The Federal Trade Commission (“FTC”), with the concurrence of the Assistant Attorney General, Antitrust Division, Department of Justice (“DOJ”), issued the rules amending Hart-Scott-Rodino (“HSR”) Form for Certain Mergers and Acquisitions and related instructions on October 10, 2024. The new HSR Form, set to take effect in mid-January 2025 (90 days after the publication of the new rules in the Federal Register), is the result of the first comprehensive overhaul of the form in the past 46 years. Following the effective date of the new rules, the FTC will lift its suspension of the early termination of filings made under the HSR Act because the new HSR Form is expected to provide the FTC and the DOJ with information that will enhance their ability to assess “whether a proposed deal risks violating the antitrust laws.”[1]
The new HSR Form requirements will have a substantial impact on parties subject to the HSR Act. The FTC has acknowledged that the new HSR Form will significantly increase the time and effort associated with the preparation of HSR filings for both the acquiring and acquired parties.
Key Information Updates Included in the New HSR Form for Both Acquiring and Acquired Persons:
- Transaction Rationale. Each filingparty must identify (i) all strategic rationales for the transaction discussed or contemplated by the filing person or any of its officers, directors, or employees, and (ii) all documents produced in the filing that confirm or discuss the stated rationale(s).
- Overlap Description – Products or Services. Each filing party must briefly describe each of its principal categories of products and services, as well as each of its current or known planned products or services that competes with (or could compete with) a current or known planned product or service of the other party to the transaction, based on documents created in the ordinary course of business. Current or known planned products or services include those that the acquiring person or target researches, develops, manufactures, produces, sells, offers, provides, supplies, or distributes. For each such product or service listed, the filing party must provide:
- The sales (in dollars) for the most recent year (for those products or services not generating revenue or whose performance is not measured by revenue in the ordinary course of business), need to provide projected revenue, estimates of the volume of products to be sold, time spent using the service, or any other metric by which the filing party measures performance (e.g., daily users, new signups).
- A description of all categories of customers of the filing party that purchase or use the product or service (e.g., retailer, distributor, broker, government, military, educational, national account, local account, commercial, residential, or institutional). If no customers have yet used the product or service, need to provide the date that development of the product or service began; a description of the current stage in development, including any testing and regulatory approvals and any planned improvements or modifications; the date that development (including testing and regulatory approvals) was or will be completed; and the date that the product or service is expected to be sold or otherwise commercially launched.
- The top 10 customers in the most recent year (as measured in dollars), and the top 10 customers for each customer category identified.
- Supply Relationships Description – Products or Services. Each filing party must list and briefly describe each product, service, or asset (including data) that it (i) has sold, licensed, or otherwise supplied or (ii) incorporates as an input into any product or service and that the filing party has purchased, licensed, or otherwise obtained, and which represented at least $10 million in revenue (including internal transfers) in the most recent year to or from (i) the other party to the transaction, or (ii) any other business that, to its knowledge or belief, uses its product, service, or asset to compete with the other party’s products or services or competes with the other party to provide a substantially similar product, service, or asset (the acquiring and acquired person should not exchange information for the purpose of answering this item). For each product, service, or asset listed, for the most recent year, the filing party must provide the sales or purchased amount (in dollars) and the top 10 customers or suppliers (as measured in dollars). For each such customer or supplier, need to describe the filing party’s supply, purchase, or licensing agreement (or other comparable terms of supply or purchase).
- Transaction-Specific Agreements. Each filing party must furnish copies of all documents that constitute the agreement(s) related to the transaction, including, but not limited to, exhibits, schedules, side letters, agreements not to compete or solicit, and other agreements negotiated in conjunction with the transaction that the parties intend to consummate, and excluding clean team agreements.
- Letter of Intent. If the parties are filing the HSR Form upon entering into a letter of intent or term sheet, such document should include the following terms: “the identity of the parties; the structure of the transaction; the scope of what is being acquired; calculation of the purchase price; an estimated closing timeline; employee retention policies, including with respect to key personnel; post-closing governance; and transaction expenses or other material terms.”
- Plans and Reports. Each filing party must submit all regularly prepared plans and reports that were prepared or modified within one year of the date of filing and that were provided to the Chief Executive Officer that analyze market shares, competition, competitors, or markets pertaining to any product or service also produced, sold, or known to be under development by the other party to the transaction, as well as all such plans and reports that were provided to the Board of Directors.
- Transaction-Related Documents Prepared for or by Supervisory Deal Team Lead. Each filing party must submit studies, surveys, analyses, and reports prepared by or for its supervisory deal team lead (i.e., an individual who has primary responsibility for supervising the strategic assessment of the deal, and who would not otherwise qualify as a director or officer) for the purpose of evaluating or analyzing the acquisition with respect to market shares, competition, competitors, markets, potential for sales growth, or expansion into product or geographic markets.
Additional Information Updates Included in the New HSR Form Only for the Acquiring Person:
- Ownership Structure. The form must describe the ownership structure of the acquiring person. For transactions where a fund or master limited partnership is the filing person, the form must provide any existing organizational chart that shows the relationship of any entities that are affiliates or associates (if such an organizational chart does not exist, there is no requirement to create one).
- Transaction Diagram. The acquiring person must include a diagram of the transaction, if one exists (if such a diagram does not exist, there is no requirement to create one).
- Officers and Directors. For all entities within the acquiring person responsible for the development, marketing, or sale of products or services that are identified as overlaps within the Overlap Description or as supply relationships within the Supply Relationships Description, the acquiring person needs to list all current officers and directors (or in the case of unincorporated entities, individuals exercising similar functions) and those who have served in one of these positions within the three months before filing (and, in case of entities the acquiring entity directly or indirectly controls, entities that directly or indirectly control the acquiring entity, and entities within the acquiring person that have been or will be created as a result of or as contemplated by the transaction, the acquiring person needs to list all officers and directors who are likely to serve in one of these positions) that also serve as an officer or director of another entity that derives revenue in the same North American Industry Classification System codes reported by the target (if the identities of the prospective officers or directors are unknown, need to briefly describe who will have the authority to select them).
- Agreements between the Acquiring Person and Target. Need to disclose whether the acquiring person has, or had within one year of filing, any contractual agreement(s) with the target. If so, need to indicate which type of agreements, and if an agreement has terms that apply to more than one category, indicate each category that applies.
[1] See Statement of Chair Lisa M Khan, dated October 10, 2024.
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