0702009 Informal Interpretation

From:(redacted)

Sent:Monday, February 05, 2007 12:48 PM

To:Verne, B. Michael

Subject:HSR Analysis

Mike,following up on our call, the below is the summary of the situation. Please callme at (redacted) to discuss. Thanks.

Aand B, U.S. corporations, intend to jointly acquire C via atender offer for 100% of C's shares. C is a foreign issuer with U.S. salesand assets that exceed the 802.50 and 802.51 exemptions.

Inorder to consummate the transaction, A will form an acquisition subsidiary, ASUB. A will own 100% of A SUB's voting stock. B will lend 50% of the purchaseprice for C to A SUB and B will get a note in return for this loan.

Issue1: Is the formation of the acquisition sub and the loan from B to A SUB HSRreportable? No, the formation of A SUB and B's loan to A SUB would not requirean HSR filing pursuant to Rule 802.30(b) and because B is not acquiring votingstock or assets in A SUB in return for the loan.

Chas six separate business units; after the acquisitions, A will controlBusiness Units 1-3 and B will control Business Units 4-6.

Asnoted, in order to consummate the acquisition of C, A/A SUB will submit atender offer to acquire 100% of C's shares. NA SUB and B will enter into aseparate agreement(s) pursuant to which A SUB will transfer the assets of C'sBusiness Units 4-6 to B after A/A SUB acquire the C voting stock. BusinessUnits 4-6 each have assets in the U.S., are independent businesses and the acquisition of eachset of assets would trigger a filing requirement. Once Business Units 4-6 aretransferred to B, B's note to A SUB (i.e., 50% of the purchase price for C)will be extinguished.

Issue2: the parties would like to consummate the transactions (i.e., NA SUB'sacquisition of C's shares and NA SUB's sale of C's assets to B) simultaneously,if possible. Can B file to acquire Business Unit 4-6 from NA SUB at the sametime A files to acquire 100% of C even though A/A SUB would not own BusinessUnits 4-6 at the time of the B's filing? The reasoning in Interpretations 56,261 and 262 suggests that B can file to acquire Business Units 4-6 from NA SUBat the same time A files to acquire C even though B's acquisitions arecontingent on NA SUB's acquisition of C.

Issue3: B does not overlap with Business Units 4-5 so it is likely that B'sacquisitions of these Business Units would receive HSR and foreign antitrustclearance relatively quickly. B competes with Business Unit 6, which couldresult in a review in the U.S. and/or outside of the U.S. Could B file threeseparate HSRs to acquire Business Units 4-6 from A/A SUB, so there are separateHSR waiting periods for each set of assets and any review of the acquisition ofBusiness Unit 6 does not delay consummation of B's acquisitions of BusinessUnits 4-5? If there are three separate HSR filings, would B pay three filingfees?