Question
June 23, 1995
Patrick Sharpe, Esq.
Room 301
Premerger Notification Office
Federal Trade Commission
6th and Pennsylvania Avenues N.W.
Washington, D.C. 20580
Re: HSR Advice Regarding Simultaneous Mergers
Dear Patrick:
The purpose of this letter is to confirm our understanding of advice (redacted) and I received from you on June 21 and June 22 regarding HSR refiling requirements for simultaneous mergers involving three parties.
The facts we discussed are as follows. Company A plans to acquire Company B and anticipates filing in the next week or so. There are overlaps between Company A and Company B and there may or may not be antitrust issues that the agencies would want to evaluate. Company B is currently engaged in discussions with Company C, which Company B is contemplating acquiring in the immediate future. The B/C acquisition would be reportable and there is an overlap between Company B and Company C, but it appears to be of no competitive significance. There is no overlap between Company A and Company C.
Our first question was whether Company Bs acquisition of Company C, after Companies A and B had filed but before A/B had close, would have any impact on the A/B HSR filing. You advised us that Companies A and B would not be required to refile if Company B acquired Company C before the A/B transaction closed. However, you suggested that Companies A and B might want to indicate in their filing the possibility of Company B acquiring Company C. Likewise, you suggested that Company B should indicate in its filing on the B/C acquisition that Company A had filed to acquire Company B.
Our second question was what refiling obligation the parties would have, if any, in the event that the A/B transaction closed before the B/C transaction. You advised that in this case, the Ultimate Parent Entity of B would have changed (i.e. it is now A) and that the merger Company A/B would be required to refile on the Company C merger. (Note #1) You indicated that it was likely, but not certain, that a second filing fee of $45, 000 would be required with the refiling. (Note #2) This refiling obligation, of course, would have no impact on the A/B merger.
I would appreciate it if you would contact me immediately at (redacted) if we have misunderstood or mischaracterized the substance of your advice. Our client plans to act shortly on our advice.
Thank you for your assistance with this matter and I appreciate the advice you have given us.
Best regards.
Sincerely,
(redacted)
cc: (redacted)