0411003 Informal Interpretation

November 8, 2004

Federal Trade Commission
6th Street and Pennsylvania Ave.
Room 303
Washington, DC 20580

Re: H.S.R. Inquiry

Dear Sir / Madam:

I attempted toreach your office by telephone but was unable to get through to your office;hence, this letter.

I wouldsincerely appreciate it if you would confirm my opinion in connection with thefollowing scenario. A client of ours is being acquired for $47,000,000 with anearn out provision for an additional $5,000,000. Obviously, the question iswhether the $50,000,000 "floor" has been met which could require afiling under the Act.

In my opinion,since the earn out provision deals with achieving certain "benchmark"earnings for two (2) years in the future, the possible pay out to the sellersof $5,000,000 should not be taken into consideration in computing the amount ofthe purchase price for the purpose of the size-of-transaction test.

On reaching mydecision, I relied upon Opinion 53 which appears in the 1991 edition of thePremerger Notification Practice Manual. For easy reference, I have enclosed acopy of that opinion.

Would you be sokind as to pass upon my opinion. Since the client is relying upon our announcedopinion, and the acquisition is proceeding, I would certainly appreciate it ifyou were able to confirm my thinking in the near future.

Ifyou should have any questions or comments, please call me at (redacted).