USA Law and Practice Contributed by: Elena Rubinov, George Casey, Heiko Schiwek, Vinita Sithapathy, Pierre-Emmanuel Perais and Clara Pang, Linklaters LLP
4.15 Privately Held Companies A buyer can acquire a private company through an equity purchase, asset purchase or statutory merger, depending on factors like tax implications, required consents and deal timing. • Equity purchases: The buyer acquires the target’s shares from selling shareholders (typically for cash, though equity or mixed consideration may be used). • Asset purchases: These transactions involve acquiring specific assets and liabilities directly from the company, either in the form of a sale of all or substantially all of its assets or, depending on the agreed perimeter of the transaction, in the form of a partial sale of specific assets or a business divi- sion. While equity consideration instead of cash is less common due to risks like valuation volatility and limited tradability, it remains an option. • Statutory mergers: Governed by state law, these mergers automatically transfer all assets and liabili- ties to the surviving entity by operation of law upon filing a certificate of merger. They usually require only majority shareholder approval and can simplify the transfer of permits and contracts if the target company is the surviving company, making them an efficient alternative to asset purchases. Mergers are typically employed in private transactions when the equity is widely held. On the other hand, in the context of closely held private companies, parties usually follow an equity purchase structure. Given the nature of infrastructure businesses, regula- tory considerations also need to be at the forefront of any acquisition process. 5. Overview of Regulatory Requirements 5.1 Regulations Applicable to Energy and Infrastructure Companies Regulatory Bodies and Authorisations FinCEN The Financial Crimes Enforcement Network (“Fin- CEN”) implemented an interim final rule in March 2025 reducing the beneficial ownership information (BOI)
reporting obligations established by the Corporate Transparency Act (CTA). The interim rule now: • requires solely foreign entities with US business registrations to submit BOI reports to FinCEN; • completely exempts domestic entities from CTA reporting obligations, including any duty to amend previously filed reports; • excludes US persons from beneficial owner report- ing requirements; • relieves foreign reporting companies whose benefi- cial owners consist exclusively of US persons from BOI reporting; and • requires foreign reporting companies without quali- fying exemptions to submit BOI reports according to expanded timeframes (ie, entities registered prior to the interim rule’s publication have 30 days from publication to file, whereas those registered on or following publication must file within 30 days after receiving effective registration notification). FinCEN will refrain from imposing reporting penalties or fines on US citizens or domestic reporting com- panies. Depending on the anticipated sector and action of the company, specific permits, regulatory authorisations and/or similar approvals may be required with respect to those actions and/or operations. FERC For example, the US Federal Energy Regulatory Com- mission (FERC) regulates certain operations of elec- tric, natural gas and oil pipeline companies. • Natural gas transportation: Companies wanting to build or modify an existing interstate natural gas pipeline must apply to FERC for authorisation to construct and operate the pipeline, which may take well over a year to complete. Additionally, natural gas pipelines must file rate schedules and notify FERC of any subsequent changes in rates and charges. • Electric energy: Companies that are public utilities under the Federal Power Act (eg, selling power at wholesale or providing transmission of electricity in interstate commerce) must file with FERC for acceptance of all rates and charges for any juris-
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