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into a liquid asset. * * * In order for BFLP to be able
to diversify or take any steps other than simply
holding the class B membership units, decedent would
have had to cause the membership units and the
underlying Empak stock to be redeemed.[11] He chose not
to do this. By not redeeming the WCB membership units
held by BFLP, decedent insured that BFLP would not
engage in asset management. Thereby, decedent
exercised practical control over BFLP and limited its
function to simply holding title to the class B
membership units. Whether decedent caused the WCB
membership units held by BFLP and the underlying Empak
11In making that assertion, the majority opinion ignores
that, upon the occurrence of a liquidity event with respect to
Empak (Empak liquidity event), BFLP, like WCB Holdings, would be
in a position to acquire liquid assets with which to engage in
economic activity, such as diversifying investments. Until an
Empak liquidity event occurred, WCB Holdings owned no assets
other than the respective shares of Empak stock transferred to it
by decedent and ISA Trust and thus owned no liquid assets with
which to engage in any economic activity. Similarly, until an
Empak liquidity event occurred, BFLP, whose only asset was WCB
Holdings class B membership units, had no liquid assets with
which to engage in economic activity, such as diversifying its
investments. The reason that during decedent’s lifetime BFLP,
like WCB Holdings, owned no liquid assets with which to engage in
any economic activity is that decedent died unexpectedly on Nov.
16, 1998, before an Empak liquidity event occurred. However, an
Empak liquidity event did occur about 19 months after decedent’s
death. Moreover, as the majority opinion acknowledges with
respect to WCB Holdings, many of the steps necessary to position
Empak for a liquidity event, and thus necessary to position both
WCB Holdings and BFLP to acquire liquid assets as a result of
such a liquidity event, were completed before decedent's death.
Other such steps were completed after decedent died. Thus, in
June 1999, Empak was consolidated with Fluoroware, which resulted
in a combined company named Entegris, Inc. (Entegris), and Empak
stockholders, including WCB Holdings which owned 90 percent of
the outstanding Empak stock, received a 40-percent ownership
interest in Entegris. In July 2000, Entegris stock split 2 for
1, and it completed an initial public offering of its stock. As
part of that initial public offering, WCB Holdings sold 1,925,000
shares of the approximately 22,000,000 shares of Entegris stock
that it owned. Thereafter, WCB Holdings distributed the proceeds
of such sales on a pro rata basis to all of the owners of its
membership units, including to BFLP.
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