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U.S. Securities and Exchange Commission

Securities Exchange Act of 1934
Section 13(e)
Rules 13e-4, 14e-1(b) and (c) and Rule 14e-5
Section 15

No Action, Interpretive and/or Exemptive Letter:
General Electric Company and GE Investments, Inc.

February 24, 2004

Ellen J. Odoner, Esq.
Weil, Gotshal & Manges LLP
767 Fifth Avenue
New York, NY 10153-0119

Response of the Office Of Mergers and Acquisitions
Division of Corporation Finance
and
The Office of Chief Counsel and
The Office Of Risk Management and Control
Division of Market Regulation

Re: General Electric Company and GE Investments, Inc.
     Incoming Letter dated February 24, 2004
     File No. TP 04-24

Dear Ms. Odoner:

In regard to your letter dated February 24, 2004, as supplemented by conversations with the staff, this response is attached to the enclosed photocopy of your correspondence. By including a copy of your correspondence, we avoid having to repeat or summarize the facts you presented in your letter. The defined terms in this letter have the same meaning as in your letter, unless otherwise noted.

A. Division of Corporation Finance

Based on your opinion of counsel that the Dealing Facility does not constitute an "issuer tender offer" subject to Rule 13e-4, the facts presented and representations made in your correspondence and in conversations with the staff, the Division of Corporation Finance, without necessarily concurring with the analysis and conclusions set forth in your letter, will not recommend that the Commission take enforcement action against GE or GE Investments if the Dealing Facility is conducted without compliance with Section 13(e) of the Exchange Act, or Rules 13e-4 and 14e-1(b) and (c) thereunder. Furthermore, due to the need for Eligible Holders to have a minimum time period over which to consider the terms of the Dealing Facility, we have required that you limit the scope of your no-action relief request under Rule 14e-1.

In reaching this conclusion, the Division of Corporation Finance particularly notes that:

  • the Dealing Facility is principally open to non-U.S. retail holders who, by virtue of their foreign residence, will receive physical stock certificates as a result of a business combination with a U.S. acquirer, and the maximum number of shares allowed to be sold through the Dealing Facility will represent approximately 0.067% of the outstanding GE Shares;
     
  • the sale of GE Shares into the open market through the Dealing Facility by Eligible Holders will be registered under Section 5 of the Securities Act;
     
  • the Dealing Facility does not constitute a tender offer or any other form of regulated transaction in the United Kingdom, Amersham's home country, or any other non-U.S. jurisdiction in which the Dealing Facility will be available, and it is anticipated that virtually all Eligible Holders will be residents of jurisdictions outside the United States (only about 100 out of 12,171, or less than 1%, will be U.S. residents, based upon the most recent information);
     
  • GE and GE Investments will not purchase GE Shares sold through the Dealing Facility and will otherwise receive no proceeds from sales under the Dealing Facility;
     
  • GE, GE Investments and their affiliates will not purchase any GE Shares while sales are being executed under the Dealing Facility;
     
  • GE, GE Investments, the Registrar, DnB, Citibank, the Call Center Operator and Goldman Sachs will not communicate with Eligible Holders about the Dealing Facility and will not solicit Eligible Holders to participate in the Dealing Facility or give them advice about whether or not to participate;
     
  • no special selling efforts or selling methods will be employed in connection with the Dealing Facility;
     
  • no commissions or any other sales incentives will be offered or paid to employees of GE, GE Investments or any of their affiliates in connection with the Dealing Facility;
     
  • Goldman Sachs will effect brokers' transactions solely as agent on an unsolicited basis for Eligible Holders;
     
  • none of GE, GE Investments, the Registrar, DnB, Citibank or BoNY will enter into any arrangement with Goldman Sachs with respect to purchases of GE Shares sold pursuant to the Dealing Facility;
     
  • Eligible Holders will receive a detailed description of the Dealing Facility which will contain all of the information regarding the terms of the Dealing Facility as would be required if GE were filing a Schedule TO;
     
  • neither the Dealing Facility Materials nor any of the Acquisition Documents will solicit participation in, or make recommendations with respect to, the Dealing Facility;
     
  • Dealing Facility Materials will indicate that no Eligible Holder will be obligated to sell its GE Shares and the Dealing Facility Materials will present information about the availability and procedures of the Dealing Facility in a neutral manner;
     
  • GE will make available its most recent Annual Report on Form 10-K and any Quarterly Reports on Form 10-Q and Current Reports on Form 8-K filed since the date of its most recent Annual Report on Form 10-K promptly following a request for such documents by an Eligible Holder;
     
  • Eligible Holders may deliver Dealing Facility Instruction Cards to the Registrar, DnB or Citibank, as appropriate, during a period of 20 business days, as would be required for an issuer tender offer by Rule 13e 4(f) and for tender offers by Rule 14e-1(a);
     
  • sales of GE Shares through the Dealing Facility will be made at market prices (which are averaged to calculate the Average Sale Price), and any pressure that Eligible Holders may feel to participate in the Dealing Facility may be lessened due to both the price protection afforded by the Exchange Ratio adjustment mechanism and the requirement for the Court to approve the fairness of the acquisition to Amersham security holders;
     
  • Eligible Holders will not be guaranteed any minimum or maximum sale price for GE Shares sold under the Dealing Facility;
     
  • no Eligible Holder on whose behalf GE Shares are sold will receive preferential treatment under the Dealing Facility because the per share consideration paid to each Eligible Holder who sells shares through the Dealing Facility will be the same Average Sale Price;
     
  • Eligible Holders may revoke sale orders at least co-terminus with the Expiration Date and until the Revocation Deadline; and
     
  • the Dealing Facility will not be contingent upon the participation of any fixed number of Eligible Holders or the sale of any fixed number of GE Shares.

B. Division of Market Regulation

The Office of Chief Counsel of the Division of Market Regulation has asked us to advise you that, without necessarily agreeing with the analysis and conclusions set forth in your letter, it will not recommend enforcement action to the Commission under Section 15(a) of the Exchange Act if GE, GE Investments, the Registrar, and DnB conduct the activities described in your letter without registering as broker-dealers in accordance with Section 15(b) of the Exchange Act.

You represent that Citibank is a bank within the meaning of Section 3(a)(6) of the Exchange Act and entitled to rely on the temporary exemption from the definition of "broker."1 Accordingly, the Division of Market Regulation takes no position on the application of the broker-dealer registration requirements of Section 15(a) of the Exchange Act as applied to Citibank.

In addition, the Office of Risk Management and Control of the Division of Market Regulation will not recommend that the Commission take enforcement action pursuant to Rule 14e-5 under the Exchange Act in the event that GE, GE Investments, Goldman Sachs, the Registrar, DnB or Citibank (or their respective affiliates) make open market purchases of GE Shares outside the Dealing Facility while the Dealing Facility is in effect except GE, GE Investments and their affiliates will not make purchases of GE Shares during the period in which sales are executed under the Dealing Facility.

Furthermore, you have not asked for relief from, and we do not address, Regulation M with respect to purchases of Common Stock by GE or any other party while the Dealing Facility is in effect.

The foregoing no-action positions expressed above are based solely on your representations and the facts presented to the staff, and are strictly limited to the application of those provisions to the transactions involving the Dealing Facility, as described in your correspondence. Such transactions should be discontinued, pending presentation of the facts for our consideration, in the event that any material change occurs with respect to any of those facts and representations.

In addition, your attention is directed 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 Rule 10b-5 thereunder. Responsibility for compliance with these and any other applicable provisions of the federal securities laws must rest with the participants in the transactions. The Divisions of Corporation Finance and Market Regulation express no view with respect to any other questions that the proposed transactions 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 transactions.

