§ 18a. — Premerger notification and waiting period.
[Laws in effect as of January 24, 2002]
[Document not affected by Public Laws enacted between
January 24, 2002 and December 19, 2002]
[CITE: 15USC18a]
TITLE 15--COMMERCE AND TRADE
CHAPTER 1--MONOPOLIES AND COMBINATIONS IN RESTRAINT OF TRADE
Sec. 18a. Premerger notification and waiting period
(a) Filing
Except as exempted pursuant to subsection (c) of this section, no
person shall acquire, directly or indirectly, any voting securities or
assets of any other person, unless both persons (or in the case of a
tender offer, the acquiring person) file notification pursuant to rules
under subsection (d)(1) of this section and the waiting period described
in subsection (b)(1) of this section 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 affecting commerce; and
(2) as a result of such acquisition, the acquiring 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 compared 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); and
(ii)(I) any voting securities or assets of a person engaged
in manufacturing which has annual net sales or total assets of
$10,000,000 (as so adjusted and published) or more are being
acquired by any person which has total assets or annual net
sales of $100,000,000 (as so adjusted and published) or more;
(II) any voting securities or assets of a person not engaged
in manufacturing which has total assets of $10,000,000 (as so
adjusted and published) or more are being acquired by any person
which has total assets or annual net sales of $100,000,000 (as
so adjusted and published) or more; or
(III) any voting securities or assets of a person with
annual net sales or total assets of $100,000,000 (as so adjusted
and published) or more are being acquired by any person with
total assets or annual net sales of $10,000,000 (as so adjusted
and published) or more.
In the case of a tender offer, the person whose voting securities are
sought to be acquired by a person required to file notification under
this subsection shall file notification pursuant to rules under
subsection (d) of this section.
(b) Waiting period; publication; voting securities
(1) The waiting period required under subsection (a) of this section
shall--
(A) begin on the date of the receipt by the Federal Trade
Commission and the Assistant Attorney General in charge of the
Antitrust Division of the Department of Justice (hereinafter
referred to in this section as the ``Assistant Attorney General'')
of--
(i) the completed notification required under subsection (a)
of this section, or
(ii) if such notification is not completed, the notification
to the extent completed and a statement of the reasons for such
noncompliance,
from both persons, or, in the case of a tender offer, the acquiring
person; and
(B) end on the thirtieth day after the date of such receipt (or
in the case of a cash tender offer, the fifteenth day), or on such
later date as may be set under subsection (e)(2) or (g)(2) of this
section.
(2) The Federal Trade Commission and the Assistant Attorney General
may, in individual cases, terminate the waiting period specified in
paragraph (1) and allow any person to proceed with any acquisition
subject to this section, and promptly shall cause to be published in the
Federal Register a notice that neither intends to take any action within
such period with respect to such acquisition.
(3) As used in this section--
(A) The term ``voting securities'' means any securities which at
present or upon conversion entitle the owner or holder thereof to
vote for the election of directors of the issuer or, with respect to
unincorporated issuers, persons exercising similar functions.
(B) The amount or percentage of voting securities or assets of a
person which are acquired or held by another person shall be
determined by aggregating the amount or percentage of such voting
securities or assets held or acquired by such other person and each
affiliate thereof.
