Question
From: (REDACTED)
Sent: Monday, July 09, 2007 8:04 AM
To: Verne, B.Michael
Subject: Questionon information required for Item 4 of the form
Mike,
We aretrying to figure out the appropriate item 4(a), (b) and (c) information toinclude in a filing we are preparing. The facts are as follows:
CompanyA (my client) is acquiring Company B and has already submitted its HSR form forthat acquisition. Company A's acquisition to acquire Company B will closesometime towards the end of August.
CompanyA has also entered into an agreement with Company C to sell Company C some ofthe assets it will acquire from Company B (the Company B assets to be sold byCompany A to Company C will be placed in an LLC and Company C will acquire theLLC).
Bothtransactions [(i) A buying B, and (ii) A selling some of B's assets to C], willoccur the same day. An instant after Company A acquires Company B it will sellthe relevant Company B assets to Company C.
Asnoted in the first point, Company A and Company B have already filed their HSRforms for the big transaction. We are now preparing the HSR form for the saleof B's assets by Company A to Company C. In this transaction Company A is theacquired person and will submit Item 5 financial data only for the assets itwill be selling. It will get this information from Company B as Company A doesnot yet own the assets and did not get any of this information during duediligence. As to item 4, Company A will supply it's SEC filings for (a), it'sfinancial statements for (b) and any 4(c) documents that is has with respect toits sale of the Company B assets to Company C.
Aquestion has arisen about whether there is any need to supply item 4(a), (b) or(c) information from Company B about Company B or the Company B assets that wewill be selling to Company C.
oItem4(a) - For example, I have assumed that since we don't own Company B at thetime we will make the HSR filing that we do not have to supply Company B SECfilings for item 4(a) in this filing even though we will own Company B when thedeal closes in August. Is that correct?
oItem4(b) - Similarly, I have assumed Company A doesn't have to supply Company Binformation for item 4(b) of the Company A filing. Is that correct? DoesCompany A have to supply financials for the Company B assets it is selling toCompany C? If it does not currently have such financials should it go toCompany B and try to get them? If Company B doesn't have any separatefinancials for those assets is Company A required to prepare "pro-formas"for the assets it is selling to Company C?
oItem4(c) - Is Company A required to go to Company B and get any 4(c) documents thatCompany B might have about the Company A-Company C transaction? Keep in mindCompany A does not own Company B now, but will at the time of the closing onthe A-C transaction - at least for an instant. Of course, no Company B documentabout the deal that Company A never received could not have been used byCompany A (the UPE making the filing) for purposes of analyzing the A-Ctransaction since it didn't have them.
If I havebeen too confusing with my examples and you would like to discuss this, pleasegive me a call.