2024-25024. Premerger Notification; Reporting and Waiting Period Requirements

Table 1—Rejected Proposals

NPRM provision	Results in final rule
Labor Market/Employee Information	Proposal rejected.
Drafts of Transaction-Related Documents	Proposal rejected.
Organizational Chart of Authors and Recipients	Proposal rejected.
Other Types of Interest Holders that May Exert Influence	Proposal rejected.
Expand Current 4(d)(iii) to Include Financial Projections to Synergies and Efficiencies	Proposal rejected.
Deal Timeline	Proposal rejected.
Provision of Geolocation Information	Proposal rejected.
Identification of Messaging Systems	Proposal rejected.
Litigation Hold Certification Language	Proposal rejected.
Identification of F/K/A Names	Proposal rejected.

For example, the prior acquisition proposal that called for ten years of prior acquisitions without any size threshold was reversed in the Final Rule to request only five years of acquisitions, and reinstated the $10 million threshold—returning to the time period adopted in 1987 ^[6] and dollar threshold that had existed since the original rules in 1978.^[7] The NPRM proposal that would have required the filers to identify and produce all agreements between the merging parties has been modified significantly in the Final Rule to simply require the filers to check boxes to indicate whether they have a few types of agreements between them—nothing has to be produced or described. The Final Rule similarly modifies the NPRM's overlap and supply “narratives” to require only “brief” descriptions instead. And, among other revisions, the Final Rule's overlap and supply descriptions requirement makes clear that antitrust analysis is not required.

Further, many of the modifications exempt “Select 801.30 Transactions” from having to report certain information required by the Final Rule. Select 801.30 Transactions are acquisitions of third parties' voting securities where the acquirer does not gain control, no agreements between the acquiring and acquired person govern the transaction, and the acquiror does not have the ability to appoint or serve on a board.^[8] The Final Rule likewise exempts transactions where there is no horizontal overlap or supply relationship from certain information requirements, and sets a de minimis threshold to exclude the requirement to describe supply relationships where the sale or purchase of the product, service, or asset represents less than $10 million in revenue in the most recent year. Table 2 highlights some of the main modifications that have been made in the Final Rule (again, this list is not exhaustive and does not substitute for the text of the Final Rule).

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Table 2—Select Modified NPRM Proposals

NPRM provision	Select modification in final rule
Prior Acquisitions 9	Among others, retain the five-year lookback and $10 million sales/assets threshold that existed in prior iterations of the HSR rules.
Other Agreements Between the Parties 10	Among others, filers are not required to produce or describe agreements between the parties; instead, they must only, via checkbox, identify types of agreements between them, if any.
Officers, Directors, and Board Observers 11	Among others, (1) exclude reporting on board observers; (2) limit to acquiring person only; (4) limit to officers/directors of entities in overlap industries as described by the text of the Final Rule.
4(c) Documents by/for Supervisory Deal Team Lead(s) 12	Limit to only apply to one individual ( not the plural “leads” like in the NPRM) supervisory deal team lead, as defined in the text of the Final Rule.
Supply Relationships 13	Among others, (1) require only “brief” descriptions rather than a narrative; (2) exclude “Select 801.30 Transactions”; (3) impose a de minimis threshold and (4) limit descriptions to a business assessment rather than an antitrust analysis ( see SBP).
Overlap Products and Services 14	Among others, (1) require only “brief” descriptions rather than a narrative; (2) exclude “Select 801.30 Transactions”; and (3) limit description to a business assessment rather than an antitrust analysis ( see SBP).
Ordinary Course Documents (Periodic Plans and Reports) 15	Among others, limit to exclude “Select 801.30 Transactions” and limited to only require documents provided to Chief Executive Officers.
Identification of Limited Partners 16	Among others, limit disclosure requirements for limited partners who do not have management rights.
Description of Entity Structures and Organizational Chart for Funds and MLPs 17	Among others, eliminate requirement to create an organizational chart.
Transaction Diagram 18	Among others, exclude “Select 801.30 Transactions” and only necessary if diagrams previously existed ( i.e., no need to create diagrams).
Mandatory Identification of Foreign Jurisdiction Reporting by Both Parties 19	Limit to acquiring person.
Requiring a draft agreement or term sheet and transaction specific agreements for filings on non-definitive agreements 20	Clarify scope and provide more details about the information required.
Transaction Rationale 21	Among others, exclude “Select 801.30 Transactions.”
Voluntary Waivers for State AGs and International Enforcers 22	Allow filers to voluntarily check two separate boxes that would permit certain disclosures.
Defense or Intelligence Contracts 23	Among others, limit to contracts generating $100 million or more of revenue and only if there is an Overlap or Supply Relationship.
Document Log Requirements 24	Among others, limit requirement to identify authors to certain and limited circumstances.
Adjustments to NAICS revenue reporting 25	Modified to limit scope.