(c) Exempt transactions
The following classes of transactions are exempt from the
requirements of this section--
(1) acquisitions of goods or realty transferred in the ordinary
course of business;
(2) acquisitions of bonds, mortgages, deeds of trust, or other
obligations which are not voting securities;
(3) acquisitions of voting securities of an issuer at least 50
per centum of the voting securities of which are owned by the
acquiring person 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 approved by a Federal agency, if copies of all
information 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 approval under section
1467a(e) of title 12, section 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 portion of the transaction (A) is
subject to section 1843(k) of title 12; and (B) does not require
agency approval under section 1842 of title 12;
(8) transactions which require agency approval under section
1843 of title 12 or section 1464 of title 12, if copies of all
information and documentary material filed with any such agency are
contemporaneously filed with the Federal Trade Commission and the
Assistant Attorney General at least 30 days prior to consummation of
the proposed transaction, except that a portion of a transaction is
not exempt under this paragraph if such portion of the transaction
(A) is subject to section 1843(k) of title 12; and (B) does not
require agency approval under section 1843 of title 12;
(9) acquisitions, solely for the purpose of investment, of
voting securities, if, as a result of such acquisition, the
securities acquired or held do not exceed 10 per centum of the
outstanding voting securities of the issuer;
(10) acquisitions of voting securities, if, as a result of such
acquisition, the voting securities acquired do not increase,
directly or indirectly, the acquiring person's per centum share of
outstanding voting securities of the issuer;
(11) acquisitions, solely for the purpose of investment, by any
bank, banking association, trust company, investment company, or
insurance company, of (A) voting securities pursuant to a plan of
reorganization or dissolution; or (B) assets in the ordinary course
of its business; and
(12) such other acquisitions, transfers, or transactions, as may
be exempted under subsection (d)(2)(B) of this section.
(d) Commission rules
The Federal Trade Commission, with the concurrence of the Assistant
Attorney General and by rule in accordance with section 553 of title 5,
consistent with the purposes of this section--
(1) shall require that the notification required under
subsection (a) of this section be in such form and contain such
documentary material and information relevant to a proposed
acquisition as is necessary and appropriate to enable the Federal
Trade Commission and the Assistant Attorney General to determine
whether such acquisition may, if consummated, violate the antitrust
laws; and
(2) may--
(A) define the terms used in this section;
(B) exempt, from the requirements of this section, classes
of persons, acquisitions, transfers, or transactions which are
not likely to violate the antitrust laws; and
(C) prescribe such other rules as may be necessary and
appropriate to carry out the purposes of this section.
(e) Additional information; waiting period extensions
(1)(A) The Federal Trade Commission or the Assistant Attorney
General may, prior to the expiration of 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, require the submission of additional
information or documentary material relevant to the proposed
acquisition, from a person required to file notification with respect to
such acquisition under subsection (a) of this section prior to the
expiration of the waiting period specified in subsection (b)(1) of this
section, or from any officer, director, partner, agent, or employee of
such person.
(B)(i) The Assistant Attorney General and the Federal Trade
Commission shall each designate a senior official who does not have
direct responsibility for the review of any enforcement recommendation
under this section concerning the transaction at issue, to hear any
petition filed by such person to determine--
(I) whether the request for additional information or
documentary material is unreasonably cumulative, unduly burdensome,
or duplicative; or
(II) whether the request for additional information or
documentary material has been substantially complied with by the
petitioning person.
(ii) Internal review procedures for petitions filed pursuant to
clause (i) shall include reasonable deadlines for expedited review of
such petitions, after reasonable negotiations with investigative staff,
in order to avoid undue delay of the merger review process.
(iii) Not later than 90 days after December 21, 2000, the Assistant
Attorney General and the Federal Trade Commission shall conduct an
internal review and implement reforms of the merger review process in
order to eliminate unnecessary burden, remove costly duplication, and
eliminate undue delay, in order to achieve a more effective and more
efficient merger review process.
(iv) Not later than 120 days after December 21, 2000, the Assistant
Attorney General and the Federal Trade Commission shall issue or amend
their respective industry guidance, regulations, operating manuals and
relevant policy documents, to the extent appropriate, to implement each
reform in this subparagraph.
(v) Not later than 180 days after December 21, 2000, the Assistant
Attorney General and the Federal Trade Commission shall each report to
Congress--
(I) which reforms each agency has adopted under this
subparagraph;
(II) which steps each has taken to implement such internal
reforms; and
(III) the effects of such reforms.
(2) The Federal Trade Commission or the Assistant Attorney General,
in its or his discretion, 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 Federal Trade Commission or the Assistant Attorney
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 statement of the reasons for such
noncompliance. Such additional period may be further extended only by
the United States district court, upon an application by the Federal
Trade Commission or the Assistant Attorney General pursuant to
subsection (g)(2) of this section.
