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Frequently Asked Questions
  Staff Interpretation Letter 2012-9  
Identification Number 1071
This is in response to your correspondence regarding whether an issuance of the Partnership’s common units to the New Company would be treated as a public offering for purposes of IM-5635-3 and, therefore, not subject to the shareholder approval requirements of Rule 5635.

The Partnership, whose common units (the “Units”) have been listed on NASDAQ for several years, is treated as a partnership for federal income tax purposes. As such, the Partnership pays no federal income tax but, instead, its income and deductions are allocated to the holders of the Units who, in turn, are taxed on their share of the Partnership’s net income. This tax treatment is unattractive to many investors due to the complexity and administrative burden it adds to the tax-filing process. In addition, you stated that this structure effectively precludes most tax-exempt investors (including IRAs and other tax-exempt retirement accounts) from investing in the Partnership’s Units because they would be subject to unrelated business income tax, which could cause them to lose their tax-exempt status. Similarly, you stated that this structure precludes most non-U.S. investors from owning Units because it would require that they file U.S. federal and state income tax returns and may cause them to be subject to taxes on other, unrelated, income. You stated that this tax treatment inhibits the Partnership’s ability to raise capital or finance acquisitions through Unit issuances. As explained below, the structure of the New Company and the sale of Units by the Partnership to the New Company (the “Unit Sale”) were designed to offer investors a means to indirectly invest in Units while avoiding the tax treatment associated with direct ownership.

The sole business function of the New Company, which is organized as a corporation, is to own Units, and it expects to have no assets or operations other than those related to its interest in the Partnership. The New Company is required under its governing documents to maintain a one-to-one relationship between the number of Units it owns and the number of shares of its common stock outstanding (the “Shares”). The holders of the Shares have voting and economic rights intended to put them in the same position as direct holders of the Units. For example, all matters submitted to a vote of the Units will also be submitted to a vote of the Shares, and the New Company is required to vote the Units it holds proportionately at the direction of the holders of the Shares (including non-votes and abstentions). In addition, holders of Shares will be entitled to receive dividends of the cash distributions that the New Company receives on the Units it holds, net of reserves for income taxes payable by the New Company.

The New Company recently completed an initial public offering (the “IPO”) using a syndicate of major investment banks, which was underwritten on a firm commitment basis. The prospectus relating to the IPO included the same information regarding the business, financial condition and results of operation of the Partnership, including historical financial statements, as is required for an offering of Units. The IPO was marketed as an indirect offering of Units, focusing on the business and operations of the Partnership and the distribution history associated with the Units. Under the federal securities laws, the IPO was considered a deemed offering of Units, and the registration statement used was a joint filing of the Partnership and the New Company, which also registered the sale of Units to the public. The entire net proceeds of the IPO were used to purchase a number of newly issued Units in the Unit Sale equal to the number of the New Company’s Shares sold in the offering. The price per Unit the New Company paid was equal to the net proceeds received per share in the offering.

Following our review of the information you submitted, we have concluded that the Unit Sale, as described above, was a public offering under the Rule, and, therefore, not subject to NASDAQ’s shareholder approval requirements. We have reached this conclusion because, as explained above: (i) the Unit Sale was, in all material respects, equivalent to a sale of those Units to the purchasers of Shares in the IPO, who enjoy all economic and voting rights associated with those Units; (ii) the sale of Shares in the IPO was a public offering, which was broadly marketed and conducted by a syndicate of investment banks on a firm commitment basis in reliance on a joint-registration statement fully describing both the IPO and the Unit Sale; and (iii) the price paid for the Units was substantially the same as if they had been sold by the Partnership in a typical follow-on offering.

Publication Date*: 2/19/2013 Mailto Link Identification Number: 1071
material_search_footer*The Publication Date reflects the date of first inclusion in the Reference Library, which was launched on July 31, 2012, or a subsequent update to the material. Material may have been previously available on a different Nasdaq web site.
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