Question
From: (redacted)
Sent: Monday, December 03, 2007 7:25 PM
To: Clark-Coleman, Sheila
Cc: (redacted)
Subject: Email confirming our conversation
Dear Sheila:
This email is intended to confirm the advice you gave(redacted), representing (redacted), and me, representing (redacted)LP,regarding whether a certain transaction between (redacted) and (redacted) (the"Parties") would be subject to reporting requirements of theHart-Scott-Rodino Act at this time. As we discussed, the Parties intend toenter into an Asset Purchase Agreement ("Agreement") by which(redacted) will acquire certain FDA-approved pharmaceutical products fromAbbott in a transaction that falls below reporting requirements of the HSR Act.The Parties plan to consummate this transaction before the end of this calendaryear. Because it falls below HSR reporting thresholds, we do not believe itrequires premerger notification filings. After discussing the factualcircumstances presented below, you agreed that no filing would be required forthis transaction unless and until a subsequent transaction is completed within180 days time.
At an earlier point in their negotiations, theParties had considered a transaction that would have included not only theproducts that are subject to the current Agreement but also additional productsin the same product line family. Such a transaction would have exceeded $60million and would likely therefore have been reportable. For business reasonsunrelated to HSR filing requirements, however, the Parties included in thecurrent Agreement only approximately half of the assets that were at one pointthe subject of discussions. Excluded from the products in the current Agreementare the product family's international products and certain other products inthe family that either have not yet received FDA approval or may have onlyreceived FDA approval during the latter portion of the negotiations.
Shortly after the Agreement is signed, the Partiesintend to enter into a Letter of Intent to "use their best efforts"to negotiate a subsequent transaction involving additional products in theproduct line family. This letter of intent may or may not culminate in a secondasset purchase agreement. The two transactions are not contingent orcross-conditioned upon one another.
We called to discuss whether HSR filings are requiredfor the transaction that is the subject of the current Agreement, given thehistory of the Parties' negotiations and the Parties' intention to execute theletter of intent described above. Documents in the Parties' files will evidencethat they contemplated including additional assets at certain times during their negotiations but that the companies had validbusiness reasons, unrelated to the HSR Act, for selecting the currentproducts now included in their current Agreement.
We understand that the Commission's HSR regulationsrequire aggregation of the value of certain transactions for purposes of HSR thresholds when multipletransactions are entered into between the same two parties within 180 daysof one another. Although you advised us that our current transaction would notrequire a premerger filing, if the Parties are able to negotiate and execute asubsequent agreement within this time frame, we anticipate making HSR filingsas appropriate.
Pleasereview this letter and notify me if I have misunderstood your advice. Thank youvery much for your assistance in this matter.