Securities Exchange Act of 1934
Kraft Foods Inc. — Exchange Offer
Dear Ms. Saeed:
We are responding to your letter dated July 1, 2008 addressed to Nicholas P. Panos and Peggy Kim, as supplemented by telephone conversations with the staff, with regard to your request for no-action relief. To avoid having to recite or summarize the facts set forth in your letter, our response is attached to the enclosed copy of your letter. Unless otherwise noted, capitalized terms in this letter have the same meaning as in your letter.
On the basis of your representations and facts presented in your letter, the staff of the Division of Corporation Finance will not recommend that the Commission take enforcement action under Rules 13e-4(d)(1), 13e-4(e)(3), 13e-4(f)(1)(ii) or 14e-1(b) under the Exchange Act if Kraft conducts the Exchange Offer in the manner described in your letter. In issuing this no-action position, we considered the following facts, among others:
Kraft's disclosure of a specified dollar value of Splitco common stock that tendering Kraft security holders will receive in exchange for a dollar value of tendered Kraft common stock (subject to a limit on the exchange ratio);
The Pricing Mechanism for determining the number of shares of Splitco common stock to be received in exchange for shares of Kraft common stock is disclosed in the tender offer materials disseminated to security holders;
The Pricing Mechanism will remain constant throughout the duration of the Exchange Offer, and if there is a change in the Pricing Mechanism, the Exchange Offer will be extended;
If the limit on the exchange ratio is in effect at the close of trading on the last trading day prior to the expiration date (prior to giving effect to the Mandatory Extension), the Exchange Offer will be extended until 8:00 a.m. on the second trading day following the expiration date (prior to giving effect to the Mandatory Extension) in order to permit Kraft shareholders to tender or withdraw their Kraft Common Stock during those days;
Kraft will publish on a website maintained for the Exchange Offer the daily indicative calculated per share values and exchange ratios and will provide a toll-free number that Kraft security holders can use to obtain Exchange Offer pricing information;
Kraft will publish the final exchange ratio on the Exchange Offer website and in a press release no later than 4:30 p.m., New York City time, on the last trading day prior to the expiration date of the Exchange Offer and Kraft will file an amendment to its Schedule TO on the same date setting forth the same information;
Kraft will make available a notice of withdrawal in its printed materials and on the Exchange Offer website and will disclose the procedures for withdrawal, including the times and methods by which tenders and withdrawals must be made;
Kraft common stock and Ralcorp common stock are listed on the NYSE; and
Kraft's view that the trading prices of the Ralcorp common stock prior to the Merger are an appropriate proxy for the anticipated trading prices of Ralcorp common stock following the Merger.
The foregoing no-action positions are based solely on your representations and the facts presented in your letter dated July 1, 2008, as supplemented by telephone conversations with the Commission staff. This relief is strictly limited to the application of the rules listed above to the Exchange Offer. You should discontinue the Exchange Offer pending further consultations with the staff if any of the facts or representations set forth in your letter change.
We also direct your attention 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 and Rule 14e-3 thereunder. Responsibility for compliance with these and any other applicable provisions of the federal securities laws rests with the participants in the Exchange Offer. The Division of Corporation Finance expresses no view with respect to any other questions that the Exchange Offer may raise, including, but not limited to, the adequacy of the disclosure concerning, and the applicability of any other federal or state laws to, the Exchange Offer.
For the Division of Corporation Finance,
Nicholas P. Panos
Senior Special Counsel
Office of Mergers and Acquisitions
Division of Corporation Finance
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