August 29, 2002
Re: DB Sechste Vermögensverwaltungsgesellschaft mbH for Stinnes AG
Dear Mr. Strauch:
In regard to your letter dated August 9, 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.
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 following facts:
-- The Offer is required to be conducted in accordance with the German Securities Acquisition and Takeover Act (Wertpapierwerbs- und Übernahmegestz, (WpÜG));
-- Stinnes AG (Company), a company incorporated in Germany, is a "foreign private issuer," as defined in Rule 3b-4(c) under the Exchange Act;
-- Any purchases of the ordinary shares (Shares) of the Company by DB Sechste (Offeror), a limited liability company and wholly owned subsidiary of Deutsche Bahn AG, a German stock corporation, or other nominees or brokers, in each case acting as agents for Offeror (collectively, the Prospective Purchasers), will be subject to the WpÜG; and
-- The existence of the Memorandum of Understanding between the Commission and the German Bundesaufsichtsamt fur den Wertpapierhandel Concerning Consultation and Cooperation in the Administration and Enforcement of Securities Laws, dated October 17, 1997.
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:
You did not request, and we do not grant, an exemption for any purchases made after the tender offer was announced and prior to the date of this letter. 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,
James A. Brigagliano