USA Law and Practice Contributed by: Bradley Justus, Lisl Dunlop, Josh Jowdy and Sandhya Taneja, Axinn, Veltrop & Harkrider LLP
• provide additional disclosures with respect to any overlapping lines of business, including prior transactions and geographic location information; • describe vertical supply relationships between the parties, and which the parties might have with one another’s competitors, including the parties’ current product and services offerings and products and services in developments; • list global sales or purchasing volumes, and top customers or suppliers, for those identi - fied vertical products and services; • list approximate US revenues for the most recent completed year by North American Industry Classification System codes (NAICS Codes); • submit all documents prepared by or for offic - ers, directors or the supervisory deal team lead, for the purpose of evaluating or analys - ing the transaction with respect to competi - tion, competitors, markets, market shares, potential for sales growth or expansion into product or geographic markets, as well as all confidential information memoranda, bankers’ books, other third-party consultants’ materi - als, and documents describing synergies and efficiencies (“transaction-related docu - ments”); • submit regularly prepared ordinary-course plans and reports to the CEO, and all ordi - nary-course plans and reports provided to the board of directors (whether or not regularly prepared) from the preceding year which analyse markets or competition related to a horizontal overlapping product or service between the parties; and • disclose information about each party’s con - trolled entities, officers, directors, 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 concerning the entities or assets being sold. The revised HSR rules require parties to disclose whether the parties will be filing merger control notifications in any other jurisdictions. The HSR rules have also been revised to require that par - ties translate HSR attachments into English. 3.6 Penalties/Consequences of Incomplete 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 req - uisite information is provided. As long as par - ties observe the waiting period and take steps to cure any filing deficiencies, no fines will be levied. 3.7 Penalties/Consequences of Inaccurate or Misleading Information Acquiring or Acquired Persons that consummate a reportable transaction based on an incomplete or inaccurate HSR Form may be subject to civil penalties. Additionally, an individual who know - ingly signs an incomplete or inaccurate HSR Form on behalf of the Acquiring or Acquired Person may be subject to criminal prosecution for perjury.
3.8 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
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