TITLE 15 - COMMERCE AND TRADE
CHAPTER 1 - MONOPOLIES AND COMBINATIONS IN RESTRAINT OF TRADE
Sec. 18a. Premerger notification and waiting period
(a) Filing
Except as exempted pursuant to subsection (c) of this section, no person shall acquire,
directly or indirectly, any voting securities or assets of any other person, unless both
persons (or in the case of a tender offer, the acquiring person) file notification
pursuant to rules under subsection (d)(1) of this section and the waiting period described
in subsection (b)(1) of this section has expired, if -
- (1) the acquiring person, or the person whose voting securities or assets are being
acquired, is engaged in commerce or in any activity affecting commerce;
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- (2)(A) any voting securities or assets of a person engaged in manufacturing which has
annual net sales or total assets of $10,000,000 or more are being acquired by any person
which has total assets or annual net sales of $100,000,000 or more;
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- (B) any voting securities or assets of a person not engaged in manufacturing which has
total assets of $10,000,000 or more are being acquired by any person which has total
assets or annual net sales of $100,000,000 or more; or
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- (C) any voting securities or assets of a person with annual net sales or total assets of
$100,000,000 or more are being acquired by any person with total assets or annual net
sales of $10,000,000 or more; and
- (3) as a result of such acquisition, the acquiring person would hold -
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- (A) 15 per centum or more of the voting securities or assets of the acquired person, or
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- (B) an aggregate total amount of the voting securities and assets of the acquired person
in excess of $15,000,000.
In the case of a tender offer, the person whose voting securities are sought to be
acquired by a person required to file notification under this subsection shall file
notification pursuant to rules under subsection (d) of this section.
(b) Waiting period; publication; voting securities
- (1) The waiting period required under subsection (a) of this section shall -
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- (A) begin on the date of the receipt by the Federal Trade Commission and the Assistant
Attorney General in charge of the Antitrust Division of the Department of Justice
(hereinafter referred to in this section as the ''Assistant Attorney General'') of -
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- (i) the completed notification required under subsection (a) of this section, or
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- (ii) if such notification is not completed, the notification to the extent completed and
a statement of the reasons for such noncompliance, from both persons, or, in the case of a
tender offer, the acquiring person; and
- (B) end on the thirtieth day after the date of such receipt (or in the case of a cash
tender offer, the fifteenth day), or on such later date as may be set under subsection
(e)(2) or (g)(2) of this section.
- (2) The Federal Trade Commission and the Assistant Attorney General may, in individual
cases, terminate the waiting period specified in paragraph (1) and allow any person to
proceed with any acquisition subject to this section, and promptly shall cause to be
published in the Federal Register a notice that neither intends to take any action within
such period with respect to such acquisition.
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- (3) As used in this section -
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- (A) The term ''voting securities'' means any securities which at present or upon
conversion entitle the owner or holder thereof to vote for the election of directors of
the issuer or, with respect to unincorporated issuers, persons exercising similar
functions.
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- (B) The amount or percentage of voting securities or assets of a person which are
acquired or held by another person shall be determined by aggregating the amount or
percentage of such voting securities or assets held or acquired by such other person and
each affiliate thereof.
(c) Exempt transactions
The following classes of transactions are exempt from the requirements of this section
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- (1) acquisitions of goods or realty transferred in the ordinary course of business;
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- (2) acquisitions of bonds, mortgages, deeds of trust, or other obligations which are not
voting securities;
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- (3) acquisitions of voting securities of an issuer at least 50 per centum of the voting
securities of which are owned by the acquiring person prior to such acquisition;
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- (4) transfers to or from a Federal agency or a State or political subdivision thereof;
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- (5) transactions specifically exempted from the antitrust laws by Federal statute;
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- (6) transactions specifically exempted from the antitrust laws by Federal statute if
approved by a Federal agency, if copies of all information and documentary material filed
with such agency are contemporaneously filed with the Federal Trade Commission and the
Assistant Attorney General;
- (7) transactions which require agency approval under section 1467a(e) of title 12,
section 1828(c) of title 12, or section 1842 of title 12;
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- (8) transactions which require agency approval under section 1843 of title 12 or section
1464 of title 12, if copies of all information and documentary material filed with any
such agency are contemporaneously filed with the Federal Trade Commission and the
Assistant Attorney General at least 30 days prior to consummation of the proposed
transaction;
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- (9) acquisitions, solely for the purpose of investment, of voting securities, if, as a
result of such acquisition, the securities acquired or held do not exceed 10 per centum of
the outstanding voting securities of the issuer;
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- (10) acquisitions of voting securities, if, as a result of such acquisition, the voting
securities acquired do not increase, directly or indirectly, the acquiring person's per
centum share of outstanding voting securities of the issuer;
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- (11) acquisitions, solely for the purpose of investment, by any bank, banking
association, trust company, investment company, or insurance company, of (A) voting
securities pursuant to a plan of reorganization or dissolution; or (B) assets in the
ordinary course of its business; and
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- (12) such other acquisitions, transfers, or transactions, as may be exempted under
subsection (d)(2)(B) of this section.
