Question
From:(redacted)
Sent:Tuesday, May 15, 2007 9:51 AM
To:Verne, B. Michael
Subject:UPE of Company controlled by ESOP Trust
Dear MrVerne:
Please clarify whether the ESOP Trust or theCorporation is the UPE for filing purposes in the following situation:
Employee trust ("ESOP Trust") that complieswith section 401 of the Internal Revenue Code owns 85% of the outstanding stockof Corporation, the company which employs the employees who are thebeneficiaries of the trust. Company has the contractual right to appoint thetrustee of the ESOP Trust. No one else has a contractual right to designate amajority of the board of the Company.
ESOP Trust is now selling the stock ofCompany to third party in a transaction in which an HSR filing will be made. Itis my understanding, consistent with section 802.35(b), that the ESOP Trust iscontrolled by the Company because of the Company's ability to designate theTrustee and that the Company is its own UPE in this situation. Therefore, theCompany and not the ESOP Trust should be identified as the Acquired Person onthe Acquired Person's filing.
Please confirm or correct my understanding. Thank you.