2 and 4 are responsive.
Question
From:
(Redacted)
Sent:
Thursday, December 29, 2011 11:43 AM
To:
Verne, B. Michael
Subject:
question re 4(c) and 4(d) documents
DearMike,
Iam working on a transaction for which numerous documents were prepared thatlargely, if not solely, go to valuation of the deal. I am trying to determinewhich of these documents might rise to 4(c) or 4(d).
Asbackground, my client currently holds a minority stake in target, aprivately-held company. It has increased its stake in the past and is nowincreasing again. My client does not have a minority or majority investment inany competing businesses. The target has a few primary competitors. I have numerousdocuments that analyze one or more of the target's primary competitors for thepurpose of valuing the target's shares. The competitors were analyzed in such depthdue to the fact that target is private and the competitors are not, and thusthe parties were determining a fair per-share price for this transaction basedoff share prices, EBITDA multiples, and projections of growth of the competitors.
Iwould appreciate it if you would tell me whether any of the categories ofdocuments listed below might qualify as Item 4(c) or 4(d). Due to the guidancecontained in the article by Marian Bruno, Brian Mohr and Bruce Prager (Locatingand Identifying Item 4(c) documents, Antitrust, Spring 2002), I want to becertain I'm making the right call. In particular, I am looking at example 21which states that a bankers book listing comparable transactions for thepurpose of valuation would not be 4(c), but that a list of competitors wouldqualify as 4(c).
1. Documents comparing target to one ormore of its competitors (without identifying them as competitors) in terms ofshare price, financial results and possible valuation, without any discussionof 4(c) criteria such as market shares, etc. I am wondering if the mere listingof two competitors' names and certain financial information, withoutidentifying them as competitors, could become 4(c) due to example 21 of theMarian Bruno article.
2. Documents comparing target to one ormore of its competitors (without identifying them as competitors) in terms ofshare price, financial results and possible valuation, and including discussionof 4(c) criteria such as market shares, etc. as pertains to the competitor(s)only
3. Documents analyzing one or more oftarget's competitors on a stand alone basis, without identifying the company asa competitor of target, in terms of non-4(c) criteria only such as financialresults.
4. Documents analyzing one or more oftarget's competitors on a stand alone basis, without identifying the company asa competitor of target, including a discussion of 4(c) criteria. Example: ananalysis of a competitor's recent quarterly earnings update, including excerptsfrom various analyst's reports that discuss the market climate for thecompetitor and its potential for growth as well as independent analysis of thecompetitor's potential for growth.
I willbe submitting several other documents (over 50, most likely) that identify thecompetitors and clearly have 4(c) or 4(d) content.
Ifthis would be easier decided by a phone conversation, I'm happy to do that andprovide more detail.