1003005 Informal Interpretation

From:

(Redacted)

Sent:

Monday, March 15, 2010 3:41 PM

To:

Verne, B. Michael

Cc:

(Redacted)

Hi, Mike -I hope all is well in DC. Ihave a question on the application of the Intraperson Exemption that I'm hopingyou can clarify for me.

In this scenario, X and Y are separatepersons and partners in a joint venture, Z. Z has 3 classes of shares: A, BandC shares, intended to vote together as a single class. X holds 100% of the Aand B shares and Y holds 100% of the C shares. The total number of A and Bshares equals the number of C shares. The A and B shares together are intendedto represent 50% of the votes and the C shares are intended to represent theremaining 50% of the votes. The A shares are entitled to vote for 2 of the 5directors of Z on its own, per the Series A Certificate of Designations; the Band the C shares together are entitled to elect the other 3 directors, per theSeries B Certificate of Designations. Pursuant to a Stockholder's Agreement,however, X agreed to let the 3 directors elected by the Band C shares togetherbe designated by the principal holders of the C shares. X proposes to acquirethe C shares currently held by Y in a transaction that exceeds the HSR Act'sthresholds.

My question is whether X can rely on 802.30.X holds 50% of the outstanding voting shares of Z, but if X is required tocalculate its current holdings in accordance with 801.12, it may be less than50% of the voting securities. In applying 802.30, can X simply look to thetotal number of securities held in the aggregate, without regard to 801.12?