16 CFR 803.9 – Filing fee
(a) Each acquiring person shall pay the filing fee required by the act to the Federal Trade Commission, except as provided in paragraphs (b), (c), and (f) of this section. No additional fee is to be submitted to the Antitrust Division of the Department of Justice. Examples:
Terms Used In 16 CFR 803.9
- Assets: (1) The property comprising the estate of a deceased person, or (2) the property in a trust account.
- Contract: A legal written agreement that becomes binding when signed.
- Fair market value: The price at which an asset would change hands in a transaction between a willing, informed buyer and a willing, informed seller.
- Remainder: An interest in property that takes effect in the future at a specified time or after the occurrence of some event, such as the death of a life tenant.
(1) “A” wishes to acquire voting securities issued by B, where the greater of the acquisition price and the market price is in excess of $50 million (as adjusted) but less than $100 million (as adjusted) pursuant to § 801.10 of this chapter. When “A” files notification for the transaction, it must indicate the $50 million (as adjusted) threshold. If the value of the voting securities is less than $161.5 million, “A” must pay a filing fee of $30,000 because the aggregate total amount of the acquisition is greater than $50 million (as adjusted) but less than $161.5 million. If the aggregate total value of the voting securities is at least $161.5 million, but less than $500 million, “A” must pay a filing fee of $100,000.
(2) “A” acquires $75 million of assets from “B.” The parties meet the size of person criteria of section 7A(a)(2)(B) of the act, but the transaction is not reportable because it does not exceed the $50 million (as adjusted) size of transaction threshold of that provision. Two months later “A” acquires additional assets from “B” valued at $175 million. Pursuant to the aggregation requirements of § 801.13(b)(2)(ii) of this chapter, the aggregate total amount of “B’s” assets that “A” will hold as a result of the second acquisition is $250 million. Accordingly, when “A” files notification for the second transaction, “A” must pay a filing fee of $100,000 because the aggregate total amount of the acquisition is less than $500 million, but not less than $161.5 million.
(3) In 2023, “A” acquires $115 million of voting securities issued by B after submitting its notification and $30,000 filing fee and indicates the $50 million (as adjusted) threshold. Two years later, “A” files to acquire additional voting securities issued by B valued at $114.4 million because it will exceed the next higher reporting threshold (see § 801.1(h) of this chapter). Assuming the second transaction is reportable, and the value of its initial holdings is unchanged (see §§ 801.13(a)(2) and 801.10(c) of this chapter), the provisions of § 801.13(a)(1) of this chapter require that “A” report that the total value of the second transaction is $229.4 million, which is in excess of $100 million (as adjusted) notification threshold. This is because “A” must aggregate previously acquired securities in calculating the value of B’s voting securities that it will hold as a result of the second acquisition. “A” should pay a filing fee of $100,000 because the total value is greater than $161.5 million but less than $500 million.
(4) “A” signs a contract with a stated purchase price of $162 million, subject to adjustments, to acquire all of the assets of “B.” If the amount of adjustments can be reasonably estimated, the acquisition price—as adjusted to reflect that estimate—is determined. If the amount of adjustments cannot be reasonably estimated, the acquisition price is undetermined. In either case the board or its delegee must also determine in good faith the fair market value. (§ 801.10(b) of this chapter states that the value of an asset acquisition is to be the fair market value or the acquisition price, if determined and greater than fair market value.) “A” files notification and submits a $30,000 filing fee. “A” ‘s decision to pay that fee may be justified on either of two bases. First, “A” may have concluded that the acquisition price can be reasonably estimated to be less than $161.5 million, because of anticipated adjustments—e.g., based on due diligence by “A’s” accounting firm indicating that one third of the inventory is not saleable. If fair market value is also determined in good faith to be less than $161.5 million, the $30,000 fee is appropriate. Alternatively, “A” may conclude that because the adjustments cannot reasonably be estimated, the acquisition price is undetermined. If so, “A” would base the valuation on the good faith determination of fair market value. The acquiring party’s execution of the Certification also attests to the good faith valuation of the value of the transaction.
(5) “A” contracts to acquire all of the assets of “B” for in excess of $500 million. The assets include hotels, office buildings, and rental retail property, all of which are exempted by § 802.2 of this chapter. Section 802.2 directs that these assets are exempt from the requirements of the act and that reporting requirements for the transaction should be determined by analyzing the remainder of the acquisition as if it were a separate transaction. Furthermore, § 801.15(a)(2) of this chapter states that those exempt assets are never held as a result of the acquisition. Accordingly, the aggregate amount of the transaction is in excess of $161.5 million), but less than $500 million. “A” will be liable for a filing fee of $100,000, rather than $250,000, because the value of the transaction is not less than $161.5 million but is less than $500 million.
