2509005 Informal Interpretation

We are looking for some assistance with the size-of-person analysis.

The basic “size of person test” established by Section 7A(a)(2) of the Act requires a filing in transactions valued in excess of $50 million (as adjusted) but at $200 million (as adjusted) or less only where at least one of the persons involved in the transaction has $100 million (as adjusted) or more in annual net sales or total assets, and the other has $10 million (as adjusted) or more. Generally, a person’s annual net sales and total assets are as stated on its last regularly prepared annual statement of income and last regularly prepared balance sheet. In a circumstance where a party regularly prepares balance sheets on a monthly basis, and the amount of total assets fluctuates, similar to the FMV determination, is there a 60-day period that filers can rely on to make their size-of-person determination?

We think in a situation where a party regularly prepares monthly balance sheets and its total assets fluctuate, there may be a similar 60-day window for the filing parties to rely on in their good faith determination of whether the size-of-person test is met. Can you confirm?