[Code of Federal Regulations] [Title 16, Volume 1] [Revised as of January 1, 2005] From the U.S. Government Printing Office via GPO Access [CITE: 16CFR801.2] [Page 585-586] TITLE 16--COMMERCIAL PRACTICES CHAPTER I--FEDERAL TRADE COMMISSION PART 801_COVERAGE RULES--Table of Contents Sec. 801.2 Acquiring and acquired persons. (a) Any person which, as a result of an acquisition, will hold voting securities or assets, either directly or indirectly, or through fiduciaries, agents, or other entities acting on behalf of such person, is an acquiring person. Example: Assume that corporations A and B, which are each ultimate parent entitles of their respective ``persons,'' created a joint venture, corporation V, and that each holds half of V's shares. Therefore, A and B each control V (see Sec. 801.1(b)), and V is included within two persons, ``A'' and ``B.'' Under this section, if V is to acquire corporation X, both ``A'' and ``B'' are acquiring persons. (b) Except as provided in paragraphs (a) and (b) of Sec. 801.12, the person(s) within which the entity whose assets or voting securities are being acquired is included, is an acquired person. Examples: 1. Assume that person ``Q'' will acquire voting securities of corporation X held by ``P'' and that X is not included within person ``P.'' Under this section, the acquired person is the person within which X is included, and is not ``P.'' 2. In the example to paragraph (a) of this section, if V were to be acquired by X, then both ``A'' and ``B'' would be acquired persons. (c) For purposes of the act and these rules, a person may be an acquiring person and an acquired person with respect to separate acquisitions which comprise a single transaction. (d)(1)(i) Mergers and consolidations are transactions subject to the act and shall be treated as acquisitions of voting securities. (ii) In a merger, the person which, after consummation, will include the corporation in existence prior to consummation which is designated as the surviving corporation in the plan, agreement, or certificate of merger required to be filed with State authorities to effectuate the transaction shall be deemed to have made an acquisition of voting securities. (2)(i) Any person party to a merger or consolidation is an acquiring person if, as a result of the transaction, such person will hold any assets or voting securities which it did not hold prior to the transaction. (ii) Any person party to a merger or consolidation is an acquired person if, as a result of the transaction, the assets or voting securities of any entity included within such person will be held by any other person. (iii) All persons party to a transaction as a result of which all parties will lose their separate pre-acquisition identities shall be both acquiring and acquired persons. Examples: 1. Corporation A (the ultimate parent entity included within person ``A'') proposes to acquire Y, a wholly-owned subsidiary of B (the ultimate parent entity included within person ``B''). The transaction is to be carried out by merging Y into X, a wholly-owned subsidiary of A, with X surviving, and by distributing the assets of X to B, the only shareholder of Y. The assets of X consist solely of cash and the voting securities of C, an entity unrelated to ``A'' or ``B''. Since X is designated the surviving corporation in the plan or agreement of merger or consolidation and since X will be included in ``A'' after consummation of the transaction, ``A'' will be deemed to have made an acquisition of voting securities. In this acquisition, ``A'' is an acquiring person because it will hold assets or voting securities it did not hold prior to the transaction, and ``B'' is an acquired person because the assets or the voting securities of an entity previously included within it will be held by A as a result of the acquisition. B will hold the cash and voting securities of C as a result of the transaction, but since Sec. 801.21 applies, this acquisition is not reportable. ``A'' is therefore an acquiring person only, and ``B'' is an acquired person only. ``B'' may, however, [[Page 586]] have a separate reporting obligation as an acquiring person in a separate transaction involving the voting securities of C. 2. In the above example, suppose the consideration for Y consists of $8 million worth of the voting securities of A. With regard to the transfer of this consideration, ``B'' is an acquiring person because it will hold voting securities it did not previously hold, and ``A'' is an acquired person because its voting securities will be held by B. Since these voting securities are worth less than $50 million, however, the acquisition of these securities is not reportable. ``A'' will therefore report as an acquiring person only and ``B'' as an acquired person only. 3. In the above example, suppose that, as consideration for Y, A transfers to B a manufacturing plant valued at $51 million. ``B'' is thus an acquiring person and ``A'' an acquired person in a reportable acquisition of assets. ``A'' and ``B'' will each report as both an acquiring and an acquired person in this transaction because each occupies each role in a reportable acquisition. 4. In the above example, suppose that, as consideration for Y, A transfers to B a manufacturing plant valued at $16 million. ``B'' is thus an acquiring person and ``A'' an acquired person in a reportable acquisition of assets.``A'' and ``B'' will each report as both an acquiring and an acquired person in this transaction because each occupies each role in a reportable acquisition. 5. Corporations A (the ultimate parent entity in person ``A'') and B (the ultimate parent entity in person ``B'') propose to consolidate into C, a newly formed corporation. All shareholders of A and B will receive shares of C, and both A and B will lose their separate pre-acquisition identities. ``A'' and ``B'' are both acquiring and acquired persons because they are parties to a transaction in which all parties lose their separate pre-acquisition identities. (e) Whenever voting securities or assets are to be acquired from an acquiring person in connection with an acquisition, the acquisition of voting securities or assets shall be separately subject to the act. [43 FR 33537, July 31, 1978, as amended at 48 FR 34431, July 29, 1983; 66 FR 8688, Feb. 1, 2001]