2406004 Informal Interpretation

Sheinberg, Samuel I.
From: 	HSR Help
Sent: 	Monday, June 24, 2024 11 :40 AM
To: 	Wa lsh, Kat h ry n E.; Be r g, Kare n E.; Musick, Vesselin a; Shaffer, Kristin; Sheinber g, Samuel I.; Six, An ne;
Fetterman, Michelle; Burton, Jun e; Larson, Pete r
Subject: 	FW: Req uest for informal interpretation re filing by anticipated UPE
From: Wh ite hea d, Nora <nwhitehead@ftc.gov>
Sent: Monda , Ju ne 24, 2024 11:40:02 AM UTC-05:00) Eastern Time ( US & Ca nada)
To:
Cc:
Sul>Je 	.
Based on what you de sc ri be , a fi ler could not properly c ert ify the contents of Item 6(b).
From: HSRHelp <HSRHe lp@ftc.gov>
Sent: Monday, June 24, 2024 10:56 AM
To: Wals h, Kathryn E. <kwalsh@ftc.gov>; Berg, Karen E.<K BERG @ftc.gov>; Musi ck, Vesse li na <vmusick@ftc.gov>;
Shaffer, Kr istin <kshaffer@ftc .gov>; Sheinberg, Samuel I. <SS HE INBERG@ftc.gov>; Six, An ne <as ix@ftc.gov>; W hitehead,
Nora <nwhitehead@ftc.gov>; Fetterman, M ichelle <mfetterman@ftc.gov>; Burton, June <jburt on@ftc.gov>; Larson,
Peter <plarson@ftc.gov>
Subject: FW: Request for informal i nterpretat ion re fi ling by anticipated UPE
From:
Sent: 	on ay, u ne 	, 	- 5:00) Eastern Time (US & Ca nada)
To: Wh itehead, Nora <nwhitehead@ftc.gov>
Cc:
Many thanks Nora.
As follow up, could I ask what factor leads you to conclude that it is too early to properly
certify an HSR filing? Is it because of the impending IPO?
If the IPO is the factor, we believe an officer of the Fund could certify the Fund 's good faith
intent to proceed with an acquisition, and an 801.30 notice letter would have gone to the issuer
in advance of any filing announcing that intent. We believe many transactions file for HSR even
when the debt or equity issuance that will be used to finance the acquisition has not yet been
secured (and indeed may be less certain than the Fund 's planned IPO here).
If another factor, we may be able to take steps to address that as well.
Thanks as always for your thinking about this.
From: W hitehead, Nora <nwhitehead@ftc.gov>
Sent: Monday, June 24, 2024 10:29 AM
To:
Cc:
Subject: [ EXTERN AL] RE: Request for informal interpretati on re filing by anti cipa ted UPE
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Based on the facts described, it is too early to properly cert ify an HSR fi li ng for any anticipated acquisition.
From: HSRHelp <HSRHe lp@ftc.gov>
Sent: Fr iday, June 21 , 2024 1:56 PM
To: Walsh, Kathryn E. <kwalsh@ftc.gov>; Berg, Karen E. <KBERG@ftc.gov>; Musi ck , Vesse li na <vmusick@ftc.gov>;
Shaffer, Kr istin <kshaffer@ftc.gov>; She inberg, Samuel I. <SSHEINBERG@ftc .gov>; Si x, Anne <as ix@ftc.gov>; Wh itehead,
Nora <nwh itehead@ftc.gov>; Fetterman, Michel le <mfetterman@ftc.gov>; Burton, June <jburton@ftc.gov>; Larson,
Peter <plarson@ftc.gov>
Subject: FW: Request for informal interpretation re fi ling by anticipated UPE
Sent
To:
Cc:
Su
Dear all-
We are writing to confirm that we can appropriately file an HSR now on behalf of an acquiring
person that will be its own UPE prior to consummating any of its planned acquisitions, even
though as of today it is controlled by another entity.
Our client is a Delaware statutory trust (a "Fund") that is a newly-organized, non-diversified,
closed-end management investment company registered under the Investment Company Act of
1940, as amended. The Fund anticipates that it will acquire equity positions in a number of
different publicly-traded issuers. In anticipation of doing so, the Fund would like to initiate the
HSR process now as to one or more issuers.
As of today, as a newly-formed entity, the Fund is wholly-owned by Limited Partnership A.
However, by the time the Fund makes any acquisition that may be subject to the anticipated
HSR filings, the Fund will be its own UPE. That is be cause in order to proceed with the
contemplated acquisitions, the Fund needs to raise capital, which it is doing principally by way
of an SEC-registered offering of common shares to the public ("IPO"); and Limited Partnership
A has unrelated contractual obligations to third parties to limit its investment in the IPO to 4.9%
of the Fund. Therefore, Limited Partnership A will be diluted to 4. 9% (or less) of the Fund as a
result of the Fund's sale of shares in the IPO. Upon completion of the IPO, no person is
expected to control the Fund for HSR purposes, so it will become its own UPE.
In these circumstances, can the Fund appropriately proceed now with HSR filings as the
acquiring person UPE? Be cause of the uncertainties of the IPO process, our response to HSR
Item 6(b) would be unknown because we do not know at this time who, if anyone, may hold a
5% or greater minority position in the Fund. Otherwise, we believe the remainder of the HSR
form would be identi cal to what it would be if the Fund already were its own UPE. (We also
understand that a risk of proceeding in this way is that in the extraordinarily unlikely event that
the IPO process does not result in the Fund be coming its own UPE, the HSRs that will have
been filed by the Fund will not cover a different UPE that is not subsumed within the Fund.)
Thanks very much,
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