us-ftc-hsr-informal-interpretations-a0d9f8315c7df57366f0029722622fc6•2507005 Informal Interpretation
2507005 Informal Interpretation
us-ftc-hsr-informal-interpretations-a0d9f8315c7df57366f0029722622fc62507005 Informal InterpretationGuidance
We have not changed the guidance we have given in the past for former Item 4(b). If the acquiring UPE is an operating company, it is acceptable to submit just the UPE’s consolidated financial statements, though separately prepared annual reports for the acquiring entity or top-level business lines are appreciated. You should include a note in the form explaining that the UPE-level reports encompass the acquiring and overlapping entities. If the acquiring UPE is a fund, the separate annual reports/financials are required for the acquiring entity and overlapping portfolio companies.
Question
If the acquiring UPE has consolidated financial statements that encompass the acquiring entity and all entities included within the UPE that contribute to NAICS overlap or overlap in the Overlap Description, is it still required to submit separate financial statements for those entities?
More specifically, does the following apply under the new rules:
"The change in the instructions for 4b is intended to relieve filers of the burden of providing separate reports for unconsolidated portfolio companies that do not contribute to overlaps, while adding a requirement to provide reports for portfolio companies that do have revenue that contributes to an overlap, whether or not those companies are consolidated into the annual report of the UPE. There is no requirement to provide reports for consolidated entities within an operating company.
The change is intended to reach acquiring persons, such as funds and holding companies, where the financials of the UPE do not necessarily show or break out information about the operating company that contributes to the overlap. We are not interested in the separate financials of subsidiaries of operating companies."
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