Mergers

Premerger notification and waiting period (a) Filing Except as exempted pursuant to subsection (c), no person shall acquire, directly or indi- rectly, any voting securities or assets of any other person, unless both persons (or in the case of a tender offer, the acquiring person) file noti- fication pursuant to rules under subsection (d)(1) and the waiting period described in sub- section (b)(1) has expired, if— (1) the acquiring person, or the person whose voting securities or assets are being acquired, is engaged in commerce or in any activity af- fecting commerce; and (2) as a result of such acquisition, the ac- quiring person would hold an aggregate total amount of the voting securities and assets of the acquired person— (A) in excess of $200,000,000 (as adjusted and published for each fiscal year beginning after September 30, 2004, in the same manner as provided in section 19(a)(5) of this title to reflect the percentage change in the gross national product for such fiscal year com- pared to the gross national product for the year ending September 30, 2003); or (B)(i) in excess of $50,000,000 (as so adjusted and published) but not in excess of $200,000,000 (as so adjusted and published);...

L. 96–349, § 6(b), Sept. 12, 1980, 94 Stat. 1158, pro- vided that: ‘‘The amendments made by this section [amending this section] shall apply only with respect to acquisitions made after the date of the enactment of this Act [Sept. 12, 1980].’’ T RANSFER OFFUNCTIONS Federal Power Commission terminated and functions, personnel, property, funds, etc., transferred to Sec- retary of Energy (except for certain functions trans- ferred to Federal Energy Regulatory Commission) by sections 7151(b), 7171(a), 7172(a), 7291, and 7293 of Title 42, The Public Health and Welfare.

(c) Exempt transactions The following classes of transactions are ex- empt from the requirements of this section— (1) acquisitions of goods or realty trans- ferred in the ordinary course of business; (2) acquisitions of bonds, mortgages, deeds of trust, or other obligations which are not vot- ing securities; (3) acquisitions of voting securities of an is- suer at least 50 per centum of the voting secu- rities of which are owned by the acquiring per- son prior to such acquisition; (4) transfers to or from a Federal agency or a State or political subdivision thereof; (5) transactions specifically exempted from the antitrust laws by Federal statute; (6) transactions specifically exempted from the antitrust laws by Federal statute if ap- proved by a Federal agency, if copies of all in- formation and documentary material filed with such agency are contemporaneously filed with the Federal Trade Commission and the Assistant Attorney General; (7) transactions which require agency ap- proval under section 1467a(e) of title 12, sec- tion 1828(c) of title 12, or section 1842 of title 12, except that a portion of a transaction is not exempt under this paragraph if such por- tion of the transaction (A) is subject to sec- tion 1843(k) of title 12; and (B) does not require agency approval under section 1842 of title 12;...

(2) If any person, or any officer, director, part- ner, agent, or employee thereof, fails substan- tially to comply with the notification require- ment under subsection (a) or any request for the submission of additional information or docu- mentary material under subsection (e)(1) of this section within the waiting period specified in subsection (b)(1) and as may be extended under subsection (e)(2), the United States district court— (A) may order compliance; (B) shall extend the waiting period specified in subsection (b)(1) and as may have been ex- tended under subsection (e)(2) until there has been substantial compliance, except that, in the case of a tender offer, the court may not extend such waiting period on the basis of a failure, by the person whose stock is sought to be acquired, to comply substantially with such notification requirement or any such request; and (C) may grant such other equitable relief as the court in its discretion determines nec- essary or appropriate, upon application of the Federal Trade Commis- sion or the Assistant Attorney General.

(h) Disclosure exemption Any information or documentary material filed with the Assistant Attorney General or the Federal Trade Commission pursuant to this sec- tion shall be exempt from disclosure under sec- tion 552 of title 5, and no such information or documentary material may be made public, ex- cept as may be relevant to any administrative or judicial action or proceeding.

(2) The Federal Trade Commission or the As- sistant Attorney General, in its or his discre- tion, may extend the 30-day waiting period (or in the case of a cash tender offer, the 15-day waiting period) specified in subsection (b)(1) of this section for an additional period of not more than 30 days (or in the case of a cash tender offer, 10 days) after the date on which the Fed- eral Trade Commission or the Assistant Attor- ney General, as the case may be, receives from any person to whom a request is made under paragraph (1), or in the case of tender offers, the acquiring person, (A) all the information and documentary material required to be submitted pursuant to such a request, or (B) if such request is not fully complied with, the information and documentary material submitted and a state- ment of the reasons for such noncompliance.

(c) Confidentiality of information Any information or documentary material filed with the President or the President’s des- ignee pursuant to this section shall be exempt from disclosure under section 552 of title 5, and no such information or documentary material may be made public, except as may be relevant to any administrative or judicial action or pro- ceeding.

(2) Application of confidentiality provisions (A) In general The disclosure of information under this subsection shall be consistent with the re-

(B) Proprietary information Proprietary information which can be as- sociated with a particular party to a covered transaction shall be furnished in accordance with subparagraph (A) only to a committee of Congress, and only when the committee provides assurances of confidentiality, un- less such party otherwise consents in writ- ing to such disclosure.

(2) Tracking authority for withdrawn notices (A) In general If any written notice of a covered trans- action that was submitted to the Committee under this section is withdrawn before any review or investigation by the Committee under subsection (b) is completed, the Com- mittee shall establish, as appropriate— (i) interim protections to address spe- cific concerns with such transaction that have been raised in connection with any such review or investigation pending any resubmission of any written notice under this section with respect to such trans- action and further action by the President under this section; (ii) specific time frames for resubmitting any such written notice; and (iii) a process for tracking any actions that may be taken by any party to the transaction, in connection with the trans- action, before the notice referred to in clause (ii) is resubmitted.

An unclassified version of the report, as ap- propriate, consistent with safeguarding na- tional security and privacy, shall be made available to the public.

(n) Certification of notices and assurances Each notice, and any followup information, submitted under this section and regulations prescribed under this section to the President or the Committee by a party to a covered trans- action, and any information submitted by any such party in connection with any action for which a report is required pursuant to paragraph (3)(B) of subsection (l), with respect to the im- plementation of any mitigation agreement or condition described in paragraph (1)(A) of sub- section (l), or any material change in circum- stances, shall be accompanied by a written statement by the chief executive officer or the designee of the person required to submit such notice or information certifying that, to the best of the knowledge and belief of that person— (1) the notice or information submitted fully complies with the requirements of this section or such regulation, agreement, or condition; and (2) the notice or information is accurate and complete in all material respects.