the PNO position is that once assets are listed on the balance sheet, there is little flexibility in the total asset calculation. You must include the line item.
Question
From: Walsh, Kathryn E.
Sent: Wednesday, January 28, 2015 9:42 AM
To: (Redacted)
Cc: (Redacted),
Subject: Berg, Karen E.; Gillis, Diana L.
RE: HSR/size of person question
(Redacted) - the PNO position is that once assets are listed on the balance sheet, there is little flexibility in the total asset calculation. You must include the line item.
From: (Redacted)
Sent: Tuesday, January 27, 2015 3:02PM
To: Walsh, Kathryn E.
Cc: (Redacted)
Subject: HSR/size of person question
Hi Kate,
I hope all is well with you in the new year. We are conducting an HSR analysis and have a question for you with respect to the size of person test, which will apply to our transaction. Specifically, buyer is an investment fund that has been in existence for a couple of years, but has not yet made any investments. It does have regularly prepared financial statements, so we are aware that we must include any cash/cash equivalents that will be used to fund the acquisition in determining the buyer's "size." However, the most recent regularly prepared balance sheet includes a line item for "unfunded capital commitments." We understand these to be investor commitments to the fund that may be satisfied over time as the fund makes capital calls on the investors. It is possible that not all of the committed capital will be drawn if the fund does not find suitable investment opportunities over a specified period of time. We want to confirm whether we need to include the value of these unfunded capital commitments when calculating the party's size for the size of person test. Thank you in advance for your guidance. And please let us know if there are any additional details that would be relevant to your conclusion.