If you can estimate the value of the earnout now, you have a determined acquisition price. If you can’t, you have to do a fair market value.
Question
From: Walsh, Kathryn E. <kwalsh@ftc.gov>
Sent: Friday, April 28, 2023 2:16:16 PM (UTC-05:00) Eastern Time (US & Canada)
To: [Redacted]
Cc: HSRHelp <HSRHelp@ftc.gov>
Subject: FW: H.S.R. and earnout
If you can estimate the value of the earnout now, you have a determined acquisition price. If you can’t, you have to do a fair market value.
From: [Redacted]
Sent: Friday, April 28, 2023 10:08:08 AM (UTC-05:00) Eastern Time (US & Canada)
To: HSRHelp <HSRHelp@ftc.gov>
Subject: H.S.R. and earnout
Dear Sir or Madam,
We are hoping to assess whether a certain corporate transaction is subject to H.S.R. filing requirements. This would depend on how the transaction size is determined – in this case it could end up above or below the USD 445.5 million threshold as the parties are negotiating an earnout:
- The consideration payable in the transaction consists of:
- a “Base Consideration” of USD 300-340 million payable upon closing, depending on certain adjustments
- an “Earn-Out Consideration of up to USD 350 million payable after 2025 on the basis of certain financial KPIs (the Earn-Out Consideration may also end up being 0 EUR)
The entire consideration is therefore USD 300-690 million (so could end up above or below USD 445.5 million). Where within this corridor the deal will end up will only be seen in 2026.
We would be most grateful for any guidance.