Question
From:
(redacted)
Sent:
Thursday, September 11, 2008 11 :38 AM
To:
Verne, B. Michael
Subject: HSRReportability Inquiry
Mike:
I hope all is wellwith you.
Set forth below isa description of a transaction that we believe is exempt from the HSR filingrequirements pursuant to the so-called ordinary course exemption. 7A(c)(1) and16 C.F.R. 802.1 and 802.4.
For purposes ofdiscussion, assume that the size-of-person and size-of-transaction tests aremet.
8 is a financialinstitution that has obligations under various guaranteed investment contracts(GICs) in favor of various large investors. For clarification, a GIC is anagreement pursuant to which an investor transfers cash to a financialinstitution (in this case, B), and the financial institution is obligated topay interest to the investor and to transfer cash to the investor under certainconditions. A and 8 are entering into a transaction pursuant to which A agreesto assume 8's obligations under these GICs.
B owns 100% of themembership interests in a limited liability company (LLC1), which in turn owns100% of the membership interests in another limited liability company (LLC2).LLC1 holds no assets other than its interest in LLC2 as well as cash andvarious contractual arrangements with third parties that provide fiscal agencyand investment services associated with the life settlements described below.LLC2 in turn owns various trust certificates that represent ownership interestsin a portfolio of life insurance policies (also known as life settlements).LLC2 also holds cash and various contractual arrangements with third partiesthat service the life settlements (a life insurance policy servicer and afiscal agent).
Entitiescontrolled by the ultimate parent of B also control several other entitieswhich have interests in life settlements. These entities routinely acquire andwhen appropriate with economic conditions, transfer risk associated with lifesettlements as part of their businesses.
As considerationfor A assuming B's GIC obligations, B will transfer to A 100% of the membershipinterests in LLC1.
Analysis
The transfer ofLLC1 to B should be exempt under the HSR Act as an ordinary course transactionpursuant to 7A(c)(1) and 16 C.F.R. 802.1 and 802.4. This transaction isconsistent with several other informal interpretations issued by the PremergerNotification Office. Following the contemplated transaction, entitiescontrolled by the ultimate parent of B will still be in the business ofacquiring, holding and when appropriate, transferring risk associated with lifesettlements as part of their businesses. As part of the contemplatedtransaction, no personnel of B who work with life settlements are beingtransferred to A and the fact that A is acquiring LLC1 in exchange for B's GICobligations should not change this transaction to be characterized as anythingother than ordinary course.
As always weappreciate your prompt attention to this inquiry. Should you have any questionsor comments or require any additional information, please contact us.