(f) Preliminary injunctions; hearings
If a proceeding is instituted or an action is filed by the Federal
Trade Commission, alleging that a proposed acquisition violates section
18 of this title, or section 45 of this title, or an action is filed by
the United States, alleging that a proposed acquisition violates such
section 18 of this title, or section 1 or 2 of this title, and the
Federal Trade Commission or the Assistant Attorney General (1) files a
motion for a preliminary injunction against consummation of such
acquisition pendente lite, and (2) certifies the United States district
court for the judicial district within which the respondent resides or
carries on business, or in which the action is brought, that it or he
believes that the public interest requires relief pendente lite pursuant
to this subsection, then upon the filing of such motion and
certification, the chief judge of such district court shall immediately
notify the chief judge of the United States court of appeals for the
circuit in which such district court is located, who shall designate a
United States district judge to whom such action shall be assigned for
all purposes.
(g) Civil penalty; compliance; power of court
(1) Any person, or any officer, director, or partner thereof, who
fails to comply with any provision of this section shall be liable to
the United States for a civil penalty of not more than $10,000 for each
day during which such person is in violation of this section. Such
penalty may be recovered in a civil action brought by the United States.
(2) If any person, or any officer, director, partner, agent, or
employee thereof, fails substantially to comply with the notification
requirement under subsection (a) of this section or any request for the
submission of additional information or documentary material under
subsection (e)(1) of this section within the waiting period specified in
subsection (b)(1) of this section and as may be extended under
subsection (e)(2) of this section, the United States district court--
(A) may order compliance;
(B) shall extend the waiting period specified in subsection
(b)(1) of this section and as may have been extended under
subsection (e)(2) of this section 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 necessary or appropriate,
upon application of the Federal Trade Commission 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
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
proceeding. Nothing in this section is intended to prevent disclosure to
either body of Congress or to any duly authorized committee or
subcommittee of the Congress.
(i) Construction with other laws
(1) Any action taken by the Federal Trade Commission or the
Assistant Attorney General or any failure of the Federal Trade
Commission or the Assistant Attorney General to take any action under
this section shall not bar any proceeding or any action with respect to
such acquisition at any time under any other section of this Act or any
other provision of law.
(2) Nothing contained in this section shall limit the authority of
the Assistant Attorney General or the Federal Trade Commission to secure
at any time from any person documentary material, oral testimony, or
other information under the Antitrust Civil Process Act [15 U.S.C. 1311
et seq.], the Federal Trade Commission Act [15 U.S.C. 41 et seq.], or
any other provision of law.
(j) Omitted
(k) Extensions of time
If the end of any period of time provided in this section falls on a
Saturday, Sunday, or legal public holiday (as defined in section 6103(a)
of title 5), then such period shall be extended to the end of the next
day that is not a Saturday, Sunday, or legal public holiday.
(Oct. 15, 1914, ch. 323, Sec. 7A, as added Pub. L. 94-435, title II,
Sec. 201, Sept. 30, 1976, 90 Stat. 1390; amended Pub. L. 98-620, title
IV, Sec. 402(10)(A), Nov. 8, 1984, 98 Stat. 3358; Pub. L. 101-73, title
XII, Sec. 1214, Aug. 9, 1989, 103 Stat. 529; Pub. L. 106-102, title I,
Sec. 133(c), Nov. 12, 1999, 113 Stat. 1383; Pub. L. 106-553,
Sec. 1(a)(2) [title VI, Sec. 630(a), (c), (d)], Dec. 21, 2000, 114 Stat.
2762, 2762A-108, 2762A-110.)
References in Text
The antitrust laws, referred to in subsecs. (c), (d), are defined in
section 12 of this title.
This Act, referred to in subsec. (i)(1), is act Oct. 15, 1914, ch.
323, 38 Stat. 730, as amended, known as the Clayton Act, which is
classified generally to sections 12, 13, 14 to 19, 20, 21, and 22 to 27
of this title, and sections 52 and 53 of Title 29, Labor. For further
details and complete classification of this Act to the Code, see
References in Text note set out under section 12 of this title and
Tables.
