As antitrust reviews around the world become more complex and less predictable, specific clauses in deal announcements – from reverse break frees to remedy clauses – are emerging as the best early indicators as to how parties and their advisors expect a regulatory review to proceed, according to several UK and US lawyers.

Increasingly, the contractual fine print reveals where dealmakers see regulatory pressure points. Recent UK takeovers have warned that buyers might walk if regulators demanded remedies that the parties deemed too severe. And in the US, the scope of remedy commitments, creative long stop dates, and ticking fees have been used to manage antitrust uncertainty.

“There’s been a lot of increased focus on regulatory risk in merger agreements,” said Heather Greenfield, a Washington, DC-based antitrust partner at White & Case.

“We still have the efforts clauses, the conditions precedent, reverse termination fees, and long stop dates. Those are the tools that we work under, and those tools are still available and can be used in different ways,” she continued.

How much is a buyer willing to give up?

For many mergers, the central question is not whether regulators will approve the deal, but under what conditions. One of the first points of contention transaction attorneys are labouring over in a deal announcement is how much a buyer is prepared to sacrifice to keep the deal alive.

“If you’re in a situation that might require some kind of a remedy, you then start thinking, so how bad could that remedy be?” said one UK M&A lawyer. “And if it were that bad rather than this bad, would I want to be able to walk away?”

That question has become more visible in recent UK public takeovers.

In its public announcement, US-based Ingredion said it intended to seek the UK Takeover Panel’s consent to lapse its proposed USD 3.7 bn acquisition of Tate & Lyle if a relevant regulatory authority required remedies that were “adverse to a material extent” to the Ingredion group as a whole.

OCS adopted a similar approach in its announcement for its proposed acquisition of Mitie. As well as reserving the right to lapse the deal if remedies became materially adverse, OCS explicitly flagged the possibility of a UK Competition and Markets Authority (CMA) Phase 2 review, which is likely attached to avoiding a burdensome regulatory review.

Such provisions are most common in deals that are seen as likely to raise competition concerns.

“If you’re combining two businesses and there are overlaps, you have to do the analysis as to what people think the antitrust outcome will be with the CMA, [European Commission] or US,” continued that lawyer.

From there, the discussion becomes one of limits. “You can therefore set out a parameter beyond which you’re not prepared as a buyer to agree [to] remedies,” he said.

In some deals, the parties have been willing to spell out those parameters more clearly. In Greencore’s USD 1.2bn acquisition of Bakkavor in June 2025, the announcement disclosed that the bidder would not divest more than 10% of the combined business revenues.

Similar debates are also playing out in the US. “We’re seeing a fair amount of that – more negotiation around the specific scope of the remedy commitment,” said a US-based antitrust lawyer. “You definitely can find circumstances where there’s very specific commitments around a willingness to divest, say, plants A, B and C, but not D, E and F.”

“In the US under this administration, there has been an openness by both [Department of Justice] and the [Federal Trade Commission] to accept remedies, and we have seen a lot of remedies and divestitures come across in transactions,” said Greenfield.

“And the parties are focused on what those remedy clauses are, how granular they should be, what the buyer is willing to do [and] what the buyer is not willing to do,” she added.

While the wording differs from deal to deal, buyers are increasingly trying to define in advance how far they are prepared to go to secure regulatory approval, thereby providing an early indication of both their commitment to a deal and the concessions that could put it at risk.

During the Biden administration, there was an uptick in reverse termination fees, said the US-based antitrust lawyer. Since the start of the Trump administration, however, the trend has been moving more toward negotiating remedy provisions and obligations, this lawyer said.

“The major jurisdictions are all in a place where you can get deals done, assuming that you have the right incentives reflected in the merger agreement, and you’re prepared to do what it takes to remedy concerns,” the same lawyer said.

Timing tells a story

Timing expectations when deals are announced can reveal regulatory expectations – for example, how much parties are bracing for scrutiny and from which jurisdictions.

Long stop dates have always been an essential tool in merger agreements, but recently, they have been used in creative ways to mitigate risk, said Greenfield. Those can include an increase in automatic extensions that can be employed as antitrust investigations exceed the original timeline, and mini-or partial reverse termination fees paid to sellers in the case of certain extensions, she said.

Long-stop dates do not have to be just static drop-dead dates, she said. “It’s a tool. It’s a mechanism to control the timing around the regulatory considerations,” she said.