The above positions are based on your representations made to the Divisions in your letter and your opinion of counsel. Different facts or conditions might require another result. This response expresses the positions of the Divisions of Corporation Finance and Market Regulation on enforcement action only and does not express any legal conclusions on the questions presented.

Sincerely,

For the Division of Corporation Finance,

Brian V. Breheny
Chief, Office of Mergers and Acquisitions

For the Division of Market Regulation,
Office of Risk Management and Control

James A. Brigagliano
Assistant Director


Endnotes


Incoming Letter:

February 24, 2004

Securities Exchange Act of 1934
Section 13(e)
Rules 13e-4, 14e-1(b) and (c) and 14e-5
Section 15

Brian V. Breheny, Esq.
Chief, Office of Mergers and Acquisitions
Division of Corporation Finance
Paul M. Dudek, Esq.
Chief, Office of International Corporate Finance
Division of Corporation Finance
Catherine McGuire, Esq.
Associate Director and Chief Counsel, Office of Chief Counsel
Division of Market Regulation
James A. Brigagliano, Esq.
Assistant Director, Office of Trading Practices
Division of Market Regulation
Securities and Exchange Commission
450 Fifth Street, N.W.
Washington, D.C. 20549

Re: General Electric Company and GE Investments, Inc.

Ladies and Gentlemen:

We are writing on behalf of our clients General Electric Company, a New York corporation ("GE"), and GE Investments, Inc., a Nevada corporation and subsidiary of GE ("GE Investments"). GE and GE Investments intend to effect a recommended share exchange acquisition (as more fully described below, the "Acquisition") of all of the outstanding ordinary shares of 5 pence each (the "Amersham Shares") of Amersham plc, a public limited company incorporated in England and Wales ("Amersham"), including Amersham Shares represented by American Depositary Shares ("Amersham ADSs").

In connection with the Acquisition, it is proposed that a dealing facility (as more fully described below, the "Dealing Facility") will be available to Eligible Holders (as defined below). We request confirmation that, based upon the facts and representations below, the Staff will not recommend that the Securities and Exchange Commission (the "Commission") take any enforcement action if:

  1. the Dealing Facility is conducted without compliance with Section 13(e) of the Securities Exchange Act of 1934, as amended (the "Exchange Act"), or Rules 13e-4, 14e-1(b) and (c) and 14e-5 under the Exchange Act; and
     
  2. GE, GE Investments, the Registrar, DnB and Citibank (each as defined below) conduct their respective activities in connection with the Dealing Facility without registration as a broker or dealer under Section 15 of the Exchange Act.

I. Background Information11

A. GE

GE is a diversified technology and services company engaged in, among other things, aircraft engines, power generation, financial services, medical imaging, television broadcasting and plastics. At September 30, 2003, 10,040,860,000 shares of GE common stock, par value $0.06 per share ("GE Shares"), were outstanding, and GE currently has a market capitalization of approximately $350 billion. GE Shares principally trade on the New York Stock Exchange (the "NYSE"). GE Shares also trade in the United States on the Boston Stock Exchange. Outside the United States, GE Shares trade on the London Stock Exchange and Euronext Paris. The average daily trading volume of GE Shares during the four weeks ended January 30, 2004 was 22,456,289 shares on the NYSE, 1,098,379 shares on the Boston Stock Exchange, 771 shares on the London Stock Exchange and 21,849 shares on Euronext Paris.

B. Amersham

Amersham is engaged in medical diagnostics and life sciences. Amersham was formed in 1997 through the mergers of Amersham International plc (which itself was formed as a result of one of the first U.K. privatizations), Pharmacia Biotech (of Sweden) and Nycomed (of Norway). Amersham is a foreign private issuer within the meaning of Section 3b-4 of the Exchange Act, and has filed an Annual Report on Form 20-F with the Commission in respect of each financial year beginning with the year ended December 31, 1997. Amersham Shares principally trade on the London Stock Exchange and also trade on the Oslo Stock Exchange. Amersham ADSs, each representing five Amersham Shares, trade on the NYSE. At February 16, 2004, 705,366,633 Amersham Shares (including Amersham Shares represented by Amersham ADSs) were outstanding, and Amersham had a market capitalization of approximately 5.6 billion. As of the time the Acquisition was announced, Amersham estimated that approximately 20% of the outstanding Amersham Shares (including Amersham Shares represented by Amersham ADSs) were beneficially held by persons who reside in the United States. Amersham estimates that there are approximately 14,313 registered holders of Amersham Shares or Amersham ADSs on the London, Oslo and ADS registers.2

In this letter, "Amersham Shareholders" refers to holders of Amersham Shares; "Amersham ADS Holders" refers to holders of Amersham ADSs; "Amersham Securities" refers collectively to Amersham Shares and Amersham ADSs; and "Amersham Securityholders" refers to holders of Amersham Securities.

II. The Proposed Acquisition of Amersham by GE and GE Investments

On October 10, 2003, GE and Amersham announced their agreement on the terms of the Acquisition. On that same date, GE, GE Investments and Amersham entered into an agreement (the "Implementation Agreement") governing the implementation of the Acquisition and the conduct of the business of Amersham and its subsidiaries in the period between the signing of the Implementation Agreement and the date on which the Scheme (as defined below) becomes effective in accordance with its terms.

A. The Scheme of Arrangement

The Acquisition is expected to be effected by means of a scheme of arrangement (the "Scheme") under section 425 of the Companies Act 1985 of England and Wales. GE and GE Investments intend to rely on Section 3(a)(10) of the Securities Act of 1933, as amended (the "Securities Act"), to deliver pursuant to the Scheme, without registration under the Securities Act, GE Shares in exchange for the cancellation of Amersham Shares (in the form of A Ordinary Shares and B Ordinary Shares following the recapitalization described in Section II.C below) and the issuance of new Amersham ordinary shares to GE and GE Investments.3

The regulatory pre-conditions having been satisfied, Amersham received leave from the High Court of Justice in England and Wales (the "Court") on February 13, 2004 to convene a shareholder meeting to vote on the Scheme as part of the Scheme process, which will culminate in the Court issuing two orders (the "Final Court Orders") (i) to sanction the Scheme and (ii) to confirm the cancellation of all the Amersham Shares (including Amersham Shares represented by Amersham ADSs) and the issuance of new Amersham ordinary shares to GE and GE Investments, in consideration for which the Amersham Shareholders will receive GE Shares on the basis described in Section II.B. below.

Before the Final Court Orders can be sought, certain approvals must be obtained from Amersham Shareholders at the Court-convened meeting (the "Court Meeting") and at an Extraordinary General Meeting (the "EGM" and, together with the Court Meeting, the "Meetings"). On February 17, 2004 ("Posting"), Amersham posted (mailed) to Amersham Securityholders the requisite documents to implement the Scheme, including a document (the "Scheme Document") containing, inter alia, the terms and conditions of the Scheme and including the notices convening the Meetings. The Scheme Document is accompanied, inter alia, by forms of proxy and voting instruction cards for use by Amersham Securityholders to indicate their instructions for voting at the Meetings. As used in this letter, "Acquisition Documents" refers to the Scheme Document (together with the relevant forms of proxy, voting instruction cards and any other accompanying documents).

The Court Meeting has been convened by order of the Court for the purposes of considering and, if thought fit, approving the Scheme (with or without modification). The Scheme will be approved at the Court Meeting if a majority in number of the Amersham Shareholders present and voting, either in person or by proxy, whose Amersham Shares represent not less than 75% in value of the Amersham Shares held by such shareholders, votes in favor of the Scheme. The EGM will be convened for the purposes of considering and, if thought fit, passing a special resolution to approve the reduction of Amersham's share capital and amendments to the articles of association of Amersham and certain other resolutions necessary to implement the Scheme. The special resolution will be approved at the EGM if those voting to pass the special resolution represent not less than 75% of the Amersham Shareholders present and voting if the vote is taken by a show of hands, or not less than 75% in value of the Amersham Shareholders present and voting, in person or by proxy, if the vote is taken by way of a poll. An Amersham ADS Holder may instruct Citibank, N.A., as depositary ("Citibank"), how to vote the Amersham Shares underlying its Amersham ADSs by returning a voting instruction card or following the procedures established by its bank or broker. An Amersham ADS Holder may vote in person at the Meetings if it becomes a registered holder of Amersham Shares by arranging for the surrender of its Amersham ADSs.

