01/27/2012

Corporate Finance Alert: HSR Threshold Changes for 2012

On January 24, 2012, the Federal Trade Commission (FTC) announced that the Hart-Scott-Rodino Act (HSR Act) thresholds will be increased by approximately 3 percent. Thus, the size-of-transaction filing threshold will increase from the current $66 million to $68.2 million. The adjustments will become effective 30 days after the thresholds are published in the Federal Register. Transactions closing on or after the effective date will be subject to the revised thresholds.

Under the new thresholds, the parties to an acquisition or merger will, in most cases, need to file pre-merger notifications with the Department of Justice and the FTC, and observe the HSR Act's waiting periods if the transaction will result in either of the following:

• The acquiring person will hold more than $68.2 million worth of voting securities and assets of the acquired person and the parties meet the "size-of-person" requirements (set forth below); or
• Regardless of the size of the parties, the acquiring person will hold more than $272.8 million worth of voting securities and assets of the acquired person.

Meeting any one of the following subtests satisfies the "size-of-person" test:

1. A person with $136.4 million or more of total assets (on its most recent regularly prepared balance sheet) or annual net sales (from its most recently completed fiscal year) proposes to acquire voting securities or assets of a person with $13.6 million or more of annual net sales or total assets; or
2. A person with $13.6 million or more of total assets or annual net sales proposes to acquire voting securities or assets of a person with $136.4 million or more of annual net sales or total assets.
     

For the purposes of applying the thresholds, the term "person" means the ultimate parent entity of the party engaged in the transaction. Certain exemptions may apply depending on the nature of the transaction and the location and nature of the assets and entities involved. As a result, additional analysis is often required before making a final determination regarding the need for a filing.

The filing fees for reportable transactions will be as follows:

• $45,000 for transactions in excess of $68.2 million but below $136.4 million
• $125,000 for transactions of $136.4 million or more but below $682.1 million
• $280,000 for transactions of $682.1 million or more

Read the FTC’s Federal Register notice, and a complete list of all HSR threshold adjustments.