0702010 Informal Interpretation

From:(redacted)

Sent:Wednesday, February 07, 2007 3:40 PM

To:Verne, B. Michael

Subject:My voicemail HSR question to you

Perhaps to re-state the question a bit more clearly.

Newlyformed LLC currently has multiple investors and is its own UPE. The LLC willmake a reportable acquisition that's too big to take advantage of 801.11(e). Sothey are willing to make their HSR filings.

However,the organizers of the LLC are seeking co-investors, and they're talking with apotential co-investor that might put in enough cash so that the co-investorbecomes more than a 50% equity owner of LLC, and therefore its ultimate parent.The question they have put to me is: how should we proceed?

Seemsto me they can make two filings and pay two filing fees (one with theco-investor as UPE, the other with the LLC as its own UPE), since they have thegood faith intention for the LLC to make the acquisition. Alternatively, theycan wait until they know who their UPE will be (i.e., until they know how muchthe co-investor will put in).

Ithought about whether it would be possible for the co-investor to file, andwhether that filing would allow consummation of the acquisition in the eventthat the co-investor doesn't become the UPE, and the UPE status reverted backto the newly formed LLC itself. Because the new LLC is a "lesserincluded" entity, would that work (i.e., obviating the need for a secondfiling)? Or is a new HSR filing required whenever the UPE on the buying sidechanges, even if the new UPE is lesser included? I would think that if theco-investor didn't put in enough to become the UPE, and the result were thatone of the other investors (rather than the LLC itself) becomes the UPE, wewould clearly have to make another filing. But I'm curious whether the lesserincluded theory makes any sense.