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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1707004 Informal Interpretation

Staff:
Nora Whitehead
Rule:
801.10

Response/Comments

The PNO will accept any calculation made on a commercially reasonable basis so long as it is made in good faith. Once an FMV calculation is made, you may not deduct any debt amount from it.

1707003 Informal Interpretation

Staff:
Kristin Shaffer
Rule:
802.2(g), 802.2(h)

Response/Comments

The vines are not exempt (see PNPM 115). Rule 802.2(g) only covers agricultural property and assets incidental to its ownership (such as cash, prepaid taxes or insurance, rental receivables and the...

1707002 Informal Interpretation

Staff:
Evan Storm, Ty Carson
Rule:
803.9, 801.14

Response/Comments

The two natural persons control both Company B (and its assets), and the land on which Company B operates. Therefore, we view this as a $125 million transaction. Both natural person UPEs, as acquired...

1707001 Informal Interpretation

Staff:
Nora Whitehead
Rule:
802.2(c)

Response/Comments

The exemption in 802.2(c) is not available for real property assets associated with billboards that have been in use in the past 12 months. Billboards are considered “non-manufacturing facilities”...

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.

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...

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...

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...

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...

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%.

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...

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

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