(d) Commission rules
The Federal Trade Commission, with the concurrence of the Assistant Attorney General
and by rule in accordance with section 553 of title 5, consistent with the purposes of
this section -
- (1) shall require that the notification required under subsection (a) of this section be
in such form and contain such documentary material and information relevant to a proposed
acquisition as is necessary and appropriate to enable the Federal Trade Commission and the
Assistant Attorney General to determine whether such acquisition may, if consummated,
violate the antitrust laws; and
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- (2) may -
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- (A) define the terms used in this section;
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- (B) exempt, from the requirements of this section, classes of persons, acquisitions,
transfers, or transactions which are not likely to violate the antitrust laws; and
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- (C) prescribe such other rules as may be necessary and appropriate to carry out the
purposes of this section.
(e) Additional information; waiting period extensions
- (1) The Federal Trade Commission or the Assistant Attorney General may, prior to the
expiration of the 30-day waiting period (or in the case of a cash tender offer, the 15-day
waiting period) specified in subsection (b)(1) of this section, require the submission of
additional information or documentary material relevant to the proposed acquisition, from
a person required to file notification with respect to such acquisition under subsection
(a) of this section prior to the expiration of the waiting period specified in subsection
(b)(1) of this section, or from any officer, director, partner, agent, or employee of such
person.
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- (2) The Federal Trade Commission or the Assistant Attorney General, in its or his
discretion, may extend the 30-day waiting period (or in the case of a cash tender offer,
the 15-day waiting
period) specified in subsection (b)(1) of this section for an additional period of not
more than 20 days (or in the case of a cash tender offer, 10 days) after the date on which
the Federal Trade Commission or the Assistant Attorney General, as the case may be,
receives from any person to whom a request is made under paragraph (1), or in the case of
tender offers, the acquiring person, (A) all the information and documentary material
required to be submitted pursuant to such a request, or (B) if such request is not fully
complied with, the information and documentary material submitted and a statement of the
reasons for such noncompliance. Such additional period may be further extended only by the
United States district court, upon an application by the Federal Trade Commission or the
Assistant Attorney General pursuant to subsection (g)(2) of this section.
(f) Preliminary injunctions; hearings
If a proceeding is instituted or an action is filed by the Federal Trade Commission,
alleging that a proposed acquisition violates section 18 of this title, or section 45 of
this title, or an action is filed by the United States, alleging that a proposed
acquisition violates such section 18 of this title, or section 1 or 2 of this title, and
the Federal Trade Commission or the Assistant Attorney General (1) files a motion for a
preliminary injunction against consummation of such acquisition pendente lite, and (2)
certifies the United States district court for the judicial district within which the
respondent resides or carries on business, or in which the action is brought, that it or
he believes that the public interest requires relief pendente lite pursuant to this
subsection, then upon the filing of such motion and certification, the chief judge of such
district court shall immediately notify the chief judge of the United States court of
appeals for the circuit in which such district court is located, who shall designate a
United States district judge to whom such action shall be assigned for all purposes.
(g) Civil penalty; compliance; power of court
- (1) Any person, or any officer, director, or partner thereof, who fails to comply with
any provision of this section shall be liable to the United States for a civil penalty of
not more than $10,000 for each day during which such person is in violation of this
section. Such penalty may be recovered in a civil action brought by the United States.
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- (2) If any person, or any officer, director, partner, agent, or employee thereof, fails
substantially to comply with the notification requirement under subsection (a) of this
section or any request for the submission of additional information or documentary
material under subsection (e)(1) of this section within the waiting period specified in
subsection (b)(1) of this section and as may be extended under subsection (e)(2) of this
section, the United States district court -
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- (A) may order compliance;
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- (B) shall extend the waiting period specified in subsection (b)(1) of this section and
as may have been extended under subsection (e)(2) of this section until there has been
substantial compliance, except that, in the case of a tender offer, the court may not
extend such waiting period on the basis of a failure, by the person whose stock is sought
to be acquired, to comply substantially with such notification requirement or any such
request; and
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- (C) may grant such other equitable relief as the court in its discretion determines
necessary or appropriate, upon application of the Federal Trade Commission or the
Assistant Attorney General.
(h) Disclosure exemption
Any information or documentary material filed with the Assistant Attorney General or
the Federal Trade Commission pursuant to this section shall be exempt from disclosure
under section 552 of title 5, and no such information or documentary material may be made
public, except as may be relevant to any administrative or judicial action or proceeding.
Nothing in this section is intended to prevent disclosure to either body of Congress or to
any duly authorized committee or subcommittee of the Congress.
(i) Construction with other laws
- (1) Any action taken by the Federal Trade Commission or the Assistant Attorney General
or any failure of the Federal Trade Commission or the Assistant Attorney General to take
any action under this section shall not bar any proceeding or any action with respect to
such acquisition at any time under any other section of this Act or any other provision of
law.
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- (2) Nothing contained in this section shall limit the authority of the Assistant
Attorney General or the Federal Trade Commission to secure at any time from any person
documentary material, oral testimony, or other information under the Antitrust Civil
Process Act (15 U.S.C. 1311 et seq.), the Federal Trade Commission Act (15 U.S.C. 41 et
seq.), or any other provision of law.
