It appears that B and D each have the right to 75% and 25% of the profits / assets upon dissolution of C, respectively. If that is indeed the case, then B is the UPE of C and the acquired person, while D is only a minority interest holder and is not an acquired person. It also appears that the two acquisitions you describe represent two steps of a transaction in which A seeks to acquire all of the non-corporate interests of C from their different holders. In that case, the value of the interests that A would hold as a result of the transaction would be $200 million.
Question
From: Musick, Vesselina <vmusick@ftc.gov>
Sent: Friday, February 4, 2022 4:04:33 PM (UTC-05:00) Eastern Time (US & Canada)
To: [Redacted]
Cc: HSRHelp <HSRHelp@ftc.gov>
Subject: RE: Question about multiple transactions
[Redacted]
It appears that B and D each have the right to 75% and 25% of the profits / assets upon dissolution of C, respectively. If that is indeed the case, then B is the UPE of C and the acquired person, while D is only a minority interest holder and is not an acquired person. It also appears that the two acquisitions you describe represent two steps of a transaction in which A seeks to acquire all of the non-corporate interests of C from their different holders. In that case, the value of the interests that A would hold as a result of the transaction would be $200 million.
Kind regards.
Vesselina Musick
From: [Redacted]
Sent: Friday, February 4, 2022 9:56:06 AM (UTC-05:00) Eastern Time (US & Canada)
To: HSRHelp <HSRHelp@ftc.gov>
Subject: Question about multiple transactions
Good morning.
I anticipate making a filing soon and had a question about how to address this situation.
- Company A entered into a Membership Interest Purchase Agreement (the “MIPA”) with Company B to acquire 75% of the non-corporate interests of Company C for approximately $150 million.
- At the same time, Company A entered into a Share Purchase Agreement (the “SPA”) with Company D by which it will acquire the remaining 25% of the non-corporate interests of Company C for approximately $50 million.
In submitting the filing, I believe it is appropriate to (1) identify both Company B and Company D as acquired persons in Item 2(a) while noting Company D is non-reportable since the SPA is below the size of transaction threshold, (2) report the value of interests to be held as a result of the acquisition in Item 2(d)(vii) as $150 million, and (3) pay a filing fee of $45,000 since the size of the reportable transaction would be $150 million. The parties would also describe the SPA in the transaction description and submit a copy of that agreement so you would have a complete picture. Is that the appropriate way to address this situation?