Question
(redacted)
September 28, 1998
Mr. Patrick Sharpe
Premerger Notification Office
Bureau of Competition
Federal Trade Commission
6th and Pennsylvania Avenue, NW
Room 303
Washington, D.C. 20580
Re: Request For confirmation of Informal Interpretation
Dear Mr. Sharpe:
I am enclosing a copy of a letter that I sent to you on March 26, 1998 (the "March Letter") requesting confirmation of my understanding that, under the facts described in the March Letter, no member of the limited liability company (the "LLC") described in the March Letter would be deemed to have acquired "voting securities" within the meaning of the Hart-Scott-Rodino antitrust Improvements Act of 1976, as amended, and the rules, regulations, statements and interpretations promulgated thereunder (collectively, the "Act"). On April 2, 1998, you confirmed that my understanding was correct.
Since the March Letter, the LLC described in the March Letter has been split into two LLCs, one [note 1] for smaller investors ( the "Private LLC") and one for institutional investors (the "Institutional LLC). The Private LLC will continue to operate as described in the March Letter. The institutional LLC will operate as described in the March Letter, except that Unaffiliated Board Members will be elected annually by a majority in interest of the Members, and any vacancies among the Unaffiliated Board Members will be filed by a majority in interest of the Members. (As noted in the March Letter, the Unaffiliated Board Members are those members of the Board who are not affiliated Board who are not affiliated with the Advisor, but who may be, but need not be affiliated with the Members.) AS stated in the March Letter, no Member will have in excess of 50 percent of the LLC interests and, accordingly, no Member will have the sole power to elect, appoint or remove a member of the Board.
It is my understanding that under the facts described above, no Member will be acquiring "voting securities" within the meaning of the Act because no Member will have the sole power to appoint a member of the Board.
It would be greatly appreciated if you would call me at your earliest convenience to confirm that my understanding is correct.
Thank you for your prompt attention to this matter.
Sincerely,
(redacted)
cc: (redacted)