Once the necessary approvals from the Amersham Shareholders have been obtained and the other conditions have been satisfied or (where applicable) waived, the Scheme will become effective upon sanction by the Court (which will consider, among other things, whether or not the Scheme is fair to Amersham Securityholders), and registration of the first of the Final Court Orders by the Registrar of Companies in England and Wales. Amersham will advise the Court at the first of the final court hearings that its sanctioning of the Scheme will be relied upon by GE and GE Investments, for the purpose of establishing the Section 3(a)(10) exemption from registration, as an approval of the Scheme following a hearing on its fairness to Amersham Securityholders, at which hearing all such holders will have been entitled to attend in person or through counsel to support or oppose the sanctioning of the Scheme and with respect to which notification will have been given to all such holders. The Scheme will not be implemented in full until the Court sanctions the reduction of Amersham's capital by issuing the second of the Final Court Orders, and such order is registered by the Registrar of Companies in England and Wales. The date on which such registration occurs, expected to be April 8, 2004, is referred to in this letter as the "Effective Date". The period between Posting and the Effective Date is expected to be a little over seven weeks.

It is intended that, following the Scheme becoming effective, and subject to applicable requirements of the London, New York and Oslo Stock Exchanges, GE and GE Investments will cause Amersham Securities to be delisted and Amersham to cease to be subject to the reporting requirements of those exchanges and, as they apply to foreign private issuers, of the Exchange Act.

B. The Exchange Ratio

The terms of the Acquisition value each Amersham Share at 800 pence, subject to certain adjustments embodied in an exchange ratio calculation. The "Exchange Ratio" calculates the number of GE Shares to be delivered as consideration for each Amersham Share on any date by dividing 800 pence by the average price (converted into pounds sterling) of GE Shares over the 10 consecutive trading day period up to, but not including, that date (the "Sterling GE Price").4 The Exchange Ratio will increase the number of GE Shares to be delivered as consideration for each Amersham Share in the event the final Sterling GE Price is below the Sterling GE Price at Posting, subject to a cap of 0.5571 GE Shares per Amersham Share (the "Maximum Exchange Ratio"). The Maximum Exchange Ratio provides downside protection for Amersham Securityholders if and to the extent the final Sterling GE Price declines up to 21.6% from the Sterling GE Price at announcement of the Acquisition (18.32) as a result of fluctuations in the market price of GE Shares and/or the exchange rate between the U.S. dollar and the pound sterling. If the final Sterling GE Price is above the Sterling GE Price at Posting, the Exchange Ratio (as determined at Posting) will remain fixed at the Exchange Ratio at Posting until the value in pounds sterling of the GE Shares to be received equals 808 pence per Amersham Share (thus providing up to 1% upside benefit to Amersham Securityholders) and will then be reduced proportionately to the extent necessary to maintain a value in pounds sterling of 808 pence per Amersham Share. The final Sterling GE Price will be determined on the basis of the 10 consecutive trading day period ending on the third business day prior to the Effective Date.

If the Exchange Ratio were calculated on the basis of the Sterling GE Price at Posting (17.84), Amersham Shareholders would be entitled to 0.4483 GE Shares for every Amersham Share held (the "Exchange Ratio at Posting"). On this basis, the terms of the Acquisition would value each Amersham Share at 800 pence and the diluted share capital of Amersham at approximately 5.8 billion (approximately $10.2 billion at current exchange rates). These terms represent a premium of approximately 45% to the price of an Amersham Share of 5.52 as at the close of business on October 7, 2003, the last trading day prior to the announcement by Amersham that it had received an approach. Based on the Exchange Ratio at Posting, approximately 316.2 million GE Shares (322.2 million on a diluted basis) would be delivered as consideration in the Acquisition, representing approximately 3% of the outstanding GE Shares after giving effect to the Acquisition.5 Based on the Maximum Exchange Ratio, approximately 393.0 million GE Shares (400.4 million on a diluted basis) would be delivered as consideration in the Acquisition, representing approximately 4% of the outstanding GE Shares after giving effect to the Acquisition.5

C. Share Elections

The Scheme provides that, as an initial step, the issued share capital of Amersham will be reclassified into two classes of shares, namely A Ordinary Shares and B Ordinary Shares. Holders of Amersham Shares reclassified as A Ordinary Shares will be entitled to receive GE Shares from GE in consideration for the cancellation of the A Ordinary Shares, and holders of Amersham Shares reclassified as B Ordinary Shares will be entitled to receive GE Shares from GE Investments in consideration for the cancellation of the B Ordinary Shares. Certain U.K. capital gains taxation relief will be available to an Amersham Securityholder resident in the United Kingdom for tax purposes only to the extent the Amersham Shares held by (or represented by Amersham ADSs held by) such Amersham Securityholder are cancelled in exchange for GE Shares received from GE. Amersham Securityholders will be able to elect to receive their GE Shares under the Scheme directly from GE (subject to certain limits on the final allocation described in this paragraph). In the event that valid elections are made which would obligate GE to deliver more or less than 75% of the total number of GE Shares to be delivered pursuant to the Scheme, appropriate adjustments will be made so that GE will be obligated to deliver only 75% of such total. GE Investments will deliver the remaining GE Shares to be delivered pursuant to the Scheme.

III. Description of Proposed Dealing Facility

A. Overview

At Amersham's request, GE and GE Investments have agreed to make the Dealing Facility available to Amersham Securityholders who, as of fixed dates prior to Posting, are registered holders of 5,000 or fewer Amersham Shares or 1,000 or fewer Amersham ADSs (each, an "Eligible Holder").6 Under the Dealing Facility, the GE Shares to which such Eligible Holders become entitled may be sold for their benefit at either GE's or GE Investments' expense, and such Eligible Holders will receive the gross sale proceeds.

Each Eligible Holder will have the opportunity to instruct

  1. Lloyds TSB Registrars, the registrar for Amersham (the "Registrar"), if the Eligible Holder holds Amersham Shares on the London register,
     
  2. Den norske Bank ASA ("DnB"), if the Eligible Holder holds Amersham Shares through the Norwegian Central Securities Depository, or
     
  3. Citibank, if the Eligible Holder holds Amersham ADSs,

to sell all but not less than all of the GE Shares to which such Eligible Holder becomes entitled in the Acquisition, at the "Average Sale Price" equal to the average price per share at which all GE Shares are sold through the Dealing Facility, and without brokerage commissions, mailing charges, registration fees or other administrative or similar expenses. Eligible Holders will not be guaranteed any minimum or limited to any maximum sale price for GE Shares sold under the Dealing Facility. Based upon the Exchange Ratio at Posting, an Eligible Holder could sell a maximum of 2,241.5 GE Shares through the Dealing Facility. Based upon the Maximum Exchange Ratio, an Eligible Holder could sell a maximum of 2,785.5 GE Shares through the Dealing Facility. GE and GE Investments intend to designate Goldman Sachs & Co. ("Goldman Sachs"), a registered broker-dealer, to execute transactions under the Dealing Facility.