While dealmaking within the US appears to have gotten easier since the start of the Trump administration – many companies believe there is a path forward if they are willing to agree to remedies with the DOJ or FTC – international deals can present more risk and lawyers familiar with jurisdiction outside the US are being called in to consult on those issues, Greenfield said.

If a CMA investigation is expected, for example, parties “generally need to build in a longer time period,” she said.

While the UK government has said publicly that it will aim to be less interventionist, the CMA may find “themselves busier than they have thought,” Greenfield said. And when dealmakers consider merger agreements with a global mindset, “the CMA is in the conversation very often, and more than it used to be,” Greenfield said.

Dealmakers can expect a timeline of at least 12-18 months for large, global deals where multiple jurisdictions may take a look, she said. But unpredictable European reviews can push long-stop dates even longer, according to Greenfield.

Thresholds that trigger a merger filing in foreign jurisdictions have historically provided a safeguard of sorts for US buyers, Greenfield said. Now, however, US dealmakers are grappling with the uncertainty as to how to approach the risk that a foreign country could investigate a deal technically under its threshold, she said.

“You’ve gone from this clean list of, here are the jurisdictions where I have to file, to here are some jurisdictions where I have to file, and I don’t know really what’s going to happen with these other jurisdictions,” Greenfield continued.

On the other hand, some merging parties may purposefully limit deal timelines in order to create an escape hatch if the regulatory review drags on, Greenfield said.  “There are still ways to get your deal done in a short time frame if you want to take that risk, and if it seems to be longer, walk away,” she said.

Methods used to push a deal through quickly include “ticking fees, tiered reverse termination fees that create an incentive for the acquiring firm to push through the process as quickly as possible, and that compensate the seller for being held up for longer if it’s a longer, more protracted process,” said the first US-based antitrust lawyer.

In Paramount’s acquisition of Warner Bros. Discovery, for example, the companies agreed to a ticking fee of roughly USD 7m daily to kick in if the deal was not closed by 30 September. While the DOJ review progressed fairly quickly, a lawsuit from a coalition of state attorneys general added significant strain to the timeline.

“The reviews under Biden took longer, and there’s still some sense in which they can take longer, and so you see ticking fees being used,” the first US lawyer said, citing Warner Bros./Paramount as an example.

While there is a more deal-friendly environment in the US federally, “there’s the spectre of state enforcement,” the first US antitrust lawyer said.

What deal announcements leave out

For all the attention paid to deal announcements, some of the most important information is what is left unsaid.

Documents frequently contain phrases such as “adverse to a material extent” or “material adverse effect,” but those terms are often left deliberately undefined, according to the first UK M&A lawyer and a UK-based antitrust lawyer.

In Tate & Lyle’s acquisition by Ingredion, for example, the parties stated that the buyer could seek to walk away if regulators imposed remedies that were adverse to a material extent to the Ingredion group as a whole. However, they did not publicly explain what level of divestiture would meet that threshold.

This ambiguity is often intentional. “Parties sometimes don’t want to put it out there because people worry that if they have a specific agreement on this stuff, the regulators will see it and start thinking that’s a free shot,” said the first UK M&A lawyer.

In other words, companies are often reluctant to disclose precise remedy thresholds for fear of providing regulators with a roadmap during negotiations.

The challenge is that phrases such as “adverse to a material extent” have no fixed legal meaning. “That term… isn’t a legally defined term,” said the UK antitrust lawyer.

“If there was a disagreement between the parties around what was material, that would go to court,” they said. As a result, two deals can contain similar language while potentially implying very different thresholds in practice.

Nor do contractual protections provide an automatic route out of a deal. Under the UK Takeover Code, bidders require the consent of the UK Takeover Panel before invoking a condition to lapse a deal.

“Even if the parties have agreed [to] something, there is still this overlay of the Takeover Panel,” the UK antitrust lawyer said. Ultimately, the Panel must decide whether the circumstances are sufficiently material to justify a bidder walking away.

Public disclosures may also fail to tell the complete story. There may be “an understanding between the parties which is not in the public domain” about what constitutes an unacceptable outcome, the lawyer continued.  As a result, investors may be seeing only part of the picture when assessing true regulatory risk.

In an era of regulatory uncertainty, merger contracts are evolving with the times and reflecting the most acute government-imposed risks that can be foreseen. Those documents are meanwhile becoming ever more crucial guides as to where parties may see trouble.