Question
November 10, 2006
By E-mail
MikeVerne
PremergerNotification Office
FederalTrade Commission
7thand Pennsylvania Ave
Washington, D.C. 20580
Re:Hypothetical Transaction
Dear Mike:
I am writing to confirm the substance of ourtelephone conversation yesterday, November 9, 2006, concerning the potential reportability under the Hart-Scott-Rodino Actof a proposed transaction described below (the "ProposedTransaction"). As you will recall, given the facts of the transaction weconcluded that filing of a Premerger Notification and Report Form will not berequired in this case.
Private Equity Fund (P), together withmanagement, holds 100% of the voting securities of "Company A."Company A, together with its subsidiaries, has assets exceeding $100 million. Pis the UPE of Company A.
Several months ago, in an unrelated transaction, aSpecial Purpose Acquisition Company ("SPAC"), that is its own UPE,was formed. A SPAC is created as a shell company and then taken public in aninitial public offering with the promise that it will enter into a businesscombination with an operating business within 18-24 months of the IPO. The SPACraised net proceeds approximately $54 million in its IPO, substantially all ofwhich was deposited into a trust account controlled by an independent trusteeand, aside from interest earned on the amount in the trust account, has noother asset.
But for tax considerations and structuralconsiderations driven by the SPAC's certificate of incorporation, thetransaction would effectively be styled as an investment by the SPAC in equitysecurities of Company A representing, immediately after closing, not more than30% of the fully-diluted common equity securities of Company A for less than $56million. Under such structure, an HSR filing would not be necessary because thesize of the transaction test would have not been met.
To account for the tax and structural considerationsspecified above, the structure of the transaction is: (Step 1) SPAC has formedSPAC Merger-Sub; (Step 2) simultaneously (a) A will merge with and intoSPAC Merger-Sub, and (b) SPAC will distribute newly issued SPAC shares to P andCompany A management. After consummation of this merger, SPAC will remain asthe parent company of SPAC Merger-Sub and will, for HSR purposes, be includedwithin P. P and Company A management will not increase their per cent= holdingsin Company A, which will be included in SPAC Merger-Sub. Accordingly, youagreed that the transaction is exempt from HSR notification under Rule 802.10.
If you disagree with anything I have stated in thisletter, please contact me as soon as possible. Thank you for your assistanceand advice in this matter.