2405004 Informal Interpretation

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Sheinberg, Samuel I.
From: 	HSRHelp
Sent: 	Wednesday, May 15, 2024 4:04 PM
To: 	Walsh, Kathryn E.; Berg, Karen E.; Musick, Vesselina; Sheinberg, Samuel I.; Six, Anne;
Whitehead, Nora; Fetterman, Michelle; Burton, June; Larson, Peter
Subject: 	FW: Request for HSR guidance
From: Shaffer, Kristin <kshaffer@ftc.gov>
Sent: Wednesday, May 15, 2024 4:04:23 PM (UTC-05:00) Eastern Time (US & Canada)
To:
Cc: HSRHelp <HSRHelp@ftc.gov>
Subject: RE: Request for HSR guidance
Since Fund A intends to acquire 100% of Fund B, Fund A should make one filing as a non-801.30, but must make the
filing and observe the waiting period prior to either step of the transaction. The financials of the UPE are required since
803.4 does not apply.
Best regards,
Kristin
Kristin Shaffer
Attorney
Premerger Notification Office
Federal Trade Commission
202-326-2388 | kshaffer@ftc.gov
From:
Sent: Monday, May 13, 2024 4:30:52 PM (UTC-05:00) Eastern Time (US & Canada)
To: HSRHelp <HSRHelp@ftc.gov>
Subject: Request for HSR guidance
I am writing to request guidance on a scenario involving a proposed merger of two funds. Assume that the size-of-
transaction for the merger exceeds $478 million so the size-of-person test does not apply. Assume that both funds have
total assets in excess of $239 million.
 	Fund A intends to acquire Fund B through a merger of Fund B into a newly-formed subsidiary of Fund A (the
“Merger”). Prior to the signing of the merger agreement, the Fund A also intends to enter into an agreement to
acquire voting securities of Fund B that are currently held by stockholder C (the “C Purchase”). Stockholder C
holds a non-controlling stake in Fund B valued in excess of $119.5 million. The C Purchase would close prior to
the closing of the Merger.
 	If not for the Merger, the C Purchase would be a reportable as an 801.30 transaction. However, in light of the
proposed merger, provided that either a letter of intent or definitive agreement has been executed for both the C
Purchase and the Merger, could Fund A file for both transactions on the same HSR form? If so, could you confirm
that Fund A would pay a single filing fee based on the value of the Fund B voting securities that will be held as a
result of the Merger? Would it be considered a non-801.30 transaction because Fund B will be a party to the
agreement/LOI covering the merger, or could the parties elect either 801.30 or non-801.30 treatment?
Separately, if a passive non-US investor were to be deemed the UPE of an acquired entity, could you confirm that it would
suffice for Item 4(b) if the acquired entity’s consolidated financials were provided in the acquired person’s filing, but n ot the
UPE’s? Would any kind of stipulation or explanation be needed if the size-of-person test does not apply?
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