Securities Exchange Act of 1934 - Section 14(d)(5)
Rule 14d-11(b), (e) and (f)
August 7, 2007
Response of the Office of Mergers and Acquisitions
Division of Corporation Finance
George H. White
Sullivan & Cromwell LLP
1 New Fetter Lane
London EC4A 1AN
Exchange offer by Barclays PLC for all outstanding Shares and ADSs of ABN AMRO Holding N.V.
Dear Mr. White:
We are responding to your letter dated August 6, 2007 addressed to Brian V. Breheny and Christina Chalk, as supplemented by telephone conversations with the staff, with regard to your request for exemptive relief. To avoid reciting or summarizing the facts set forth in your letter, we have attached a photocopy of your correspondence. Unless otherwise noted, capitalized terms in this letter have the same meaning as in your letter of August 6, 2007.
On the basis of your representations and the facts presented in your letter, the United States Securities and Exchange Commission hereby grants exemptions from the following provisions of the Exchange Act and rules thereunder:
- Rule 14d-11(e) under the Exchange Act. The exemption from Rule 14d-11(e) permits Barclays to pay for ABN AMRO Shares and ABN AMRO ADSs tendered during any Subsequent Offer Period as soon as practicable, and in no event later than five Dutch trading days after the termination of the Subsequent Offering Period, as permitted by Dutch law and practice.
- Section 14(d)(5) of the Exchange Act and Rule 14d-7(a)(1) thereunder. The exemption from Section 14(d)(5) of the Exchange Act and Rule 14d-7(a)(1) thereunder allows Barclays to terminate withdrawal rights in the Offer at the expiration of the Initial Offering Period if all conditions to the Offer, other than the Minimum Acceptance Condition, have been satisfied
- or waived, for a period of no longer than five Dutch trading days to permit the determination of whether the Minimum Acceptance Condition has been satisfied, in accordance with Dutch law and practice.
- Rule 14d-4(d)(2) under the Exchange Act. The exemption from Rule 14d-4(d)(2) allows Barclays to waive the Minimum Acceptance Condition in the event that the number of ABN AMRO Shares (including Shares represented by ADSs) validly tendered and not properly withdrawn in the Offer represents not less than a majority of the issued and outstanding ABN AMRO Shares (including Shares represented by ADSs), without extending the Initial Offering Period and without providing withdrawal rights after such waiver, in accordance with Dutch law and practice and under the circumstances described in your letter. We note in particular in granting such relief that if Barclays waives the Minimum Acceptance Condition under those circumstances, it will provide the disclosure and the procedural safeguards described in your letter of August 6, 2007.
- Rule 14d-10(a)(2) under the Exchange Act. The exemption from Rule 14d-10(a)(2) permits Barclays to allow only holders of ABN AMRO Shares the opportunity to elect to exchange their Shares through the Alternative Exchange Process. All tendering holders of ABN AMRO ADSs must exchange their securities through the Primary Exchange Process. This exemption is also granted to permit Barclays to offer the Mix and Match Election in the Initial and Subsequent Offering Periods, using the off-set mechanism described in your letter.
- Rules 14d-11(b) and (f) under the Exchange Act. This exemption allows Barclays to offer the Mix and Match Election in the Subsequent Offering Period in the manner described in your letter.
The foregoing exemptive relief is based solely on the representations and the facts presented in your letter dated August 6, 2007, as supplemented by telephone conversations with the staff. The relief is strictly limited to the application to this transaction of the statutory provisions and rules listed above. You should discontinue this transaction pending further consultations with the staff if any of the facts or representations set forth in your letter change.
We also direct your attention to the anti-fraud and anti-manipulation provisions of the federal securities laws, including Sections 10(b) and 14(e) of the Exchange Act, and Rule 10b-5 thereunder. The participants in this transaction must comply with these and any other applicable provisions of the federal securities laws. The Division of Corporation Finance expresses no view on any other questions that may be raised by the proposed transaction, including but not limited to, the adequacy of disclosure concerning and the applicability of any other federal or state laws to the proposed transaction.
For the Commission,
by the Division of Corporation Finance
pursuant to delegated authority
Brian V. Breheny
Office of Mergers and Acquisitions
The Incoming Letters are in Acrobat format.