Question
From: (redacted)
Sent: Friday, July 22, 2005 2:15 PM
To: Verne, B. Michael
Subject: RE: HSR question on 802.51
It's even more complicated, isn't it, because I have to think about 802.4. Itake it that if the foreign assets of the two subsidiaries and the twounincorporated entities collectively generated sales in or into the US of lessthan $53.1 million, then those foreign assets would be "exempt assets"for purposes of 802.4, and I could consider whether the collective fair marketvalue of all the non-exempt" assets held by the four entities wasless than $53.1 million and therefore potentially exempt under 802.4.Yes?
(redacted)
From: (redacted)
Sent: Friday, July 22, 2005 2:11 PM
To: Verne, B. Michael
Subject: HSR question on 802.51
X is buying froma single acquired person all of the stock of two foreign corporations and allof the non-corporate interests in two unincorporated entities. I know that forpurposes of applying 802.51, I have to determine the combined fair market valueof the US assets (if any) held by the two foreigncorporations and the combined sales in or into the US made by the two foreign corporations. But how do I then integrateinto that analysis the acquisitions of the non-corporate entities? If as aresult of the transaction X will be viewed as holding all of the assetsof the unincorporated entities, then I would think I would treat theunincorporated entities as through X were acquiring their assets (directly). Itseems to me that means that under 801.15(d) I have to add to the combined salesof the corporate subsidiaries made in or into the US in the most recent yearany most recent year sales in or into the US attributable to any foreign assetsheld by the unincorporated entities, and the exemption survives only if thecombined US sales attributable to the foreign subsidiaries and the foreignassets of the unincorporated entities is less than $53.1 million. I supposethat the exemption would also be lost if the fair market value of the assetslocated in the US held by the foreign sub subsidiaries combined with the fairmarket value of any US assets held by the unincorporated entities exceeded$53.1 million.
Am I right thatI have to combine the US assets attributable to both the foreignsubsidiaries and the foreign unincorporated entities? And the sales in or intothe US made by the foreign subs and the foreignassets held by the unincorporated entities (but not necessarilv all the US sales by the unincorporated entities)?
The suggestedcorollary is that 802.51 doesn't apply to acquisition of control of a foreignunincorporated entity, but 802.50 does. And 801.15(d) requires aggregationacross foreign assets and foreign issuers, although not necessarily acrossunincorporated entities organized and headquartered outside the US.
Does it make anydifference whether the unincorporated entities are foreign? Or would theanalysis be the same for acquisition of control of any unincorporated entitythat had some foreign assets.
(redacted)