USA Law and Practice Contributed by: Bradley Justus, Lisl Dunlop, Josh Jowdy and Sandhya Taneja, Axinn
Acquiring and Acquired Persons. See 2.4 Definition of “Control” and 2.6 Calculations of Jurisdictional Thresholds . 2.8 Foreign-to-Foreign Transactions Certain foreign-to-foreign transactions and acqui - sitions of foreign assets or voting securities by US entities that are otherwise covered by the HSR Act may qualify for an exemption. These exemptions are intended to exclude from HSR reportability acquisi - tions that may have limited significance or impact in the US. Under the HSR Rules, a foreign person is an entity whose UPE is not incorporated in the US, is not organ - ised under the laws of the US and does not have its principal offices within the US, or, in the case of a natural person, a person who is not a citizen of the US and who does not reside in the US. Asset Acquisitions Acquisitions of assets located outside the US that generated aggregate sales in or into the USA of USD133.9 million or less in the most recent fiscal year are exempt. This exemption applies to acquisitions by both US and non-US acquirers. Asset acquisitions valued at USD535.5 million or less are exempt where both the Acquiring and Acquired Persons are foreign persons under the HSR Rules, the aggregate sales of the Acquiring and Acquired Persons in or into the USA are less than USD294.5 million, and the aggregate total assets of the Acquiring and Acquired Persons located in the USA have a fair market value of less than USD294.5 million. Acquisitions of Voting Securities of a Foreign Issuer Acquisitions of voting securities of a foreign corporate issuer by a US person are exempt unless the issuer holds US-based assets (excluding investment assets, voting or non-voting securities of another person, or certain credits or obligations related to joint ventures) with a fair market value of over USD133.9 million, or made sales in or into the USA, on an aggregate basis with its controlled entities, of over USD133.9 million in the most recent fiscal year.
Acquisitions of voting securities of a foreign corpo - rate issuer by a foreign Acquiring Person are exempt unless the acquisition will confer control of the issuer and the issuer holds US-based assets or has made sales in or into the United States in excess of the thresholds described above. Even if an acquisition confers control and exceeds the thresholds described above, acquisitions of vot - ing securities of a foreign corporate issuer by a for - eign Acquiring Person are nevertheless exempt if the transaction is valued at USD535.5 million or less, the aggregate sales of the Acquiring and Acquired Per - sons in or into the USA are less than USD294.5 mil - lion, and the aggregate total assets of the Acquiring and Acquired Persons located in the USA (excluding investment assets, voting or non-voting securities of another person, or certain credits or obligations relat - ed to joint ventures) are valued at less than USD294.5 million. Acquisitions by or From Foreign Governmental Entities Acquisitions by or from foreign governmental enti - ties are exempt if the UPE of either the Acquiring or Acquired Person is controlled by a foreign state, for - eign government or foreign agency and the acquisition is of assets located within the foreign state or of vot - ing securities or non-corporate interests of an entity organised under the laws of that jurisdiction. 2.9 Market Share Jurisdictional Threshold The HSR Act filing thresholds do not include a market share test. 2.10 Joint Ventures Joint ventures are subject to specific and complex rules under the HSR Act and may be notifiable unless an exemption applies. Under the HSR Rules, the con - tributors to a joint venture are deemed Acquiring Per - sons, and the joint venture is deemed the Acquired Person. 2.11 Power of Authorities to Investigate a Transaction The Agencies’ power to challenge conduct under the Clayton Act, the Sherman Act or the FTC Act does not have a statute of limitations, and therefore the
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