2109004 Informal Interpretation

Date

September 22, 2021

Rule

801.1

Staff

Nora Whitehead

Response/Comments

If each acquired entity is controlled by a separate UPE, each UPE must file its own form and affidavit. Please remember to analyze each transaction separately.

Original Image - 2109004 Informal Interpretation (207.82 KB)

Question

From: Whitehead, Nora <nwhitehead@ftc.gov>
Sent: Wednesday, September 22, 2021 3:57:15 PM (UTC-05:00) Eastern Time (US & Canada)
To: [Redacted]
Cc: [Redacted]
Subject: RE: Request for HSR Guidance

If each acquired entity is controlled by a separate UPE, each UPE must file its own form and affidavit. Please remember to analyze each transaction separately.

From: [Redacted]
Sent: Wednesday, September 22, 2021 12:03:42 PM (UTC-05:00) Eastern Time (US & Canada)
To: HSRHelp <HSRHelp@ftc.gov>
Cc: [Redacted]
Subject: Request for HSR Guidance

Hello,

We are working on a deal (styled as a single transaction with one purchase agreement) in which a single buyer is purchasing the voting securities and/or non-corporate interests of two acquired entities, each with its own separate UPE. We represent both of the acquired entities. Based on this fact pattern, it is our understanding that we need to file two separate forms and two separate affidavits on behalf of each of the acquired entities, but would appreciate your confirmation. Prior informal guidance seems to cover only two scenarios, neither of which is applicable here: 1) where there is one acquired entity that has two UPEs (e.g., https://www.ftc.gov/enforcement/premerger-notification-program/informal-interpretations/17010002-0); and 2) where there are multiple acquired entities within the same UPE (in which case the usual aggregation rules apply).

Thank you in advance.

She inberg, Samuel I.
From: 	HSR Help
Se nt: 	Wedn esday, September 22, 2021 3:57 PM
To: 	Wa lsh, Kat h ry n E. ; Be r g, Ka ren E. ; Sheinberg, Samuel I.; Six, An ne; Musick, Vesse lin a; Shaffer, Kristin
Subject: 	FW : Request for H SR Guidan ce
From : Wh itehead, No ra < nwhitehead@ftc.go v>
Se nt : Wednesda y, September 22, 2021 3:57 : 15 PM (UTC-05:00) Easte rn n me ( US & Ca nada)
To:
Cc:
Sul>J e
If each acquired entity is contro ll ed by a separate UPE, each UPE must file its own form and affidavit. Please remember
to analyze each transaction separately.
From: HSRHelp <HSRHe lp@ftc.go v>
Se nt : Wednesda y, September 22 , 2021 12:04 PM
To: Walsh , Kath ry n E. <kwalsh @ft c.gov>; Berg, Ka r en E.<KBERG @ft c.gov>; Sheinberg, Samuel I.
<SS HE INBERG @ftc.gov>; Six, Anne <as ix@ftc.gov>; Whitehead, Nora <nwhitehead@ft c.gov>; Musi ck , Ves seli na
<vmusi ck @ftc.gov>; Shaffer, Kr istin <kshaffer@ft c.go v>
Subject : FW: Request fo r HSR Gu idance
5:00) Easte rn n me ( US & Canada)
To: HSRHe lp < HSRHelp@ftc.gov>
From :
Se nt : 	-
Cc:
Su
He ll o,
We are w or king on a deal (st yl ed as a single transaction w ith one purc ha se agreement) in which a single buy er is
purchasing the voting sec ur it ies and/ or non-cor po rate interests of t wo acquired entit ies, each w ith it s ow n separate
UPE. We represent both of the acquired ent it ies . Ba sed on th is fact pattern, it is our understanding that we need to file
two separate form s and t wo separate affidav it s on behalf of each of the acquired entit ie s, but would appre ci ate y our
con fi rmation . Pr ior info rmal guidance seems to cov er only two scenarios, neither of w hi ch is app li cable here : 1) where
there is one acquired ent it y that ha s two UPE s (e.g., https://www .ftc.gov/enforcement/premerger-notification
program/informal-i nterpretat ions/17010002-0); and 2) w here the re are mu lt iple acquired ent it i es w ithin the same UPE
(i n w hich case the usua l aggregation rules apply).
Thank you in advance.
1

2109004 Informal Interpretation

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