The Federal Trade Commission (the “FTC”) has revised the jurisdictional and filing fee thresholds of the Hart-Scott-Rodino Antitrust Improvements Act of 1976 (the “HSR Act”) and the Premerger Notification Rules (the “Rules”). The adjustments to the dollar thresholds of the HSR Act and Rules (based on changes in the gross national product) are required by the 2000 amendments to the HSR Act. For the first time, the thresholds will decrease as a result of the decline in the GNP. The new thresholds take effect on February 22, 2010 and will apply to transactions that close on or after that date.
The HSR Act requires parties intending to merge or to acquire assets, voting securities or certain non-corporate interests to notify the FTC and the Department of Justice, Antitrust Division, and to observe certain waiting periods before consummating the acquisition if certain filing thresholds are met. Notification and Report Forms must be submitted by the parties to a transaction if both the (1) size of transaction and (2) size of parties thresholds are met, unless an exemption from filing applies.
1. Size of Transaction
The minimum size of transaction threshold is $63.4 million, decreased from the 2009 threshold of $65.2 million.
2. Size of Parties
The size of parties threshold is inapplicable if the value of the transaction exceeds $253.7 million (formerly $260.7 million for 2009). For transactions with a value between $63.4 million and $253.7 million, the size of parties threshold must be met and will be satisfied in one of the following three ways.
The various jurisdictional thresholds, notification thresholds, filing fee thresholds and thresholds applicable to certain exemptions will also increase as summarized in Appendix A to this memorandum.