An Eligible Holder that wishes to sell GE Shares under the Dealing Facility will notify the Registrar, DnB or Citibank, as appropriate, of its intention to sell by submitting an instruction card (the "Dealing Facility Instruction Form"). Each of DnB and Citibank will forward a single sale order to the Registrar based on the aggregate Dealing Facility Instruction Forms it receives. The Registrar will aggregate the sale orders it receives from Amersham Shareholders with the sale orders from DnB and Citibank (after taking into account any revocations received as described in Section III.D.), and inform The Bank of New York ("BoNY"), the transfer agent and registrar for the GE Shares, of the aggregated sale orders. Based upon these instructions, BoNY will remit the appropriate number of GE Shares to Goldman Sachs for execution of the aggregated sale orders in a manner consistent with the procedures described in Sections III.E. through III.G.

The execution of transactions under the Dealing Facility will be completed within five business days after the Effective Date subject to extension in the event of the occurrence of any of the force majeure events referred to in Section III.E.

GE and GE Investments will register under Section 5 of the Securities Act, on Form S-3, sales of GE Shares through the Dealing Facility by Eligible Holders.

There will be no "round up" or other purchase feature of the Dealing Facility.

B. Number of Eligible Holders; Maximum Number of Dealing Facility Shares

Based upon the information obtained from the share registers as of the dates described in footnote 2 above, 12,171 registered holders of Amersham Shares, and 22 registered holders of Amersham ADSs would qualify as Eligible Holders. These Eligible Holders collectively held 12,079,050 Amersham Shares (including 8,655 Amersham Shares represented by Amersham ADSs), representing only 1.7% of the total number of Amersham Shares outstanding on February 16, 2004. Of the Eligible Holders as of these dates, approximately 100 were residents of the United States.

Based on the Maximum Exchange Ratio, and assuming that all Eligible Holders as of the dates described in footnote 2 above elected to participate in the Dealing Facility, a total of 6,729,239 GE Shares would be sold under the Dealing Facility (the "Maximum Dealing Facility Shares"). The Maximum Dealing Facility Shares represent 0.067% of the total number of GE Shares outstanding as of September 30, 2003. In terms of the average daily trading volume of GE Shares on the NYSE during the four weeks ended January 30, 2004 (equal to 22,456,289 GE Shares), the Maximum Dealing Facility Shares represent less than one-third of one day's average trading volume.

C. Communications with Eligible Holders

Subsequent to Posting, each Eligible Holder will receive by mail materials describing the Dealing Facility and a Dealing Facility Instruction Form by which the Eligible Holder may notify the Registrar, DnB or Citibank, as appropriate, of its intention to sell all of the GE Shares to which it is entitled in the Acquisition (collectively, the "Dealing Facility Materials"). Neither the Dealing Facility Materials nor any of the Acquisition Documents will solicit participation in, or make recommendations with respect to, the Dealing Facility. Dealing Facility Materials will indicate that no Eligible Holder will be obligated to sell its GE Shares. In addition, the Dealing Facility Materials will present information about the availability and procedures of the Dealing Facility in a neutral manner. Such information will include the following: (i) the relevant procedures and deadlines for submitting or revoking sale orders; (ii) the manner in which GE Shares will be sold under the Dealing Facility; (iii) how the Average Sale Price will be calculated and the fact that no minimum sale price is being guaranteed and Eligible Holders are not limited to any maximum sale price; (iv) the timing and manner of remittance of proceeds; (v) the fact that participating Eligible Holders who held their Amersham Shares on the London or Oslo registers will receive proceeds in pounds sterling or Norwegian kroner, respectively, and the manner in which the foreign exchange conversions will be effected; and (v) the fact that each Eligible Holder's decision to use the Dealing Facility is entirely voluntary and that each Eligible Holder may choose to use other means to sell his or her GE Shares. Any additional materials prepared for use in connection with the Dealing Facility will comply with the guidelines set forth in this paragraph.

The Registrar will establish a special toll-free telephone number hotline, staffed with employees of the Registrar (acting in this capacity, the "Call Center Operator"), to answer inquiries about the Dealing Facility. This Dealing Facility hotline will be operated separately from the hotline(s) established to answer inquiries about the Acquisition. The Call Center Operator will be required to undertake not to make any recommendation or solicitation in connection with the Dealing Facility, and not to give any assurance about the price that will be received for shares sold. The expenses of the Call Center Operator in connection with the Dealing Facility will be treated as an expense of the Dealing Facility and will be borne by GE and GE Investments, not by Eligible Holders.

The employees of the Call Center Operator who answer telephone calls from Eligible Holders will be specifically instructed, in writing and through other procedures, to refrain from:

  1. using written materials other than the Dealing Facility Materials, or making any revisions to such materials;
     
  2. making any statements not derived from the Dealing Facility Materials;
     
  3. discussing the potential market value of the GE Shares;
     
  4. providing financial advice about, or recommending or soliciting purchases or sales of, the GE Shares; and
     
  5. discussing with callers their personal plans to invest or not invest in the GE Shares.

The Call Center Operator will be required to communicate these restrictions to its employees through special training classes, in writing as part of its training materials and by other means.

GE, GE Investments and their affiliates (as defined in Rule 405 of the Securities Act), agents and employees will be instructed not to express recommendations about the Dealing Facility and will be directed to refer all questions to the Call Center Operator's hotline. No commissions or any other sales incentives will be offered or paid to employees of GE, GE Investments or any of their affiliates in connection with the Dealing Facility. GE will make available its most recent Annual Report on Form 10-K and any Quarterly Reports on Form 10-Q and Current Reports on Form 8-K filed since the date of its most recent Annual Report on Form 10-K promptly following a request for such documents by an Eligible Holder. Other than as described in this Section III.C, GE, GE Investments, the Registrar, DnB, Citibank, the Call Center Operator and Goldman Sachs will not communicate with Eligible Holders about the Dealing Facility. In no event will any of them solicit Eligible Holders to participate in the Dealing Facility or give them advice about whether or not to participate. No "special selling efforts" (as that phrase is used in the definition of "distribution" in Rule 100 of Regulation M) will be employed in connection with the Dealing Facility.

D. Participation by Eligible Holders

Eligible Holders will not be obligated to participate in the Dealing Facility. Eligible Holders may elect to sell GE Shares under the Dealing Facility (or in any other manner they choose) or to retain their GE Shares.

Dealing Facility Instruction Forms may be returned to the Registrar, DnB or Citibank, as appropriate, for a 20 business day period (the end of such period, the "Expiration Date"). Incomplete Dealing Facility Instruction Forms and Dealing Facility Instruction Forms that are received by the Registrar, DnB or Citibank after the Expiration Date will not be processed.

An Eligible Holder who returns a Dealing Facility Instruction Form by the Expiration Date may revoke his or her sale order by returning a revocation instruction by mail or fax to the Registrar by a deadline (the "Revocation Deadline") anticipated to be at noon (London time) on the third business day before the Effective Date, which is the day on which Goldman Sachs is expected to begin execution of sales under the Dealing Facility as described in Section III.E. This Revocation Deadline and the procedures for revoking sale orders will be communicated clearly to Eligible Holders in the Dealing Facility Materials they receive.

E. Execution of Sale Orders

Goldman Sachs has advised GE and GE Investments that it will act exclusively as agent to sell all GE Shares for sale through the Dealing Facility in a manner consistent with its duty of best execution in one or more transactions on the floor of the NYSE within the five business days immediately following the Effective Date.7 If, however,

  1. there has occurred any act of God or nature, mechanical or electrical breakdown, computer failure, failure or unavailability of the Federal Reserve Bank wire, facsimile, Internet, telex, or other transaction or communications system or power supply, in each case the effect of which is such as to make it, in the judgment of BoNY, after taking into account all commercially reasonable means of doing so, impracticable to process any sale order under the Dealing Facility,
     
  2. trading in any equity securities of GE has been suspended or materially limited by the Commission or the NYSE, or if trading generally on the NYSE has been suspended or materially limited, or
     
  3. a banking moratorium has been declared by either Federal or applicable state regulatory authorities,

then the aggregated sale orders will not be executed during the pendency of such events. Execution of sale orders will resume on the NYSE trading day following the expiry of such events.

