1205015 Informal Interpretation

Date:
Rule:
Form Item 4(c)
Staff:
Michael Verne
Response/Comments:

  1.      We have drawn a bright line on drafts submitted to the entire board of the person filing notification or the entire board of a sub (probably the acquisition vehicle), not a single director. Also drafts submitted to entire committees or subcommittees of the board which are comprised of board members. 2.      You would submit any document that meets the criteria of 4(c) that was prepared by or for any officer or director of any subsidiary. I think the example of a foreign sub that is not involved in the deal is a bit of a red herring. Why would such an officer or director have 4(c) documents specifically related to the acquisition if he is not involved in the deal? If he did have a doc, it would probably relate to the foreign market where the sub is located and would not be responsive. Besides, I can't imagine why you would even be searching the files of an officer or director of a sub that has nothing to do with the deal. 3.      If my answers to 1 and 2 make sense, I think 3 is moot. K Walsh concurs.

Question

From:

(redacted)

Sent:

Monday, May 21, 2012 9:47 PM

To:

Verne, B. Michael

Subject:

HSR Question -Item 4(c) - Officers or Directors of Subsidiaries

Mike:

Ihad a couple of questions regarding Item 4(c) of the HSR Notification andReport Form. I would appreciate it if you could share the PNO's position with respectto the following.

First,I understand that it is the PNO's position, as stated in its April 26, 2012 tipsheet, that drafts of documents, for which there is a final version, do notneed to be submitted "unless the draft went to the Board" because "whena copy of a draft document is sent to the Board, it ceases to be a draft."Is it the PNO's position that a draft document must have been sent to the fullboard to meet this criteria? Or would a draft document sent to a singledirector qualify? Would a draft document sent to the executive committee orsome other subcommittee of the board qualify?

Second,I understand that Interpretation 257 of the ABA Premerger Notification PracticeManual (4'" ed), advises that the PNO take the position that responsive4(c) documents prepared by or for "any officer or director of the acquiredperson or acquiring person or of i!!l'l entity within that person" must besubmitted. (Emphasis added).

Ifa document is prepared by or for an individual that is not an officer ordirector of an entity that is a party to an acquisition, but that individual isan officer or director of a subsidiary, such as a foreign subsidiary, notinvolved in the transaction, must it be submitted? Is the test whether theindividual prepared or received the document in the person's role as an officeror director? Or whether the subsidiary of which the individual is an officer ordirector is involved in some manner in the transaction?

Third,if it is the PNO's position that documents provided to a person that is adirector of "any" subsidiary qualify as 4(c) documents and that adraft provided to any director ceases to be a draft, then I would appreciateyour advice as to whether the "Board" referenced in the April 26 tipsheet is necessarily the board of the acquired person or acquiring person, orwhether the board of a subsidiary or a single member of such a board qualifies,so that all drafts prepared by or provided to an individual who happens to beon the board of a foreign subsidiary not involved in the transaction must besubmitted.

'

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