Question
December 21, 2007
ViaE-Mail
Mr.Michael Verne
Premerger Notification Office
Bureauof Competition
Federal Trade Commission Room 303
600 Pennsylvania Avenue, N.W.
Washington, D.C. 20580
Re: HSR Analysis of Proposed Transaction
DearMr. Verne,
You spoke (redacted) and me on Tuesday, December 18, 2007regarding a proposed transaction, the HSR analysis of which we would like toconfirm. The facts and our analysis are set forth below.
A foreign person plans to purchase 100% of the votingsecurities of two subsidiaries of another foreign person. One of thesesubsidiaries is a United States issuer ("U.S. Sub"). The other subsidiaryis a foreign issuer ("Foreign Sub"). The parties have executed aletter of intent indicating that the total purchase price for both subsidiariesis more than $59.8 million. The letter of intent does not allocate the totalpurchase price between the two subsidiaries, but indicates that the partieswill include such an allocation in the definitive agreement for thetransaction. Foreign Sub does not have sales in or into the United Statesgreater than $59.8 million. U.S. Sub does have sales in or into the United Statesgreater than $59.8 million.
We understand from our conversation with you that, inapplying Section 802.51 of the HSR Rules, it is not necessary to aggregate thetotal sales of U.S. Sub and Foreign Sub for purposes of determining if the$59.8 million U.S. sales limitation contained in 802.51(b) is exceeded.Despite the requirement in Section 802.51(b)(2) of the Rules that the U.S. salesof multiple foreign issuers being acquiredfrom the same person be aggregated, no such aggregation is requiredwhere one of the subsidiaries being acquired is foreign and theother is based in the U.S.
Since Foreign Sub has sales in orinto the U.S. of less than $59.8 million, itsacquisition is exempt from HSR notification under Rule 802.51. Based on thisanalysis, no HSR filing is required unless the acquisition of U.S. Sub alone isa reportable transaction.
Pleasecontact me if we have misunderstood or incorrectly described the above analysis in any way. As always, thank you for your time andanalysis on this matter.