GE, GE Investments and their affiliates will make no purchases of GE Shares during the period while sales orders are executed under the Dealing Facility.

F. Remittance of Proceeds

Goldman Sachs will remit the proceeds from the sale of the GE Shares to the Registrar, DnB and Citibank in accordance with their respective sale orders without deducting any brokerage or other charges. It is anticipated that the Registrar, DnB or Citibank, as appropriate, will mail proceeds from the Dealing Facility to participating Eligible Holders within 14 calendar days of the Effective Date.8 The proceeds will be accompanied by a personalized settlement statement indicating the number of GE Shares to which such Eligible Holder was entitled upon completion of the Acquisition, the date or dates on which GE Shares were sold under the Dealing Facility, the proceeds in U.S. dollars to which such Eligible Holder was entitled from the sales of those GE Shares under the Dealing Facility, the Average Sale Price and the relevant currency exchange rate used to convert the Eligible Holder's U.S. dollar proceeds into pounds sterling or Norwegian kroner, as described below (if applicable).

Eligible Holders who hold their Amersham Shares through the listing on the Oslo Stock Exchange and who elect to sell their GE Shares through the Dealing Facility will receive the proceeds from the sale of their GE Shares in Norwegian kroner, and all other Eligible Holders of Amersham Shares who elect to sell their GE Shares through the Dealing Facility will receive the proceeds from the sale of their GE Shares in pounds sterling. Amersham ADS Holders who elect to sell their GE Shares through the Dealing Facility will receive proceeds in U.S. dollars.

Goldman Sachs will act exclusively as an agent to effect the necessary foreign exchange transactions so that all currency conversions are made at the same U.S. dollars to pounds sterling rate and U.S. dollars to kroner rate for all participating Eligible Holders, respectively. On the first business day in the relevant markets following the date on which the last of the GE Shares are sold under the Dealing Facility, Goldman Sachs will convert (i) U.S. dollar proceeds due to Eligible Holders who held their Amersham Shares on the London register into pounds sterling at the offer-side pounds sterling - U.S. dollar exchange rate and (ii) U.S. dollar proceeds due to Eligible Holders who held their Amersham Shares on the Oslo register into Norwegian kroner at the bid-side U.S. dollar - Norwegian kroner exchange rate, in each case, at 9:00 a.m. (London time) for same day settlement.

G. Timing, Control and Other Aspects of Sale Transactions

The timing of transactions and the frequency of transaction intervals will be subject solely to the control of Goldman Sachs. Goldman Sachs will effect all transactions in connection with the Dealing Facility in the open market on the floor of the NYSE in the ordinary course of its business. The Dealing Facility will not involve any special selling efforts or selling methods. In connection with the Dealing Facility, Goldman Sachs will effect brokers' transactions solely as agent on an unsolicited basis for Eligible Holders, including transactions permitted by Rule 144(g)(2) under the Securities Act. Goldman Sachs may also cross, solely on an agency basis, unsolicited purchase instructions in GE Shares submitted by their customers with sale instructions received by Goldman Sachs as would be permitted by Rule 101(b)(5) of Regulation M. All such crossing transactions will be effected by Goldman Sachs on the floor of the NYSE, and Goldman Sachs will not conduct negotiations off the floor of the NYSE with respect to such transactions.

In connection with the Dealing Facility, Goldman Sachs will only be able to sell the GE Shares that it receives from BoNY (and will be obliged to sell all such GE Shares), and will act independently of GE, GE Investments and their affiliates in doing so. In connection with the Dealing Facility, BoNY will only send to Goldman Sachs those GE Shares to which Eligible Holders who submitted Dealing Facility Instruction Forms were entitled (and BoNY will be obligated to send to Goldman Sachs all such GE Shares).9

H. Expenses

All expenses in connection with the Dealing Facility, including the fees and expenses of the Registrar, DnB, Citibank, BoNY, the Call Center Operator and Goldman Sachs, will be paid by either GE or GE Investments. Goldman Sachs's commissions from sales of GE Shares pursuant to the Dealing Facility will not exceed customary brokerage commissions on similar transactions. Employees of the Registrar, DnB, Citibank, BoNY, the Call Center Operator, GE, GE Investments and their affiliates will not receive any compensation, directly or indirectly, for brokerage activities.

IV. Discussion

A. Reasons for the Dealing Facility; Role of GE and GE Investments

Amersham Securityholders who are not affiliates of GE, GE Investments or Amersham before the Effective Date, and who are not affiliates of GE after the Effective Date, may freely resell the GE Shares that they receive under the Scheme.10 As described above, an Eligible Holder may be neither an affiliate of GE, GE Investments or Amersham before the Effective Date nor an affiliate of GE or GE Investments after the Effective Date. Under the U.S. federal securities laws, therefore, Eligible Holders will be able to resell the GE Shares they receive under the Scheme immediately after the Effective Date, whether or not the Dealing Facility is available.

The need for the Dealing Facility arises from the unusual nature of this cross-border acquisition, in which a U.S. public company is offering its shares as exclusive consideration for the shares of a non-U.S. public company. It is anticipated that virtually all Eligible Holders will be residents of jurisdictions outside the United States (only about 100 out of 12,171, or less than 1%, will be U.S. residents, based upon the most recent information as described in Section III.A. above) and that some Eligible Holders may wish to sell their GE Shares immediately following the Effective Date. In negotiating the Acquisition, Amersham required GE and GE Investments to establish the Dealing Facility so that Eligible Holders who wished to reduce their GE Share consideration to cash could do so quickly and easily after the Effective Date, with access to the principal market for GE Shares on which the best execution could be achieved and without incurring transaction costs disproportionate to their holdings. The reasons why the Dealing Facility was considered to be so important are explained below.

1. Amersham Shareholder Profile

The eligibility criteria for the Dealing Facility was agreed between Amersham and GE at 5,000 or fewer Amersham Shares based in part upon Amersham's analysis of its share registers. As at the dates described in footnote 2 above, approximately 85% of Amersham Shareholders on the London register and more than 90% on the Oslo register were Eligible Holders.

Amersham's shareholder profile contains a high proportion of holders with small shareholdings. Amersham attributes its shareholder profile to a number of factors. First, Amersham was one of the first companies to be privatized by the U.K. government at a time when the benefits of share ownership by retail holders were being promoted and retail shareholders could obtain shares in privatized companies without having a broker. Second, Amersham operates a number of established share-based compensation programs for all its employees worldwide under which awards are granted more extensively than is common for U.S. companies, thus contributing significantly to the number of retail shareholders. Finally, Amersham inherited a number of Norwegian retail shareholders at the time of its merger in 1997 with Nycomed (which itself had a pronounced retail shareholder base) and has, since then, maintained a listing on the Oslo Stock Exchange.

2. Characteristics of Amersham Retail Shareholdings Outside the United States

In the United States, it is very common for retail investors to hold their shares in book-entry form. However, in the United Kingdom this remains unusual, and it is much more common for retail investors to hold shares in certificated form. Indeed, a substantial majority of Eligible Holders in the United Kingdom hold physical share certificates11 and so would receive GE Shares in certificated form pursuant to the Acquisition.

Further, although currently all Amersham Shareholders on the Norwegian register hold shares in book-entry form, all such holders will receive certificated GE Shares following the Acquisition because GE does not have a depositary listing on the Oslo Stock Exchange.

