Question
From: (redacted)
Sent: Tuesday, May 16, 200611:46 AM
To: Verne, B.Michael
Cc: (redacted)
Subject:Project Safari
VIAEMAIL
Michael Verne, Esq.
Premerger NotificationOffice
Federal Trade Commission
601 Pennsylvania Avenue, N.W.
Washington, D.C. 20580
Dear Mr. Verne:
Thiswill confirm our conversation today concerning the interpretation of Item 4[c]of the HSR reporting form. We indicated that our firm and a corresponding lawfirm represented the parties to a merger agreement that had been executedearlier and would be reportable under the HSR statute. After executing themerger agreement, each party had sent various communications to shareholders,employees, and customers concerning the proposed transaction. We asked you toassume that some or all of the communications were prepared by or for officersand/or directors and touched upon competition, potential for sales growth, orother subjects identified in the instructions for Item 4[c].
Basedon Informal Staff Opinion 0509001 (September 1, 2005), you agreed that such documents would not be covered by Item 4[c]. InInformal Staff Opinion 0509001, the staff determined that documents otherwiseresponsive to Item 4[c], but provided to the acquiring person's officers anddirectors after execution of the acquisition agreement, need not be included inthe acquiring person's HSR filing. The staff reasoned that because theagreement had already been executed, the acquiring person could not have usedsuch documents to evaluate the proposed transaction. In our situation, likewise,the merger agreement was executed by both parties before the communications inquestions were sent to shareholders, employees, or customers. The parties couldnot have used such communications to evaluate the proposed transaction.
Ifyou believe that we in any way misinterpreted our conversation, please let usknow immediately. Thank you again for your assistance.