1606003 Informal Interpretation

From: 	Storm, Evan
To:
Subject: 	RE: HSR PE Question
Date: 	Wednesday, June 08, 2016 3:09:55 PM
Following up to confirm that if New Fund does not have officers/directors and none are currently
slated, then the files of the people acting as officers/directors, such as GP or the investment
committee of the GP’s private equity firm, must be searched.
Regards
Evan
From: Storm, Evan
Sent: Tuesday, June 07, 2016 4:28 PM
To:
Subject: RE: HSR PE Question
Regarding the 4c/4d search, if New Fund has officers/directors or knows who those people will be,
their files must be searched. We are still kicking this around but are leaning to conclude that if New
Fund does not have officers/directors and no one is currently slated, then the files of the people
acting as officers/directors, such as GP or the investment committee of the GP’s private equity firm,
must be searched.
Regards
Evan
From:
Sent: Friday, June 03, 2016 2:43 PM
To: Storm, Evan
Subject: RE: HSR PE Question
Thanks so much. I hope you have a good weekend!
From: Storm, Evan [mailto:estorm@ftc.gov]
Sent: Friday, June 3, 2016 2:40 PM

To:
Subject: RE: HSR PE Question
See below in red. As for your 3rd bullet, I’m still working on that and should have an answer by
Monday.
Regards
Evan
From:
Sent: Friday, June 03, 2016 10:18 AM
To: Storm, Evan
Subject: HSR PE Question
Evan:
Thanks for speaking with me. Here’s a brief outline of the issue and my question.
Deal overview.
· 	A general partner of a private equity fund will sign a deal agreement to acquire a company
with a size of transaction over $200M as adjusted. In order to complete the acquisition, a
New Fund will be established.
· 	The New Fund will have four limited partners that are investors. None of the limited
partners will be entitled to over 50% of the assets or 50% of the profits of the new fund
upon dissolution. Each of the limited partners has a different UPE, but they share a common
general partner (the private equity fund). As a result, the New Fund is its own UPE for
purposes of the HSR filing. 	See, e.g., https://www.ftc.gov/es/node/106456 (confirming “the
fact that the Funds may have common general partners did not affect the determination of
the ultimate parent entity.”)
· 	The New Fund has not yet been created, but we will not be able to take advantage of the
size of person exemption because of the size of the transaction. The New Fund is likely to be
created immediately before closing.
HSR Filing.
· 	Since the New Fund has not yet been created, does the general partner make the HSR filing
on behalf of the new fund as if it exists? Yes b/c we want the filing to represent the
companies that will be closing the deal. Who would be able to sign the HSR filing (the
general partner)? Yes.
· 	If the New Fund does not have any operations, is all of the information (except associate
entities, simply blank). Items 5 and 8 will be blank. Items 6 and 7 can include associate
information.
·

The following informal interpretation suggests that if you know the officers or directors of
the New Fund, you should search their files for documents, but that if there are no
officers/directors slated, you would have no 4(c)/4(d) documents.
https://www.ftc.gov/enforcement/premerger-notification-program/informal-
interpretations/1507002
Thanks for your help. Happy to have a phone call to discuss if that would be easier.
Best,