1911005 Informal Interpretation

Date:

Tags:

Rule:
803.9
Staff:
Timothy Carson
Response/Comments:

We disagree. If Buyer is going to cross the $100 million (as adjusted) threshold, Buyer must file for the $100 million (as adjusted) threshold and pay the fee required for crossing the $100 million (as adjusted) threshold.

Question

From: Carson, Timothy


Sent: Tuesday, November 5, 2019 3:20:49 PM (UTC-05:00) Eastern Time (US & Canada)


To: [Redacted]


Cc: [Redacted]


Subject: RE: Notification Thresholds

We disagree. If Buyer is going to cross the $100 million (as adjusted) threshold, Buyer must file for the $100 million (as adjusted) threshold and pay the fee required for crossing the $100 million (as adjusted) threshold.

From: [Redacted]


Sent: Tuesday, November 5, 2019 10:15:41 AM (UTC-05:00) Eastern Time (US & Canada)


To: [Redacted]


Subject: Notification Thresholds

A quick question about notification thresholds:

Buyer wants to buy X shares of Corp stock (less than 50%). The transaction will be subject to HSR, but the actual purchase might not happen for several months (although it would occur within a year).

Assume that right now the transaction value (as determined under HSR) is more than $50 million (as adjusted) but is below $100 million (as adjusted).

Based on that transaction value, the filing fee would be $45,000.

However, the value of Corp’s stock has been volatile. Thus, it is entirely possible that the value of X shares could equal or exceed $100 million (as adjusted) as calculated at the time of the actual purchase.

I’d think that Buyer’s HSR filing should reflect the $100 million (as adjusted) notification threshold (because that is the highest notification threshold as to which Buyer might need clearance for this transaction); but the filing fee still would be $45,000 (rather than $125,000) because that’s the filing fee applicable to the size-of-transaction as calculated for the actual HSR filing.

Do you agree?

About Informal Interpretations

Informal interpretations provide guidance from previous staff interpretations on the applicability of the HSR rules to specific fact situations. You should not rely on them as a substitute for reading the Act and the Rules themselves. These materials do not, and are not intended to, constitute legal advice.

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