U.S. Securities & Exchange Commission
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U.S. Securities and Exchange Commission

January 9, 2003    

Alan M. Klein
Simpson Thatcher & Bartlett
425 Lexington Avenue
New York, New York

Re:  Banyu Pharmaceutical Co. Ltd.
File No. TP 03-30

Dear Mr. Klein:

In regard to your letter dated January 9, 2003, 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.


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) on the basis of your representations and the facts presented, but without necessarily concurring in your analysis, particularly in light of the facts that:

  • Banyu is a foreign private issuer within the meaning of Rule 3b-4 (b) under the Securities Exchange Act of 1934 (Exchange Act);

  • The tender offer is required to be conducted in accordance with applicable Japanese statutory and regulatory requirements governing tender offers;

  • The Commercial Code of Japan (Commercial Code) provides for a Statutory Put for all holders of Shares constituting less than one unit.

The Commission grants this exemption from Rule 14e-5 under the Exchange Act to permit Banyu to comply with the Commercial Code and purchase Shares in the event that one or more odd-lot holders exercise their Statutory Puts during the Offer.

The foregoing exemption from Rule 14e-5 under the Exchange Act 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, 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 in the Offer. 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

Incoming Letter

The incoming letter is attached in PDF format.



Modified: 02/09/2005