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Date
Rule
801.10
Staff
B. Michael Verne
Response/Comments
Advised that if there is no reasonable basis for estimating the number of options that will be exercised, the acquisition price is undetermined and the value is the fair market value. N. Ovuka concurs.

Question

From: (redacted)
To: Michael Verne
Date: 6/25/02 1:01 PM
Subject: Filing fee question

Hi Mike. I have my first deal that threatens to straddle a filing fee bridge and I need your help.

A subsidiary of Company A will merge with Company B. The shareholders of Company B will receive $3 cash consideration for each share of Company B stock. Based on the current number of shares outstanding, the purchase price is exactly $99,937,310. If a sufficient number of options to acquire Company B stock are exercised prior to consummation, the purchase price could hit or exceed $100 million. FYI - the acquiring person is not now aware that any option holder intends to exercise prior to consummation. Can the acquiring person rely on the number of shares outstanding on the date that it makes its HSR filing?

About Informal Interpretations

Informal interpretations provide guidance from previous staff interpretations on the applicability of the HSR rules to specific fact situations. You should not rely on them as a substitute for reading the Act and the Rules themselves. These materials do not, and are not intended to, constitute legal advice.

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