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Date
Rule
801.13
Staff
Michael Verne
Response/Comments
of-transaction test. Filings would be Buyer as an acquiring person and Mr. A as an acquired person. No filing is required from Mr. B and he does not need to be listed in Item 3. If you don't have the 2002 revenues attributable to the trademarks, you don't need to report them. You should be able to estimate the most recent year revenues based on year to date revenues since the acquisition.

Question

From: (redacted)
Sent: Wednesday, September 30, 2009 1:16 PM
To: Verne, B. Michael
Subject: Aggregation of separate transaction involving ultimate parent entity

I have a fewquestions regarding the following situation:

Mr. A (a naturalperson) is the ultimate parent entity of Seller. In transaction #1, Seller isselling its assets to Buyer in a transaction that, due to its size and the sizeof the parties involved, would require the filing of a notification and reportform. At the same time, in transaction #2, the same Buyer will be acquiringtrademarks from another entity, "TM Holder". The ultimate parententities of TM Holder are Mr. A and Mr. B, who each hold 50% of TM Holder.Taken alone, the size of transaction #2 would not be large enough to requirefiling under the HSR Act.

Questions:

1. Would transaction #2 need to be aggregated withtransaction #1, and thus be included in the notification and report form filedin respect of transaction #1?

2. If the answer to question 1 above is yes, does Mr. Bbecome a "filing person" since he is an ultimate parent entity of TMHolder? (Mr. B is not the ultimate parent entity of Seller, so would not be afiling person in respect of transaction #1; however, he does hold a minorityinterest in Seller.) Would he just be listed as an ultimate parent entity inItem 3, or would he be required to file his own notification and report form?

3. TM Holder was formed in 2009 for the purpose ofacquiring the trademarks in question as well as some existing licenses relatingto those trademarks. (It did not acquire the entire business of the prior ownerof the trademarks.) If transaction #2 is reportable on the HSR form togetherwith transaction #1, would the filing person be responsible for providing revenueinformation with respect to those trademarks under Items 5 and 7? What do we doif we don't know the revenues from 2002 or the most recently fiscal yearbecause we did not acquire the ongoing concern but rather simply acquired thetrademarks and limited related assets?

Thank you very muchfor your guidance.

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