Securities Exchange Act of 1934
Section 14 – Proxy and tender offer rules
Third-party tender offers
September 29, 2014
Via Facsimile and U.S. Mail
David B. Rockwell
Sullivan & Cromwell LLP
1 New Fetter Lane
London, EC4A 1AN
Re: UBS AG – Holding Company Reorganization
Dear Mr. Rockwell:
We are responding to your letter dated September 29, 2014 addressed 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 Swiss counsel. Unless otherwise noted, all capitalized terms in this letter have the same meaning as in your letter of September 29, 2014.
On the basis of your representations and the facts presented in your September 29, 2014 letter, the United States Securities and Exchange Commission hereby grants an exemption from:
- Rule 14d-11(e) under the Exchange Act. This relief permits UBS Group to accept and pay for shares tendered in the Subsequent Offer Period in accordance with Swiss law and practice and no later than the tenth Swiss trading day after the end of the Subsequent Offer Period. In this regard, we note that the applicable settlement period in the Subsequent Offer Period will be determined by Swiss law and will require the implementation of a capital increase for UBS Group; and
- Rule 14d-11(c) under the Exchange Act. This relief permits the UBS Group to commence the Subsequent Offer Period on the time frame outlined in your letter.
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:
- Section 14(d)(5) and Rule 14d-7(a)(1) under the Exchange Act. This no-action relief permits UBS Group to suspend withdrawal rights until publication of the definitive (rather than provisional) results of the Initial Offer Period during counting of tendered shares to determine whether the minimum acceptance condition has been satisfied;
- Rule 14d-11(d) under the Exchange Act. This no-action relief permits UBS Group to commence the Subsequent Offer Period after publication of the definitive (rather than provisional) results of the Initial Offer Period;
- Rule 14e-1(c) under the Exchange Act. This no-action relief permits settlement of shares tendered in the Initial Offer Period after publication of the definitive (rather than provisional) results of the Initial Offer Period, in accordance with Swiss law and practice; and
- Rule 13e-1 under the Exchange Act. This no-action relief would permit UBS to purchase its equity securities during the Exchange Offer without complying with the filing and fee requirements of Rule 13e-1 under the Exchange Act.
The foregoing exemptive and no-action relief is based solely on the representations and the facts presented in your letter of today’s date and the accompanying letter from Swiss 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. The no-action portion of this response expresses the Division’s position on enforcement action only and does not express any legal conclusion on the questions presented.
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,
Michele M. Anderson
Chief, Office of Mergers and Acquisitions
Division of Corporation Finance