2310002 Informal Interpretation

Sheinberg, Samuel I.
From: 	HS RH elp
Sent: 	Thursday, October 5, 2023 1:26 PM
To: 	Walsh, Kathryn E. ; Ber g, Ka ren E. ; Musi ck, Vessel in a; Shaffer, Krist in; Sheinber g, Samuel I.; Six, An ne;
Fetterman, M ichelle; Burton, June
Subject: 	FW: HSR Analysis
From: Whitehead, Nora <nwhitehead@ftc.gov>
Se
To:
Cc:
Subject: RE: HSR Analysis
Based on the facts provided, 802.2(a) is not availabl e.
From:
Sent:
To: HSRHe lp < HSRHel p@ftc.gov>
Dear FTC Staff - we w ou ld be grateful for your views on the fo llowing:
Buyer plans to acquire 50% of the membership interests of Target (an LLC) from Se ll er (w hich gives Buyer the right to
50% of the profits or assets upon dissolution of Se ll er ) for a tota l purchase price exceeding $111.4 milli on . The remaining
50% will continue to be held by Se ll er . Target indirectly contro ls an energy project company, the on ly tang ible asset of
which is land, some of wh ich is owned and some of w hich is leased from a th ird party. The land has not generated any
revenue in the past 3 years. Target has secured construction contracts and begun work to construct a solar energy
project. Target will not have generated any revenue (other than possibly test ing revenue) pr ior to closing. Target has
also secured certain approvals for the energy project to interconnect and transm it electric po w er to the transmissi on
gr id once the project is completed and operationa l. It is a condition precedent to the ob li gation of Buyer to close that
the project be operat ional, which is expected to occur shortly before closing. Se ll er i nit iated the construction of the
energy project wi th the i ntent to se ll a port ion of its i nterest in the project.
Based on these facts, are w e correct that the va lue of the equi ty in the Target that contro ls the project company that is
being acquired is exempt from the HSR Act pursuant to 16 C.F.R . § 802.2(a), where Buyer is acquiring 50% of the
membership interests of Target (w hich gives Buyer the right to 50% of the profits or assets upon dissolution of Se ller)?
Thank you,
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