USA Law and Practice Contributed by: Bradley Justus, Lisl Dunlop, Josh Jowdy and Sandhya Taneja, Axinn, Veltrop & Harkrider LLP
Exemptions Even if a transaction meets the HSR thresholds, it may still be non-reportable if it qualifies for one of the numerous exemptions. Some key exemp - tions include: • acquisitions of certain assets in the ordinary course of business, including new goods and current supplies; • acquisitions of certain types of real prop - erty, such as certain new and used facilities, unproductive real property (eg, raw land), office and residential property, and hotels and motels (excluding ski facilities and casinos); • acquisitions of up to 10% of voting securities of an issuer if for the purposes of investment only; • acquisitions of interests in entities that them - selves hold HSR-exempt assets; • stock dividends and splits and reorganisa - tions; • acquisitions of certain foreign assets and cer - tain foreign-issuer voting securities; and • intra-person transactions. 2.6 Calculations of Jurisdictional Thresholds Size-of-Transaction Test The size-of-transaction test is calculated based on the value of the voting securities, assets and non-corporate interests that the Acquiring Per - son will hold in the Acquired Person as a result of the transaction. • Publicly traded voting securities are valued based on the greater of the market price (generally the lowest closing quotation during the 45 days prior to closing) or the acquisition price (all consideration to be paid, whether in cash or in kind). • Acquisitions of non-publicly traded voting securities and non-corporate interests are
valued based on the acquisition price (or, if the acquisition price is not determined, the fair market value). • Acquisitions of assets are valued based on the greater of the fair market value or, if deter - mined, the acquisition price. Size-of-Person Test The size-of-person test is calculated based on the worldwide sales or assets of the Acquiring and Acquired Persons as reflected in each par - ty’s last regularly prepared consolidated annual income statement and last regularly prepared consolidated balance sheet. These financial statements must be no more than 15 months old. Where a person does not have a regularly prepared annual income statement or balance sheet, the UPE must prepare a pro forma bal - ance sheet that lists all assets held at the time of the acquisition and – in the case of the Acquir - ing Person – excludes any cash to be used as consideration for the acquisition, any expenses incidental thereto, and any securities of the same Acquired Person. An Acquired Person’s revenues and assets include the assets and/or revenues of the target. The size-of-person assessment should reflect the annual net sales and total assets of all con - trolled entities at the time of the proposed acqui - sition. If there is a change of business between the date of the last balance sheet and time of filing – such as an acquisition or divestiture – it must be taken into account. Annual net sales recorded in a foreign currency should be converted to US dollars based on the average interbank exchange rate for the given year, and assets recorded in a foreign currency should be converted to US dollars based on the interbank exchange rate as of the date of the business’s last regularly prepared balance sheet.
713 CHAMBERS.COM
Powered by FlippingBook