Question
September 2, 2005
VIA E-MAIL & FEDERAL EXPRESS
B. Michael Verne
U.S. Federal Trade Commission
Premerger Notification Office
600 Pennsylvania Avenue, N.W.
Room 301
Washington, D.C. 20580
Re: Item 4(c)
Dear Mike:
Thank you for taking the time to speakwith Jackie and me yesterday. I am writing to confirm the HSR Act advice wediscussed.
During the due diligence process,Potential Buyer's legal counsel drafted a presentation regarding the proposedtransaction ("Document #1") which was distributed to certainofficers and/or directors of Potential Buyer. Assume the presentation (and allother documents discussed below) contains "4(c) content" regardingthe proposed transaction. Potential Buyer subsequently sent the document toSeller's CEO, and Seller's board of directors reviewed the document.
A subsequent version of Document #1was prepared by Potential Buyer's legal counsel ("Document #2") andalso distributed to certain officers and/or directors of Potential
Buyer. Potential Buyer subsequently sent the document to Seller'slegal counsel, and two of Seller's officers were asked by counsel to review thedocument.
An additional document ("Document#3") with follow-up information to Document #2 was prepared by PotentialBuyer's legal counsel and also distributed to certain officers and/or directorsof Potential Buyer. Potential Buyer subsequently sent the document to Seller'slegal counsel, and Seller's general counsel (who is an officer) reviewed thedocument at the request of Seller's counsel.
A subsequent document ("Document#4") incorporated, aggregated and updated Documents #2 and #3.Document #4 was prepared by Potential Buyer's legal counsel and alsodistributed to certain officers and/or directors of Potential Buyer. After adefinitive merger agreement and a joint defense agreement were executed by theparties, yet another document ("Document #5") updated Document#4. Document #5 was prepared by Buyer's legal counsel and also distributed tocertain officers and/or directors of Buyer. Buyer subsequently sent thedocument to Seller's legal counsel pursuant to the parties' joint defenseagreement.
The purpose of each of thesedocuments was to convince Seller that the transaction was reasonably capable ofconsummation. Although (1) each of the documents was distributed to and/orreviewed by officers or directors of Buyer or Seller, and (2) each of thedocuments contains "4(c) content" (i.e., discussion of thetransaction with regard to markets, market shares, etc.), it is our positionthat they were not prepared for any officer or director for the purpose ofevaluating or analyzing the acquisition. We therefore determined that thedocuments are not responsive to Item 4(c) of the HSR form, and you indicatedthat the forgoing facts are reasonable grounds on which to make thatdetermination.
I hope this letter accuratelysummarizes the advice we discussed during our telephone conversation yesterday.If my summary of our conversation is incorrect in any way, please let me knowas soon as possible. Thanks again for your time.