Yes, these would be considered “voting securities.” The 801.12 calculation is not affected by a voting agreement.
Question
From: Shaffer, Kristin <kshaffer@ftc.gov>
Sent: Thursday, May 25, 2023 11:31:59 AM (UTC-05:00) Eastern Time (US & Canada)
To: [Redacted]
Cc: HSRHelp <HSRHelp@ftc.gov>
Subject: RE: Voting Securities
[Redacted]
Yes, these would be considered “voting securities.” The 801.12 calculation is not affected by a voting agreement.
Best regards,
Kristin
Kristin Shaffer
Attorney
Premerger Notification Office
Federal Trade Commission
202-326-2388 | kshaffer@ftc.gov
From: [Redacted]
Sent: Thursday, May 25, 2023 10:20:39 AM (UTC-05:00) Eastern Time (US & Canada)
To: HSRHelp <HSRHelp@ftc.gov>
Subject: Voting Securities
Good morning,
In a financing round, Company X will issue preferred shares (“Series B Shares”) that have the right to vote for the election of the Series B directors. Investor Y will invest and acquire Series B Shares of Company X valued in excess of the current size of transaction threshold. However, Investor Y will also enter into a voting agreement to vote their shares in favor of directors that have been designated by another investor (“Investor Z”) with respect to the Series B directors. In light of the voting agreement under which Investor Y does not itself choose who to vote for, are the Series B Shares acquired by Investor Y considered “voting securities”?