For the first time, the dollar thresholds for pre-acquisition filings required by the Hart-Scott-Rodino Antitrust Improvements Act of 1976 (the “Act”) will decrease. This unprecedented decrease will take effect in mid to late February (thirty (30) days following publication in the Federal Register). The applicable dollar thresholds have been adjusted on an annual basis since 2000 based on changes in the gross national product.
Pursuant to the Act, parties to certain merger or acquisition transactions are 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:
- As a result of the contemplated transaction, the ultimate parent entity of the acquiring person (the “Acquirer”) will hold more than $253.7 million (decreased from $260.7 million in 2010) worth of assets or voting securities of the acquired party (the “Target”); or
- As a result of the contemplated transaction, the Acquirer will: (a) hold more than $63.4 million (decreased from $65.2 million in 2009) 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 $126.9 million (down from $130.3 million in 2009), and the Target has annual total assets or annual net sales equal to or greater than $12.7 million (down from $13.0 million in 2009)1 ; or (b) the Acquirer has total assets or annual net sales equal to or greater than $12.7 million, and the Target has annual net sales or total assets equal to or greater than $126.9 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 $126.9 million $45,000 $126.9 million to less than $634.4 million $125,000 Greater than $634.4 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.