Securities Exchange Act of 1934
Cash tender offer by UnitedHealth Group Inc. for all outstanding shares of Amil Participações S.A.
Via Facsimile at (212) 558-3588 and U.S. Mail
Sullivan & Cromwell LLP
125 Broad Street
New York, New York 10004-2498
Dear Mr. Sampas:
We are responding to your letter dated November 19, 2012 to Michele Anderson and Christina Chalk, as supplemented by telephone conversations with the staff, with regard to your request for exemptive and no-action relief. To avoid having to recite or summarize the facts set forth in your letter, we attach the enclosed photocopy of your correspondence and the accompanying letter from Brazilian counsel. Unless otherwise noted, all capitalized terms in this letter have the same meaning as in your letter of November 19, 2012.
On the basis of your representations and the facts presented in your letter, the United States Securities and Exchange Commission hereby grants an exemption from Rule 14e-1(d) under the Exchange Act. This exemption permits the Parties to announce any extensions of the tender offer in accordance with the timing and notice requirements of Brazilian law, as described in your letter. In this regard, we note your representation that the tender offer may be extended only in limited circumstances, and extension is permitted only with the prior approval of the Brazilian securities authorities (the Comissão de Valores Mobiliários or “CVM”). If the Parties submit an extension request to the CVM, they will announce this fact by among other means, filing a Current Report on Form 8-K on the same date the extension is sought. Similarly, the Parties will file a Current Report on Form 8-K and issue a press release on the date that the CVM announces its decision with respect to such extension request. As required by applicable Brazilian rules, the Parties will permit all holders of tendered Shares to withdraw their Shares and will not conduct the auction or otherwise purchase any Shares pursuant to the tender offer, unless and until the CVM issues its decision on whether to grant the extension request. We further note in granting this relief your representation that the Parties would be permitted to extend the offer in the manner described above and in accordance with Brazilian law and practice under Rule 14d-1(d)(2)(iii), but for the fact that U.S. holders currently own 47% of the Shares of Amil not held by UHG.
On the basis of your representations and the facts presented in your letter, the United States Securities and Exchange Commission hereby also grants an exemption from Rule 14e-5 under the Exchange Act for purchases outside the tender offer under the circumstances described in your letter dated November 19, 2012. In particular, we note your representation that all conditions of Rule 14e-5(b)(12)(i) will be satisfied except the requirements of Rule 14e-5(b)(12)(i)(B) and to the extent that outside purchases may have already occurred, the requirements of Rule 14e-5(b)(12)(D). We also note that with respect to purchases pursuant to and during the subsequent offering period, Brazilian law requires you to pay interest at a set rate on securities purchased during the subsequent offering period. The Commission’s grant of an exemption from Rule 14e-5 is subject to the following conditions:
Based on the representations made and the facts presented in your letter, the staff of the Division of Corporation Finance will not recommend enforcement action pursuant to Rule 14e-1(b) under the Exchange Act if the Parties pay consideration which will fluctuate during the subsequent offering period solely because of the interest accrued on Shares tendered during that period, without extending the offer period as would be required under Rule 14e-1(b). We note that Brazilian law requires payment of interest at a specified rate as described in your letter for Shares tendered during the subsequent offering period.
The foregoing exemptive and no-action relief is based solely on the representations and the facts presented in your letter dated November 19, 2012 and the accompanying letter from Brazilian counsel of the same date and does not represent a legal conclusion with respect to the applicability of the statutory or regulatory provisions of the federal securities laws. The relief is strictly limited to the application to this transaction of the statutory provisions and rules listed above. You should discontinue this transaction pending further consultations with the staff if any of the facts or representations set forth in your letter change. In addition, this position is subject to modification or revocation if at any time the Commission or the Division of Corporation Finance determines that such action is necessary or appropriate in furtherance of the purposes of the Exchange Act.
We also 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 this transaction must comply with these and any other applicable provisions of the federal securities laws. The Division of Corporation
Finance expresses no view on any other questions that may be raised by the proposed transaction, 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 Corporation Finance
pursuant to delegated authority,
Mauri L. Osheroff
Associate Director, Regulatory Policy
Division of Corporation Finance
The Incoming Letters are in Acrobat format.
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