1301004 Informal Interpretation

Form Item 4(c)(d)
Michael Verne

K Walsh concurs.





Monday, January 07, 2013 4:13 PM


Verne, B. Michael




Question regarding Item 4(c)/(d)

HiMike, Happy New Year!

Weare hoping to get your guidance on the exclusion of certain documents underItem 4(c)/(d).

Ourclient, Company A. is selling stock in exchange for cash and shares of CompanyB, the buyer. Pursuant to the transaction agreement between the parties, B maybring in a coinvestor, C, to purchase its shares to provide additional fundingfor the transaction. In the event that C comes in, A will receive fewer sharesof B but the cash consideration will increase to offset the reduction in Bshares that A receives in consideration. C will need to determine whether ithas an HSR filing obligation in connection with the acquisition of B's sharesbut it is unlikely that this will be determined at the time the HSR is filedfor the transaction between A and B.

Nonetheless,because the transaction between C and B is separate from the transactionbetween A and B, we may exclude from the HSR filing for the transaction betweenA and B any documents created by A, B or C for purposes of evaluating C'sinvestment in B (or impact on transaction between A & B) because thesedocuments were not created for the purposes of analyzing the transactionbetween A and B, for which our client is filing HSR. Do you agree?

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