efforts.
  • The AMC Entertainment Holdings, Inc./Carmike Cinemas, Inc. deal, the reverse break-up fee was payable if Carmike terminated the merger agreement because AMC materially breached its regulatory approval efforts covenant, causing the failure of the antitrust approval closing conditions (including receipt of HSR approval).
In 29 (81%) of the 36 deals with antitrust-related reverse break-up fees, the fee was the target's sole and exclusive remedy. This is a significant increase from 2015, where in 20 (40%) of the 50 deals with antitrust-related reverse break-up fees, the fee was the target's sole and exclusive remedy.

Deals with Tiered Antitrust-Related Reverse Break-Up Fees

Three of the year's deals contained tiered antitrust-related reverse break-up fees, including:
The Tianjin Tinhai deal contained a tiered antitrust-related fee that provided that Tianjin would pay a different fee depending on the date the merger agreement was terminated. The merger agreement provided that if either party terminated the deal:
  • Before March 18, 2016 (approximately 30 days after signing), the antitrust-related fee was $200 million (3.33% of the deal value).
  • On or after March 18, 2016, but before April 17, 2016 (approximately 60 days after signing), the antitrust-related fee was $300 million (5% of the deal value).
  • On or after April 17, 2016, the antitrust-related fee was $400 million (6.67% of the deal value).
In the Tianjin Tinhai deal, the antitrust-related reverse break-up fee was triggered if either party terminated the agreement because:
  • The merger failed to close by the drop-dead date and all of Tianjin's closing conditions were satisfied, except conditions requiring:
    • stockholder approval;
    • that no restraining order, injunction, or other restraint from the PRC prevented the merger; or
    • HSR Act and other antitrust approvals, including under Chinese antitrust law.
  • A governmental authority issued a final and non-appealable order in the PRC, under the Clayton Act, or under other antitrust laws.
The reverse break-up fee was also payable if Ingram terminated the merger agreement because Tianjin failed to deposit $400 million into escrow as collateral and security for the payment of the reverse break-up fee.
In the Apex Technology Co., Ltd./PAG Asia Capital/Legend Capital Management Co., Ltd. and Lexmark International, Inc. deal, so long as there were no final non-appealable governmental orders prohibiting the merger under the antitrust laws in certain specified material jurisdictions (not including the PRC, Austria, Germany, Poland, or Russia), Apex would be required to pay:
  • The higher antitrust-related reverse break-up fee of $150 million if a final non-appealable governmental order in the PRC prohibited the merger or if required antitrust approvals in the PRC were not obtained.
  • The lower antitrust-related fee of $95 million if a final non-appealable governmental order in Austria, Germany, Poland, or Russia prohibited the merger or if required antitrust approvals in those jurisdictions were not obtained (including because Apex breached its antitrust approvals efforts covenant).
In the Varian Medical Systems, Inc./PerkinElmer, Inc. deal, Varian would be required to pay a $22.08 million reverse break-up fee if either party terminated the agreement under either of the following circumstances (but where all of Varian's other closing conditions were satisfied):
  • For failure to close by the drop-dead date because of a failure to satisfy:
    • the antitrust approvals closing condition, which required HSR Act and other antitrust approvals; or
    • the condition requiring that no order or law had been enacted preventing the acquisition and that no suit was pending that was reasonably expected to result in an order preventing the acquisition or causing its rescission, in either case because of an order under antitrust laws.
  • Because a final non-appealable order prohibiting closing had issued under an antitrust law.
Varian was required to instead pay a lower $13.8 million reverse break-up fee if the fee was payable after completion of a spin-off and separation from Varian of Varex Imaging Corporation.

