February 15, 2020

Deal Summary

Deal Summary: brief overview of transaction and its provisions

Actavis/Forest Labs. (FTC 2014) | Actavis/Warner Chilcott (FTC 2013) | Albertsons/Safeway (FTC 2014) | American Airlines/U.S. Airways (DOJ 2013) | Anheuser-Busch InBev/Grupo Modelo (DOJ 2012-13) | Anheuser-Busch Inbev/SabMiller (TBA 2015) | AT&T/DirecTV (DOJ 2014) | Comcast/Time Warner (DOJ 2014) | ConAgra, Cargill, CHS Inc., Horizon Milling Joint Venture (DOJ 2014) | Dollar Tree/Family Dollar (FTC 2014-2015) | Express Scripts/Medco (FTC 2011-12)  | Gannett Co./Belo Corp. (DOJ 2013) | Jos A. Bank/Men's Warehouse (FTC 2014) | Kroger/Harris Teeter (FTC 2014) | Medtronic/Covidien (FTC 2014) | Mylan/Agila Specialties (FTC 2013) | National CineMedia/Screenvision (DOJ 2014-2015) | Nielsen Holdings/Arbitron (FTC 2012-14) | Office Depot/OfficeMax (FTC 2013)  | Pinnacle Entertainment/Ameristar Casinos (FTC 2013) | Sysco/US Foods (FTC 2014) | Tyson Foods/Hillshire Brands (TBD 2014) | Verso Paper/Newpage Holdings (DOJ 2014-2015) | Western Digital/Hitachi (FTC 2012) | Zillow/Trulia (FTC 2014-2015)


Actavis/Forest Laboratories (FTC 2014)

(a)            Deal Summary. On February 17, 2014, Forest Laboratories, Inc. and Actavis plc announced a merger pursuant to which Actavis agreed to acquire Forest Laboratories for approximately $25 billion. Forest and Actavis agreed to use reasonable best efforts to consummate the transaction as soon as possible. Actavis agreed to certain actions that may be required, such as licensing, selling or disposing of assets or businesses, but did not agree to take any actions that would result in a material adverse effect on itself. Actavis announced on April 17, 2014 that the FTC had issued a second request. Actavis announced on June 30, 2014 that the FTC voted to approve the transaction, and the deal closed on July 1, 2014.

Actavis/Warner Chilcott (FTC 2013)

(a)            Deal Summary. On May 19, 2013, Actavis announced that it would acquire Warner Chilcott for $8.5 billion. Actavis maintained control of “all communications and strategy relating to the Antitrust Laws,” and both parties agreed to use reasonable endeavours to consummate the transaction, including litigation. The parties did not agree to a reverse break-up fee, but did agree to negotiate divestitures so long as such divestitures did not constitute a material adverse effect. The parties were permitted to walk away from the transaction 9 months after signing (February 19, 2014), though that time period could be extended to one year under certain circumstances (May 19, 2014). On September 20, 2013 the parties and FTC announced an agreement to settle FTC concerns by divesting rights and assets related to four general pharmaceuticals.

Albertsons/Safeway (FTC 2014)

(a)            Deal Summary. On March 6, 2014, Safeway Inc. and Albertsons announced the execution of an agreement and plan of merger whereby Albertson’s will acquire Safeway for approximately $9.4 billion. The parties agreed to use reasonable best efforts to consummate or make effective the merger. Albertsons agreed to take any and all steps to avoid or eliminate each and every impediment under any Antitrust Law, including actions such as hold separate orders, sales, divestitures, licensing and operational restrictions. Albertsons agreed to a $400 million reverse break fee. The merger must be consummated on or prior to March 5, 2015, but may be extended in Albertson’s sole discretion, to June 5, 2015. On January 27, 2015 the FTC and parties announced that the parties would divest 168 supermarkets in order to close the transaction.

