Question
From: (redacted)
Sent: Tuesday, March 27, 2007 2:43 PM
To: Verne, B. Michael
Subject: 4(c) Question
Mike,
I'm trying to reconcile some of the4(c) advice given in the Latham presentation, in the context of a deal I'mworking on. Buyer (my client) has considered for some time whether and how toenter the market in which Target operates -- whether by acquisition or byinternally developing a similar business. Buyer and Target previously discusseda transaction, but negotiations fell apart (somewhat angrily) in Fall 2006, atwhich time Buyer returned/destroyed all due diligence materials. Discussions ofthe current successful deal started in January 2007.
Since there was a clear breakbetween the parties after unsuccessful negotiations, I think documents datedbefore January 2007 (i.e., those analyzing the old deal) are not 4(c) for thecurrent deal (see Example 18 of the 4c presentation). But what about Buyer'smore general internal analyses of whether to enter the market by acquisition ordevelopment? If there are documents going back a year or more that includeanalysis of possible targets, one of which is Target, could those be 4(c)material under Examples 17 or 19? I am troubled by the language "wouldhave been used in analyzing this transaction" in Example 19, especially inthis context where we would otherwise have a firm cut-off date for our 4(c) search.If documents analyzing a specific potential transaction dated prior to January2007 are not 4(c), how
could documents dated months/yearsbefore that be 4(c) when they discuss no specific transaction?