Each of the following tests must be met in order for premerger notification filings under the Act to be required. The terms "control group" and "control" are defined below.
- The Commerce Test. This test is met if any party to the proposed transaction is engaged in commerce or any activity affecting commerce. Due to the broad interpretation that courts have applied in determining what activities affect commerce, this test will be met in virtually all situations.
- The Size-of-the-Person Test. One party's control group must have total assets or annual net sales in excess of $100 million and another party's control group must have total assets or annual net sales in excess of $10 million (if the party being acquired is not engaged in manufacturing, only the total assets of such party's control group are considered for purposes of determining if the $10 million test is met). Annual net sales are determined by looking at the last regularly prepared annual statement of income and expense and assets are determined by looking at the last regularly prepared balance sheet.
- The Size-of-the-Transaction Test. This test is met if either (i) $15 million or more of assets or voting securities are being acquired or (ii) 15% or more of voting securities are being acquired and as a result a party to the transaction gains control of an entity that it did not previously control with annual net sales or total assets of $25 million or more.
The Act defines "control" as follows:
- Holding 50 percent or more of the outstanding voting securities of an issuer, or
- In the case of an entity that has no outstanding voting securities, having the right to 50 percent or more of the profits of the entity, or having the right in the event of dissolution to 50 percent or more of the assets of the entity; or
b. Having the contractual power presently to designate 50 percent or more of the directors of a corporation, or in the case of unincorporated entities, of individuals exercising similar functions.
The term "control group" means the ultimate control person and all entities controlled by it. The ultimate control person is the person or entity within a control group who is not controlled by any other person or entity.
The Act provides for a variety of exemptions that must be considered before concluding that a transaction is reportable. In addition, there are numerous regulations and interpretations that impact how the tests are applied in each individual circumstance. As a result, it is critical that parties to a transaction seek legal assistance in determining whether the Act will apply to the transaction.