Authored by Patricia Zeigler
The Federal Trade Commission has announced new (2017) premerger notification thresholds under the Hart-Scott-Rodino Act as follows:
Any acquisition of voting securities and/or assets requires premerger notification to the Federal Trade Commission and the Department of Justice under the HSR Act and the regulations promulgated thereunder (16 C.F.R. Sections 801 – 803) if the following tests are satisfied and if no exemption applies (15 U.S.C. Section 18a(a)(2)). Where a premerger notification is required, both parties must file, the acquiring person must pay a filing fee ((i) $45,000 for transactions below $161.5 million, (ii) $125,000 for transactions of $161.5 million or more but less than $807.5 million, and (iii) $280,000 for transactions of $807.5 million or more) and the parties must observe a 30 day waiting period prior to closing.
*Transactions valued at $80.8 million or less are not reportable: If as a result of the acquisition, the acquiring person will hold an aggregate total amount of voting securities and assets of the acquired person valued at $80.8 million or less, then the HSR Act does not apply regardless of the size of the parties involved;
*Transactions valued in excess of $323 million are reportable: If as a result of the acquisition, the acquiring person will hold an aggregate total amount of voting securities and assets of the acquired person valued in excess of $323 million, then the HSR Act applies and a filing must be made prior to the acquisition regardless of the size of the parties involved;
*Transactions valued in excess of $80.8 million but less than $323 million: If as a result of the acquisition, the acquiring person will hold an aggregate total amount of voting securities and assets of the acquired person valued in excess of $80.8 million but not in excess of $323 million, then the HSR Act applies only if the following size-of-parties tests are also met:
One party to the transaction, or its Ultimate Parent Entity , must have $161.5 million or more in total assets or annual net sales; and
The other party to the transaction, or its Ultimate Parent Entity must have $16.2 million or more in total assets or annual net sales.
The new thresholds were published in the Federal register on January 26, 2017 (82 Fed. Reg. 8524 (Jan. 26, 2017) and will become effective 30 days later. (the "Effective Date"). Parties whose transaction will close on or after the Effective Date will be subject to the revised thresholds.
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