Question
From:
(redacted)
Sent:
Friday, November 21,2008 1:24 PM
To:
Verne, B. Michael
Subject: Question regarding 802.21
Mike,
Hope all is well.
I have a quick question with reference to http://www.ftc.gov/bc/hsr/informal/opinions/8302004.htm which is also the basis for #204 in the ABA book (4th ed.).
Here's the question:
(1) Within the last year, X filed to acquire additional voting securities of Y at the $100 million (as adjusted, currently $126.2 million) threshold. At the time of the filing, X's holdings of Y were valued in excess of the threshold. X had never filed for this issuer before (its previous acquisitions were exempt under the investment only exemption (802.9)). The waiting period expired.
(2) The market price of Y has come down substantially. X's holdings are now valued at under $126.2 million. X may acquire additional shares in the near future, but its holdings after doing so may not meet or exceed $126.2 million.
Based on informal interpretation 8302004 & #204 in the ABA book, it seems that in all events X may acquire up to the $500 million threshold (as adjusted) for up to five years following the expiration of the waiting period in respect of X's recent filing for Y because X's holdings at the time of the filing exceeded the $100 million threshold (as adjusted). Or, put another way, whether or not X acquires any additional shares of Y in the year following the expiration of the waiting period in respect of its filing for Y, X may acquire up to the $500 million threshold (as adjusted) for up to five years following the expiration of that waiting period.
Please let me know if I have this correct.
Thank you.