The Federal Trade Commission Act, referred to in subsec. (i)(2), is
act Sept. 26, 1914, ch. 311, 38 Stat. 717, as amended, which is
classified generally to subchapter I (Sec. 41 et seq.) of chapter 2 of
this title. For complete classification of this Act to the Code, see
section 58 of this title and Tables.
The Antitrust Civil Process Act, referred to in subsec. (i)(2), is
Pub. L. 87-664, Sept. 19, 1962, 76 Stat. 548, as amended, which is
classified generally to chapter 34 (Sec. 1311 et seq.) of this title.
For complete classification of this Act to the Code, see Short Title
note set out under section 1311 of this title and Tables.
Codification
December 21, 2000, referred to in subsec. (e)(1)(B), was in the
original ``the date of the enactment of this Act'' which was translated
as meaning the date of enactment of Pub. L. 106-553, which enacted
subsec. (e)(1)(B), to reflect the probable intent of Congress.
Subsection (j), which required the Federal Trade Commission, with
the concurrence of the Assistant Attorney General, to report annually to
Congress on the operation of this section, terminated, effective May 15,
2000, pursuant to section 3003 of Pub. L. 104-66, as amended, set out as
a note under section 1113 of Title 31, Money and Finance. See, also,
page 172 of House Document No. 103-7.
Amendments
2000--Subsec. (a). Pub. L. 106-553, Sec. 1(a)(2) [title VI,
Sec. 630(a)], amended subsec. (a) generally, reenacting introductory
provisions, par. (1), and concluding provisions without change, adding
par. (2), and striking out former pars. (2) and (3) which read as
follows:
``(2)(A) any voting securities or assets of a person engaged in
manufacturing which has annual net sales or total assets of $10,000,000
or more are being acquired by any person which has total assets or
annual net sales of $100,000,000 or more;
``(B) any voting securities or assets of a person not engaged in
manufacturing which has total assets of $10,000,000 or more are being
acquired by any person which has total assets or annual net sales of
$100,000,000 or more; or
``(C) any voting securities or assets of a person with annual net
sales or total assets of $100,000,000 or more are being acquired by any
person with total assets or annual net sales of $10,000,000 or more; and
``(3) as a result of such acquisition, the acquiring person would
hold--
``(A) 15 per centum or more of the voting securities or assets
of the acquired person, or
``(B) an aggregate total amount of the voting securities and
assets of the acquired person in excess of $15,000,000.''
Subsec. (e)(1). Pub. L. 106-553, Sec. 1(a)(2) [title VI,
Sec. 630(c)], designated existing provisions as subpar. (A) and added
subpar. (B).
Subsec. (e)(2). Pub. L. 106-553, Sec. 1(a)(2) [title VI,
Sec. 630(d)(1)], substituted ``30 days'' for ``20 days''.
Subsec. (k). Pub. L. 106-553, Sec. 1(a)(2) [title VI,
Sec. 630(d)(2)], added subsec. (k).
1999--Subsec. (c)(7). Pub. L. 106-102, Sec. 133(c)(1), inserted
before semicolon at end ``, except that a portion of a transaction is
not exempt under this paragraph if such portion of the transaction (A)
is subject to section 1843(k) of title 12; and (B) does not require
agency approval under section 1842 of title 12''.
Subsec. (c)(8). Pub. L. 106-102, Sec. 133(c)(2), inserted before
semicolon at end ``, except that a portion of a transaction is not
exempt under this paragraph if such portion of the transaction (A) is
subject to section 1843(k) of title 12; and (B) does not require agency
approval under section 1843 of title 12''.
1989--Subsec. (c)(7). Pub. L. 101-73, Sec. 1214(1), inserted
reference to section 1467a(e) of title 12.
Subsec. (c)(8). Pub. L. 101-73, Sec. 1214(2), struck out reference
to section 1726 or 1730a(e) of title 12.
1984--Subsec. (f)(2). Pub. L. 98-620 struck out designation ``(A)''
before ``upon the filing'', and struck out subpar. (B) which had
provided that if the Federal Trade Commission or the Assistant Attorney
General certified that he or it believed that the public interest
required relief pendente lite pursuant to this subsection, the motion
for a preliminary injunction had to be set down for hearing by the
district judge so designated at the earliest practicable time, would
take precedence over all matters except older matters of the same
character and trials pursuant to section 3161 of title 18, and had to be
in every way expedited.
