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Exceptions - Self-Dealing by Private Foundations: Certain recapitalization transactions

Any transaction between a private foundation and a corporation that is a disqualified person is not an act of self-dealing if the transaction is engaged in under a liquidation, merger, redemption, recapitalization, or other corporate adjustment, organization, or reorganization, as long as all the securities of the same class as those held before the transaction by the foundation are subject to the same terms and the terms provide for receipt by the foundation of at least fair market value.

For securities to be considered subject to the same terms, the corporation must, in connection with the transaction, make a bona fide offer on a uniform basis to the foundation and every other security holder.  The fact that a foundation receives property, such as debentures, while all other persons holding securities of the same class receive cash for their interests, will be evidence that the offer was not made on a uniform basis.

If no other persons hold securities of the same class as the private foundation, the consideration received by holders of other classes of securities, or the interests retained by the holders of other classes, when considered in relation to the consideration received by the foundation, must indicate that the foundation received at least as favorable treatment in relation to its interests as the holders of any other class of securities.  In addition, the foundation must receive at least the fair market value of its interests.


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Page Last Reviewed or Updated: 06-Oct-2016