[Code of Federal Regulations]

[Title 31, Volume 3]

[Revised as of July 1, 2005]

From the U.S. Government Printing Office via GPO Access

[CITE: 31CFR800.402]



[Page 939-941]

 

                  TITLE 31--MONEY AND FINANCE: TREASURY

 

  CHAPTER VIII--OFFICE OF INTERNATIONAL INVESTMENT, DEPARTMENT OF THE 

                                TREASURY

 

PART 800_REGULATIONS PERTAINING TO MERGERS, ACQUISITIONS, AND TAKEOVERS 

BY FOREIGN PERSONS--Table of Contents

 

                            Subpart D_Notice

 

Sec. 800.402  Contents of voluntary notice.



    (a) If the parties to an acquisition jointly submit a voluntary 

notice, they shall provide in detail the information set out in this 

section, which must be accurate and complete with respect to all 

parties. All parties shall sign a joint notice.

    (b) If fewer than all the parties to an acquisition submit a 

voluntary notice:

    (1) Each notifying party shall provide the information set out in 

this section with respect to itself and, to the extent known or 

reasonably available to it, with respect to each non-notifying party.

    (2) The Staff Chairman may delay acceptance of the notice, and the 

beginning of the thirty-day review period, in order to obtain any 

information set forth under this section that has not been submitted by 

the notifying party. Where necessary to obtain such information, the 

Staff Chairman may inform the non-notifying party or parties that notice 

has been initiated with respect to a proposed transaction involving the 

party, and request that certain information set forth in this section, 

as specified by the Staff Chairman, be forwarded to the Committee within 

seven days after such request by the Staff Chairman.

    (c) A voluntary notice submitted pursuant to Sec. 800.401(a) shall 

describe:

    (1) The transaction in question, including

    (i) A summary setting forth the essentials of the transaction;

    (ii) The nature of the transaction, e.g., whether the acquisition is 

by merger, consolidation, the purchase of voting securities, or 

otherwise;



[[Page 940]]



    (iii) The name, United States address (if any), and address of the 

principal place of business of the foreign person making the 

acquisition;

    (iv) The name and address of the U.S. person being acquired;

    (v) The name, address and nationality of the parent, if any, of the 

foreign person making the acquisition, and of each affiliate of that 

person;

    (vi) The name, address and nationality of the persons or interests 

that will control the U.S. person being acquired; and

    (vii) The expected date for concluding the transaction, or the date 

it was concluded.

    (2) The assets of the U.S. person being acquired (to be described 

only for an acquisition of an entity structured as an acquisition of 

assets or a business).

    (3) With respect to the U.S. person being acquired, and any entity 

of which it is a parent that is also being acquired:

    (i) The business activities of each of them, as, for example, set 

forth in annual reports, and the product lines of each;

    (ii) The street address (or mailing address, if different) within 

the United States of the facilities of each of them, which are 

manufacturing classified or unclassified products or producing services 

described in subparagraph (v) below, and their respective Commercial and 

Government Entity Code (CAGE Code), if any, assigned by the Department 

of Defense;

    (iii) Except as may be identified in paragraph (c)(3)(iv) of this 

section, each contract (identified by agency and number), which is 

currently in effect, or was in effect within the past three years, with 

an agency of the Government of the United States with national defense 

responsibilities, including any component of the Department of Defense, 

and the name, office, and telephone number of the contracting official;

    (iv) Each contract (identified by agency and number), which is 

currently in effect or was in effect within the past five years, with 

any agency of the Government of the United States involving any 

information, technology or data, which is classified under Executive 

Order 12356 of April 2, 1982, and the name, office, and telephone number 

of the contracting official;

    (v) Any products or services (including research and development) of 

each of them with respect to which

    (A) It is a supplier, for example, a prime contractor, or a first 

tier subcontractor, or, if known, a subcontractor at any tier, to the 

Department of Defense or any component of the Department of Defense, or 

a seller to any such prime contractor or subcontractor, and, to the 

knowledge of the parties submitting notice, to what extent the U.S. 

person is a sole-source supplier to the Department of Defense for a 

particular product or service;

    (B) It has technology which has military applications.

    (4) Whether the U.S. person being acquired produces:

    (i) Products or technical data subject to validated licenses or 

under General License GTDR pursuant to the U.S. Export Administration 

Regulations (15 CFR parts 768-799); if applicable, the relevant 

Commodity Control List number shall be provided and the technical data 

shall be described; and

    (ii) Defense articles and defense services under the International 

Traffic in Arms Regulations (22 CFR subchapter M).

