USA Law and Practice Contributed by: Bradley Justus, Lisl Dunlop, Josh Jowdy and Sandhya Taneja, Axinn
it does not expect to pursue displacement of the pre- 2025 regime until late 2026 or early 2027. As of May 2026, the currently effective HSR rules are those that had been in effect before 10 February 2025. Under that regime, the HSR Form requires each party to: • describe the transaction structure; • provide geographic location information and prior transaction information regarding any lines of busi - ness that overlap between the parties; • list US revenues for the most recent completed year by North American Industry Classification System codes (NAICS Codes); • submit all documents prepared by or for officers or directors, for the purpose of evaluating or analys - ing the transaction with respect to competition, competitors, markets, market shares, potential for sales growth or expansion into product or geo - graphic markets, as well as all confidential informa - tion memoranda, bankers’ books, other third-party consultants’ materials, and documents describing synergies and efficiencies (“Item 4 documents”); and • disclose information about each party’s controlled entities, significant shareholders and minority shareholdings. An Acquiring Person must respond on behalf of itself and all its controlled entities. By contrast, an Acquired Person’s filing is largely limited to disclosures con - cerning the entities or assets being sold. 3.6 Penalties/Consequences of Incomplete or Inaccurate Notification The Premerger Notification Office of the FTC rejects as incomplete filings missing required information (often referred to as “bouncing” an HSR notification). If the HSR filing is incomplete, the waiting period will not begin until the requisite information is provided. As long as parties cure any filing deficiencies and observe the HSR waiting period before closing the transaction, no fines will be levied. Acquiring or Acquired Persons that file an incomplete or inaccurate HSR Form and subsequently consum - mate a reportable transaction may be subject to civil
penalties. Additionally, an individual who knowingly signs an incomplete or inaccurate HSR Form on behalf of the Acquiring or Acquired Person may be subject to criminal prosecution for perjury.
3.7 Review Process Initial Waiting Period
The “initial waiting period” (30 calendar days or 15 days in the case of cash tender offers and certain bankruptcy transactions) begins when both parties have filed their HSR Forms (or when an acquirer files in the case of acquisitions of voting securities or non- corporate interests from third parties). If the initial waiting period expires without either Agency taking any action, the parties may consummate the transac - tion. In addition, the Agencies may terminate the wait - ing period early (see 3.10 Accelerated Procedure ). During the initial waiting period, either Agency may open a preliminary investigation of the proposed transaction to identify competitive issues and deter - mine whether further information is required. An Agency may request briefings with the parties and/or request that the parties provide additional information on a voluntary basis. Under the HSR Rules, parties to a transaction may restart the waiting period once with no additional fil - ing fee by withdrawing the filing and refiling within two business days. This “pull-and-refile” process effec - tively extends the initial waiting period by an additional 30 days to allow time to address unresolved issues and potentially avoid a second request. Second Request Before the end of the initial waiting period, the review - ing Agency may choose to issue a “second request” formally requesting additional documents and infor - mation. The issuance of a second request suspends the waiting period while the parties respond and cer - tify substantial compliance. Once each party has sub - stantially complied with its second request, a second waiting period begins (typically 30 days, or 10 days in the case of a cash tender offer or bankruptcy fil - ing). If the reviewing Agency does not seek to block the transaction during the second waiting period, the parties may consummate the transaction.
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