The Federal Trade Commission has announced the annual threshold adjustments for premerger filings under the Hart-Scott-Rodino Antitrust Improvements Act of 1976 (15 U.S.C. § 18a) ("HSR"). The new thresholds will take effect February 22, 2010 and will govern all transactions closing on or after that date.
The new thresholds have decreased the dollar amount required to trigger HSR notification and waiting period requirements with respect to both the size-of-transaction and size-of-person tests.
Size-of-Transaction
The new annual thresholds have reduced the minimum value of a transaction that could trigger HSR filing and notification requirements from $65.2 million to $63.4 million, and the value of a transaction that will automatically trigger those requirements from $260.7 million to $253.7 million.
|
Value of Transaction |
Premerger Notification Applies |
|
Less than $63.4 |
No |
|
$63.4 million to $253.7 million |
Only if size-of-person test met |
|
Greater than $253.7 million |
Yes |
As stated above, the new $63.4 million threshold will apply to transactions closing on or after February 22, 2010. Because of the decrease in thresholds, an agreement for a transaction valued at $64 million entered into sometime between now and February 22 will trigger HSR notification (if size-of-person test is also met) because it will be subject to the new thresholds—as long as it is closed on or after the effective date. However, premerger notification would not have applied to the same transaction value in 2009.
Size-of-Person
The following table reflects the new annual thresholds for the size-of-person test. Under the 2010 revisions, the HSR requirements are generally triggered when the acquired or acquiring "person" in the transaction has at least $126.9 million in annual net sales or total assets, and the other person has at least $12.7 million.
|
Original Threshold |
2010 Indexed Threshold |
|
|
Total assets or annual net sales of acquiring/acquired person |
$100 million |
$126.9 million |
|
Total assets or annual net sales of other person |
$10 million |
$12.7 million |
Filing-Fee Thresholds
New filing-fee thresholds will also take effect February 22, 2010, and will apply to transactions filing notification on or after the effective date. For transactions that are imminent or are currently underway, the applicable filing fee thresholds are those in effect at the time of filing notification.
|
Value of Transaction |
Filing Fee |
|
More than $63.4 million and up to $126.9 million |
$45,000 |
|
$126.9 million up to $634.4 million |
$125,000 |
|
$634.4 million and above |
$280,000 |
This article is presented for informational purposes only and is not intended to constitute legal advice.
