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What form should merger control notification take in the USA and what content is required?
Parties to a reportable transaction must notify antitrust regulators of the transaction and provide relevant information and documents using the standard Notification and Report Form for Certain Mergers and Acquisitions (Hart-Scott-Rodino Form). That form is available on the Federal Trade Commission and Department of Justice websites. The Hart-Scott-Rodino Form requires that parties submit information, which regulators can use to evaluate the competitive effects of the proposed transaction, including:
- the parties’ identities and the transaction’s structure;
- financial data and other information filed with the Securities Exchange Commission;
- revenue information categorised by North American Industry Classification System (NAICS) code; and
- previous acquisitions by the acquirer of businesses that may have derived revenues in the same NAICS codes as the acquired party.
Item 4 of the Hart-Scott-Rodino Form is particularly important. It requires parties to submit certain documents relating to the transaction, including:
- all studies, surveys, analyses and reports prepared by or for an officer or director for the purpose of evaluating the transaction with respect to market shares, competition, competitors, markets, potential for sales growth or expansion into product or geographic markets;
- confidential information memoranda, bankers’ books and pitch books; and
- documents relating to synergies and efficiencies.
In addition to documents and information relating to the competitive effects of the proposed transaction, the parties must generally certify the accuracy of the information in the Hart-Scott-Rodino Form and submit either the executed agreement or an affidavit stating that they have reached an agreement and that the filing party has a good-faith intention to consummate the proposed transaction. The certification and affidavit must be either notarised or signed under penalty of perjury. If the transaction is an acquisition of voting securities from non-controlling shareholders, the acquiring person only must submit an affidavit with its Hart-Scott-Rodino filing stating it has a good-faith intention to consummate the proposed transaction and has served notice on the issuer regarding the issuer’s potential reporting obligations.
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