3. Practical and Cost Implications for Amersham Retail Shareholders

The practical and cost implications of non-U.S. retail shareholders receiving certificated, U.S. dollar-denominated shares in a company with its primary listing on the NYSE (and with no Oslo listing and a thin market in its shares in London) compared with their current arrangements - predominantly either (for the substantial majority of U.K. retail holders) certificated shares freely tradable in London or (for all Norwegian retail holders) shares held in book-entry form freely tradable in Oslo - are very significant.

There are a number of reasons why Amersham's non-U.S. retail shareholders may wish to dispose of the GE Shares they receive as consideration in the Acquisition. For example, GE Shares are quoted in U.S. dollars and GE pays dividends in U.S. dollars rather than local currency (meaning that the currency conversion costs and delay in the realization of value are likely to be significant against the value of dividends paid).

Amersham believes, however, that many Eligible Holders are unlikely to have the necessary arrangements in place that will allow them to trade their GE Shares immediately on the Effective Date. Further, Amersham believes that many such shareholders are likely to be unfamiliar with the process that they would have to go through to put these arrangements in place in order to dispose of their GE Shares (if, indeed, the necessary arrangements are feasible).

This is in contrast to Amersham's non-U.S. institutional shareholders who will receive their GE Shares into their CREST accounts (the U.K. equivalent of book-entry accounts) and will have ready access to the U.S. markets. It is expected that the GE Shares will settle into book-entry accounts on the Effective Date, allowing non-U.S. institutions to trade immediately should they wish to do so. Their access to the U.S. markets is also likely to ensure better execution than if their GE Shares were sold on the less liquid London market.

Before a non-U.S. retail shareholder can trade his or her GE Shares, he or she would have to find a broker offering an international dealing service and who will execute sales in "overseas" stocks on a one-off, retail basis. Amersham understands that there are a limited number of brokers who may offer such a service. Once such a shareholder has located an appropriate broker and set up an account, further time will be required from receipt of the GE Share certificate (which will not be mailed until after the Effective Date) and which then will have to be remitted in accordance with the broker's instructions (which may involve transferring the certificated share to a holding through the broker's nominee account) prior to any instruction to trade being accepted by the broker.

A key feature of the Acquisition is the Exchange Ratio mechanism, which, as described in Section II.B. above, was designed to protect the implied value in pounds sterling of the GE Shares that Amersham Shareholders would receive in exchange for each Amersham Share (800p). The final Exchange Ratio will be fixed very shortly prior to the Effective Date. Absent the Dealing Facility, Amersham's non-U.S. retail shareholders who wish to sell their GE Shares immediately would be exposed to a significantly longer period of market and foreign currency risk than Amersham's non-U.S. institutional shareholders.

The cost implications for Amersham's non-U.S. retail shareholder base are also significant. A key factor in the decision by Amersham's board to insist on the Dealing Facility was to ensure that non-U.S. retail shareholders who wish to sell immediately after the Effective Date receive the full value of their consideration under the Acquisition. Without the Dealing Facility, the value of their consideration will be eroded as a result of a number of charges resulting from the certificated form of the GE Shares to which such shareholders will be entitled, as described above. In addition to commission charges on any trade (which may be higher than commission charges relating to locally traded stocks), there may be charges involved in setting up the necessary broker accounts as well as foreign exchange conversion costs.

4. Policy Background

The relief sought in this letter is consistent with the policies, or implications of policies, espoused by the Commission in adopting both Regulation M-A and the cross-border exemptions from the U.S. tender offer rules. One of the strong policies underlying Regulation M-A is that exchange offers involving stock should be placed on a more equal footing with cash tender offers.12 Similarly, a significant implication of the policies underlying the cross-border exemptions, which are available to U.S. as well as non-U.S. bidders, has been to put U.S. companies seeking to acquire non-U.S. companies on a more equal footing with non-U.S. acquirors.13 In order to be on a more equal footing when seeking to use its principally (or exclusively) U.S.-traded shares, rather than cash, as acquisition currency in a cross-border business combination, a U.S. company needs to be able to provide non-U.S. retail shareholders of the non-U.S. target with means to reduce to cash the economic value of the share consideration they receive - without significantly higher costs, greater practical difficulties and delays and less advantageous execution than they would experience if the acquiring company were non-U.S.

In the United Kingdom, Amersham's home country, and the other non-U.S. jurisdictions in which the Dealing Facility will be available,14 GE and GE Investments have been advised that the Dealing Facility does not constitute a tender offer or other similar regulated transaction. Accordingly, while there is no per se "direct conflict", application of the U.S. issuer tender offer rules to the Dealing Facility would be inconsistent with the laws and practices of Amersham's home country and the other non-U.S. jurisdictions in which the Dealing Facility will be available to Amersham Securityholders.15 And, while we recognize that GE is not a foreign private issuer, we note that the Staff has shown flexibility when applying U.S. tender offer rules in situations where, as here, the level of U.S. interest is low and the constituency making an investment decision consists primarily of non-U.S. residents. In adopting the Tier I exemption, for example, the Commission stated: "U.S. holders' interests are best served by being able to participate in, rather than being excluded from, the tender offer, even though they do not receive the full protections of the U.S. tender offer rules."16 In this case, although virtually all Eligible Holders will be non-U.S. residents, the terms of the Dealing Facility nonetheless have been structured to address the underlying concerns of Rule 13e-4 as described more fully below.

We note that the Staff has also demonstrated flexibility when applying the U.S. federal securities laws in the context of so-called "vendor placements", where U.S. interests were low and investment decisions were made only by non-U.S. constituencies.17 In the situations described in those letters, the Staff granted relief to non-U.S. acquirors who did not wish to comply fully with the U.S. federal securities laws by registering their securities under Section 5 of the Securities Act. Instead, the Staff permitted the non-U.S. acquirors to sell securities issued in the business combinations on behalf of U.S. target shareholders and remit only cash proceeds. The relief granted in the context of vendor placements has had the effect of helping non-U.S. companies accomplish business combinations with non-U.S. targets. Here, GE and GE Investments, both U.S. companies, seek relief in an analogous situation involving a business combination with Amersham, a non-U.S. company, which has insisted that its retail shareholders - virtually all of whom are non-U.S. residents - be afforded a simple, quick, commission-free process for selling the GE Shares they receive as consideration for the Acquisition and obtaining the cash proceeds in pounds sterling or Norwegian kroner, as appropriate. We note, further, that the Staff has taken into account the characteristics of a shareholder base when granting relief from the application of the issuer tender offer rules.18

Eligible Holders who are residents of the United States and therefore have access to the U.S. markets will be eligible to participate in the Dealing Facility as a matter of equal treatment among Eligible Holders in all jurisdictions, consistent with one of the fundamental policies underlying the Commission's adoption of the cross-border exemptions from the tender offer rules.19

5. Role of GE and GE Investments

Eligible Holders are under no obligation to sell their GE Shares under the Dealing Facility, or to sell their GE Shares at all. GE and GE Investments will receive no proceeds from sales under the Dealing Facility, and GE, GE Investments and their affiliates will not purchase any GE Shares while sales are being executed under the Dealing Facility. Because the GE shareholder base already includes an extremely large number of retail holders20, participation even by all Eligible Holders under the Dealing Facility would not measurably reduce GE's shareholder servicing costs. In addition, the Dealing Facility will not have an appreciable impact on the market for GE Shares, in light of the high volume of trading in GE Shares on the NYSE, the small number of GE Shares to be sold through the Dealing Facility even if all Eligible Holders elect to participate, and the absence of any active solicitation of participants or other "special selling efforts or selling methods".

GE and GE Investments will be involved in the Dealing Facility only in paying directly or indirectly for the preparation and distribution of descriptive information regarding the Dealing Facility, in relaying inquiries and requests received by GE or GE Investments from Amersham Securityholders to the Registrar, DnB, Citibank or the Call Center Operator, and in paying expenses in connection with the Dealing Facility, including the fees and expenses of Goldman Sachs, the Registrar, DnB, Citibank and the Call Center Operator. None of GE, GE Investments or any of their affiliates will be eligible to effect sales of GE Shares through the Dealing Facility. Neither GE nor GE Investments will have any role in the administration of Dealing Facility services or the processing of Dealing Facility transactions, except to the limited degree described herein.

