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Date
Rule
801.1(b)
Staff
Michael Verne
Response/Comments
Agree. This does not constitute control.

Question

From:(redacted)
Sent:Monday, April 26, 2004 3:57 PM
To:Verne, B. Michael
Subject: HSR Question

Mike,

I had a quick question on theissue of control. In trying to determine who the UPE of the acquiring party is,the following facts are relevant:

The Acquiring Party used to be 55%owned by Owner. Recently, Owner sold a portion of its holdings and now ownsonly 45% of the stock of Acquiring Patty. However, the Owner still has theright to appoint 3 out of 8 directors and there is a negative control provisionand as long as Owner holds 40% or more it has veto power over any decisionrequiring board approval. This does not appear to fit within the definition of"control" but am I missing anything? If Owner is not the UPE, thenthe Acquiring Patty would be its own UPE.

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