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Amendments to Hart-Scott-Rodino Pre-Merger Filing Law

February 2001
By Shirley Z. Johnson, National Chair, Antitrust & Trade Regulation Practice*

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Congress has amended the Hart-Scott-Rodino ("HSR") Antitrust Improvements Act ("Act") thresholds for the first time since the Act was adopted in 1976. The amendments and interim rules interpreting the Act became effective on February 1, 2001. The interim rules and additional proposed rules are subject to public comment and may be changed after comments are received.

Shirley Z. Johnson
"The HSR law and rules are intricate, similar in difficulty to the tax laws."

The Act requires acquisitions of a certain size to be reported to the Federal Trade Commission ("FTC") and the Antitrust Division, U.S. Department of Justice prior to their consummation. Its purpose is to give the government a chance to stop an anticompetitive acquisition before it is closed. The government has found that it is more difficult to unwind a transaction after the assets have been commingled than to enjoin it.

The parties are permitted to close an acquisition 30 days after they make the HSR filing unless the period is shortened or extended by one of the government agencies. About 70% of the time, the waiting period is shortened.

The principal changes in the Act are to modify the monetary thresholds that require a filing and to create a sliding scale for filing fees based on the size of the transaction.

Size-of-Person Test

Under prior law, a filing had to be made only if both of the parties to the transaction and the transaction value satisfied certain thresholds. Under the new law, a transaction valued at greater than $200 million has no size-of-person test. Thus, an acquisition exceeding $200 million made by a newly-formed company with multiple investors, which has no assets other than cash to make the acquisition, would require an HSR filing under the new law. Under the old law, no filing would have been needed because the new company would not have met the size-of-person test.

For transactions valued at $200 million dollars or less, both a size-of-person and transaction test must be met. The transaction value plus prior holdings must exceed $50 million to require a filing. The size-of-person test remains unchanged. That is, generally speaking, the ultimate parent entity (the company or person at the top of the chain of ownership) of one of the parties must have assets or revenues of at least $10 million, and the other party must have assets or revenues of at least $100 million.

Filing Thresholds

Acquisitions of assets made within 180 days involving the same ultimate parent entities (or any of their subsidiaries) must be aggregated to determine the value of the transaction.

Acquisitions of stock must be aggregated forever at the fair market value of the stock held at the time an additional acquisition is contemplated. In some situations, prior asset acquisitions must be aggregated with stock purchases.

A filing must be made before each of the following transaction thresholds is reached:

  • in excess of $50 million
  • $100 million
  • $500 million
  • 25% (if the amount of voting securities to-be-held exceeds $1 billion)
  • 50% (if the amount of voting securities to-be-held exceeds $50 million)

Thus, there is a possibility of five filings for incremental stock acquisitions.

Valuation

Because of the number of filing thresholds, valuation of a transaction and of prior holdings is important.

Asset Purchase. An asset acquisition is valued at the fair market value of the assets or the acquisition price, whichever is greater. The fair market value is to be determined by the board of directors of the acquiring company or someone selected by that board. For the first time, the HSR filing requires that the person making the fair market valuation be identified.

Assumed liabilities must be added to the fair market value or purchase price to determine the value of the assets for HSR purposes. Also, if the acquisition price is paid over a period of time, the total expected payment is included in the valuation. It cannot be discounted to current value.

Stock Purchase. Stock to-be-purchased is valued at the higher of the purchase price or the lowest price at which the stock traded (if the company is public) within 45 days before the closing.

Prior purchases are valued in the same way and not at their purchase price. Consequently, if previously-purchased stock has grown in value, a filing could be required for the purchase of as little as $1 of additional stock. For example, if stock purchased for $40 million has grown in value to $50 million or more, the purchase of $1 of stock would require a filing.

As is currently true, a filing must be made for secondary acquisitions. A secondary acquisition occurs where stock is acquired in a company which holds more than $50 million of stock in another company which it does not control. A separate filing for the indirect acquisition of the stock of that third-party company must also be made if the size thresholds are satisfied.

Filing Fees

The filing fee is now graduated depending on the size of the transaction as follows:

Transaction Value  Filing Fee
>$50 to $99.99 million  $45,000
$100 to $499.99 million $125,000
$500 million or more $280,000

These levels and the filing thresholds will be adjusted annually for changes in the gross national product during the previous year beginning in fiscal year 2005.

HSR Form

The FTC, which administers the Act, has issued a new report form. In addition to requiring the identity of the person calculating fair market value, the form has other changes.

It requests that any countries where foreign filings are made be listed because of the number of acquisitions (over half) which require one or more foreign filings. The form now asks whether the party being sold is in bankruptcy. This is because the standard 30-day waiting period between filing the HSR and the permitted consummation is shortened to 15 days where the acquired party is in bankruptcy.

The form eliminates the need to identify sales of manufactured products sold by the parties to each other. This information was required in the original form to identify the amount of vertical dealings. The FTC decided that the vertical nature of the partiesí relationship can be identified from other information in the form, so sales between the parties no longer need to be separately disclosed.

As with the prior form, the parties to the acquisition must file certain documents which relate to competition. To avoid the creation of documents which may trigger an investigation, companies contemplating acquisitions or sales should consult with antitrust counsel before they or their investment bankers create documents.

Waiting Period

Under the prior law, the waiting period between filing the HSR and closing the transaction was 30 calendar days. Under the new rules, if the 30-day period would end on a weekend or public holiday, the waiting period will be extended to the next business day. Thus, the waiting period could be increased by as much as three days, to 33 days.

Second Request

If the government is concerned at the end of the 30-day waiting period that the acquisition may adversely affect competition, it may request additional information, which is known as a "second request." Under the old rules, the government had 20 days after the parties had complied with the second request to decide whether to seek an injunction to stop the acquisition. The new law gives the government 30 days in which to make a decision.

The law also permits the parties to appeal the scope of a second request within the government agencies. In the past, companies have often produced hundreds of boxes of documents which the government did not have time to read. It is hoped that the formal appeal process will reduce the size of productions.

Penalty

The penalty for failure to file an HSR will continue to be $12,000 a day. The penalty begins to accrue on the day the HSR should have been filed and ends on the day the HSR filing is made. The penalty is increased periodically.

Conclusion

The HSR law and rules are intricate, similar in difficulty to the tax laws. The revisions to the law, for the most part, increase the complexity.

* The author would like to thank Nancy Strick for her assistance in writing this alert.

 

© 2000 Greenberg Traurig


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