Question
From: (redacted)
Sent: Thursday, April 26, 2007 12:18 PM
To: Verne, B. Michael
Cc: (redacted)
Subject: HSR Question
Mike,
Thanks for taking my call yesterday. I wanted to summarizeour discussion.
As we discussed yesterday, LLC 1 and LLC 2 are combining to create NewCo LLC. LLC 1 is comprised of 12 members with noUPE because no one has an ownership interest of 50% or more. LLC 2 has 4 members with one entityhaving a 50% ownership interest. The entity with the 50% ownership interest isthe UPE of LLC 2.
The structure of the transaction is as follows: Step 1:
The current members of LLCI and LLC 2 will contribute their respectiveequity interests in LLC 1 and LLC 2 to Newco, LLC, a Delaware limitedliability company ("Newco"), in exchange for equity interests in Newco. LLC 1 and LLC 2 will continue as separate legalentities.
Step 2:
Immediately after closing, the former members of LLC 1 will contribute their Newco equityinterests to a holding company ("New LLC 1") and the former members of LLC 2 (other than the UPE) willcontribute their Newco equity interests to a holding company ("New LLC 2"). So, the members of NewCoLLC will be New LLC 1, New LLC 2, and the UPE of LLC 2. New LLC 1 will own 50% of NewCo, New LLC 2 will own 25% of Newco, and UPE of LLC 2 will own 25% of NewCo.
Step 3:
Sometime within 6 months to a year after closing, LLC 1 and LLC 2 will merge into Newco, or otherwisedissolve, transferring their assets to Newco.
The value of LLC 1 and LLC 2 are approximately the same, but onemay be higher than the other.
From our conversation, I believe that you agreed that thetransaction to be classified as a consolidation. We also agreed that LLC 1 and LLC 2 are acquiring and acquired persons.LLC 1 is a reporting person and the UPE of LLC 2 is a reporting person. NewCo is notan acquired person. The value of the transaction is the greater in value of LLC 1 or LLC 2, which will be determined in goodfaith by the managers of LLC 1 and LLC 2. There is only one filing fee basedon the value of the greater of LLC 1 and LLC 2. The filing fee is not related tothe value of NewCo. The formation of the holding companies immediately afterclosing does not trigger another HSR notification. The transfer of assets from LLC 1 and LLC 2 to Newco, which is planned to occurabout 6 months following the initial closing does not require another filingbecause it is an intraperson transaction.