Which version of the HSR Form should I use?
Use the current Form with certain adjustments. For example, if the transaction would not have met any of the notification thresholds as currently adjusted, you should not check any of the boxes in the Notification Threshold section of the Form but should explain in the Transaction Description section that although the deal would not have crossed a current as adjusted threshold, it would have crossed an as adjusted threshold in place at the time that the transaction was consummated. If, however, an applicable threshold would have applied to your transaction, indicate that threshold in Notification Threshold section of the Form.
What is the applicable date to insert at the top of the Form in a corrective filing?
The applicable date is the date that the corrective filing is made, rather than the date that the filing should have been made.
May I request early termination?
No. Early termination will not be granted.
Do I need to determine the UPEs as of the time the filing should have been made?
Always determine the Acquiring Person and the Acquired Person that existed at the time the acquisition occurred; the current UPEs of those two persons make the corrective filings. Note that in an acquisition for control of an Acquired Entity that was its own UPE at the time the acquisition occurred, the current UPE of the Acquiring Person files as both the Acquiring Person and Acquired Person. Please explain this in the Transaction Description section of the Form.
Should my description of the acquisition in the Transaction Description section of the Form differ from the description I would provide for a regular filing?
No. Provide the same description that you would for a regular filing. However, you must also provide a brief description of the circumstances surrounding the failure to make a timely filing.
What is the applicable time frame for completing the Form?
Generally, corrective filings should be made as if the parties had made timely filings, reflecting the period just prior to the consummation of the acquisition.
Do I need to submit the affidavits required by 803.5 of the HSR Rules?
Yes. The affidavits should reflect that the acquisition already took place.
Do I need to send the target a notice letter in an 801.30 transaction?
Yes. The notice letter should specify that the acquisition already took place and the date(s) of the acquisition(s).
What are the applicable filing fees and filing fee thresholds?
The applicable filing fees and thresholds are those in place at the time of the corrective filing. If the filing is for an acquisition valued below the current filing fee threshold of $50 million (as adjusted), the acquiring party must pay $30,000, the lowest current filing fee.
Do filings need to be submitted to both the Federal Trade Commission and the Department of Justice?
Yes. Please follow the guidelines for submission of timely notifications.