Deals with Antitrust and Non-Antitrust Reverse Break-Up Fees

Three of the 36 surveyed deals (8%) contained an additional reverse break-up fee payable for circumstances not having to do with antitrust. In each deal, the antitrust-related reverse break-up fee was higher than the non-antitrust-related fee.
The American Axle & Manufacturing Holdings, Inc./Metaldyne Performance Group Inc. deal contained three reverse break-up fees, only one of which was payable for antitrust reasons. In that deal, the antitrust-related reverse break-up fee was substantially higher than the two non-antitrust-related reverse break-up fees. The agreement in that deal provided for:
  • A $101,794,000 reverse break-up fee payable for antitrust failure, including if either party terminated the merger agreement because:
    • the merger did not close by the drop-dead date and all closing conditions were satisfied other than the condition requiring receipt of HSR Act approval (if required) and of other required governmental consents; or
    • of a final non-appealable restraint under the HSR Act or other applicable antitrust laws in jurisdictions agreed to by the parties.
  • Two reverse break-up fees of $50,897,000 and $61,859,000 payable for other failures to close, such as if American Axle failed to reject a competing tender or exchange offer. The larger fee was triggered if the agreement was terminated in connection with an American Axle superior proposal.
The Great Plains Energy Incorporated/Westar Energy, Inc. deal contained two reverse break-up fees, one of which was payable for antitrust reasons. The antitrust-related reverse break-up fee was substantially higher than the non-antitrust-related reverse break-up fee.
The agreement in that deal provided for:
  • A $190 million reverse break-up fee payable for antitrust failure, including if either party terminated the merger agreement because:
    • the merger did not close by the drop-dead date because of a failure to obtain HSR Act approval or other required governmental consents by a final order, or where such final order imposed conditions that were reasonably expected to result in a material adverse effect on the merged entity; or
    • a final non-appealable law or judgment was in effect preventing or making the merger illegal under antitrust law.
  • An $80 million reverse break-up fee payable for failure to obtain stockholder approval.
The Fortis Inc./ITC Holdings Corp. deal contained two reverse break-up fees, one of which was payable for antitrust reasons. The antitrust-related reverse break-up fee was higher than the non-antitrust-related reverse break-up fee.
The agreement in that deal provided for:
  • A $280 million reverse break-up fee payable for antitrust failure, including if either party terminated the merger agreement because:
    • a final non-appealable order related to antitrust approvals enjoined or prohibited the merger; or
    • the merger did not close by the drop-dead date and HSR Act approval was not obtained or a law was enacted that prohibited or restrained the merger under antitrust law.
  • A $245 million reverse break-up fee payable for fiduciary-related concerns, such as if Fortis changed its recommendation.
In 2015, nine of the 50 surveyed deals (18%) contained an additional fee that did not relate to antitrust risk.

Interaction with Other Risk-Shifting Provisions

The reverse break-up fee is not the only mechanism that parties rely on to allocate antitrust risk. Buyers and sellers can also negotiate covenants that obligate the buyer to litigate against disapproving antitrust agencies, divest assets to gain antitrust approval, or more. Of the 36 transactions in the Antitrust Risk-Shifting Database that contained antitrust-related reverse break-up fees in 2016:
  • Four deals (11% of the survey sample) had a hell-or-high-water provision, meaning a provision requiring the buyer to take any and all action to obtain antitrust approval, including litigating antitrust issues and making any required divestitures. In 2015, a similar percentage of deals (8%) had a hell-or-high-water provision.
  • Twenty-five deals (69%) (up slightly from 62% in 2015) had a provision requiring the buyer to litigate antitrust issues with no express limitations (including the three deals containing hell-or-high-water provisions). In eight deals (22%) (up slightly from six deals in 2015, or 12%), by contrast, the buyer had no obligation to litigate antitrust issues. In two deals (6%) (down from nine deals, or 18%, in 2015), the agreement did not specify the buyer's obligation to litigate antitrust issues. In one deal (3%) (down from four deals, or 8%, in 2015), the agreement provided specific limitations on the buyer's obligation to litigate antitrust issues.
  • In seven deals (19%), the buyer had no obligation to make divestitures of either party's assets to resolve antitrust concerns. In 2015, a similar percentage of deals had this provision (28%).
  • In four deals (11%), the buyer had an unconditional obligation to make divestitures of either party's assets to resolve antitrust issues. Those deals each contained a hell-or-high-water clause. In 2015, a similar percentage of deals (8%) had this provision, each of which contained a hell-or-high-water clause.
  • In one deal (3%), the agreement did not specify the buyer's obligation to make divestitures to remedy antitrust issues. In 2015, a similar percentage of deals had this provision (4%).
  • Twenty-four deals (67%) had a provision limiting the buyer's obligation to divest either both parties' assets or one party's assets, short of flatly releasing the buyer from any obligation to make any divestitures at all. In 2015, a similar percentage of deals had this provision (60%). Of the 24 deals:
    • eleven deals (46%) had a provision providing that the buyer would agree to certain specified divestitures (in 2015, seven deals, or 23%);
    • nine deals (38%) had a provision limiting the buyer's obligation to divest both parties' assets or just one party's assets to a divestiture cap, such as a certain dollar value or another measure of value (in 2015, ten deals, or 33%);
    • five deals (21%) had a provision stating the buyer had no obligation to make divestitures if doing so would be burdensome (in 2015, five deals, or 17%);
    • in five deals (21%), the buyer had no obligation to make divestitures if doing so would be materially adverse (in 2015, two deals, or 7%); and
    • in six deals (25%), the buyer had no obligation to make divestitures of both parties' assets or just of seller's assets if doing so would have a material adverse effect (MAE).
For more information on antitrust risk-shifting provisions, including when to include those provisions in a purchase agreement and how to structure those provisions, see Antitrust Risk-Shifting Toolkit. For a sample hell-or-high-water provision that can be used in a purchase agreement, see Standard Clause, Purchase Agreement: Hell or High Water Clause. For a standard clause limiting divestitures, see Standard Clause, Purchase Agreement: Limits on Potential Divestitures.

Table of Transactions

A table providing the information for each transaction surveyed in this year's study can be found here.