In facilitating the sale of GE Shares through the Dealing Facility, the Registrar, DnB and Citibank will act strictly in accordance with Dealing Facility Instruction Forms submitted by Eligible Holders, and the Registrar will forward aggregated sale orders (including those submitted to and aggregated by DnB and Citibank, and taking into account any revocations received as described in Section III.D.) to BoNY, which in turn will remit GE Shares to Goldman Sachs for execution. Neither GE nor GE Investments has any ability to influence or control Goldman Sachs in respect of sales of the GE Shares through the Dealing Facility or the timing or manner of execution of such sales.

B. Section 13(e) of the Exchange Act and Rule 13e-4 under the Exchange Act

In our opinion, for the reasons set forth below, the Dealing Facility will not constitute an issuer "tender offer" within the meaning of Section 13(e) of the Exchange Act.21 An issuer tender offer typically involves an offer by an issuer to purchase securities for its own account. By contrast, the Dealing Facility does nothing more than offer Eligible Holders the opportunity to sell their shares in the open market (as they already will be free to do), quickly, easily and at the expense of GE or GE Investments. Moreover, in further contrast with an issuer tender offer, the Dealing Facility was not initiated by the issuer; instead, as discussed more fully in Section IV.A. above, it was required by the target company in the Acquisition to address the disadvantages its non-U.S. retail shareholders might face, compared to its non-U.S. institutional shareholders, as a result of receiving the shares of a U.S. company, rather than cash or the shares of a non-U.S. company, as consideration. Overall, the Dealing Facility does not present the potential for any of the abuses that the issuer tender offer rules are designed to prevent.

The factors that traditionally have been considered in determining whether a tender offer exists are: (1) whether an active and widespread solicitation of public shareholders is made for shares of an issuer; (2) whether the solicitation is made for a substantial percentage of the issuer's stock; (3) whether the offer to purchase is made at a premium above the prevailing market price; (4) whether the terms of the offer are firm rather than negotiable; (5) whether the offer is contingent on the tender of a fixed minimum number of shares to be purchased; (6) whether the offer is open for only a limited period of time; (7) whether offerees are subject to pressure to sell their stock; and (8) whether public announcements of an acquisition program precede or accompany the accumulation of stock.22 These factors are not present - at least not in any meaningful sense - in the context of the Dealing Facility. Specifically:

  1. There will be no "solicitation" of Dealing Facility Instruction Forms (in that none of GE, GE Investments, the Registrar, DnB, Citibank or the Call Center Operator will make any recommendation to Eligible Holders). To the contrary, the Dealing Facility Materials will expressly state that no such party is making any recommendation regarding the sale of GE Shares in the Dealing Facility and will present information about the availability and procedures of the Dealing Facility in a neutral way.
     
  2. Far from representing a substantial percentage of GE Shares, it is currently estimated that the Maximum Dealing Facility Shares will represent only 0.067% of the outstanding GE Shares.
     
  3. Eligible Holders who sell GE Shares through the Dealing Facility will receive the Average Sale Price rather than any premium over the market price at the time of sale (apart from the absorption of certain transaction costs). Eligible Holders will not be guaranteed any minimum or limited to any maximum sale price for GE Shares sold under the Dealing Facility.
     
  4. The "terms of the offer" will be "firm" only in the sense that Eligible Holders who sell GE Shares will receive the Average Sale Price, representing the average price at which all GE Shares are sold under the Dealing Facility.
     
  5. The Dealing Facility will not be contingent upon the participation of any fixed number of Eligible Holders or the sale of any fixed number of GE Shares.
     
  6. Although the Dealing Facility will be available for only a limited period of time, Eligible Holders may deliver Dealing Facility Instruction Forms to the Registrar, DnB or Citibank, as appropriate, during a period of 20 U.S. business days, as would be required for an issuer tender offer by Rule 13e 4(f) and for tender offers by Rule 14e-1. Moreover, Eligible Holders may revoke sale orders until the Revocation Deadline, which will be the third business day prior to the Effective Date (and will be at least co-terminus with, and is expected to be later than, the Expiration Date).
     
  7. Any pressure that Eligible Holders may feel to participate in the Dealing Facility may be lessened because of (i) the price protection afforded by the Exchange Ratio adjustment mechanism and (ii) the fact that, just before the Effective Date, and on the last day of the 10 day trading period upon which the final Exchange Ratio will be determined, the Court must approve the fairness of the Acquisition to Amersham Securityholders in order for the Scheme to become effective. The Dealing Facility is being provided solely as an accommodation to Eligible Holders who may wish to sell their GE Shares in a simple, quick process without any cost of commissions or other expenses. As indicated above, the Dealing Facility Materials will not make any recommendation as to participation by Eligible Holders, and will present information about the availability and procedures of the Dealing Facility in a neutral manner.
     
  8. The Acquisition and the Dealing Facility were publicly announced on October 10, 2003, more than four months before the period for delivery of Dealing Facility Instruction Forms would begin and almost six months before the Revocation Deadline. Thus, the impact of this information on GE Shares should have been fully absorbed by the market substantially before the Dealing Facility will commence. Moreover, the Dealing Facility will not involve any accumulation of stock by the issuer. None of GE, GE Investments, the Registrar, DnB, Citibank or BoNY will enter into any arrangement with Goldman Sachs with respect to purchases of GE Shares sold pursuant to the Dealing Facility. Indeed, GE, GE Investments and their affiliates will not purchase GE Shares during the period while sales orders are executed under the Dealing Facility.

We also believe that no policy purpose would be served by subjecting the Dealing Facility to regulation under the issuer tender offer rules. Accordingly, if the Staff cannot concur with our opinion that the Dealing Facility does not constitute an issuer tender offer within the meaning of Section 13(e), we request confirmation that the Staff will not recommend that the Commission take any enforcement action if the Dealing Facility is conducted in the manner described in this letter without conforming to the terms of Section 13(e) of the Exchange Act and Rule 13e-4 thereunder. Such relief would be appropriate because the Dealing Facility does not give rise to the potential for abuse that Rule 13e-4 is designed to prevent. As the Commission noted in the release adopting Rule 13e-4:

Rule 13e-4 responds to a major Congressional concern underlying the Williams Act to ensure that tender offers are conducted on appropriate terms and conditions in light of the special market and investment decision problems which attend such offers.23

Because the sales of GE Shares through the Dealing Facility are made at market prices (which are averaged to calculate the Average Sale Price), because any pressure that Eligible Holders may feel to participate in the Dealing Facility may be lessened by virtue of both the Exchange Ratio adjustment mechanism and the requirement for final Court approval, and because Eligible Holders will have available adequate information about GE and the Dealing Facility, the Dealing Facility does not implicate the "special market and investment decision problems" that may arise in issuer tender offers.

Rule 13e-4 was designed with a conventional issuer tender offer in mind, and many of its substantive provisions are either irrelevant in the context of the Dealing Facility or would lead to an anomalous result if applied literally. Nonetheless, the Dealing Facility has been structured to address the underlying concerns of Rule 13e-4. Specifically:

  1. Participating Eligible Holders will have withdrawal rights (i.e., they may revoke their sale orders) up until the Revocation Deadline of noon (London time) on the third business day before the first day on which Goldman Sachs will begin execution of sales under the Dealing Facility as described in Section III.E. (The period of "irrevocability" between the Revocation Deadline and execution of sale orders under the Dealing Facility is necessary for administrative reasons.) Moreover, Eligible Holders will have the benefit of both the Exchange Ratio adjustment mechanism and the requirement for final Court approval. Lastly, in order to shorten the period in which Eligible Holders will be exposed to market and currency risk after the final Exchange Ratio is set, the Registrar, DnB, Citibank, BoNY and Goldman Sachs will take all reasonable steps to execute the aggregated sale orders within five business days after the Effective Date.
     
