Diane Kerr, Esq.
Davis Polk & Wardwell
450 Lexington Avenue
New York, NY 10017
Re: Songbird Acquisition Limited
File No.: TP 04-45
Dear Ms. Kerr:
This is in response to your letter dated April 22, 2004. 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.
On the basis of your representations and the facts presented, but without necessarily concurring in your analysis, 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), particularly in light of the following facts:
- The Offer is required to be conducted in accordance with the U.K. City Code on Takeovers and Mergers (City Code);
- Canary Wharf Group plc (Canary Wharf), a public limited company incorporated under the laws of England and Wales, is a "foreign private issuer," as defined in Rule 3b-4(c) under the Exchange Act;
- Any purchases of Ordinary Shares of Canary Wharf by (i) Songbird Acquisition Limited (Bidco), a limited liability company incorporated under the laws of England and Wales, (ii) Morgan Stanley & Co. Limited and N.M. Rothschild & Sons Limited (together, the "Advisors"), or (iii) other financial institutions or brokers, in each case acting as agents for Offeror (collectively, the Prospective Purchasers), will be subject to the City Code; and
- The existence of the Memorandum of Understanding on Exchange of Information between the Commission and the United Kingdom Department of Trade and Industry in Matters Relating to Securities and the United States Commodity
Futures Trading Commission and the United Kingdom Department of Trade and Industry in Matters Relating to Futures, dated September 25, 1991.
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 purchases or arrangements to purchase Canary Wharf Shares by the Prospective Purchasers, otherwise than pursuant to the Tender Offer;
- The Prospective Purchasers shall disclose in the United States information regarding purchases of Canary Wharf Shares, otherwise than pursuant to the Tender Offer, to the extent such information is made public in the United Kingdom pursuant to the City Code;
- The Prospective Purchasers shall comply with any applicable rules of the United Kingdom Organizations including the City Code and the rules and regulations of the United Kingdom Listing Authority and the London 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 Canary Wharf 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 London 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) above 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;
- The Prospective Purchasers shall comply with any applicable rules of U.K. organizations, including the City Code, the Auction Rules, and the rules of the London Stock Exchange;
- 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 expressed above does not apply to purchases or arrangements to purchase Ordinary Shares prior to this exemption being granted, 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, 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 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
Division of Market Regulation
The Incoming Letter is in Acrobat format.