Based upon the facts you have provided, and assuming that the warrants meet both prongs of 801.30(a)(7), we agree.
Question
We want to confirm that the exercise of warrants qualifies as a “Select 801.30 transaction” under the new HSR rules. Our client currently holds warrants of a publicly traded Company (purchased in a public offering pursuant to a prospectus). Our client intends to provide notice (by signing a standard “Notice of Exercise”) to the Company to exercise the warrants to acquire the voting securities of the Company at the warrant exercise price (which will result in our client holding Company voting securities in excess of $126.4M). Our client does not and will not have the right to appoint any directors of the Company and the acquisition would not confer control of the Company. We do not view our client’s signing a standard notice of exercise (somewhat similar in a way to an 801.30 notice letter provided to an issuer under the HSR rules) to constitute an “agreement” with the Company that governs the acquisition. Could you please confirm our understanding that exercise of warrants falls under Select 801.30?