(6) “A” acquires coal reserves from “B” valued at $150 million. No notification or filing fee is required because the acquisition is exempted by § 802.3(b) of this chapter. Three months later, A proposes to acquire additional coal reserves from “B” valued at $500 million. This transaction is subject to the notification requirements of the act because the value of the acquisition exceeds the $200 million limitation on the exemption in § 802.3(b). As a result of § 801.13(b)(2)(ii) of this chapter, the prior $150 million acquisition must be added because the additional $500 million of coal reserves were acquired from the same person within 180 days of the initial acquisition. Because aggregating the two acquisitions exceeds the $200 million exemption limitation, § 801.15(b) of this chapter directs that “A” will also hold the previously exempt $150 million acquisition; thus, the aggregate amount held as a result of the $500 million acquisition exceeds $500 million. Accordingly, “A” must file notification to acquire the coal reserves valued in excess of $500 million), but less than $1 billion and pay a filing fee of $250,000.
(7) In 2023, “A” intends to acquire 20 percent of the voting securities of B, a non-publicly traded issuer. The agreed upon acquisition price is $160.5 million subject to post-closing adjustments of up to plus or minus $2 million. “A” estimates that the adjustments will be minus $1 million. In this example, since “A” is able in good faith to reasonably estimate the adjustments to the agreed-on price, the acquisition price is deemed to be determined and the appropriate filing fee threshold is $50 million (as adjusted). Even if the post-closing adjustments cause the final price actually paid to exceed $161.5 million, “A” would be deemed to hold $159.5 million in B voting securities as a result of this acquisition. Note, that any additional acquisition by “A” of B voting may trigger another filing and require the appropriate fee.
(8) “A” intends to make a cash tender offer for a minimum of 50 percent plus one share of the voting securities of B, a non-publicly traded issuer, but will accept up to 100 percent of the shares if they are tendered. There are 12 million shares of B voting stock outstanding and the tender offer price is $100 per share. In this instance, since there is no cap on the number of shares that can be tendered, the value of the transaction will be the value of 100 percent of B’s voting securities, and “A” must pay the $400,000 fee for the $1 billion filing fee threshold. Note that if the tender offer had been for a maximum of 50 percent plus one share the value of the transaction would be $600 million, and the appropriate fee would be $250,000, based on the $500 million filing fee threshold. This would be true even if the tender offer were to be followed by a merger which would be exempt under section 7A(c)(3) of the act.
(b) For a transaction described by § 801.2(d)(2)(iii), the parties shall pay only one filing fee. In accordance with § 801.2(d)(2)(iii), both parties to a consolidation are acquiring and acquired persons and must submit a Notification and Report Form where the transaction meets the reporting requirements of that act; however, only one filing fee is required in connection with such a transaction, and is payable by either party to the transaction. The filing fee is based on the greater of the two sizes of transaction in the consolidation.
(c) For a reportable transaction in which the acquiring entity has two ultimate parent entities, both ultimate parent entities are acquiring persons; however, if the responses for both ultimate parent entities would be the same for item 5 of the Notification and Report Form, only one filing fee is required in connection with the transaction.
(d) Manner of payment. Fees may be paid by United States postal money order, bank money order, bank cashier’s check, certified check or by electronic wire transfer (EWT). The fee must be paid in U.S. currency.
(1) Fees paid by money order or check shall be made payable to the “Federal Trade Commission,” omitting the name or title of any official of the Commission, and shall be submitted to the Premerger Notification Office of the Federal Trade Commission along with the Notification and Report Form.
(2) Fees paid by EWT shall be deposited to the Treasury’s account at the New York Federal Reserve Bank. Specific instructions for making EWT payments are contained in the Instructions to the Notification and Report Form.
(e) Refunds. Except as provided in this paragraph, no filing fee received by the Commission will be returned to the payer and no part of the filing fee shall be refunded. The filing fee shall be refunded only if the Commission’s staff determines, based on the information and representations contained in the filing person’s notification, that premerger notification was not required by the act. Once the Commission’s staff has determined that the notification was required, the filing fee shall not be refunded even if it appears at the time of consummation that the transaction does not meet the reporting requirements established in the act.
(f) For a transaction described by paragraph (c) of § 803.12, the parties shall pay no additional filing fee.