October 24, 2005
Mr. Jeffrey M. Oakes, Esq.
Davis Polk & Wardwell
99 Gresham Street
London EC2V 7NG
Cash Offer by Macquarie Airports Copenhagen ApS for Kobenhavns Lufthavne A/S (Copenhagen Airports A/S), a Danish public company
TP No: 06-04
Dear Mr. Oakes:
This is in response to your letter dated October 24, 2005. A copy of that letter is attached with this response. By including a copy of your correspondence, we avoid having to repeat or summarize the facts you presented. The defined terms in this letter have the same meaning as in your letter, unless otherwise noted.
The United States Securities and Exchange Commission (Commission) hereby grants an exemption from Rule 14e-5 under the Securities Exchange Act of 1934 (Exchange Act) on the basis of your representations and the facts presented, but without necessarily concurring in your analysis, particularly in light of the following facts:
- The Offer is required to be conducted in accordance with the Danish Securities Trading Act and the rules of the Copenhagen Stock Exchange;
- Kobenhavs Lufthavne A/S (Copenhagen Airports A/S), a public limited company incorporated under the laws of Denmark, is a "foreign private issuer," as defined in Rule 3b-4(c) under the Exchange Act; and
- Any purchases of ordinary shares (Ordinary Shares) of Copenhagen Airports A/S by (i) Macquarie Airports Copenhagen ApS (MAp Copenhagen), a private limited company incorporated under the laws of Denmark, and its affiliates; (ii) any advisor, broker or other financial institution acting as its agent; or (iii) persons acting in concert with it or them (collectively, the Prospective Purchasers), will be subject to the Danish Securities Trading Act and the rules of the Copenhagen Stock Exchange;
The Commission grants this exemption from Rule 14e-5 under the Exchange Act to permit the Prospective Purchasers to purchase or arrange to purchase Ordinary Shares otherwise than pursuant to the Offer, subject to the following conditions:
- No purchases or arrangements to purchase Ordinary Shares, otherwise than pursuant to the Offer, shall be made in the United States;
- The Offer Document shall disclose prominently the possibility of, or the intention to make, purchases of Ordinary Shares by the Prospective Purchasers during the Offer;
- The Prospective Purchasers shall disclose in the United States information regarding purchases of Ordinary Shares to the extent such information is made public in Denmark in accordance with applicable rules;
- The Prospective Purchasers shall comply with any applicable requirements under Danish law, including the Danish Securities Trading Act and the rules of the Copenhagen Stock Exchange;
- The Prospective Purchasers shall provide to the Division of Market Regulation (Division), upon request, a daily time-sequenced schedule of all purchases of Ordinary 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 Copenhagen Stock Exchange, the exchange, quotation system, or other facility through which the purchase occurred;
- Upon the request of the Division, the Prospective Purchasers shall transmit the information as specified in paragraphs 5(a) and 5(b) 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 the 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 exemption is based solely on your representations and the facts presented in your letter dated October 24, 2005, and is strictly limited to the application of the rules and statutory provisions listed above to your proposed transaction. Such transaction 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 or representations.
In addition, we 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 the Offer must comply with these and any other applicable provisions of the federal securities laws. The Division of Market Regulation expresses no view with respect to any other questions that 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 Market Regulation
pursuant to delegated authority
James A. Brigagliano
Office of Trading Practices & Processing
The Incoming Letter is in Acrobat format.