Question
From: (redacted)
Sent: Tuesday, August 05, 2008 11:20 AM
To: Ferkingstad, James H.
Cc: (redacted)
Subject: HSRQuestion
Hi James, CompanyY proposes to acquire Company Z. Both Y and Z are their own UPE.
Pursuant to an Agreementand Plan of Merger, Company Y and Company Z agree to form a new company HoldcoX, which is owned 73% by Y and 27% by Z. Holdco X will form 2 mergersubsidiaries, Merger-sub A and Merger-sub B. Merger-sub A will merge into Y,with Y surviving. Merger-sub B will merge into Z, with Z surviving.
At the effectivetime of the mergers, (i) each outstanding share of V's common stock will beconverted into 2 shares of Holdco X common stock; and (ii) each outstandingshare of Z will be converted into 1 share of Holdco X common stock. As a resultof the mergers, Holdco X will be the new parent entity and Y and Z will be itssubsidiaries.
We understand thatunder Rule 801.2(d)(2(iii) Y and Z are both acquiring and acquired persons forpurposes of the HSR filings requirements. Does Y complete its notification andreport form as if it were literally acquiring Z and vice versa, or is itsufficient to describe the transaction collectively? If so, what is the size ofthe transaction for purposes of Item 2(d)?
Company Y hasshareholders who will need to file individually for HSR clearance because thevalue of the Holdco X shares they will receive upon consummation of thetransaction will exceed an HSR threshold. For these purposes, which entitywould be the acquired person? If the acquired person is Holdco X, would Xfurnish information pro forma as if the transaction had been consummated, i.e.,including information with both Y and Z as included entities. Must the Holdcoform be certified by officers of both Y and Z?