April 4, 2005
Richard D. Pritz
Clifford Chance US LLP
31 West 52nd Street
New York, NY 10019
Offer by Barclays Bank PLC for shares of Absa Group Limited
File No. TP 05-53
Dear Mr. Pritz:
This is in response to your letter dated April 4, 2005, as supplemented by conversations with the staff. A copy of that letter is attached with this response. By including a copy of your correspondence, we avoid having to repeat or summarize the facts you presented. The defined terms in this letter have the same meaning as in your letter, unless otherwise noted.
The United States Securities and Exchange Commission (the "Commission") hereby grants an exemption from Rule 14e-5 under the Securities Exchange Act of 1934 (the "Exchange Act") 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 Offer is required to be conducted in accordance with the South African Companies Act, 1973 (the "Act") and the Securities Regulation Code on Takeovers and Mergers (the "Code");
- Absa Group Limited, a corporation organized under the laws of the Republic of South Africa, is a "foreign private issuer," as defined in Rule 3b-4(c) under the Exchange Act; and
- Any purchases of Shares by (i) Barclays Bank PLC ("Barclays"), a corporation incorporated under the laws of England, (ii) its advisors, or (iii) any broker or other financial institution acting as its or their agent (collectively, the "Prospective Purchasers"), will be subject to the Act and the Code.
The Commission grants this exemption from Rule 14e-5 under the Exchange Act to permit the Prospective Purchasers to purchase or arrange to purchase Shares otherwise than pursuant to the Offer, subject to the following conditions:
- No purchases or arrangements to purchase Shares, otherwise than pursuant to the Offer, shall be made in the United States;
- The Offer Document shall disclose prominently the possibility of purchases or arrangements to purchase Shares by the Prospective Purchasers, otherwise than pursuant to the Offer;
- Barclays shall improve the Offer to match any more favorable consideration provided in purchases or arrangements to purchase Shares agreed to or provided by the Prospective Purchasers outside the Offer during the period from the announcement date to the time of termination or expiration of the Offer;
- The Prospective Purchasers shall disclose in the United States by means of postings to the English-language Investor Relations pages of Barclays' website, to the extent such information is made public in South Africa pursuant to the Act, information regarding all purchases of Shares other than pursuant to the Offer subsequent to the announcement date;
- The Prospective Purchasers shall provide to the Division of Market Regulation (the "Division"), upon request, a daily time-sequenced schedule of all purchases of Shares by the Prospective Purchasers, otherwise than pursuant to the Offer, on a transaction-by-transaction basis, including:
- size, broker (if any), time of execution, and price of purchase; and
- if not executed on the JSE, the exchange, quotation system, or other facility through which the purchase occurred;
- Upon the request of the Division, the Prospective Purchasers shall transmit the information as specified in paragraphs (5)(a) and (5)(b) above to the Division at its offices in Washington, D.C. within 30 days of its request;
- The Prospective Purchasers shall comply with the applicable laws of South Africa, including the Act;
- The Prospective Purchasers shall retain all documents and other information required to be maintained pursuant to this exemption for a period of not less than two years from the date of the termination or expiration of the Offer;
- Representatives of the Prospective Purchasers shall be made available (in person at the offices of the Division in Washington, D.C., or by telephone) to respond to inquiries of the Division relating to such records; and
- Except as otherwise exempted herein, the Prospective Purchasers shall comply with Rule 14e-5.
The foregoing exemption from Rule 14e-5 under the Exchange Act does not apply to purchases or arrangements to purchase Shares prior to this exemption being granted, 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, we 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 the Offer must comply with these and any other applicable provisions of the federal securities laws. 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
Division of Market Regulation
The Incoming Letter is in Acrobat format.