  2. No Eligible Holder on whose behalf GE Shares are sold will receive preferential treatment under the Dealing Facility, because the per share consideration paid to each Eligible Holder who sells shares through the Dealing Facility will be the same Average Sale Price. This comports with the purpose of the "best price" requirement of paragraph (f)(8)(ii) of Rule 13e-4.
     
  3. Payment for GE Shares sold through the Dealing Facility will be mailed as soon as practicable after execution, and no later than 14 calendar days after the Effective Date, subject only to the occurrence of any force majeure event referred to in Section III.E
     
  4. Eligible Holders who choose to hold their GE Shares rather than selling them through the Dealing Facility will still have available to them alternative methods of disposing of their GE Shares at market prices, such as through their own brokers.

Furthermore, in light of the nature of the Dealing Facility, the disclosure and dissemination of information about GE and the Dealing Facility to Eligible Holders in connection with the Acquisition and the Dealing Facility will be sufficient to alleviate any concerns relating to the "special investment decision problems" that may be posed by issuer tender offers without compliance with the filing and disclosure requirements of Rule 13e-4. The Scheme Document contains disclosures about GE and GE Investments that are substantially comparable to those that would be required to be included (including via incorporation by reference) in a Registration Statement on Form S 4. Any subsequent financial information about GE will be available through the public filings of GE, which will be available on GE's website and by mail upon request of any Eligible Holder.

Eligible Holders will also receive a detailed description of the Dealing Facility itself, in separate materials prepared for use in connection with the Dealing Facility. The Dealing Facility Materials will contain the same information that would be provided if GE and GE Investments were to file a Schedule TO in connection with the Dealing Facility.

With respect to the dissemination requirements of paragraph (e)(1) of Rule 13e-4, it is important to note that the Dealing Facility materials will be mailed to all Eligible Holders, and the Acquisition Documents will be mailed to all Amersham Securityholders (including all Eligible Holders) and furnished to the Commission by Amersham on Form 6-K. This goes beyond what is required by paragraph (e)(1), which permits dissemination of cash issuer tender offers by long-form or summary publication.

In sum, because of its limited purpose, the lack of any premium over market prices at the time of sale (apart from the absorption of certain transaction costs) and the lack of any appreciable market impact, we do not believe that operation of the Dealing Facility as described herein could constitute a "fraudulent, deceptive or manipulative act or practice" necessitating imposition of the express requirements of Rule 13e-4.

C. Rule 14e-1(b) and (c) under the Exchange Act

For the reasons set forth above under Section IV.B., in our opinion the Dealing Facility does not constitute an issuer tender offer within the meaning of Section 13(e) of the Exchange Act. However, if the Staff cannot concur with our opinion, we request confirmation that the Staff will not recommend that the Commission take any enforcement action if the Dealing Facility does not comply with Rule 14e-1(b) and (c).

D. Rule 14e-5 under the Exchange Act

For the reasons set forth above under Section IV.B., in our opinion the Dealing Facility does not constitute an issuer tender offer within the meaning of Section 13(e) of the Exchange Act. However, if the Staff cannot concur with our opinion, we request confirmation that the Staff will not recommend that the Commission take any enforcement action if GE, GE Investments, Goldman Sachs, the Registrar, DnB or Citibank (or their respective affiliates) make open market purchases of GE Shares outside of the Dealing Facility while the Dealing Facility is in effect.

If the Dealing Facility is deemed to constitute an issuer tender offer, GE, GE Investments and any other "covered persons" as defined in Rule 14e-5(c)(3) would be prohibited from purchasing or arranging to purchase GE Shares during the period the Dealing Facility is in effect except as part of the tender offer. We note that GE, GE Investments and their affiliates will not purchase GE Shares during the period sales are executed under the Dealing Facility. We also note that none of Goldman Sachs, the Registrar, DnB or Citibank is acting as a "dealer-manager" or otherwise soliciting participation in, or making recommendations with respect to, the Dealing Facility and therefore will not function as true "covered persons" for which the proscriptions of Rule 14e-5 were designed.

We believe that, because the Dealing Facility will extend to all Eligible Holders and treat all Eligible Holders equally, the Dealing Facility will be consistent with the purposes of Rule 14e-5 to ensure that shareholders to whom an offer is extended are treated equally, and to prevent larger shareholders from demanding greater or different consideration for the tender of their shares than that which is paid pursuant to the tender offer. Consequently, any such purchases by GE and any other covered persons should not raise any regulatory concerns about disparate treatment of persons to whom the Dealing Facility is available. Any such purchases will be made for purposes independent of the Dealing Facility, and no purchases will knowingly be made directly from an Eligible Holder.

In sum, we do not believe that operation of the Dealing Facility as described herein could constitute a "fraudulent, deceptive or manipulative act or practice" necessitating imposition of the express requirements of Rule 14e-5.

E. Regulation M

The Dealing Facility does not involve any special "selling efforts" or "selling methods", and thus will not involve a "distribution" as defined in Rule 100 of Regulation M. Accordingly, no relief is sought from Regulation M for purchases of GE Shares by GE or GE Investments during the pendency of the Dealing Facility.

F. Section 15 of the Exchange Act

We believe that the roles of GE, GE Investments, the Registrar, DnB and Citibank in connection with the Dealing Facility should not require any of them to register as "brokers" or "dealers" under Section 15 of the Exchange Act. All Dealing Facility transactions will be effected by Goldman Sachs, a registered broker-dealer, on the NYSE. As described in detail in Section III, the roles of GE, GE Investments, the Registrar, DnB and Citibank will be purely administrative, and none will dictate the timing or otherwise control the execution of sales of GE Shares under the Dealing Facility.

Moreover, Citibank is a "bank" within the meaning of Section 3(a)(6) of the Exchange Act. As such it is entitled to rely on a temporary exemption from the definition of "broker" under Section 3(a)(4) of the Exchange Act.24

The Registrar and DnB, which are non-U.S. institutions, are acting in their capacities as registrars of Amersham Shares to facilitate the administration of the Dealing Facility, which is being provided as an accommodation to the Eligible Holders who are predominantly non-U.S. residents.

Accordingly, we request the Staff's assurance that it will not recommend enforcement action if GE, GE Investments, the Registrar, DnB and Citibank conduct their respective activities under the Dealing Facility without complying with the registration requirements of Section 15 of the Exchange Act.

* * * * *

If for any reason the Staff does not concur with the views stated in this letter or is unable to grant the relief requested hereby, we respectfully request the opportunity to discuss by telephone any questions or comments members of the Staff may have before any written response to this letter is issued. Please do not hesitate to contact me at (212) 310-8438 or Danielle Do at (212) 310-8698 with your questions, comments or requests for additional information.

In accordance with Securities Act Release No. 33-6269, seven additional copies of this letter are enclosed.

Sincerely,

Ellen J. Odoner

cc:

Robert Plesnarski, Esq.
Special Counsel, Office of Chief Counsel
Division of Corporation Finance
Securities and Exchange Commission

David K. Ritenour, Esq.
Special Counsel, Office of Electronics and Machinery
Division of Corporation Finance
Securities and Exchange Commission

Michael R. McAlevey
Chief Corporate and Securities Counsel
General Electric Company

Frances Murphy
Slaughter and May

Sarah Murphy
Freshfields Bruckhaus Deringer


Endnotes


http://www.sec.gov/divisions/corpfin/cf-noaction/ge022404.htm


Modified: 04/28/2004