Question
(redacted)
October 11, 1990
Mr. Thomas Hancock, Compliance Specialist
Premerger Notification Office
Bureau of Competition
Federal Trade Commission
600 Pennsylvania Avenue, NW, Room 303
Washington, D.C. 20580
Dear Tom:
This will confirm our telephone call on October 10 in which I explained that Acquiring Company A intends beneficial ownership of Partnership F, an entity controlled equally by Corporations D and E who have separate ultimate parents, B being the u.p.e. of D and C being the u.p.e. of E. Instead of acquiring Fs assets, A instead proposes simultaneously to merge Corporations D and E into it. D and Es principal business is conducted through Partnership F, and their interests in F are the principal assets of each D and E.
My question was whether A would have to pay two filing fees, owing to the fact that D and E are technically each separate corporations having separate u.p.e.s and whose securities are each being acquired (by merger) by A. I indicated, further, that only one fee should be paid because both D and Es principal asset is their interest in F; because the mergers will occur simultaneously pursuant to a single agreement signed by B, C, D, and E as acquired persons and A as the acquiring person; and because the mergers are simply the vehicle through which A will accede to beneficial ownership of the business of Partnership F.
You indicated that the Commission Pre-Merger staff has taken the position that only one filing fee must be paid in this kind of transaction, focusing on the fact that the acquiring entity, in substance, is really acquiring beneficial ownership of the same assets although those assets are technically held (50%-50%) by two separate acquired entities.
We have communicated to our client our discussions with you as outlined above. If the foregoing account of our discussion is materially incorrect, please call me at your earliest convenience.
Thank you very much for your assistance.
Sincerely yours
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