Perhaps no topic has engendered more conversation among dealmakers in recent months than the allocation between merging parties of the risk of obtaining antitrust approval of a proposed acquisition. With the increase in strategic combinations and the expectation of a more robust regulatory environment under the current administration, many recent merger agreements feature painstakingly negotiated provisions to address these risks. While much attention has been devoted to headline-grabbing reverse termination fees payable to the seller by the buyer upon failure to obtain required antitrust approvals in such deals as Google/Motorola Mobility ($2.5 billion or 20% of deal value) and AT&T/T-Mobile (~$6 billion of value/15%), it is important to realize that the reverse termination fee is just one facet (as often absent as not) of a complex matrix of provisions in the merger agreement that ultimately determines the risk-sharing between the parties on this issue.

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