1211005 Informal Interpretation

Michael Verne

– Refer to Comments


From: (Redacted)
Sent: Thursday, November 08, 2012 6:33 PM
To: Verne, B. Michael
Subject: Question regarding Tender Offer Filing


I'dbe grateful for your guidance concerning a prospective HSR filing involving afriendly tender offer transaction. The parties will execute a merger agreementcontemplating the merger of the buyer's merger sub with and into the targetcorporation, however the merger will not take place unless and until the buyersucceeds in purchasing a sufficient percentage of common stock via a publiccash tender offer, in this case a substantial majority (>80%) of theoutstanding common stock.

Accordingly,I have a couple questions that I would be grateful to hear from you on:

1.Because thesuccess of the transaction depends on successfully obtaining enough shares onthe open market via the tender offer, is it correct to deem this a transactiongoverned under 16 CFR 801.30?

(MV Yes)

2.Assuming thetransaction is governed under 16 CFR 801.30, is it necessary or proper tosubmit the merger agreementin response to Item 3(b), as one of the "agreements" of thetransaction?

(MV no necessary but preferred)

3.For purposes ofproviding a compliant 803.5(a) declaration, is it acceptable to reference themerger agreement as the form of notice to the seller that provides disclosurethat buyer will engage in an HSR-reportable purchase of shares, and that theseller will have an HSR filing obligation?

(MV You need to send another letter and reference that in the affidavit)

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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