1911002 Informal Interpretation

1
Sheinberg, Samuel I.
From:
Sent: 	Wednesday, November 13, 2019 5:47 PM
To: 	Walsh, Kathryn E.; Berg, Karen E.; Sheinberg, Samuel I.; Six, Anne; Whitehead, Nora;
Musick, Vesselina
Subject: 	FW: HSR question
From: Carson, Timothy
Sent: Wednesday, November 13, 2019 5:47:05 PM (UTC-05:00) Eastern Time (US & Canada)
To:
Cc:
Subject: RE: HSR question
Having a trustee of the acquiring person also serve as an officer or director of the acquired entity at the time of the
acquisition could be “considered evidence of an intent inconsistent with investment purpose.” The facts and
circumstances of the particular case would be evaluated if the agencies decided to investigate the described acquisition.
From:
Sent: Wednesday, November 13, 2019 3:14:21 PM (UTC-05:00) Eastern Time (US & Canada)
To:
Cc:
Subject: HSR question
Good afternoon:
I write to request your guidance on a potential transaction. Please assume the following facts.
The Foundation is a non‐profit family trust that is its own UPE. It has three trustees who must unanimously agree on all
decisions regarding the Foundation’s investment decisions. The trustees do not have beneficiary or pecuniary interest in
the Foundation. The Foundation currently owns $85M of voting securities of Company B, which is its own UPE. Two of
the trustees of the Foundation are officers and directors of Company B. The Foundation currently plans to buy
additional voting securities of Company B sufficient to cross the lowest HSR filing threshold, though the Foundation’s
holdings in Company B will be less than 5%. Neither trustee has holdings of more than 10% in Company B, and decisions
by the Foundation regarding Company B shares require unanimous approval of all three trustees. Does the fact that two
of the Foundation’s trustees are also officers and directors of Company B preclude the Foundation from being eligible
for the 802.9 investment only exemption?
Many thanks,

2
The information contained in this electronic message is confidential information intended only for the use of the named recipient(s) and may contain information
that, among other protections, is the subject of attorney-client privilege, attorney work product or exempt from disclosure under applicable law. If the reader of this
electronic message is not the named recipient, or the employee or agent responsible to deliver it to the named recipient, you are hereby notified that any
dissemination, distribution, copying or other use of this communication is strictly prohibited and no privilege is waived. If you have received this communication in
error, please immediately notify the sender by replying to this electronic message and then deleting this electronic message from your computer. [v.1
08201831BSF]