Effective February 2009 – Revised Thresholds for Hart-Scott-Rodino Filings


by Dave Roe and Tom Worthington

Roe, David     Worthington, Thomas
droe@mcgrathnorth.com
tworthington@mcgrathnorth.com
(402) 341-3070

Effective in mid to late February of 2009 (the exact date is yet to be determined), the dollar thresholds for pre-acquisition filings required by the Hart-Scott-Rodino Antitrust Improvements Act of 1976 (the “Act”) will increase.  Pursuant to the Act, parties to certain merger or acquisition transactions are generally required to submit pre-acquisition filings to the Federal Trade Commission and Department of Justice, and are further required to comply with the Act’s applicable waiting periods (typically 30 days), prior to consummating the transaction if:

  1. As a result of the contemplated transaction, the ultimate parent entity of the acquiring person (the “Acquirer”) will hold more than $260.7 million (increased from $252.3 million in 2008) worth of assets or voting securities of the acquired party (the “Target”); or
  2. As a result of the contemplated transaction, the Acquirer will: (a) hold more than $65.2 million (increased from $63.1 million in 2008) worth of assets or voting securities of the Target; and (b) the “Size-of-Person” test, as detailed below, is satisfied.

The “Size-of-Person” test is generally satisfied if: (a) the Acquirer has total assets or annual net sales equal to or greater than $130.3 million (up from $126.2 million in 2008), and the Target has annual total assets or annual net sales equal to or greater than $13.0 million (up from $12.6 million in 2008)1 ; or (b)  the Acquirer has total assets or annual net sales equal to or greater than $13.0 million, and the Target has annual net sales or total assets equal to or greater than $130.3 million.

Also effective in mid to late February of 2009, the dollar thresholds for determining the applicable filing fee will be as set forth below.

Value of Assets / Voting Securities Acquired Filing Fee
Less than $130.3 million $45,000
$130.3 million to less than $651.7 million $125,000
Greater than $651.7 million $280,000

Please note that numerous exemptions and aggregation calculations may apply when determining: (a) whether a pre-acquisition filing is required; and (b) the correct filing fee for the underlying transaction.  Therefore, parties to a transaction should seek the guidance of qualified legal counsel to assist with such an analysis.

For additional information, please contact Dave Roe or Tom Worthington.

1If the Target is not engaged in manufacturing then annual net sales are irrelevant, and the Target must therefore have $13 million or more of total assets to satisfy the “Size-of-Person” test.

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