– The exemption is still available. UPDATE Nov. 13, 2018: 802.9 may not be available to board observers, depending on the level of involvement with the Board that the role entails.
Question
From: (Redacted)
Sent: Friday,March 23, 2012 2:10 PM
To: Verne,B. Michael
Subject: HSRQuestion
Mike,
I have a question relatedto the "solely for purposes of investment" exemption. AcquiringPerson A plans to acquire less than 10% of the outstanding voting securities ofCompany B. Assume that the acquisition would be reportable unless the"solely for purposes of investment" exemption applies.
Acquiring Person A hasrequested the right to have a non-voting board observer present at boardmeetings of Company B. The non-voting board observer would have the followingrights:
Company B mustprovide notice of meetings of the Board and its committees to the Boardobserver;
Company B must provideall information delivered to the Board and its committees to the Boardobserver;
Company B mayexclude an observer for portions of a meeting if the observer's presence wouldlikely result in the waiver of attorney-client privilege;
The board observerdoes not vote at meetings of the Board and its committees.
I know that the PNO hastaken the position in the past that requesting information from managementabout a company is not inconsistent with an investment "solely forpurposes of investment." It seems as if the request for a board observerseat is similar to a request for information from management, and should betreated in the same manner. Is a request for a non-voting board observer withthe rights described above consistent with the "solely for purposes ofinvestment" exemption?
I look forward to yourreply.