Question
From: (redacted)
Sent: Monday, April 23, 2007 12:03 PM
To: Verne, B. Michael
Cc: (redacted)
Subject: HSR Advice - Followup Question
Hi Mike - As noted below, youpreviously indicated that the 802.2(a) exemption would not be compromised ifthe only income from the sale of energy is produced "in connection withtesting". We can represent that in a similar transaction between theparties, Company A will purchase additional wind projects from Company B andprior to closing, no income will have been produced by the wind farms, with theexception of income produced by the sale of energy generated in the ordinarycourse of performance testing, shake out testing, preventative maintenance, orequipment protection activities.
I would be grateful if you couldconfirm that this fact pattern is consistent with your earlier advice.
Original Message------
From: Verne, B. Michael[mailto:MVERNE@ftc.gov]
Sent: Monday, September 25, 2006 9:00 AM
To: (redacted)
Subject: RE: HSR Advice
It could be exempt under 802.2(a) ifCompany B constructed the project with the intent to sell it. The exemption isnot compromised if the only income was from the sale of energy produced intesting, but if the project becomes operational before closing, it is notavailable.
Original Message------
From: (redacted)
Sent: Monday, September 25, 2006 8:38 AM
To: Verne, B. Michael
Cc: (redacted)
Subject: HSR Advice
Hi Mike - I would be grateful foryour advice on the following fact pattern:
Company A will acquire 2 "wind projects" from Company B. At the time the acquisition agreement is signed, one ofthe projects will be operational. The other may still be under construction.Total consideration for the transaction is $350 million. The value of theoperational project is $50 million. The value of the larger project, which maybe under construction is $300 million. It is possible that
1
the larger projectmay sell energy generated in the testing process prior to completion (and priorto the closing) or it could be operational for a couple of weeks aftercompletion, but before the closing.
Any possibilitythat there is an exemption here under 802.2? I look forward to hearing fromyou.