1207010 Informal Interpretation

Form Items 4(c) and 4(d)
Michael Verne

Our current approach to this is you make the call. I think it is a very
difficult line to establish and if I were advising a client I would have them
provide all docs prepared by or for a director of the filing party,
regardless of which hat he is purportedly wearing at the time. That said, if
you think there is enough of a firewall to insulate the director in his role
as venture capital fund representative from his role as director of the
filing party, don't provide the document. You need to make sure you have a
strong argument supporting this because if the document shows up in a second
request production I'm sure it will get questioned by a litigation shop.


From: (Redacted)
Sent: Wednesday, July 25, 2012 2:11 PM
To: Walsh, Kathryn; Verne, B. Michael
Subject: 4(c)/(d) Question

Mikeand Kate,

Hopeall is well and you're enjoying your summers.

Iwanted to check that this interpretation still reflects the PNO'sposition. In particular, I want to confirm that a document created by or for amember of a private equity fund investment committee is a not a 4(c)/(d) whereit was not prepared by or for the investment committee member in his capacityas a member of the acquiring entity's board. In this scenario, the privateequity fund has a minority interest in and does not otherwise control the acquiringentity.

About Informal Interpretations

Informal interpretations provide guidance from previous staff interpretations on the applicability of the HSR rules to specific fact situations. You should not rely on them as a substitute for reading the Act and the Rules themselves. These materials do not, and are not intended to, constitute legal advice.

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