| Securities Lawyer's Deskbook
of Cincinnati College of Law
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Standard Instructions for Filing Forms under
the Securities Act of 1933, Securities Exchange Act of 1934, and Energy Policy and Conservation Act of 1975
Item 911 -- Reports, Opinions and Appraisals
- All material reports, opinions or appraisals. State
whether or not the general partner or sponsor has received any report, opinion (other
than an opinion of counsel) or appraisal from an outside party which is materially
related to the roll-up transaction including, but not limited to, any such report,
opinion or appraisal relating to the consideration or the fairness of the consideration
to be offered to investors in connection with the roll-up transaction or the fairness
of such transaction to the general partner or investors.
- With respect to any report, opinion or appraisal described
in paragraph (a)(1) of this Item;
- Identify such outside party;
- Briefly describe the qualifications of such outside party;
- Describe the method of selection of such outside party;
- Describe any material relationship between:
which existed during the past two years or is mutually understood to be contemplated
and any compensation received or to be received as a result of such relationship;
- The outside party or its affiliates; and
- The general partner, sponsor, the successor or any of
- If such report, opinion or appraisal relates to the fairness
of the consideration, state whether the general partner, sponsor or affiliate determined
the amount of consideration to be paid or whether the outside party recommended the
amount of consideration to be paid.
- Furnish a summary concerning such report, opinion or appraisal
which shall include, but not be limited to, the procedures followed; the findings
and recommendations; the bases for and methods of arriving at such findings and recommendations;
instructions received from the general partner, sponsor or its affiliates; and any
limitation imposed by the general partner, sponsor or affiliate on the scope of the
investigation. If any limitation was imposed by the general partner, sponsor or affiliate
on the scope of the investigation, including, but not limited to, access to its personnel,
premises, and relevant books and records, state the reasons therefor.
- State whether any compensation paid to such outside party
is contingent on the approval or completion of the roll-up transaction and, if so,
the reasons for compensating such parties on a contingent basis.
- Furnish a statement to the effect that upon written request
by an investor or his representative who has been so designated in writing, a copy
of any such report, opinion or appraisal shall be transmitted promptly, without charge,
by the general partner or sponsor. The statement also must include the name and address
of the person to whom investors or their representatives should make their request.
- All reports, opinions or appraisals referred to in paragraph
(a)(1) of this Item shall be filed as exhibits to the registration statement.
- Describe any contacts in connection with the
roll-up transaction between the sponsor or the general partner and
any outside party with respect to the preparation by such party of
an opinion concerning the fairness of the roll-up transaction, a valuation
of a partnership or its assets, or any other report with respect to
the roll-up transaction. No description is required, however, of contacts
with respect to reports, opinions or appraisals filed as exhibits
pursuant to paragraph (a)(4) of this Item.
- The description of contacts with any outside
party required by paragraph (a)(5)(i) of this Item shall include the
- The identity of each such party;
- The nature of the contact;
- The actions taken by such party;
- Any views, preliminary or final, expressed on the proposed
subject matter of the report, opinion or appraisal; and
- Any reasons such party did not provide a report, opinion
- Fairness opinions:
- If any report, opinion or appraisal relates to the fairness
of the roll-up transaction to investors in the partnerships, state whether or not
the report, opinion or appraisal addresses the fairness of:
- The roll-up transaction as a whole and to investors in each
- All possible combinations of partnerships in the roll-up
transaction (including portions of partnerships if the transaction is structured
to permit portions of partnerships to participate). If all possible combinations
are not addressed:
- Identify the combinations that are addressed;
- Identify the person(s) that determined which combinations
would be addressed and state the reasons for the selection of the combinations; and
- State that if the roll-up transaction is completed with
a combination of partnerships not addressed, no report, opinion or appraisal concerning
the fairness of the roll-up transaction will have been obtained.
- If the sponsor or the general partner has not obtained any
opinion on the fairness of the proposed roll-up transaction to investors in each
of the affected partnerships, state the sponsor's or general partner's reasons for
concluding that such an opinion is not necessary in order to permit the limited partners
or shareholders to make an informed decision on the proposed transaction.
- Appraisals. If the report, opinion or appraisal consists
of an appraisal of the assets of the partnerships:
- Describe the purpose(s) for which the appraisals were obtained
and their use in connection with the roll-up transaction;
- Describe which assets are covered by the appraisals and state
the aggregate appraised value of the assets covered by the appraisals (including
such value net of associated indebtedness). Provide a description of, and valuation
of, any assets subject to any material qualifications by the appraiser and a summary
of such qualifications;
- Identify the date as of which the appraisals were prepared.
State whether and in what circumstances the appraisals will be updated. State whether
any events have occurred or conditions have changed since the date of the appraisals
that may have caused a material change in the value of the assets;
- Include as an appendix to the prospectus one or more tables
setting forth the following information:
- The appraised value of any separately appraised asset that
is significant to the partnership holding such asset;
- If the appraiser considered different valuation
approaches in preparing the appraisals of the assets identified in
response to paragraph (c)(4)(i) of this Item, the value of each such
asset under each valuation approach considered by the appraiser, identifying
the valuation approach used by the appraiser in determining the appraised
value and the reason such approach was chosen; and
- All material assumptions used by the appraiser
in appraising the assets identified in response to paragraph (c)(4)(i)
of this Item, and, if the appraiser used different assumptions for
any of such assets, the reasons the different assumptions were chosen.
- For purposes of this Item and Item 902,
an asset is "significant" to a partnership if it represents more than 10%
of the value of the partnership's assets as of the end of the most recently-completed
fiscal year or recently-completed interim period or if 10% or more of the partnership's
cash flow or net income for the most recently-completed fiscal year or most recently-completed
subsequent interim period was derived from such asset.
Instructions to Item 911:
- The reports, opinions and appraisals required to be identified
in response to paragraph (a) of this Item include any reports, opinions
and appraisals which materially relate to the roll-up transaction whether or not
relied upon, such as reports or opinions regarding alternatives to the roll-up transaction
whether or not the alternatives were rejected.
- The information called for by paragraph (a)(2)
of this Item should be given with respect to the firm which provides the report,
opinion or appraisal rather than the employees of such firm who prepared it.
- With respect to appraisals, a summary prepared by the appraisers
should not be included in lieu of the description of the appraisals required by paragraph (c) of this Item. A clear and concise summary description
of the appraisals is required.
56 FR 57247, Nov. 8, 1991; 59 FR 63683, Dec. 8, 1994
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