SEC no-action letter: 91 Profi-Start 2004 GmbH for P & I Personal & Informatik Aktiengesellschaft

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June 24, 2004

Mr. Mark Strauch, Esq. Freshfields Bruckhaus Deringer Frankfurt Taunusanlage 11 60329 Frankfurt am Main

Re: Offer by 91 Profi-Start 2004 GmbH for P & I Personal & Informatik Aktiengesellscaft File No. TP 04-63

Dear Mr. Strauch:

This is in response to your letter dated June 24, 2004. 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.

On the basis of your representations and the facts presented, but without necessarily concurring in your analysis 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 91 Profi-Start GmbH 2004 (the Bidder) and Carlyle European Venture Partners, L.P. (Carlyle) to purchase or arrange to purchase P & I Personal & Informatik Shares (the Company) pursuant to the Sale and Purchase Agreement and to permit purchases of Shares outside the Offer by any Prospective Purchaser, particularly in light of the following facts:

The Offer is required to be conducted in accordance with the German Securities Acquisition and Takeover Act (Wertpapiererwerbs-und Ubernahmegesetz, WpUG);

The Company, a public company incorporated under the laws of Germany, is a "foreign private issuer," as defined in Rule 3b-4(c) under the Exchange Act;

Any purchases of Ordinary Shares of the Company by (i) Carlyle, a limited partnership organized under the laws of the Cayman Islands, (ii) the Bidder, a limited liability company organized under the laws of Germany and wholly-owned indirect subsidiary of Carlyle or (iii) financial advisors and other nominees or brokers, in each case acting as agents for Carlyle and the Bidder (collectively, the Prospective Purchasers), will be subject to the WpUG;

Arrangements such as the Sale and Purchase Agreement are permitted under applicable German law and under the WpUG;

The Sale and Purchase Agreement is unconditional pending clearance of the transaction with the German Federal Cartel Office;

The WpUG requires that the price at which the Offer is made must be equal to or higher than the price paid under the Sale and Purchase Agreement; and

No further consideration, direct or indirect, will be given under the Sale and Purchase Agreement beyond the price set in the Agreements.

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, or the intention to make, purchases of Shares by the Prospective Purchasers (including any purchase under the Purchase and Sale Agreement) during the Offer;

The Prospective Purchasers shall disclose in the United States information regarding all purchases of Shares, otherwise than pursuant to the Offer since the Announcement Date, to the extent such information is made public in Germany pursuant to the WpUG;

The Prospective Purchasers shall comply with any applicable rules under German law including the WpUG;

The Prospective Purchasers shall provide to the Division of Market Regulation (Division), upon request, a daily time-sequenced schedule of all purchases of Shares made by any of them during 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 Frankfurt Stock Exchange, 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)(1) and (5)(2) above to the Division at its offices in Washington, D.C. within 30 days of its request;

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 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 their 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 expressed above 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 of Market Regulation 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

Attachment

Incoming Letter:

June 24, 2004

CONFIDENTIAL TREATMENT REQUESTED

Dear Mr. Brigagliano:

Re: Offer by 91 Profi-Start 2004 GmbH for P & I Personal & Informatik Aktiengesellschaft

We are writing on a confidential basis on behalf of our client, 91 Profi-Start GmbH 2004 (the Bidder ), a limited liability company organized under the laws of Germany and wholly-owned, indirect subsidiary of Carlyle European Venture Partners, L.P., a limited partnership organized under the laws of the Cayman Islands ( Carlyle ), a private equity buy-out fund advised and managed by The Carlyle Group, a global private equity group ( The Carlyle Group ). The Bidder intends to commence an offer (the Offer ) for P & I Personal & Informatik Aktiengesellschaft, a company incorporated as an Aktiengesellschaft in Germany (the Company ). The Bidder's intention is to commence the Offer on or about July 26, 2004. The Offer was publicly announced on June 17, 2004 (the Announcement Date ).

As previously discussed with members of the Staff of the Securities and Exchange Commission (the Commission ), we, as U.S. counsel to the Bidder and Carlyle in connection with the Offer, are requesting exemptive relief from Rule 14e-5 ( Rule 14e-5 ) promulgated under the Securities Exchange Act of 1934, as amended (the Exchange Act ).

The Offer will be made in cash to the holders of all the issued and outstanding non-par-value bearer shares of the Company (the Shares ) at a price of �7.40 per share. At present, Ingeborg E. and Egbert K. Becker (the Beckers ), residents of Germany, hold 4,719,000 Shares or, as of June 17, 2004, approximately 61.3% of the registered share capital of the Company. Prior to the announcement of the Offer, the Bidder and the Beckers entered into a sale and purchase agreement, dated June 17, 2004 (the Sale and Purchase Agreement ). Under the Sale and Purchase Agreement, the Beckers have agreed to sell at a price of �7.40 per share the entire stake held by them in the registered share capital of the Company upon the clearance of the transaction with the German Federal Cartel Office. It is anticipated that the aforementioned sale will occur after the commencement of the Offer but while the Offer is pending. We note that the Sale and Purchase Agreement and similar contractual arrangements are permissible under applicable German law and under the German Securities Acquisition and Takeover Act ( Wertpapiererwerbs- und �bernahmegesetz, Wp�G ).