American Airlines/US Airways (DOJ 2012)

(a)            Deal Summary. US Airways and American Airlines agreed to merge on February 13, 2013 in a deal valued at approximately $11 billion. The parties were required to use “reasonable best efforts” to obtain all “all material consents, registrations, approvals, permits and authorizations necessary or advisable,” including defending litigation related to the transaction and agree to divest assets so long as such divestiture did not have a material adverse effect. The parties did not agree to a reverse break-up fee. Either party was permitted to abandon the transaction as of October 14, 2013 (8 months), though such date could be extended by either party through December 13, 2013 (10 months), which date could be extended by either party if the other party had not substantially complied with any Second Request issued within 60 days day-for-day for each day after the 60th before substantial compliance. On August 13, 2013, the DOJ, along with six state attorneys general and the District of Columbia filed a lawsuit to block the deal. The parties agreed to divest facilities at seven airports, on November 12, 2013, which was eventually approved by the district court on April 25, 2014.

Anheuser-Busch InBev/Grupo Modelo (DOJ 2012-13)

(a)            Deal Summary. Anheuser-Busch InBev agreed to acquire Grupo Modelo on June 28, 2012 for $20.1 billion. In addition to commitments from Anheuser-Busch to divest assets in order to get the transaction approved, Anheuser-Busch also agreed to a $650 million reverse termination fee. The parties agreed that either party could abandon the transaction as of December 30, 2013 (18 months). If an antitrust investigation or litigation was the reason that the transaction had not yet closed, then either party could elect to extend the termination date by a period of 90 calendar days (21 months). On January 13, 2013, the DOJ filed a lawsuit to block the deal. The parties agreed to divest Modelo’s U.S. business to Constellation Brands Inc. on April 19, 2013, which divestiture was eventually approved by the district court on October 24, 2013.

Anheuser-Busch Inbev/SabMiller (TBA 2015)

(a)            Deal Summary. Anheuser-Busch Inbev announced an agreement to acquire SABMiller for about $108 billion on November 11, 2015. AB InBev retained the right to determine the strategy for gaining antitrust clearance and agreed to use its best efforts to do so. Both parties agreed to provide information and assistance that may reasonably be required for obtaining clearances and structuring remedies. AB InBev agreed that using “best efforts” to obtain clearances may require it to offer divestitures to regulatory authorities. AB InBev also agreed to a reverse break fee of $3 billion. The DOJ has issued a Second Request is continuing to investigate the merger. The agreement terminates if not completed within 18 months of the date of the announcement (May 11, 2017).

AT&T/DirecTV (DOJ 2014)

(a)            Deal Summary. On May 18, 2014, DIRECTV and AT&T entered into an Agreement and Plan of Merger whereby DIRECTV will merge with AT&T for a proposed $48.5 billion. Pursuant to the agreement, AT&T and its subsidiaries are required to take any actions that, in the aggregate, are de minimis, but are not required to agree to any remedies, such as divestitures or hold separates. AT&T did not agree to a reverse break fee. The agreement may be terminated if not consummated by May 18, 2015, subject to an extension for certain cases to a date not beyond November 13, 2015. DOJ closed its investigation into the merger on July 21, 2015.

Comcast/Time Warner (DOJ 2014)

(a)            Deal Summary.  On February 13, 2014, Comcast and Time Warner announced their plan to merge in a stock-for stock transaction amounting to approximately $45.2 billion. Comcast is required to use “reasonable best efforts” to consummate the transaction, it is not, however, required to litigate, hold-separate or make any divestitures to obtain clearance other than an agreement to divest up to three million subscribers of the combined company. The parties agreed that either company could initially terminate the transaction twelve months after signing (February 12, 2015).  The parties announced that they abandoned the transaction on April 24, 2015 after FCC staff recommended that the FCC issue a hearing designation order.

ConAgra, Cargill, CHS Inc., Horizon Milling Joint Venture (DOJ 2014)

(a)               Deal Summary. On March 4, 2013, ConAgra Foods, Cargill and CHS Inc. entered into an agreement to form a joint venture, Ardent Mills, to combine the North American flour milliing operations of the four parties. ConAgra and Foods and Cargill would each hold 44% of the total share capital of Ardent Mills and CHS would hold 12% of the total issued shared capital. The parties agreed that parties could initially terminate the transaction twelve months after signing (March 31, 2014), though the agreement permitted extensions under certain conditions with a maximum of 15 months (June 30, 2014). The DOJ required the parties to divest four competitively significant flour mills in order to proceed with the formation of Ardent Mills, a flour milling joint venture. The parties amended the agreement on May 25, 2014 and completed the transaction on May 29, 2014.