    (5) With respect to the foreign person:

    (i) The business or businesses of the foreign person making the 

acquisition, and of its parent and any affiliates, as described, for 

example, in annual reports. Provide CAGE codes, if any, for such 

facilities;

    (ii) The plans of the foreign person for the U.S. person with 

respect to:

    (A) Reducing, eliminating or selling research and development 

facilities,

    (B) Changing product quality,

    (C) Shutting down or moving offshore facilities which are within the 

United States,

    (D) Consolidating or selling product lines or technology, or

    (E) Modifying or terminating contracts referred to in paragraphs 

(c)(3) (iii) and (iv) of this section for defense-related goods or 

services or for goods and services otherwise affecting national 

security;



[[Page 941]]



    (iii) Whether the foreign person is acting on behalf of a foreign 

government, for example, as an agent or a representative, or in some 

similar capacity; and

    (iv) Whether a foreign government or an entity controlled by a 

foreign government--

    (A) Has the power or right to determine, direct, take, reach or 

cause decisions of the acquirer with respect to any of the matters 

listed in Sec. 800.204, and, if so, the source of that power or right 

(e.g., shareholders agreement, contract, statute, regulation) and the 

mechanics of its operation;

    (B) Owns or controls voting or convertible securities of the 

acquiring foreign person or any affiliate of the acquiring foreign 

person, and if so, the nature and percentage amount of any such 

securities;

    (C) Has the right or power to appoint any of the principal officers 

or the members of the board of directors of the acquiring foreign person 

or any affiliate of the acquiring foreign person; or

    (D) Holds any contingent interest (e.g., such as might arise from a 

lending transaction) in the foreign acquiring party and, if so, the 

rights that are covered by this contingent interest, and the manner in 

which they would be enforced.

    (d) The voluntary notice shall list any filings with or reports to 

agencies of the United States Government which have been or will be made 

in respect of the acquisition prior to its closing indicating the 

agencies concerned, the nature of the filing or report, the date by 

which it was filed or the estimated date by which it will be filed, and 

a relevant telephone number and/or contact point within the agency, if 

known.



    Example. Corporation A, a foreign person, intends to acquire 

Corporation X, which is wholly owned and controlled by a U.S. national, 

and which has a Facility Security Clearance under the Department of 

Defense Industrial Security Program. See Department of Defense, 

``Industrial Security Regulation,'' DOD 5220.22-R, and ``Industrial 

Security Manual for Safeguarding Classified Information,'' DOD 5220.22-

M. Corporation X accordingly files a revised Form DD 441s, and enters 

into discussions with the Defense Investigative Service about 

effectively insulating its facilities from the foreign interest.

    Paragraph (d) requires that certain specific information about these 

steps be reported to the Committee in a voluntary notice.



    (e) In the case of a joint venture subject to section 721, 

information for the voluntary notice shall be prepared on the assumption 

that the foreign person which is party to the joint venture has made an 

acquisition of the business or businesses that the U.S. person which is 

a party to the joint venture is contributing or transferring to the 

joint venture. In addition, the voluntary notice shall describe the name 

and address of the joint venture or other corporation.

    (f) In the case of acquisitions of some but not all of the 

businesses or assets of a U.S. person, Sec. 800.402(c) only requires 

submission of the specified information with respect to the business or 

assets that have been or are proposed to be acquired.

    (g) Persons filing a voluntary notice shall, in respect of the 

foreign person making the acquisition, its parent and affiliates, the 

U.S. person being acquired, and each entity of which it is a parent, 

append to the voluntary notice the most recent annual report of each 

such entity, if available. Separate reports are not required for any 

entity whose financial results are included within the consolidated 

financial results stated in the annual report of any direct or indirect 

parent of any such entity.

    (h) Persons filing a voluntary notice shall, during the time that 

the matter is pending before the Committee or the President, promptly 

advise the Staff Chairman of any material changes in plans or 

information provided to the Committee. See also Sec. 800.701(a).

    (i) Persons filing a voluntary notice shall include a copy of the 

most recent asset or stock purchase agreement or other document 

establishing the terms of the acquisition.



[56 FR 58780, Nov. 21, 1991, as amended at 59 FR 27179, May 25, 1994]