June 4, 2002
Sarah Murphy, Esq.
Freshfields Bruckhaus Deringer
65 Fleet
Street
London, England EC4Y 1HS
Re: Kingfisher Plc Offer for Castorama Dubois Investissements
SCA
File No.: TP 02-68
Dear Ms. Murphy:
In regard to your letter dated May 17, 2002 as supplemented by
conversations with the staff, this response is attached to the enclosed
photocopy of your correspondence. By doing this, we avoid having to recite
or summarize the facts set forth in your letter. Unless otherwise noted,
each defined term in this letter has the same meaning as defined in your
letter.
Response:
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 Proposed Offer will comply with the applicable requirements of
French law, in particular the General Regulation of the Conseil des
Marches Financiers (CMF) and the regulations of the Comission des
Operations de Bourse (COB);
- Castorama Dubois Investissements SCA (Company), a company
incorporated in France, is a "foreign private issuer," as defined in
Rule 3b-4(c) under the Exchange Act, whose shares are not registered
under Section 12 of the Exchange Act or listed on a U.S. exchange or
quoted on the NASDAQ;
- Any purchases of the shares of the Company (Shares) by Kingfisher
plc (Offeror), a public limited company organized under the laws of
England, or any broker or other financial institution, in each case
acting as agents for Offeror (collectively, the Prospective Purchasers),
will be made in accordance with applicable French law; and
- The existence of the Administrative Agreement between the United
States Securities and Exhange Commission and the Commission des
Operations de Bourse de France, dated December 14, 1989.
The Commission grants this exemption from Rule 14e-5 under the Exchange
Act to permit the Prospective Purchasers to purchase or arrange to
purchase Shares otherwise than pursuant to the Proposed Offer, subject to
the following conditions:
- No purchases or arrangements to purchase Shares, otherwise than
pursuant to the Proposed Offer, shall be made in the United
States;
- Any purchases or arrangements to purchases Shares outside of the
Proposed Offer will occur exclusively on the Euronext Paris and will be
supervised by the CMF pursuant to French law;
- The "note d'information" (offer document) shall disclose prominently
the possibility of, or the intention to make, such purchases of Shares
by the Prospective Purchasers during the Proposed Offer;
- The Prospective Purchasers shall disclose promptly in the United
States information regarding such purchases to the extent such
information is required to be made public in France under
French;
- The Prospective Purchasers shall comply with all applicable
provisions of French law, including the General Regulation of the CMF,
the regulations of the COB and the rules of the Euronext Paris
SA;
- The Prospective Purchasers shall provide to the Division of Market
Regulation (Division), upon request, a daily time-sequenced schedule of
all purchases of Shares made during the Proposed Offer, on a
transaction-by-transaction basis, including:
- size, broker (if any), time of execution, and price of purchase;
and
- a statement that all purchases have been made on the Premier
Marche of Euronext Paris SA;
- Upon the request of the Division, the Prospective Purchasers shall
transmit the information as specified in paragraphs 6.a. and 6.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 at least two years from the date of the termination of the
Proposed 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 from Rule 14e-5 under the Exchange Act is based
solely on your representations and the facts presented and is strictly
limited to the application of this rule to the proposed transactions. 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 or representations.
In addition, your attention is directed 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.
Responsibility for compliance with these and any other applicable
provisions of the federal securities laws must rest with the participants
in the Proposed Offer. The Division expresses 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.
For the Commission, by the Division of Market Regulation, pursuant to
delegated authority,
James A. Brigagliano
Assistant Director
Incoming Letter
The incoming
letter is attached in PDF format.
http://www.sec.gov/divisions/marketreg/mr-noaction/kingfisher060402.htm