Question
From: (redacted)
Sent: Friday, January 27, 2006 2:37 PM
To: Verne, B. Michael
Subject:HSR question for you
X acquires all of theinterests in a partnership that is organized and has its principal officesoutside the US. The partnership has some US assets,with FMV of less than $56.7 million. The partnership also has some sales in orinto the US, but less than $56.7 million of such sales. Is thistransaction potentially exempt under 802.51? Is that because the foreignpartnership is a "foreign issuer" for purposes of that rule? Do Ihave to think about 802.50 (because X will hold foreign assets as a result ofacquiring all of the interests in the partnership)? Or is this an"indirect" acquisition of the assets, and therefore not anacquisition of assets at all for HSR Act purposes, and therefore not anoccasion for invoking 802.50 at all?
Second question:
Suppose that in the sametransaction X also buys from the same acquired person all of the stock of aforeign issuer corporation that, like the partnership, has some (but not as muchas $56.7 million worth) sales in or into the US and holds some US assets(with a FMV less than $56.7 million). By itself, acquisition of this stockwould be exempt under 802.51. But what do I do about the language in 801.15(d),which could be read to require aggregation of the sales in or into the US bythe corporation and the partnership, and possibly to require aggregation of theFMV of the US assets held by the two entities. If aggregation is required, whatis the language that invokes either 802.50 or 802.51 when a non-corporate(foreign) entity is being acquired?
MV COMMENTS
It would be analyzed under802.4. If the direct acquisition of the underlying foreign assets would beexempt under 802.50 and the remaining US assets were less than $56.7 MM, then the acquisitionof all of the partnership interests would be exempt.
801.15(d) does requireaggregation of the US sales and US assets. Again, it is 802.4 that invokes802.50 for the partnership.