Question
February 17, 2005
VIA FEDERAL EXPRESS
Mr. Michael Verne
Premerger Notification Office
Bureau of Competition
Federal Trade Commission
600 Pennsylvania Avenue, N. W.
Washington, D.C. 20580
Re: Ordinary Course of Business Exemption
Dear Mr. Verne:
Thisletter is to confirm the substance of our telephone conversation of February 14, 2005, regarding the application of theordinary course of business exemption of 7A(c)(1) of the Hart-Scott-Rodino Antitrust Improvements Act of 1976 (the "Act") to thetransaction described below.
Seller,an entity engaged through a subsidiary in the transportation equipment leasingbusiness, proposes to sell a separate company engaged in this same business -which it recently acquired from a third party - to Buyer through a sale of suchcompany's stock. Buyer is also currently engaged in the transportationequipment leasing business. After the proposed transaction, Seller, through itssubsidiary, will continue to be engaged in this business. The entity to beacquired is a separate operating company with its own employees and locations.
AsI understand the Staff's position, where a buyer is acquiring an entity thatleases equipment, that transaction will be exempt as a transaction in theordinary course of business as long as the seller will continue to engage inthe equipment leasing business following such transaction. This exemptionapplies even when the stock of a separate operating company is acquired.
Basedon your advice, I concluded that the proposed transaction would be exempt fromthe requirements of the Act as a transaction in the ordinary course ofbusiness. Please let me know as soon as possible if you think the above doesnot accurately reflect your advice.