Securities Exchange Act of 1934
Rules 14d-11 and 14e-5
July 24, 2007
Response of the Office of Mergers and Acquisitions
Division of Corporation Finance and
Office of Trading Practices, Division of Market Regulation
Thomas B. Shropshire, Jr., Esq.
One Silk Street
London EC2Y 8HQ
Cash Tender Offer by Rio Tinto plc for Alcan Inc.
Division of Market Regulation File No. TP 07-78
Dear Mr. Shropshire:
We are responding to your letter dated July 24, 2007 to Brian V. Breheny and Nicholas P. Panos in the Division of Corporation Finance and James A. Brigagliano in the Division of Market Regulation, as supplemented by telephone conversations with the staff. Your letter requests exemptive relief from Rule 14d-11, Rule 14d-11(e) and Rule 14e-5. Our response is attached to the enclosed photocopy of your letter to avoid having to recite or summarize the facts presented in your letter. Unless otherwise noted, capitalized terms in this letter have the same meaning as in your letter.
Based on the representations in your letter, but without necessarily concurring in your analysis, the Commission hereby grants exemptions from:
- Rule 14d-11 under the Exchange Act. The exemption from Rule 14d-11 is granted to permit RT plc to keep the Subsequent Offering Period open until the earlier of either the completion of a Subsequent Acquisition Transaction or ten business days if the end date of such Subsequent Offering Period, as extended, would be later than 120 calendar days following the commencement of the Initial Offering Period.
- Rule 14d-11(e) under the Exchange Act. The exemption from Rule 14d-11(e) is granted to permit RT plc to take up and pay for Common Shares tendered during the Subsequent Offering Period within ten calendar days of the date the Common Shares are deposited under the Offer in accordance with Canadian tender offer law and practice.
- Rule 14e-5 under the Exchange Act. The exemption from Rule 14e-5 is granted to permit RT plc and the Prospective Purchasers to purchase or arrange to purchase Common Shares otherwise than pursuant to the Offer, subject to the conditions described herein.
In granting these exemptions, we considered the following facts, among others:
- The Offer is to be conducted in accordance with Canadian law, in particular the securities laws of the ten Provinces and three Territories of Canada (Canadian laws) as well as Sections 14(d) and 14(e) of the Exchange Act, and, except as otherwise exempted, Regulations 14D and 14E promulgated thereunder;
- Alcan, a company incorporated under the laws of Canada, is a foreign private issuer as defined in Rule 3b-4(c) under the Exchange Act;
- Any purchases of Common Shares by RT plc and the Prospective Purchasers will be made in Canada and subject to the Canadian laws and the rules and regulations of the TSX in addition to the applicable statutes, regulations and rules in the United States except as otherwise exempted herein by the Commission;
- The Subsequent Offering Period is being conducted in accordance with Canadian tender offer law and practice, including payment of the same consideration offered to security holders who tender in the Initial Offering Period;
- The additional time provided for in the Subsequent Offering Period is necessary to facilitate the Subsequent Acquisition Transaction pursuant to the laws of Canada; and
- The existence of the Memorandum of Understanding between the Commission and the Ontario Securities Commission, the Commission des valeurs mobilieres du Quebec and the British Columbia Securities Commission dated January 7, 1988.
The Commission hereby grants an exemption from Rule 14e-5 under the Exchange Act on the basis of your representations and the facts presented. The Commission grants this exemption from Rule 14e-5 under the Exchange Act to permit the Prospective Purchasers to purchase or arrange to purchase Common Shares otherwise than pursuant to the Offer, subject to the following conditions:
- No purchases or arrangements to purchase Common Shares other than pursuant to the Offer, shall be made in the United States;
- Disclosure of the possibility of purchases of Common Shares by the Prospective Purchasers, otherwise than pursuant to the Offer, shall be included prominently in the Offer and Circular Document;
- In the event that the Prospective Purchasers purchase or make arrangements to purchase Common Shares at a price higher than the Offer Price, the Offer Price will be raised to the price paid for the Common Shares purchased otherwise than pursuant to the Offer;
- The Prospective Purchasers shall disclose in the United States information regarding purchases of Common Shares to the extent that such information is made public in Canada pursuant to Canadian laws or the rules and regulations of the TSX;
- The Prospective Purchasers shall comply with any applicable rules under Canadian law, including the rules and regulations of the TSX;
- The Prospective Purchasers shall provide to the Division of Market Regulation ("Division"), upon request, a daily time-sequenced schedule of all purchases of Common Shares made by any of them during the Offer, on a transaction by transaction basis, including:
- size, broker (if any), time of execution, and price of purchase; and
- if not executed on the TSX, the exchange, quotation system, or other facility through which the purchases occurred;
- Upon request of the Division, the Prospective Purchasers shall transmit the information as specified in paragraphs 6.a. and 6.b. above to the Division at its offices in Washington, D.C. within 30 days of its request;
- The Prospective Purchasers shall retain all documents and other information required to be maintained pursuant to this exemption for a period of not less than two years from the date of termination of the Offer;
- Representatives of the Prospective Purchasers shall be made available (in person at the offices of the Division in Washington, D.C. or by telephone) to respond to inquiries of the Division relating to their records; and
- Except as otherwise exempted herein, the Prospective Purchasers shall comply with Rule 14e-5.
The foregoing exemptions are based solely on your representations and the facts presented in your letter dated July 24, 2007 as supplemented by telephone conversations with the staff of the Commission. The relief granted is strictly limited to the application of these rules to the Offer. You should discontinue the Offer pending further consultation with the staff of the Commission 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 9(a), 10(b) and 14(e) of the Exchange Act and Rules 10b-5, and 14e-1(d) thereunder. The participants in the Offer must comply with these and any other applicable provisions of the federal securities laws. The Divisions of Corporation Finance and Market Regulation express no view with respect to any other questions that may be raised by the Offer, including, but not limited to the adequacy of disclosure concerning and the applicability of any other federal or state laws to, the Offer.
For the Commission,
By the Division of Corporation Finance,
Pursuant to delegated authority,
Brian V. Breheny
Chief, Office of Mergers and Acquisitions
Division of Corporation Finance
For the Commission,
By the Division of Market Regulation
Pursuant to delegated authority,
James A. Brigagliano
Division of Market Regulation
The Incoming Letters are in Acrobat format.