Question
May 14, 1992
Dear Mr. Cohen:
I am writing to confirm our telephone conversation today in which I outlined the following transaction: Corporations A and B propose to form a Partnership in which A will hold a 51% interest and B will hold a 49% interest. B will contribute substantially all of its assets, valued in excess of $30 million, to the Partnership. A will contribute a technology based business and will effectively assume liabilities of over $6 million, its proportional share (51%) of Bs liabilities that will be assumed by the Partnership. In addition, in order to equalize the parties respective contributions, A will contribute $9.7 million in cash to be paid to B at closing. Thus, the result of the transaction will be that A and B will each have made contributions proportional to their respective interests in the Partnership. This transaction should be viewed as a non-reportable formation of a partnership. See, e.g., ABA Premerger Notification Manual, Interpretation No. 196.
It is also contemplated that in the future, A may increase its interest in the Partnership by making purchases of Partnership interests from B in a series of transactions, the final one of which would consist of at least 15% of the Partnership and would bring As ownership to 100%. This final transaction would be viewed for H-S-R purposes as an acquisition of all of the Partnerships assets, and would therefore be reportable assuming the size-of-person and size-of-transaction tests are met. However, the preceding transactions, which would result in A holding significantly less than 100% of the Partnership, would not be reportable.
Please let us know whether the foregoing is consistent with the Staffs position. Your cooperation is greatly appreciated.
Very truly yours
(redacted)
Victor Cohen, Esq.
Premerger Notification Office
Bureau of Competition - Room 301
Â鶹´«Ã½ Trade Commission
Washington, D.C. 20580
VIA FEDERAL EXPRESS
cc: (redacted)