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Guest CABatty

Applicable corporation for effective Change in Control

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Guest CABatty

Somewhat buried in 1.409A-3(i)(5)(vi)(A)(2) is the requirement that the only relevant corporation for purposes of a change in the effective control of a corporation is a corporation for which no other corporation is a majority shareholder. The way the regulation is written, at first glance it appears that the requirement only applies to the board of directors provision since that's where the requirement is located and the only example is a change in the board. But, the regulation clearly states that the requirement is for purposes of 1.409A-3(i)(5)(vi)(A), which would include the acquisition of 30% or more of the corporation's stock.

I've looked at the corrections to the reg's and haven't seen anything limiting this requirement to only a change in the board of directors. Has anyone seen any other guidance or heard anything regarding which corporation is the relevant corporation for a change in control upon the acquisition of 30% or more of the corporation's stock?

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It makes sense that this rule would only apply to non-majority owned corporations. If a group acquires 30% of a majority-owned corporation then you don't really have a change in effective control because the majority owner would continue to control the sub (unless the group also acquire 50%, in which case the majority owner would no longer have control but then you would have a change in ownership).

Does this seem correct or am I missing something?

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