We agree, so long as title to the inventory has not passed to a US entity.
Question
From: Sheinberg, Samuel I.
Sent: Friday, February 16, 2018 12:59:24 PM
To: [Redacted]
Cc: [Redacted]
Subject: RE: 802.4 Question
[Redacted]
We agree, so long as title to the inventory has not passed to a US entity.
Have a nice weekend.
Sam
From: [Redacted]
Sent: Friday, February 16, 2018 11:23 AM
To: Walsh, Kathryn E.; Berg, Karen E.; Carson, Timothy; Shaffer, Kristin; Sheinberg, Samuel I.; Whitehead, Nora
Subject: FW: 802.4 Question
From: [Redacted]
Sent: Friday, February 16, 2018 11:22:40 AM
To: [Redacted]
Cc: [Redacted]
Subject: 802.4 Question
We are writing to confirm our understanding that the transaction described below would not be HSR reportable. Companies A and B are both foreign persons under the HSR Rules. Company A, through its wholly-owned foreign subsidiary, Company C, will acquire 100% of the voting shares of Company D, a wholly-owned foreign subsidiary of Company B. Please assume that the size of transaction and size of person tests are satisfied.
Company D holds plants located outside of the United States, the fair market value of which are less than $50 million (as adjusted), and foreign inventory (i.e., inventory located outside of the United States), the fair market value of which is greater than $50 million (as adjusted). Company D made aggregate sales in or into the United States of over $50 million (as adjusted) in its most recent fiscal year.
The transaction is not exempt pursuant to 802.51 because Company D made aggregate sales in or into the United States of over $50 million (as adjusted) in its most recent fiscal year. However, the transaction is exempt under 802.4 because the value of the non-exempt assets, the foreign plants, does not exceed $50 million (as adjusted). Company B's inventory, which is located outside of the United States, would not be considered a U.S. asset or an asset to which U.S. sales were attributable. See Int. 0603024, https://www.ftc.gov/enforcement/premerger-notification-program/informal-interpretations/0603024.
Best regards,
[Redacted]