The instruction is not limited to entities outside the acquiring person.
Question
We’d like to confirm our understanding of the “Officers and Directors” requirement in the new form.
Assume Buyer A and Seller B have a NAICS code overlap. Buyer A controls several entities (X, Y, and Z) that derive revenues in the overlapping NAICS code and have overlapping directors and/or officers (e.g., certain directors of X are also directors of Y and Z). Under these circumstances, our understanding is that Buyer A must identify any officers and directors of A, X, Y, and Z that also serve as an officer or director of another entity that is not controlled by the acquiring person (Buyer A) that derives revenues in the overlapping NAICS code, but Buyer A does not need to identify overlapping directors/officers among entities it controls. For example, Buyer A does not need to identify that John Doe is only a director of X and Y, but would need to disclose if John Doe is also a director of an entity that is not controlled by Buyer A and derives revenues in the overlapping NAICS code.
We believe the above approach is consistent with the basis and purpose of this requirement – which, as we broadly understand it, is to enable the Agencies to have information about affiliations with other businesses in potential competitive overlap relationships – but please confirm that you agree with our approach.
If we can provide any additional information to help in your assessment, please let me know.