Tips on Completing Item 6 of the HSR Form

The HSR form requires a filing party to disclose information on its subsidiaries in Item 6(a), its share or interest holders in Item 6(b) and its minority holdings in Item 6(c)(i).  For an acquiring person, it also requires information in Item 6(c)(ii) on the minority holdings of associates if the associate has a minority holding in an entity that reports in the same, “overlap” NAICS code or industry as the acquired person.

Even if the acquiring person and the acquired person have no overlapping NAICS codes, the acquiring person must still report any relevant associates information in Item 6(c)(ii).

An acquired person does not complete Item 6 if the transaction only involves the acquisition of assets.  If the transaction involves a mix of assets and voting securities/non-corporate interests, the acquired person must complete Item 6 as related to the voting securities and non-corporate interests. 

Items 6(b), 6(c)(i) and 6(c)(ii) ask for the percentage held.  Use §801.12 to calculate the relevant percentage for corporations.  For non-corporate entities, calculate the percentage held by determining percentage of profits or assets upon dissolution (if different, use the larger percentage).

Item 6(a)

  • Report only controlled U.S. entities and controlled foreign entities with sales in or into the U.S. (subject to the $10 million asset threshold).
  • Report only city and state/country - no headquarters address information required.

Item 6(b)

This item is limited to the holders of voting securities or non-corporate interests in the UPE and the acquiring or acquired entity(s).

Corporations:

Report all holders of 5% or more of the voting securities, listing the name of the interest holder, the headquarters address and the percentage held.

Non-corporate entities:

Report all holders of 5% or more of the non-corporate interests, listing the name of interest holder, the headquarters address and the percentage held.

For limited partnerships, report only the name of the general partner(s) regardless of the percent held.

  • Do not report the headquarters address or the percentage held.

Item 6(c)

Item 6(c) requires the disclosure of minority holdings, that is, holdings of 5% or more but less than 50%, in any entity(s) (subject to the $10 million asset threshold) that derives revenues in any 6-digit NAICS code reported by the other person filing notification. 

  • The acquiring person and its associates look to the all 6-digit NAICS codes reported by the acquired person unless the UPE is not being acquired.  If the UPE is not being acquired, the acquiring person and its associates look to the acquired entity(s) to determine a reporting obligation. 
  • The acquired person looks to all 6-digit NAICS codes reported by the acquiring person to determine a reporting obligation unless the acquired person’s UPE is not being acquired.  If the acquired person’s UPE is not being acquired, the acquired entity(s) look to all 6-digit NAICS codes reported by the acquiring person to determine a reporting obligation.
  • There is no de minimis exception for revenues.
  • Foreign entities are not reported unless they have sales in or into the U.S. in a 6-digit NAICS code reported by the other person filing notification.

The person filing notification or an acquiring person’s associates can rely on the schedules of investments in their regularly prepared financials in reporting Item 6(c), provided those financials are not more than three months old.  There is no need to identify any acquisitions of minority holdings that may have occurred between the publication of the financials and filing notification.

Item 6(c)(i)

  • The UPE field is the UPE of the person filing notification.

Item 6(c)(ii)

  • The Top Level Associate is the last entity up the HSR control chain that holds the minority interest in an entity that derives revenues in the same NAICS code or industry as the acquired person. 
    • For instance, Opco, the acquiring person, derives revenues in the same NAICS code or industry as Target, the acquired person.  LP holds 10% of Opco.  LP is its own UPE and GP holds 2% of LP.  LP is the top level associate because no entity above actually holds the minority interest as there is a break in control at the GP level. 
  • Determining who associates are uses both HSR control and investment management authority.  Once you have determined that an associate has a minority interest in an entity that derives revenues in any 6-digit NAICS code reported by the acquired person, only use HSR control to determine who the top level associate is.