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Date
Rule
803.5, Form Item 3(d)
Staff
Michael Verne
Response/Comments
Yes, thats fine. In the affidavit the third party should reference the anticipated assignment of the executed agreement. Something like: A purchase agreement has been executed by A and B which will be assigned to C prior to the consummation of the acquisition.

Question

From:(redacted)

Sent:Thursday, April 13, 2006 9:27 AM

To:Verne, B. Michael

Subject:Item 3(d) Question

Mike,

I was wondering if you could provide some guidanceregarding the following issue. A party has entered into a purchase agreementwith an acquired person. However, prior to the consummation of the acquisitioncontemplated by the purchase agreement, that party will assign all of itsright, title, and interest in and to, and all of its responsibilities, duties,and obligation (including payment obligations) under, the purchase agreement toa third party. The third party will then succeed to all of the rights, obligations,duties, etc., of the original acquiring person under the purchase agreement. Itwill consummate the acquisition with the acquired person.

Is it permissible to file a HSR filing for the thirdparty as an acquiring person prior to the assignment to it of the purchaseagreement? The HSR Form would note the contemplated assignment in a footnote toitem 3(d), and the third party would execute the required affidavit under 16 C.F.R. 803.5(b)

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