Dollar Tree/Family Dollar (FTC 2014-2015)

(a)           Deal Summary. On July 28, 2014, Dollar Tree announced an agreement to acquire Family Dollar for $8.5 billion. The parties agreed to use their “reasonable best efforts” to obtain clearance for the deal and to resist and defend against any legal proceeding to prevent the transaction. Dollar Tree agreed to divest up to 500 stores if necessary to obtain clearance for the deal, but did not agree to a reverse break fee. Each party retained the right to terminate the transaction if it was not completed by April 27, 2015. This termination date was automatically extended to July 27, 2015 if the only outstanding closing condition was the expiration of HSR Act waiting periods. The FTC issued a second request on September 8, 2014 and the parties certified compliance on November 7, 2014. The FTC issued a complaint and proposed consent order on July 2, 2015. The parties agreed to divest 330 stores and closed the transaction on July 6, 2015.

Express Scripts/Medco (FTC 2011)

(a)            Deal Summary. On July 21, 2011, Express Scripts announced that it would acquire Medco for $29.1 billion. Express Scripts was required to use “reasonable best efforts” to defend any litigation seeking to block or delay the merger. Although there was no reverse breakup fee, Express Scripts agreed to make specific divestitures to obtain clearance. The parties agreed that either company could initially terminate the transaction nine months after signing (April 20, 2012), though the merger agreement permitted extensions under certain conditions with a maximum of 14 months (October 22, 2012). The deal received unconditional clearance by the FTC on April 2, 2012.

Gannett Co./Belo Corp. (DOJ 2013)

(a)            Deal Summary. On June 13, 2013, Gannett announced that it would acquire Belo Corp. for $1.5 billion. Gannett was required to use “reasonable best efforts” to defend any litigation seeking to block or delay the merger. Although there was no reverse breakup fee, Gannett agreed to divestitures so long as they did not have a material adverse effect. The parties agreed that either party could terminate the agreement if it had not been consummated by December 27, 2013 (6 months). On December 16, 2013 the parties and DOJ announced an agreement to settle DOJ concerns by divesting assets in the St. Louis area.

Jos A. Bank/Men’s Wearhouse (FTC 2014)

(a)            Deal Summary. On November 26, 2013, Men’s Warehouse announced that it would acquire Jos A. Bank for approximately $55 per share (ultimately $1.8 billion). Men’s Wearhouse was required to use “best efforts” to “vigorously litigate any suit or proceeding” seeking to block or delay the merger. Although, Men’s Wearhouse is not required to hold-separate or make any divestitures to obtain clearance. The parties agreed that either company could initially terminate the transaction by September 30, 2014. The FTC cleared the transaction on May 30, 2014 when it issued letters to each party closing its investigation of the transaction.

Kroger/Harris Teeter (FTC 2014)

(a)               Deal Summary. Kroger and Harris Teeter signed a definitive merger agreement on July 9, 2013. Kroger was required to use its “reasonable best efforts” to propose, negotiate, commit to and effect, by consent decree, hold separate order, or otherwise, the sale, divestiture or disposition of assets of Parent or the Company. The parties agreed that either company could initially terminate the transaction eight months after signing (March 30, 2014), though the merger agreement permitted extensions under certain conditions with a maximum of 14 months (September 30, 2014). The deal was completed on January 28, 2014 after the FTC granted early termination of the waiting period on January 17, 2014.

