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U.S. Securities and Exchange Commission

October 16, 2002

John O'Connor, Esq.
Sullivan & Cromwell
125 Broad Street
New York, NY 10004-2498

Re: Bank of Ireland
File No. TP: 03-04

Dear Mr. O'Connor:

In regard to your letter dated October 16, 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:

On October 8, 2002, in response to your letter dated October 8, 2002, the Commission granted an exemption from Rule 14e-5 of the Securities Exchange Act (Exchange Act) to permit BOI's Ireland based broker-dealer subsidiary, Davy, to execute, either as agent or principal: unsolicited orders initiated by customers who are not covered persons for purposes of Rule 14e-5, and the other side of the trade that may involve either an unsolicited or solicited order.1

In your letter dated October 16, 2002, you seek an additional exemption from Rule 14e-5 to permit BOI's Ireland based discretionary fund manager and wholly-owned subsidiary, BIAM, to effect model portfolio purchases, discretionary purchases, and client account transfers. Additionally, you seek a limited modification of the October 8th exemption to permit BIAM continued access to Davy in order for BIAM to execute trades through Davy to obtain best execution.

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) to permit BIAM: 1) to purchase BOI ordinary shares in connection with its management of model portfolios; 2) to purchase BOI ordinary shares for its investment management clients on a discretionary basis; 3) to effect client initiated account transfers to and from BAIM that may result in purchases of BOI ordinary shares; and, 4) to effect unsolicited purchases of BOI ordinary shares through Davy. The Commission grants this exemption 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 principal markets for BOI ordinary shares are in Ireland and the United Kingdom;
     
  • All exempt transactions would be effected in markets outside the United States;
     
  • The model portfolio purchases, discretionary purchases, and client account transfers described in your October 16th letter are permitted in both Ireland and the United Kingdom;
     
  • The Irish Takeover Law and the U.K. City Code provide for public disclosure of all transactions effected by BIAM;
     
  • Chinese walls are in place between BIAM and BOI; and
     
  • BIAM's investment management staff will make investment decisions independent of BOI and other BIAM functions.

      This exemption modifies the exemption granted on October 8, 2002 that allows Davy to execute unsolicited orders initiated by customers who are not covered persons for purposes of Rule 14e-5. BIAM may be considered a covered person for purposes of Rule 14e-5. This limited modification to the exemption granted on October 8, 2002 is to permit BIAM to effect unsolicited purchases of BOI ordinary shares through Davy in connection with the management of model portfolios, discretionary trades, and client account transfers.

      The Commission grants this exemption from Rule 14e-5 under the Exchange Act subject to the following conditions:

      1. No purchases or arrangements to purchase shall be made in the United States outside the offer by NewBOI for BOI ordinary shares (Offer);
         
      2. All purchases of BOI ordinary shares by BIAM shall be effected in the ordinary course of business and not for the purpose of facilitating the Offer;
         
      3. The registration statement and any other Offer documents disclose the possibility of, or the intention to make, purchases of BOI ordinary shares by BIAM outside the Offer;
         
      4. There are Chinese walls in place between BIAM and BOI;
         
      5. BIAM shall provide to the Division of Market Regulation (Division), upon request, records of all transactions executed in reliance on this exemption, on a transaction by transaction basis, including the date, size, time of execution, price, broker and markets;
         
      6. Upon request of the Division, BIAM shall transmit the information as specified in item 5 to the Division at its offices in Washington, D.C. within 30 days of its request;
         
      7. BIAM shall retain all documents and other information required to be maintained pursuant to this exemption during the period when Rule 14e-5 would apply and for a period of not less than 2 years therafter;
         
      8. Representatives of BIAM shall be made available (in person at the office of the Division in Washington, D.C. or by telephone), to respond to inquiries of the Division relating to their records; and
         
      9. Except as otherwise exempted by this letter, or the Division's letter dated October 8, 2002, BIAM and Davy shall comply with Rule 14e-5.

      The foregoing exemption from Rule 14e-5 is based solely on your representations and the facts presented and is strictly limited to the application of Rule 14e-5 to the 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 to the proposed transactions. 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
      Division of Market Regulation

      1 Letter regarding Bank of Ireland, TP 03-01, October 8, 2002.

      Incoming Letter

      The incoming letter is attached in PDF format.

      http://www.sec.gov/divisions/marketreg/mr-noaction/abbynational101602.htm

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      Modified: 02/10/2005