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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1506006 Informal Interpretation

Staff:
Whitehead, Nora
Rule:
802.2(c)

Response/Comments

Any production machinery or equipment is not exempt under 802.2c and must be separately valued. We agree that the non-machinery / equipment portion of the ethylene plant (as you describe below) is...

1506001 Informal Interpretation

Staff:
Whitehead, Nora
Rule:
NPV discount rate

Response/Comments

Because your contingent earn out payment is reasonably estimable, it is treated like a fixed future payment (which may not be discounted to present value). If you had a non-estimable contingent...

1506002 Informal Interpretation

Staff:
Walsh, Kathryn E.
Rule:
802.50 and 805.51

Response/Comments

You would aggregate the sales into the U.S. of only the foreign assets being acquired (not the sales into the U.S. of the foreign assets not being acquired) plus the total sales into the U.S. of the...

1505007 Informal Interpretation

Staff:
Diana L Gillis
Rule:
Irrevocable Trusts

Response/Comments

(1) Distributions to settlor's spouse, rather than settlor, are not reversionary interests. (2) This also does not count as a reversionary interest. Here is a relevant passage from the Premerger...

1505006 Informal Interpretation

Staff:
Kathryn E Walsh
Rule:
802.63(a), 801.15(a), and 802.9

Response/Comments

(Redacted), we agree with 1 through 3. As for 4, we agree that if you acquired shares under 802.63,those would not be counted towards the 10% threshold of 802.9.

1505005 Informal Interpretation

Staff:
Nora Whitehead
Rule:
16 CFR 18a(c)(1) – 7A(c)(1)

Response/Comments

We have given this a lot of thought, and we will not extend the 7Ac1exemption to cover the acquisition of non-financial instruments. Based on the information you have provided us below, it appears...

1505002 Informal Interpretation

Staff:
Diana L Gillis
Rule:
802.4

Response/Comments

The pullet houses are not exempt, because they are used in conjunction with the laying/washing/packing complex {it's an either/a( test- either adjacent to or used in conjunction...). - here is...

1505001 Informal Interpretation

Staff:
Diana L Gillis
Rule:
801.10

Response/Comments

Only a FMV can be relied on for 60 days. If the acquisition price in an asset deal cannot be determined before close, you simply rely on the FMV. If the acquisition price will become determined prior...

1504001 Informal Interpretation

Staff:
Diana L Gillis
Rule:
802.9

Response/Comments

The interpretation you cite is out of date. Where an individual is involved with a sub such that he could not claim passive intent with the sub, he similarly cannot claim passive intent with the...

1503002 Informal Interpretation

Staff:
Walsh, Kathryn E
Rule:
Pharma license

Response/Comments

We do not think this license is reportable. If we understand correctly, at issue is the IP for the active pharmaceutical ingredient. Based on the facts below, the Licensor will still be able to use...

1503001 Informal Interpretation

Staff:
Gillis, Diana L
Rule:
Voting Trust as UPE

Response/Comments

We analyze voting trusts like shareholder agreements or proxies. The 2014 interpretation you cite is on point, and since the voting trust is irrevocable, it would be the UPE. The other two...

1502001 Informal Interpretation

Staff:
Gillis, Diana L
Rule:
801.51 and airlines

Response/Comments

First determine where the plane is registered. If registered in the US, it is a US asset. If foreign, you then look to revenues from flights either to or from the US, which would be considered US...

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