2307003 Informal Interpretation

-
Sheinberg, Samuel I.
From: 	HSRHelp
Sent: 	Tuesday, July 25, 2023 10:34 AM
To: 	Walsh, Kathryn E.; Berg, Karen E.; Musick, Vesselina; Sheinberg, Samuel I.; Six, Anne; Whitehead, Nora;
Fetterman, Michelle
Subject: 	FW: Request for Informal Interpretation
To:
Cc: HSRHelp <HSRHelp@ftc.gov>
From: Shaffer, Kristin <kshaffer@ftc.gov>
Sent: Tuesday, July 25, 2023 10:34:05 AM (UTC-05:00) Eastern Time (US & Canada)
Subject: RE: Request for Informal Interpretation
The information you have provided does not support the conclusion that the UPE of the acquiring person is controlled
by state actors. Though some are, many asset managers, holding companies, and sovereign wealth funds are not
considered to be state actors for HSR purposes. In order to determine the applicability of 802.52, you must determine
whether a “foreign state, foreign government, or agency thereof (other than a corporation or unincorporated entity
engaged in commerce)” holds the majority of the UPE of the acquiring person AND whether acquired entity is
“organized under the laws that state” (or the acquired assets are located there).
Best regards,
Kristin
Kristin Shaffer
Attorney
Premerger Notification Office
Federal Trade Commission
202-326-2388 | kshaffer@ftc.gov
From:
Sent: Friday, July 21, 2023 5:10:47 PM (UTC-05:00) Eastern Time (US & Canada)
To: HSRHelp <HSRHelp@ftc.gov>
Subject: Request for Informal Interpretation
I am writing to confirm the PNO’s informal interpretation of 16 CFR 802.52, which exempts transactions from the
requirements of the HSR act if “the ultimate parent entity of either the acquiring person or the acquired person is
controlled by a foreign state, foreign government, or agency thereof…” We represent the acquiring entity. Specifically,
we seek confirmation of our understanding of PNO Informal Interpretation 0805003.
The UPE of the acquiring entity is a foreign issuer, organized under the laws of and with its principle offices in Country Y.
We understand that 802.52 would exempt the transaction if the UPE is controlled by a foreign state, foreign
government, or agency thereof. Here, a majority of the voting securities of UPE is held by a three different instruments
of the government of Country Y:
an investment holding company that is directly managed by an agency of the national government of
Country Y
an asset management company controlled by the ministry of finance of Country Y
a sovereign wealth fund controlled by the finance bureau of a city within Country Y
In the aggregate, therefore, more than 50% of the voting shares of the UPE of the acquiring entity are controlled by a
foreign state, foreign government, or agency thereof. PNO Informal Interpretation 0805003 (May 7, 2008) suggests that
it is appropriate to aggregate the shares of the three governmental entities above in evaluating control over the
1

acquiring person. As we read that guidance, the PNO confirmed that in determ ining contro l of the UPE under 802.52, it
was appropr iate to aggregate the (NCI --equivalent) ownership interests help by the federa l government of Country X
and certain state governments thereof. We read that interpretation to confirm that it is appropr i ate to aggregate the
interests of several government entit ies w i th in the same fore ign state government, including a state or loca l level
government thereof, in determ ining whether the UPE is controlled by a fore ign state, government or agency thereof for
purposes of 802.52. Here, because each of the three ent it i es above is a foreign government or agency thereof, and they
coll ect ively ho ld a majority of the vot ing shares of the acquiring UPE , the transacti on wou ld be exempt under 802.52.
Please let me know if you need any addit iona l i nformat ion. Thank you for your consi derat ion of th is request.
2