Sellers are forcing buyers to bear the brunt of regulatory
risks, and are adding increasingly aggressive terms to sale
contracts as the M&A market goes from strength to
Many of these tactics, including hell or high water clauses,
break fees and certain funds, were first introduced by private
equity firms looking for more certainty in transactions. As
2015 volumes approach a
record high, counsel say they are more widespread on both
public and private deals.
"Sellers are becoming increasingly aggressive, and that
means as a purchaser you need to establish the risks early on,"
said Mark Powell, a partner at
White & Case speaking at IFLR’s
Competition Law Forum last month. "A prudent purchaser is
already identifying a remedy and how much it will cost before
making an offer."
As the M&A market gains traction again sellers
are deploying increasingly aggressive...