Effective Date of 2000 Amendment
Pub. L. 106-553, Sec. 1(a)(2) [title VI, Sec. 630(e)], Dec. 21,
2000, 114 Stat. 2762, 2762A-111, provided that: ``This section [amending
this section and provisions set out as a note under this section] and
the amendments made by this section shall take effect on the 1st day of
the 1st month that begins more than 30 days after the date of the
enactment of this Act [Dec. 21, 2000].''
Effective Date of 1999 Amendment
Amendment by Pub. L. 106-102 effective 120 days after Nov. 12, 1999,
see section 161 of Pub. L. 106-102, set out as a note under section 24
of Title 12, Banks and Banking.
Effective Date of 1984 Amendment
Amendment by Pub. L. 98-620 not applicable to cases pending on Nov.
8, 1984, see section 403 of Pub. L. 98-620, set out as an Effective Date
note under section 1657 of Title 28, Judiciary and Judicial Procedure.
Effective Date
Section 202 of Pub. L. 94-435 provided that: ``The amendment made by
section 201 of this Act [enacting this section] shall take effect 150
days after the date of enactment of this Act [Sept. 30, 1976], except
that subsection (d) of section 7A of the Clayton Act [subsec. (d) of
this section] (as added by section 201 of this Act) shall take effect on
the date of enactment of this Act.''
Assessment and Collection of Filing Fees
Pub. L. 101-162, title VI, Sec. 605, Nov. 21, 1989, 103 Stat. 1031,
as amended by Pub. L. 101-302, title II, May 25, 1990, 104 Stat. 217;
Pub. L. 102-395, title I, Oct. 6, 1992, 106 Stat. 1847; Pub. L. 103-317,
title I, Aug. 26, 1994, 108 Stat. 1739; Pub. L. 106-553, Sec. 1(a)(2)
[title VI, Sec. 630(b)], Dec. 21, 2000, 114 Stat. 2762, 2762A-109,
provided that:
``(a) Five working days after enactment of this Act [Nov. 21, 1989]
and thereafter, the Federal Trade Commission shall assess and collect
filing fees established in subsection (b) which shall be paid by persons
acquiring voting securities or assets who are required to file premerger
notifications by the [sic] section 7A of the Clayton Act (15 U.S.C. 18a)
and the regulations promulgated thereunder. For purposes of said Act, no
notification shall be considered filed until payment of the fee required
by this section. Fees collected pursuant to this section shall be
divided evenly between and credited to the appropriations, Federal Trade
Commission, `Salaries and Expenses' and Department of Justice, `Salaries
and Expenses, Antitrust Division': Provided, That fees in excess of
$40,000,000 in fiscal year 1990 shall be deposited to the credit of the
Treasury of the United States: Provided further, That fees made
available to the Federal Trade Commission and the Antitrust Division
herein shall remain available until expended.
``(b) The filing fees referred to in subsection (a) are--
``(1) $45,000 if the aggregate total amount determined under
section 7A(a)(2) of the Clayton Act (15 U.S.C. 18a(a)(2)) is less
than $100,000,000 (as adjusted and published for each fiscal year
beginning after September 30, 2004, in the same manner as provided
in section 8(a)(5) of the Clayton Act (15 U.S.C. 19(a)(5)) to
reflect the percentage change in the gross national product for such
fiscal year compared to the gross national product for the year
ending September 30, 2003);
``(2) $125,000 if the aggregate total amount determined under
section 7A(a)(2) of the Clayton Act (15 U.S.C. 18a(a)(2)) is not
less than $100,000,000 (as so adjusted and published) but less than
$500,000,000 (as so adjusted and published); and
``(3) $280,000 if the aggregate total amount determined under
section 7A(a)(2) of the Clayton Act (15 U.S.C. 18a(a)(2)) is not
less than $500,000,000 (as so adjusted and published).''
Section Referred to in Other Sections
This section is referred to in section 6204 of this title; title 11
section 363.