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Date
Rule
Form Item 4(c)
Staff
Michael Verne
Response/Comments
We understand that some law firms are relying on this letter to claim that any documents created after an agreement has been signed, such as potential investor presentations, are not 4c under the theory that the documents were not relied upon in analyzing the transaction for the purposes of entering into the agreement. Item 4(c) requires submission of documents evaluating or analyzing the acquisition with respect to market shares, competition, competitors, markets, and potential for sales growth or expansion into product or geographic markets, and the language does not limit the required documents to those used for the purpose of entering into an agreement. Although many 4(c) documents are created prior to signing an agreement, evaluation and analysis of an acquisition typically continues until the acquisition is closed. The 4(c) document cut-off date is the date of filing, not the date of an agreement between the parties. M Bruno concurs.

Question

From: (redacted)

Sent: Tuesday, May 16, 200611:46 AM

To: Verne, B.Michael

Cc: (redacted)

Subject:Project Safari

VIAEMAIL

Michael Verne, Esq.

Premerger NotificationOffice

Federal Trade Commission

601 Pennsylvania Avenue, N.W.

Washington, D.C. 20580

Dear Mr. Verne:

Thiswill confirm our conversation today concerning the interpretation of Item 4[c]of the HSR reporting form. We indicated that our firm and a corresponding lawfirm represented the parties to a merger agreement that had been executedearlier and would be reportable under the HSR statute. After executing themerger agreement, each party had sent various communications to shareholders,employees, and customers concerning the proposed transaction. We asked you toassume that some or all of the communications were prepared by or for officersand/or directors and touched upon competition, potential for sales growth, orother subjects identified in the instructions for Item 4[c].

Basedon Informal Staff Opinion 0509001 (September 1, 2005), you agreed that such documents would not be covered by Item 4[c]. InInformal Staff Opinion 0509001, the staff determined that documents otherwiseresponsive to Item 4[c], but provided to the acquiring person's officers anddirectors after execution of the acquisition agreement, need not be included inthe acquiring person's HSR filing. The staff reasoned that because theagreement had already been executed, the acquiring person could not have usedsuch documents to evaluate the proposed transaction. In our situation, likewise,the merger agreement was executed by both parties before the communications inquestions were sent to shareholders, employees, or customers. The parties couldnot have used such communications to evaluate the proposed transaction.

Ifyou believe that we in any way misinterpreted our conversation, please let usknow immediately. Thank you again for your assistance.

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.

Learn more about Informal Interpretations.

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