1205003 Informal Interpretation

Form Item 4(c)
Michael Verne

- Agree. K Walsh concurs.





Tuesday, May 08, 2012 2:41 PM


Verne, B. Michael




4(c) Question


Thankyou for the helpful Item 4(c) tip sheet that the PNO recently posted on the FTCwebsite. I have a follow-up question about the implication of the tip sheet's guidancefor board presentations that is relevant for a transaction I am working on.

Pleaseconsider the following four scenarios, each of which starts with a CEOreceiving five separate power point decks for a board meeting. Each deck hasbeen prepared by a different employee of the company.

1) Deck 1 discusses a potential sale of the company andincludes 4(c) content. Decks 2-5 have no such content. CEO forwards the fiveslide decks to the board as separate attachments under a non-substantive covere-mail.

2) Deck 1 provides an update of discussions withpotential buyers but has no substantive 4(c) content. Deck 2, prepared as anordinary course board briefing, discusses competitive conditions for thecompany's products but does not mention the sale of the company. Decks 3-5 haveunrelated content. Again, CEO forwards the five slide decks to the board asseparate attachments under a non-substantive cover e-mail.

3) Same as 1), but CEO combines the five presentationsinto a single slide deck and sends that to the board under a non-substantivecover e-mail. (By "combines," I mean that he puts one presentationbehind another in a single slide deck, adding an agenda; he does not change anyindividual presentation).

4) Same as 2), but CEO combines the five presentationsinto a single slide deck and sends that to the board under a non-substantivecover e-mail.

Myinterpretation of the guidance as applied to these four scenarios is asfollows:

1) Only deck 1 is responsive. See 4(c) tip sheet,p. 2, second bullet point.

2) None of the decks is responsive. Deck 1 was preparedfor the transaction but has no substantive 4(c) content. Deck 2 is ordinarycourse and is being distributed as a stand-alone document.

3) The entire combined board presentation is responsive. See4(c) tip sheet, p. 2, second full paragraph (integration of a 4(c) documentinto a larger document) and informal interpretation 0802014 (only boardminutes, but not documents presented to the board, may be redacted without aclaim of privilege).

4) The combined board presentation is not responsive, andneither is any of the stand-alone files. See 4(c) tip sheet, p. 2,second full paragraph (suggesting that the integration exception requires thatordinary course document be combined with at least one other document that,standing alone, would be 4(c)).

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