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Date
Rule
801.10(c), 802.4, 802.50
Staff
Michael Verne
Response/Comments
Agree

Question

December 12, 2005

VIAEMAIL & US MAIL

Mr. MichaelVerne

PremergerNotification Office

Bureau ofCompetition

Federal TradeCommission

7th Street & Pennsylvania Avenue, N.W.

Washington, DC 20580

Re: Application of 802.4

Dear Mike:

Iam writing to confirm my understanding of our telephone conversation on December 12, 2005, concerning whether the transactiondescribed below is exempt from the requirements of the Hart- Scott-RodinoAntitrust Improvements Act of 1976, as amended ("HSR Act").

Ourclient intends to acquire 100 percent of the voting securities of a non-publiccorporation (t lie "Company"). The Company is not a "foreign issuer"as defined by 16 C.F.R. 801.1(e)(2)(ii), because it is incorporated in the United States. Nevertheless, it has substantialnon-U.S. businesses that are conducted through wholly owned, foreignsubsidiaries (roughly half its revenues come from overseas). The Company'stotal sales in its most recent fiscal year are less than $53.1 million, so itfollows that the sales in or into the United States attributable the non-U.S.operations are below the $53.1 million threshold in 16 C.F.R. 802.50.

Asamended in April 2005, 16 C.F.R. 802.4 provides in relevant part:"An acquisition of voting securities of an issuer . . . whose assetstogether with those of all entities it controls . . . consist of assets whoseacquisition is exempt from the requirements of the Act pursuant to . . . thispart 802 . . . is exempt from the reporting requirements if the acquired issuer. . . and all entities it controls do not hold nonexempt assets with anaggregate fair market value of more than [$53.1M]."

Aswe discussed, the direct acquisition of the Company's assets located outside ofthe United States would be exempt under 802.50, given that the sales inor into the United States attributable to the non-U.S. assets were below $53.1million in the Company's most recent fiscal year. Accordingly, the non-U.S.assets are excluded from the determination of whether this acquisitionqualifies for the 802.4 exemption. To determine whether the transactionqualifies for the 802.4 exemption, a fair market valuation must be donewith respect to the non-exempt assets (in this case, the assets located in the United States). Pursuant to 16 C.F.R. 801.10(c), the fair market value of such assets must be determined within 60days prior to closing by the board of directors of the acquiring person, or theboard's designee. You agreed that, if the fair market value of the Company'sassets located in the United States does not exceed $53.1 million, thistransaction would qualify for the 802.4 exemption and would not besubject to the reporting and waiting period requirements of the HSR Act.

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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