Informal Interpretations

Informal interpretations provide guidance from previous staff interpretations on the applicability of the HSR rules to specific fact situations. You should not rely on them as a substitute for reading the Act and the Rules themselves. These materials do not, and are not intended to, constitute legal advice.

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1706006 Informal Interpretation

Staff:
Diana Gillis
Rule:
801.30, 803.12

Response/Comments

As long as the terms have not changed, a new notice letter is not necessary. The new affidavit can reference the original notice letter.
application/pdf icon Original (76.85 KB)

1706007 Informal Interpretation

Staff:
Ty Carson
Rule:
Filing Fee, Form, 801.2, 803.9

Response/Comments

(1) Since A and B are both making acquisitions, there are two potentially reportable transactions and, if reportable, two fees. (2) Yes, you are required to provide separate responses for each...
application/pdf icon Original (106.63 KB)

1706005 Informal Interpretation

Staff:
Evan Storm
Rule:
802.21

Response/Comments

The former UPE and current UPE of A are different acquiring persons. Different acquiring persons cannot both take advantage of 802.21. Thus, A may not continue to utilize 802.21 to acquire additional...
application/pdf icon Original (118.79 KB)

1706003 Informal Interpretation

Staff:
Diana Gillis
Rule:
801.11(e), 802.63

Response/Comments

The vulture fund exception would preclude the use of 802.63 if the LLC is created and the debt is transferred after the announcement of an intention to file for bankruptcy. We do not see how the debt...
application/pdf icon Original (75.87 KB)

1706004 Informal Interpretation

Staff:
Ty Carson
Rule:
Item 4(b), Item 5

Response/Comments

If the hedge fund or partnership pays the individual interest or dividends, then that is reported in Item 5. If a natural person does not have an entity they control, they may provide a SOP...
application/pdf icon Original (105.93 KB)

1706001 Informal Interpretation

Staff:
Kate Walsh
Rule:
801.13, 801.14

Response/Comments

The issue here is the intent to acquire 100%. It is a long‐standing PNO position that when that is the intent, even if it occurs in two steps, you must file for the value of 100%.
application/pdf icon Original Image (166.42 KB)

1705003 Informal Interpretation

Staff:
Kristin Shaffer
Rule:
801.30

Response/Comments

Yes, unless this is a tender offer, the transaction can be filed as either an 801.30 or a non‐801.30 transaction. See PNPM #217. If you opt to file as an 801.30, remember that a notice letter must...
application/pdf icon Original (95.39 KB)

1705001 Informal Interpretation

Staff:
Diana Gillis
Rule:
Form Item 4(b)

Response/Comments

1) Unaudited financials, if relied upon by management, are required 2) Otherwise, provide the most recent regularly prepared balance sheet, and income statement for the most recent year
application/pdf icon Original (74.48 KB)

1704007 Informal Interpretation

Staff:
Evan Storm
Rule:
801.11

Response/Comments

1. If the controlled entity has a regularly prepared balance sheet, include the personal, non-income-producing property (such as residences) 2. If the controlled entity does not have a regularly...
application/pdf icon Original image (60.24 KB)

1704006 Informal Interpretation

Staff:
Diana Gillis
Rule:
801.1(f)

Response/Comments

As per the May 2016 blog, the inquiry is whether the entity issues securities that allow the holders to vote for the election of a supervisory board of directors. You have affirmatively stated that...
application/pdf icon Original image (116.33 KB)

1704005 Informal Interpretation

Staff:
Kristin Shaffer
Rule:
Item 4c, Item 4d

Response/Comments

We agree that documents related to the negotiation and entering into of options are not responsive. However, documents evaluating or analyzing the exercise of the options, whenever they were created...
application/pdf icon Original image (96.96 KB)

1704001 Informal Interpretation

Staff:
Evan Storm
Rule:
801.1(c), 7A(c)(10)

Response/Comments

1. A second filing is not required because for HSR purposes the individual is deemed to already hold the stock based on the first HSR filing (i.e., beneficial ownership already passed). 2. If the...
application/pdf icon Original image (107.43 KB)

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