1209010 Informal Interpretation

Date

September 27, 2012

Rule

801.13

Staff

Michael Verne

Response/Comments

I'm assuming that the three acquisitions are contingent on one another. 801.13 would require you to aggregate the three secondary acquisitions of 33.3%. Arguably, you could stop aggregating at 66.6% when you get control, but we have consistently said that when you have multiple acquisitions that are contingent on one another, you need to look through to the underlying substance of the acquisitions and report on the entire transaction.

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Question

From:

(Redacted)

Sent:

Thursday, September 27, 2012 3:37 PM

To:

Verne, B. Michael

Cc:

Walsh, Kathryn

Subject:

HSR question

Mike- Hope all is well.

Quick question: Assume that threeseparate holding companies that are not under common control, as control isdefined in the HSR Rules, each hold 33.3% of the outstanding voting securitiesof (redacted). Purchaser will acquire 100% of the outstanding votingsecurities of each holding company for $40 million. The acquisitions of thevoting securities of each holding company is not HSR reportable because the HSRthresholds are not met. Nor are the indirect acquisitions of 33.3% of (redacted)reportable as secondary acquisitions. But, the end result is that Purchaserwill own

100%of the voting securities of (redacted).

Thisis strange but the indirect acquisition of control of (redacted) doesnot appear to be reportable under the HSR Rules. Am I missing something? Do youagree?

1209010 Informal Interpretation

Question

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