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Date
Rule
802.35
Staff
Premerger Notification Office
Response/Comments

We disagree. 802.35 does not apply in this instance.

Question

Hi PNO.

We have a question about 802.35. Although it refers to the acquisition of “voting securities,” we wanted to check whether it would also apply to the acquisition of unit interests in an LLC organized under Delaware (or another state’s) law. In this particular instance, the LLC would be a holding company above several wholly-owned operating companies. Although its interests would not technically be voting securities, the unit interests give their holders the right to vote for the board of the LLC. It seems like 802.35 should apply as there is no practical difference between the LLC and a corporation for this purpose. 

Of course all of the other requirements of 802.35 would need to be met for the exemption to apply. 

Please let us know if you agree 802.35 can apply in this circumstance. Thank you!

About Informal Interpretations

Informal interpretations provide guidance from PNO staff on the applicability of the HSR rules to specific fact situations. They do not necessarily reflect the position of the Commission. 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. 

Learn more about Informal Interpretations.

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