Parties to an executed LOI can file with a to-be-formed Acquired Person/Newco. The filing must be certified by someone who will be an officer or director (or the equivalent of an officer or director) of Newco. When searching for business documents, the filer should search the files of any and all Newco officers/directors (or people slated for those roles), as well as anyone currently filling those functions. The Affidavit may include an attestation of the good faith intention to form Newco and the Acquired Entity and to complete the transaction contemplated in the LOI.
Question
I am looking to file an HSR application in the coming days, maybe next week, and we have reached a question in the process. The Acquired Person, in connection with the proposed transaction, will undergo an F-reorganization in which a new entity will be formed and ultimately become the UPE in terms of the filing but not the target entity. However, we are filing the HSR application based on an executed LOI and therefore the new entity has not been formed and will not be formed until closer to the Closing Date of the proposed transaction. Therefore, when we are completing the HSR application do we still list the to be formed new entity as the UPE or should we list the selling entity as the UPE?