(j) Report to Congress; legislative recommendations
Beginning not later than January 1, 1978, the Federal Trade Commission, with the
concurrence of the Assistant Attorney General, shall annually report to the Congress on
the operation of this
section. Such report shall include an assessment of the effects of this section, of the
effects, purpose, and need for any rules promulgated pursuant thereto, and any
recommendations for revisions of this section.
(Oct. 15, 1914, ch. 323, Sec. 7A, as added Sept. 30, 1976,
Pub. L. 94-435, title II, Sec. 201, 90 Stat. 1390; amended Nov. 8, 1984, Pub. L. 98-620,
title IV, Sec. 402(10)(A), 98 Stat. 3358; Aug. 9, 1989, Pub. L. 101-73, title XII, Sec.
1214, 103 Stat. 529.)
REFERENCES IN TEXT
The antitrust laws, referred to in subsecs. (c), (d), are defined in section 12
of this title. This Act, referred to in subsec. (i)(1), is act Oct. 15, 1914, ch. 323, 38
Stat. 730, as amended, known as the Clayton Act, which is classified generally to sections
12, 13, 14 to 19, 20, 21, and 22 to 27 of this title, and sections 52 and 53 of Title 29,
Labor.
For further details and complete classification of this Act
to the Code, see References in Text note set out under section 12 of this title and
Tables.
The Federal Trade Commission Act, referred to in subsec.
(i)(2), is act Sept. 26, 1914, ch. 311, 38 Stat. 717, as amended, which is classified
generally to subchapter I (Sec. 41 et seq.) of chapter 2 of this title. For complete
classification of this Act to the Code, see section 58 of this title and Tables.
The Antitrust Civil Process Act, referred to in subsec.
(i)(2), is Pub. L. 87-664, Sept. 19, 1962, 76 Stat. 548, as amended, which is classified
generally to chapter 34 (Sec. 1311 et seq.) of this title. For complete classification of
this Act to the Code, see Short Title note set out under section 1311 of this title and
Tables.
AMENDMENTS
1989 - Subsec. (c)(7). Pub. L. 101-73, Sec. 1214(1), inserted reference to
section 1467a(e) of title 12. Subsec. (c)(8). Pub. L. 101-73, Sec. 1214(2), struck out
reference to section 1726 or 1730a(e) of title 12. 1984 - Subsec. (f)(2). Pub. L. 98-620
struck out designation ''(A)'' before ''upon the filing'', and struck out subpar. (B)
which had provided that if the Federal Trade Commission or the Assistant Attorney General
certified that he or it believed that the public interest required relief pendente lite
pursuant to this subsection, the motion for a preliminary injunction had to be set down
for hearing by the district judge so designated at the
earliest practicable time, would take precedence over all matters except older matters of
the same character and trials pursuant to section 3161 of title 18, and had to be in every
way expedited.
EFFECTIVE DATE OF 1984 AMENDMENT
Amendment by Pub. L. 98-620 not applicable to cases pending on Nov. 8, 1984, see
section 403 of Pub. L. 98-620, set out as an Effective Date note under section 1657 of
Title 28, Judiciary and Judicial Procedure.
EFFECTIVE DATE
Section 202 of Pub. L. 94-435 provided that: ''The amendment made by section 201
of this Act (enacting this section) shall take effect 150 days after the date of enactment
of this Act (Sept. 30, 1976), except that subsection (d) of section 7A of the Clayton Act
(subsec. (d) of this section) (as added by section 201 of this Act) shall take effect on
the date of enactment of this Act.''
ASSESSMENT AND COLLECTION OF FILING FEES
Pub. L. 101-162, title VI, Sec. 605, Nov. 21, 1989, 103 Stat. 1031, as amended by
Pub. L. 101-302, title II, May 25, 1990, 104 Stat. 217; Pub. L. 102-395, title I, Oct. 6,
1992, 106 Stat. 1847; Pub. L. 103-317, title I, Aug. 26, 1994, 108 Stat. 1739, provided
that: ''Five working days after enactment of this Act (Nov. 21, 1989) and thereafter, the
Federal Trade Commission shall assess and collect filing fees established at $45,000 which
shall be paid by persons acquiring voting securities or assets who are required to file
premerger notifications by the Hart-Scott-Rodino Antitrust Improvements Act of 1976 (15
U.S.C. 18a) and the regulations promulgated thereunder. For purposes of said Act, no
notification shall be considered filed until payment of the fee required by this section.
Fees collected pursuant to this section shall be divided evenly between and credited to
the appropriations, Federal Trade Commission, 'Salaries and Expenses' and Department of
Justice, 'Salaries and Expenses, Antitrust Division': Provided, That fees in excess of
$40,000,000 in fiscal year 1990 shall be deposited to the credit of the Treasury of the
United States: Provided further, That fees made available to the Federal Trade Commission
and the Antitrust Division herein shall remain available until expended.''
SECTION REFERRED TO IN OTHER SECTIONS
This section is referred to in section 6204 of this title; title 11 section 363.
2001 AMENDMENTS |