Medtronic/Covidien (FTC 2014)

(a)        Deal Summary. Medtronic announced its planned acquisition of Covidien for $42.9 billion on June 15, 2014. Each party agreed to use its “reasonable best efforts” to obtain clearance for the merger and to use those same efforts to contest and resist any litigation or other legal action challenging the transaction. The parties agreed to make any divestitures required to obtain clearance so long as any divestiture would not reasonably be expected to have a material adverse effect on the agreement. Medtronic agreed to pay a reverse break fee of $850 million. The agreement allowed either party to terminate after March 15, 2015, if the transaction was not yet closed. The merger agreement also extended the termination date to June 15, 2015 under certain circumstances. The companies announced that the FTC issued a second request on August 6, 2014. The FTC cleared the merger on November 26, 2014 after the parties agreed to divest part of their drug-coated balloon catheter business. Medtronic announced it had successfully completed the acquisition on January 26, 2015.

Mylan/Agila Specialties (FTC 2013)

(a)               Deal Summary. Mylan and Strides Arcolab Limited entered into a definitive agreement for the acquisition of the Agila injectables business from Strides Arcolab Limited on February 27, 2013. The deal was valued at $1.75 billion, which included $250 million contingent consideration. While Mylan lead the strategy, both parties agreed to use “best endeavors” to close the transaction, including divestitures so long as the divestiture did not have a material adverse effect. Mylan and Agila entered into a consent agreement with the FTC to divest 11 generic injectable drugs as a condition of allowing Mylan’s proposed acquisition of Agila. The parties completed the deal on December 4, 2013.

National CineMedia/Screenvision (DOJ 2014-2015)

(a)         Deal Summary. National Cinemedia, Inc. announced on May 5, 2014 that it had entered a definitive merger agreement with Screenvision for $375 million. The parties agreed to use “reasonable best efforts” to obtain all clearances and to defend against all lawsuits or other proceedings challenging the merger. The agreement required divestitures only if the divestiture would not result in a material adverse effect. National Cinemedia agreed to a reverse termination fee of $28.84 million. Each party retained the right to terminate if the HSR waiting period and any extension of the period had not expired by May 5, 2015. The termination date was subject to an additional 90 day extension (August 3, 2015) upon written notice by National Cinemedia. The DOJ challenged the transaction on November 3, 2014. The parties announced they had abandoned the deal on March 16, 2015.

Nielsen Holdings/Arbitron (FTC 2012-13)

(a)            Deal Summary. On December 17, 2012, Nielsen Holdings announced that it would acquire Arbitron for $1.28 billion. The parties agreed that they would use reasonable best efforts to consummate the merger, including defending lawsuits. The parties agreed to a reverse break-up fee of $131 million and Nielsen committed to make divestitures so long as they did not have a “material adverse effect.” The parties agreed that either company could initially terminate the transaction after October 31, 2013 (10 months), but that if the closing conditions were not met because of litigation arising out of HSR, that date could be extended by no more than two times by a period of thirty-eight days. On September 20, 2013 the parties and FTC announced an agreement to settle FTC concerns by divesting assets related to Arbitron’s cross-platform audience measurement business.

Office Depot/OfficeMax (FTC 2013)

(a)            Deal Summary. On February 20, 2013, Office Depot agreed that it would acquire OfficeMax in an all-stock deal, valued at approximately $1.2 billion. The parties did not agree to a reverse break-up fee, but did agree to non-material divestitures to resolve antitrust concerns unless otherwise agreed to by the parties. The parties were permitted to abandon the transaction on December 31, 2013 (10 months), provided that if the only outstanding closing conditions related to antitrust clearance, the termination date automatically was pushed back to April 30, 2014 (14 months). After a seven-month investigation, the FTC unconditionally cleared the merger on November 1, 2013.

Pinnacle Entertainment/Ameristar Casinos (FTC 2013)

(a)               Deal Summary. On December 20, 2012, Pinnacle Entertainment entered into an agreement to acquire Ameristar for $2.8 billion. Pinnacle agreed to make specific divestitures to obtain clearance. The reverse break fee was $38 million. The parties agreed that either company could initially terminate the transaction nine months after signing (September 21, 2013), though the merger agreement permitted extensions under certain conditions with a maximum of twelve months. The parties completed the deal on August 14, 2013 after reaching an agreement with the FTC to divest the Ameristar Casino Lake Charles development project and the Lumiere Place Casino and Hotels.

