Securities Exchange Act of 1934
Exemptive and no-action letter: Cash offer by Oak Leaf B.V. and Acorn Holdings B.V for all outstanding ordinary shares of D.E. Master Blenders 1753 N.V.
Response of the Office of Mergers and Acquisitions
Division of Corporation Finance
May 21, 2013
Via Facsimile at 202-661-9010 and U.S. Mail
Brian V. Breheny
Skadden, Arps, Slate, Meagher & Flom LLP
1440 New York Avenue, NW
Washington, DC 20005-2111
Oak Leaf B.V., Acorn B.V. and Acorn Holdings B.V. ("Bidders") offer for all ordinary shares of D.E. Master Blenders 1753 N.V. ("DEMB")
Dear Mr. Breheny:
We are responding to your letter of today’s date to Michele M. Anderson and Christina Chalk, as supplemented by telephone conversations with the staff, with regard to your request for exemptive and no-action relief. To avoid having to recite or summarize the facts set forth in your letter, we attach the enclosed photocopy of your correspondence and the accompanying letter from Dutch counsel. Unless otherwise noted, all capitalized terms in this letter have the same meaning as in your letter of May 21, 2013.
On the basis of your representations and the facts presented in your letter, the United States Securities and Exchange Commission hereby grants an exemption from:
- Section 14(d)(5) and Rule 14d-7 to permit the termination of withdrawal rights at the end of the Initial Offer Period for a maximum period of three Dutch trading days, while tendered shares are being counted to determine whether the Minimum Acceptance Condition in the Offer has been satisfied. Withdrawal rights will be suspended pursuant to this exemption only until securities tendered into the Offer are counted and are accepted for payment. To the extent that Bidders determine that the Acceptance Condition has not been satisfied and determine not to waive or reduce the Acceptance Condition after counting tendered securities, such securities will be returned promptly. No Offer conditions other than those related to regulatory approvals necessary to the consummation of the Offer may survive expiration of the Initial Offering Period and the termination of withdrawal rights;
- Rules 14d-11(c) and (d). The exemption from Rule 14d-11(d) allows the Bidders to announce the results of the Initial Offering Period and commence the Subsequent Offering Period within three Dutch business days. The exemption from Rule 14d-11(c) allows the Bidders to pay for shares tendered in the Initial Offering Period and before the start of the Subsequent Offering Period, within six Dutch business days of the end of the Initial Offering Period;
- Rule 14e-1(c) to permit payment of the Offer consideration in accordance with Dutch law and practice. Payment for all securities tendered during the Initial Offering Period will be made within six Dutch trading days of the expiration of the Initial Offering Period; and
- Rule 14e-1(d) to provide notice of an extension of the Offer in accordance with Dutch law and practice, within three Dutch trading days of the expiration of the Initial Offering Period.
On the basis of your representations and the facts presented in your letter, the United States Securities and Exchange Commission hereby also grants an exemption from Rule 14e-5 under the Exchange Act. The exemption from Rule 14e-5 permits the Prospective Purchasers to make purchases outside the Offer under the circumstances described in your letter. In particular, we note your representation that all conditions of Rule 14e-5(b)(12)(i) will be satisfied except the requirements of Rule 14e-5(b)(12)(i)(B). The Commission’s grant of an exemption from Rule 14e-5 is subject to the following conditions:
- No purchases or arrangements to purchase otherwise than pursuant to the tender offer are made in the United States;
- The Offer materials will prominently disclose the possibility of, or intention to make future purchases of shares outside the Offer, and the extent to which outside purchases have already occurred;
- There will be public disclosure in the United States, to the extent such information is made public in the Netherlands, of information regarding all purchases of shares otherwise than pursuant to the Offer from the time of public announcement of the Offer until its expiration;
- The Prospective Purchasers will comply with any applicable rules against insider trading and the rules and regulations of the applicable Dutch securities regulatory authorities (in particular the rules regulating market conduct/market abuse);
- In the event that the Prospective Purchasers purchase or make arrangements to purchase shares for a consideration greater than the Offer price, the Offer price will be increased to match the higher price paid outside the Offer;
- Upon request of the Division of Corporation Finance, Prospective Purchasers will disclose to the Division a daily time-sequenced schedule of all purchases of shares made from the time of public announcement of the offer until the expiration, on a transaction-by-transaction basis, including (i) description of the size, broker (if any), time of execution and purchase price; (ii) if not executed on the NYSE Euronext in Amsterdam, the exchange, quotation system or other facility through which the purchase occurred;
- Upon request of the Division of Corporation Finance, the Prospective Purchasers will transmit the information specified in clauses (i) and (ii) above to the Division of Corporation Finance at its offices in Washington D.C. within 30 days of the request;
- The Prospective Purchasers will maintain all documents and other information required to be maintained pursuant to this exemption for a period of not less than two years from expiration of the offer;
- Representatives of the Prospective Purchasers will be made available (in person at the offices of the Division of Corporation Finance or by telephone) to respond to inquiries relating to such records; and
- Except as otherwise exempted herein, the Prospective Purchasers will comply with Rule 14e-5.
Based on the representations made and the facts presented in your letter, the staff of the Division of Corporation Finance will not recommend enforcement action pursuant to Rule 14d-4(d) under the Exchange Act if the Minimum Acceptance Condition is reduced or waived without extending the Initial Offering Period, under the circumstances described in your letter.
The foregoing exemptive relief and no-action positions expressed above are based solely on the representations and the facts presented in your letter of today’s date and the accompanying letter from Dutch counsel of the same date and do not represent a legal conclusion with respect to the applicability of the statutory or regulatory provisions of the federal securities laws. 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. In addition, this position is subject to modification or revocation if at any time the Commission or the Division of Corporation Finance determines that such action is necessary or appropriate in furtherance of the purposes of the Exchange Act.
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,
Michele M. Anderson
Chief, Office of Mergers and Acquisitions
Division of Corporation Finance
The Incoming Letter is in Acrobat format.