- Based upon the information provided, 802.1 does not apply.
- Transaction #2 cannot close during the pendency of Transaction #1’s waiting period. Further, the fact that acquisitions are not contingent upon one another is not dispositive in concluding that Transaction #2 should not be treated as an amendment to Transaction #1 and, as a result, require an amendment to the filing that has been made. If the parties negotiated Transaction #2 with reference to any part of the acquisition that is included within the pending filing, an amendment to that filing may be required. It is hard to envision a scenario where these acquisitions are truly independent of one another.
Question
PNO, we would appreciate your views on the hypotheticals below.
Hypothetical 1: Buyer operates a retail business and, from time to time, acquires customer data records from third parties. In certain situations, the seller could be in the process of closing or winding up certain locations but the acquisition of the customer data records would not constitute all of an “operating unit” as such locations would have other tangible and intangible assets that would not be transferred to Buyer. Please confirm that (a) the acquisition of the customer data records would be exempt as acquisitions in the ordinary course of business under 802.1 and, (b) assuming Buyer is not acquiring substantially all the assets of an operating unit that is also selling its customer data records to Buyer, the value of any such customer data records would not need to be aggregated with the value of any other non-exempt assets being acquired from Seller in the same or a different transaction pursuant to 801.15.
Hypothetical 2: Company A signs an agreement or letter of intent to acquire assets from Company B relating to Region X (Transaction 1), and Transaction 1 is HSR reportable. The HSR filing is then made by the parties. Subsequent to the filing, but prior to the expiration of the waiting period (and less than 180 days after the signing of the Transaction 1 agreement/letter of intent), Company A signs an agreement or letter of intent to acquire additional assets of Company B relating to Region Y (Transaction 2). The closings of Transactions 1 and 2 are not conditioned on each other, and Transaction 2 is valued below the size-of-transaction threshold. 801.13(b) provides that aggregation of two asset acquisitions involving the same acquiring and acquired persons is only required if the “previous acquisition (whether consummated or still contemplated) was not subject to the requirements of the Act”. Assuming the Transaction 2 assets are non-exempt, could Transaction 2 close before the end of the Transaction 1 waiting period without requiring a filing since Transaction 1 was the subject of an HSR filing?
Note: This is similar to Example 3 under Rule 801.13(b) but if the waiting period on the first acquisition had not expired by Day 60.
If the HSR filing on Transaction 1 also aggregated previous nonreportable acquisitions, would any aggregation with the Transaction 2 assets be required with such previous nonreportable acquisitions that satisfy the 180-day rule, for purposes of determining whether the size-of-transaction test is met for Transaction 2?