Question
March 21, 2002
BY E-MAIL TO MVERNE@FTC.GOV
B. Michael Verne
Federal Trade Commission
Premerger Notification Office
Washington, D.C.
Dear Mike:
I'm writing to confirm my understanding of a discussion we had last week, which concluded that a transaction would fall within the "ordinary course of business" exemption under Section 802.1.
Here are the material facts. [Redacted] Corp., a diversified energy-marketing company operating through various affiliates and subsidiaries, including its wholly owned subsidiaries, [redacted], [redacted], and [redacted]. [Redacted] Corp. was the ultimate parent entity of all three companies. All of these entities have filed under Chapter 11, and this letter refers to them all collectively as [Entity].
[Entity] currently plans to attempt to dispose of substantial portions of its portfolio of retail and wholesale [redacted] contracts as well as its [redacted] contracts. [Entity] has announced its intentions to develop a plan of reorganization, but such a plan has not yet been finalized. Accordingly, [Entity] is unable to assess whether, and in what manner, it might continue in, or subsequently re-enter any [redacted] contract market.
[Entity], through the three subsidiaries named above, has negotiated two separate sales of [redacted] contract portfolios to the same buyer. One sale is for a wholesale [redacted] contract with related management and supply arrangements. The second is for a portfolio of multiple retail [redacted] contracts, together with related marketing rights and a master service arrangement with a local utility. Each transaction is less than $50 million, but together, they exceed that threshold. The closings are scheduled within a short time period (less than 180 days apart).
Each sale consists exclusively of the [redacted] contract rights and related arrangements described above; it does not include any part of any operating unit or division, personnel contracts, or any part of any infrastructure of [Entity].
Based on these facts, I understand that the Premerger Notification Office interprets Section 802.1 to mean that each sale independently qualifies for the ordinary course of business exemption; that, since each sale is separately exempt, no aggregation is required under Section 801.13 or any other section; and that this exemption, interpreted in this way, would apply even to the sale of the last contract in any of [Entity]s portfolios.
If this letter correctly summarizes the interpretation you gave me, I would appreciate it if you would please notate this letter accordingly.
Sincerely,
[redacted]