2412002 Informal Interpretation

Sheinberg, Samuel I.
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Se nt:
To:
Subject:
HSRH elp
Wed nesday, December 4, 2024 1:44 PM
HSR Auto Forwa rd Li st
FW: Quest ion re: Cas h Tender Offer with Contingent Conside ration
From: Wa lsh , Kathryn E.
Se nt : Wed nesday, Decembe r 4, 2024 1:43:45 PM ( UTC-05:00) Eastern T im e ( US & Canada )
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Cc: HSRHe lp
Subj ect : FW: Question re: Cas h Tender Offer with Co nt in gent Cons ide ration
Filing Fee - In th is circumstance we disagree. On ly the upper bound of the purchase pr i ce is not ascertainable, but the
low er bound is determined. In th is case, the fee should be based upon the low er bound . In Item 2(d ), please state " at
least $X " and provide an endnote referencing th is gu idance.
Report ing Procedure - We agree that it' s a tender offer, not a cash tender offer.
From :
Se nt: Tuesda y, December 3, 2024 3:24 :04 PM ( UTC-05 :00) Eastern Time ( US & Canada )
To: HSR Help
Subject: Question re: Cash Tender Offer with Contingent Cons ideration
:Y ou don't often
Dea r PNO -
1 am writ ing to confirm the r eport ing procedure an d fi ling fee threshold analysis for a cash tender offe r that includes
contingent consideration. Company A has announced a cash tender offer to acquire 100% of the v ot ing securit i es of a
publi cl y traded i ssue r, Company B. Consider at ion consists of (i) an init ial, per-share cash pa y ment to Company B's
shareholders; and (ii) a contingent value right (" CVR") that would ent it le Company B' s shareholders to an addit ional per
share cash pa y ment upon the achiev ement of certain milestones. The milestones are sufficient ly specu lat ive such that
the acquisit ion pr i ce is not determined.
Filing Fee Threshold
Based on 801.l0 (a )( l )(ii ), I plan to use the market price to determine the Si ze of Transaction and cor responding fi li ng fee
th reshold since the acquisit ion pr i ce is not determined. Note that if I used the init ial cash pa y ment on its own or the
init ial cash pa y ment in combination with the cont ingent consideration, the fi ling fee to be pa id would be considerably
higher.
Report ing Procedure
I understand that the 15-day wait ing period does not apply to th is t ransaction since the consideration i nc ludes a CVR
(See Informal Int. 2012002). Even though the 15-day wait ing period does not apply, I st ill plan to report th is as a tender
offe r pursuant to 801.30(a )( 3), and I will follow the notice requirements pursuant to 803.S(a).
Can you please confirm I've correctly analyzed the fi li ng fee and report ing/ not i ce requirements?
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