Sysco/US Foods (FTC 2014)

(a)            Deal Summary. On December 9, 2013, Sysco and US Foods announced their plan to merge in a transaction whereby Sysco will acquire US Foods for approximately $3.5 billion. Sysco is required to use “reasonable best efforts” to consummate the transaction; it is not, however, required to hold-separate or make any divestitures to obtain clearance. There is a reverse termination fee of $300,000,000 if Sysco terminates the agreement pursuant to an order or decree under any Competition Law. The parties agreed that either company could initially terminate the transaction by March 8, 2015. The FTC filed a lawsuit to challenge the merger on February 19, 2015. The U.S. District Court for the District of Columbia issued a preliminary injunction blocking the deal on June 23, 2015, and Sysco announced that it terminated the merger agreement on June 29, 2015.

Tyson Foods/Hillshire Brands (DOJ 2014)

(a)                 Deal Summary. On June 8, 2014, Tyson Foods, Inc. announced its intention to acquire The Hillshire Brands Company, through a unilaterally binding offer, for approximately $7.7 billion. The parties agreed to use their reasonable best efforts to consummate the transaction. Tyson agreed to commit to or effect, by consent decree, hold separate orders, trust, or otherwise, the sale or disposition of, or prohibition or limitation on the ownership or operation by Parent and the Company or any of their respective Subsidiaries of, such assets or businesses as may be required. No reverse break fee was required. The parties further agreed that either party could walk away from the transaction at the earlier of June 6, 2015 and five months after the execution of the Agreement by the Company (November 8, 2014), unless all conditions had been met except for expiration of the HSR waiting period, which extended the agreement another four months (either March 8, 2015 or October 6, 2105). On August 27, 2014 the DOJ and parties announced that the parties would divest a sow purchasing business in order to close the transaction.

Verso Paper/Newpage Holdings (DOJ 2014-2015)

(a)                Deal Summary. On January 6, 2014, Verso Paper announced that it would acquire Newpage Holdings in a deal valued at $1.4 billion. Each party was required to use its “reasonable best efforts” to consummate the merger including obtaining all necessary clearances. The parties also agreed to use “reasonable best efforts” to contest and resist any action challenging the merger as violative of any Law. Verso did not agree to a reverse break fee but did agree to take action to resolve objections by committing to a sale, divestiture, or behavioral conditions provided that the commitment does not exceed a specific level of materiality for the combined company. The parties agreed that either company could terminate the transaction after December 31, 2014, though the merger agreement permitted two extensions of up to 30 days each (January 30, 2015; March 1, 2015) if the only unmet merger condition is expiration of the HSR waiting period. The DOJ simultaneously filed suit to block the transaction and a proposed settlement agreement on December 31, 2014. The parties agreed to divest two paper mills and announced the transaction closed on January 7, 2015.

Western Digital/Hitachi (FTC 2012)

(a)            Deal Summary. On March 7, 2011, Western Digital announced that it would acquire Hitachi for $4.3 billion. Western Digital was required to use “reasonable best efforts” to defend any litigation seeking to block or delay the merger. Although there was no reverse breakup fee, Western Digital agreed to make specific divestitures to obtain clearance. The parties agreed that either company could initially terminate the transaction twelve months after signing (March 7, 2012). The FTC conditionally cleared the transaction on March 5, 2012 when it issued a modified final Decision and Order requiring Western Digital to sell assets used to manufacture and sell desktop computer hard disk drives to Toshiba Corporation to resolve the agency’s competition concerns.

Zillow/Trulia (FTC 2014-2015)

(a)           Deal Summary. Zillow announced plans to purchase Trulia for about $3.5 billion in stock on July 28, 2014. The parties agreed to use “reasonable best efforts” to consummate the transaction including by defending, through litigation on the merits, any claim that would prevent the merger. The parties did not make any remedy commitments; however, Zillow agreed to a $150 million reverse break fee. Each party retained the right to terminate the agreement if the transaction did not close by January 28, 2016. The FTC issued a second request on September 3, 2014 and cleared the deal unconditionally on February 13, 2015. The parties closed the transaction on February 17, 2015.