0408003 Informal Interpretation

From: (redacted)
Sent:Friday, August 06, 2004 10:40 AM
To:Verne, B. Michael
Subject: HSR Question

I know you're onvacation until the 11th, but when you return, could we talk about the followinghypothetical:

Company A has acontract giving it the option to purchase certain assets from Company B.

Company A wishesto transfer this option to Company C, so that Company C can exercise the optionand acquire the assets from Company B. Acquisition of the assets that aresubject to the option would require HSR Act filings.

Company Canticipates that Company B may be hostile to acquisition of its assets byCompany C.

Company Ctherefore does not want to inform Company B in advance concerning its intentionto acquire and exercise the option.

Assuming thatCompany C is able to acquire the option and intends to exercise it, can CompanyC make its own HSR filing under 801.30(a)(7), notwithstanding the facts that(a) the acquisition is of assets rather than voting securities and (b) theoption that it seeks to exercise is not registered with the SEC?

If Company C ispermitted to file notification under 801.30(a)(7), what would the PNO staff'sposition likely be in case Company C refused to file (presumably contendingthat 801.30(a)(7) by its terms doesn't apply)?

Assuming thatsufficient facts were provided to the staff to allay any possible antitrustconcern, would the grant of early termination sua sponte under 803.11(c) bepotentially available in such a situation, even if Company C didn't filenotification?