S.Amdt. 2847

1. Rewrites section 223(j)

   Replaces

   In S.Amdt. 2746 as proposed

   [inserted: Section 223 ](j) [struck: Proposed ]Transactions.--

   (1) Notice of [struck: proposed ]transaction.--Any participant that has [struck: taken ][inserted: engaged in ]any [struck: action to effectuate a proposed ]transaction or [struck: a proposed ]series of transactions under which a significant portion of such participant's assets, properties or business [struck: will, if consummated as proposed, be, ][inserted: was, ]directly or indirectly, transferred by any means (including, without limitation, by sale, dividend, contribution to a subsidiary or split-off) to 1 or more persons other than the participant shall provide written notice to the Administrator of such [struck: proposed ]transaction (or [struck: proposed ]series of transactions).[struck: Upon the request of such participant, and for so long as the participant shall not publicly disclose the transaction or series of transactions and the Administrator shall not commence any action under paragraph (6), the Administrator shall treat any such notice as confidential commercial information under section 552 of title 5, United States Code.]

   (2) Timing of notice and related actions.--

   (A) In general.--Any notice that a participant is required to give under paragraph (1) shall be given not later than 30 days [struck: before][inserted: after] the date of consummation of the [struck: proposed ]transaction or the first transaction to occur in a proposed series of transactions.

   (B) Other notifications.--

   (i) In general.--Not later than the date in any year by which a participant is required to make its contribution to the Fund, the participant shall deliver to the Administrator a written certification stating that--

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   (I) the participant has complied during the period since the last such certification or the date of enactment of this Act with the notice requirements set forth in this subsection; or

   (II) the participant was not required to provide any notice under this subsection during such period.

   (ii) Summary.--The Administrator shall include in the annual report required to be submitted to Congress under section 405 a summary of all such notices (after removing all confidential identifying information) received during the most recent fiscal year.

   (C) Notice completion.--The Administrator shall not consider any notice given under paragraph (1) as given until such time as the Administrator receives substantially all the information required by this subsection.

   (3) Contents of notice.--

   (A) In general.--The Administrator shall determine by rule or regulation the information to be included in the notice required under this subsection, which shall include such information as may be necessary to enable the Administrator to determine whether--

   (i) the person or persons to whom the assets, properties or business [struck: are being ][inserted: were ]transferred in the [struck: proposed ]transaction (or [struck: proposed ]series of transactions) should be considered to be the successor in interest of the participant for purposes of this Act, or[inserted: (ii) the transaction (or series of transactions) is subject to avoidance by a trustee under section 544(b) or 548 of title 11, United States Code, as if, but whether or not, the participant is subject to a case under title 11, United States Code.]

   Struck: (ii) the proposed transaction (or proposed series of transactions) would, if consummated, be subject to avoidance by a trustee under section 544(b) or 548 of title 11, United States Code, as if, but whether or not, the participant is subject to a case under title 11, United States Code.

   (B) Statements.--The notice shall also include--

   (i) a statement by the participant as to whether it believes any person [struck: will or ]has become a successor in interest to the participant for purposes of this Act and, if so, the identity of that person; and

   (ii) a statement by the participant as to whether that person has acknowledged that it [struck: will or ]has become a successor in interest for purposes of this Act.

   (4) Definition.--In this subsection, the term [struck: "][inserted: ']significant portion of the assets, properties or business of a participant[struck: "][inserted: '] means assets (including, without limitation, tangible or intangible assets, securities and cash), properties or business of such participant (or its affiliated group, to the extent that the participant has elected to be part of an affiliated group under section 204(f)) that, together with any other asset, property or business transferred by such participant in any of the previous completed 5 fiscal years of such participant (or, as appropriate, its affiliated group), and as determined in accordance with United States[inserted: '] generally accepted accounting principles as in effect from time to time--

   (A) generated at least 40 percent of the revenues of such participant (or its affiliated group);

   (B) constituted at least 40 percent of the assets of such participant (or its affiliated group);

   (C) generated at least 40 percent of the operating cash flows of such participant (or its affiliated group); or

   (D) generated at least 40 percent of the net income or loss of such participant (or its affiliated group), as measured during any of such 5 previous fiscal years.

   Struck: (5) Consummation of transaction.--Any proposed transaction (or proposed series of transactions) with respect to which a participant is required to provide notice under paragraph (1) may not be consummated until at least 30 days after delivery to the Administrator of such notice, unless the Administrator shall earlier terminate the notice period. The Administrator shall endeavor whenever possible to terminate a notice period at the earliest practicable time.

   ([struck: 6][inserted: 5]) Right of action.--

   (A) In general.--Notwithstanding section 221(f), if the Administrator or any participant believes that a participant [struck: proposes to engage or ]has engaged, directly or indirectly, in, or is the subject of, a transaction (or series of transactions)--

   (i) involving a person or persons who, as a result of such transaction (or series of transactions), may have or may become the successor in interest or successors in interest of such participant[inserted: for purposes of this Act], where the status [struck: or potential status ]as a successor in interest has not been stated and acknowledged by the participant and such person; or

   (ii) that may be subject to avoidance by a trustee under section 544(b) or 548 of title 11, United States Code, as if, but whether or not, the participant is a subject to a case under title 11, United States Code, then the Administrator or such participant may, as a deemed creditor under applicable law, bring a civil action in an appropriate forum against the participant or any other person who is either a party to the transaction (or series of transactions) or the recipient of any asset, property or business of the participant.

   (B) Relief allowed.--In any action commenced under this subsection, the Administrator or a participant, as applicable, may seek--

   (i) with respect to a transaction (or series of transactions) referenced in clause (i) of subparagraph (A), a declaratory judgment regarding whether such person [struck: will or ]has become the successor in interest of such participant[inserted: for purposes of this Act]; or

   (ii) with respect to a transaction (or series of transactions) referenced in clause (ii) of subparagraph (A)--

   (I) a temporary restraining order or a preliminary or permanent injunction against such transaction (or series of transactions); or

   (II) such other relief regarding such transaction (or series of transactions) as the court determines to be necessary to ensure that performance of a participant's payment obligations under this Act is not materially impaired by reason of such transaction (or series of transactions).

   (C) Applicability.--If the Administrator or a participant wishes to challenge a statement made by a participant that a person [struck: will not or ]has not become a successor in interest for purposes of this Act, then this paragraph shall be the exclusive means by which the determination of whether such person [struck: will or has become ][inserted: became ]a successor in interest of the participant shall be made. This paragraph shall not preempt any other rights of any person under applicable Federal or State law.

   (D) Venue.--Any action under this paragraph shall be brought in any appropriate United States district court or, to the extent necessary to obtain complete relief, any other appropriate forum outside of the United States.

   ([struck: 7][inserted: 6]) Rules and regulations.--The Administrator may promulgate regulations to effectuate the intent of this subsection, including regulations relating to the form, timing and content of notices.

   Original wording

   Strike section 223(j) and insert the following:

Read automatically from the Congressional Record. Check the original before relying on it.

As printed