Securities Exchange Act of 1934
Cash Tender Offer by International Business Machines Corporation for Ordinary Shares and ADSs of ILOG S.A.
Dear Mr. Wilson and Mr. Hageman:
We are responding to your letter dated October 9, 2008 to Michele Anderson and Josephine Tao, as supplemented by conversations with the staff. We attach a copy of your letter to avoid having to repeat or summarize the facts you present there. Defined terms we use here have the same meaning as in your letter of October 9, 2008, unless otherwise noted.
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 rules under the Exchange Act:
Rule 14d-10(a)(1) under the Exchange Act. The exemption from Rule 14d-10(a)(1) is granted to permit Bidder to make the U.S. Share Offer available to all holders of ILOG ADSs, wherever located, and all holders of ILOG ordinary shares who are located in the U.S. The French Offer will be open to holders of ILOG ordinary shares (other than ADSs) who are located in France or who are located outside of France if, pursuant to the local laws and regulations applicable to such holders, they are permitted to participate in the French Offer.
Rule 14d-11 under the Exchange Act. The exemption from Rule 14d-11 is granted to permit Bidder to keep the subsequent offering period open for more than twenty U.S. business days, in accordance with French law and practice and as described in your incoming letter. In this regard, we note that the French regulatory authorities will determine the term of the subsequent offer period.
Rules 14d-11(c), (d) and (e) under the Exchange Act. The exemption from Rule 14d-11(c) is granted to permit Bidder to include a subsequent offering period in the tender offer despite the fact that payment for securities tendered during the initial offering period will be delayed in accordance with French law and practice, as described in your incoming letter. The relief from Rule 14d-11(d) is granted to permit Bidder to commence the subsequent offering period on a delayed basis, in accordance with French law and practice and as described in your letter. The exemption from Rule 14d-11(e) is granted to permit Bidder to accept and begin payment for securities tendered in the subsequent offering period after the end of that period, rather than on a rolling basis as they are tendered. In this regard, we note that securities tendered during the subsequent offering period may be withdrawn throughout the term of the subsequent offering period.
Rule 14e-5 under the Exchange Act. The exemption from Rule 14e-5 permits Bidder to purchase or arrange to purchase Securities pursuant to the French Offer during the U.S. Offer. You do not request and we do not grant any relief regarding purchases or arrangements to purchase Securities outside the U.S. Offer otherwise than pursuant to the French Offer. In granting this relief, we note that, except for the relief specifically granted herein, the Bidder will comply with the requirements of Rule 14e-5.
In addition, based on the representations in your letter of October 9, 2008, as supplemented by telephone conversations with the staff, the staff of the Division of Corporation Finance will not recommend enforcement action under:
Rule 14e-1(c) under the Exchange Act, if Bidder pays for Warrants tendered in the U.S. Warrant Offer in accordance with the French Tender Offer Rules and French practice in order to permit Bidder to pay for the Warrants tendered on the same time schedule as it pays for Ordinary Shares tendered in the U.S. Share Offer, expected to be a period of two to three weeks after the expiration of the Offers as a result of the process of centralization of tenders at Euronext Paris.
Rule 14e-1(d) under the Exchange Act, if Bidder announces extensions, if any, to the U.S. Offer as described in your letter and does not include in such announcement the approximate number of Warrants tendered as of the date of such announcement.
The foregoing exemptions and no-action positions are based solely on the representations and the facts presented in your letter dated October 9, 2008, as supplemented by telephone conversations with the Commission staff. The relief provided above is strictly limited to the application of the rules listed above to this transaction. You should discontinue this transaction pending further consultations with the staff if there is a change in any of the facts or representations set forth in your letter.
In addition, your attention is directed to the anti-fraud and anti-manipulation provisions of the federal securities laws, including Section 10(b) and Section 14(e) of the Securities Exchange Act of 1934, and Rule 10b-5 under the Exchange Act. Responsibility for compliance with these and any other applicable provisions of the federal securities laws must rest with the participants in this transaction. The Division of Corporation Finance and the Division of Trading and Markets express no view with respect to any other questions the proposed transaction may raise, 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,
Michele M. Anderson
Chief, Office of Mergers and Acquisitions
Division of Corporation Finance
For the Commission,
by the Division of Trading and Markets,
pursuant to delegated authority,
The Incoming Letters are in Acrobat format.
|Home | Previous Page||