BACKGROUND

The Company

The Company has informed the Bidder that it is a foreign private issuer as defined in Rule 3b-4(c) of the Exchange Act. The Shares are not registered under Section 12 of the Exchange Act, listed on a U.S. national securities exchange, or quoted on Nasdaq. Further, the Company does not file reports with the Commission pursuant to Section 13(a) or 15(d) of, or furnish information to the Commission pursuant to Rule 12g3-2(b) of, the Exchange Act.

According to publicly available information, the Company is a distributor of software for personnel management applications. The Company also provides maintenance and other related services in this sector. The Company is headquartered in Wiesbaden, Germany and has operations throughout central Europe. For the financial year ended March 31, 2004, the Company's worldwide consolidated turnover was approximately �40.1 million. The consideration offered by the Bidder in the Offer values the Company at �56.98 million.

The primary market for the Shares is the regulated market (Geregelter Markt) of the Frankfurt Stock Exchange. The Shares are also traded on the over-the-counter markets of the D�sseldorf, Berlin-Bremen, Hamburg, Hannover and Stuttgart Stock Exchanges.

As of June 17, 2004, the registered share capital of the Company was equal to �7.7 million divided by 7.7 million non-par-value bearer shares, or a proportionate amount of �1.00 per non-par-value bearer share in the registered share capital.

As the Shares are in bearer form, it is not possible to fully ascertain the location of ownership of the Shares. There does not appear to be any publicly available information concerning the number of holders located in the United States who hold Shares ( U.S. Holders ). In addition, the Company has informed the Bidder that it does not have any information concerning the U.S. ownership of the Shares.

Based upon the Bidder's and Carlyle's review of the publicly available information and information provided by the Company, there does not appear to be a shareholder of the Company (other than the Beckers who are residents of Germany) who holds Shares in an aggregate amount greater than or equal to 10% of the registered share capital of the Company. In addition, based upon the fact that the Beckers own , as of June 17, 2004, approximately 61.3% of the registered share capital of the Company the Bidder represents that U.S. Holders do not comprise greater than 40% of the outstanding registered share capital of the Company.

It is possible, and it is our understanding to be the developing practice in German takeover offers, for a bidder to retain a financial advisor or information agent to make blind inquiries of depositary banks in Germany as part of the required inquiry to determine the availability of the cross-border exemptions under Rule 14d-1(c) and Rule 14e-5(b)(10) of the Exchange Act (collectively, the Tier I Exemption ) (see the instructions to paragraphs (c) and (d) of Rule 14d-1 of the Exchange Act). However, due to the limited information available as to the holders of bearer shares of German companies such surveys cannot be comprehensive and are necessarily incomplete. It is our understanding that an inquiry of this nature typically takes 2-3 weeks.

Accordingly, at present, the Bidder has not yet been able to determine the number of U.S. Holders of the Company for purposes of the availability of the Tier I Exemption.

The Bidder

The Bidder is a foreign private issuer as defined in Rule 3b-4(c) of the Exchange Act. The registered share capital of the Bidder is �25,000. The Bidder is a wholly owned, indirect subsidiary of Carlyle and, to date, the commercial activities of the Bidder have not extended beyond the administration of its own assets.

Carlyle and The Carlyle Group

Carlyle is a private equity buy-out fund that is advised and managed by The Carlyle Group. Carlyle currently has approximately �550 million under management. The Carlyle Group is one of the world's largest private equity firms, with more than $18.3 billion under management. The Carlyle Group has 23 funds across five investment disciplines (management-led buyouts, real estate, leveraged finance, venture capital and turnaround) and operates out of offices in 14 countries in North America, Europe, and Asia.

OFFER STRUCTURE

The all cash Offer will be structured as a single offer made concurrently in Germany, the United States and certain other jurisdictions in which the Offer may be legally extended.

The Offer will be structured to comply with (i) the applicable rules and regulations of the Wp�G and (ii) except to the extent permitted pursuant to the relief requested herein or otherwise as permitted under the Tier I Exemption, Regulation 14E promulgated under the Exchange Act. The Offer will not be subject to Section 14(d) of the Exchange Act or Regulation 14D thereunder since no class of securities of the Company is registered under Section 12 of the Exchange Act. The Offer Document is expected to be published as detailed below on or about August 1, 2004.

Following the approval by the German Federal Institute for the Supervision of Financial Services ( Bundesanstalt f�r Finanzdienstleistungsaufsicht, BaFin ) to publish the Offer Document, the Bidder, will publish a notice ( Hinweisbekanntmachung, Initial Announcement ) announcing the commencement of the Offer in the B�rsen-Zeitung , a German newspaper of general circulation, and in the U.S. edition of The Wall Street Journal.

Under German law, an offer commences on the first day on which both the Offer Document and the Initial Announcement are publicly available.

The Offer will be communicated by means of the Offer Document, which will be published on the website http://www.ipcarbeteiligung.com in the German language and will be made available to U.S. Holders in the English language upon the request of such shareholders (which request can be made through the website or through a toll-free U.S. number). The foregoing procedure for making available the Offer Document to U.S. Holders is customary in such offers in Germany ( see, e.g. , The Third Supplement to the SEC Manual of Publicly Available Telephone Interpretations, II.D. Q. 1). Under the Wp�G the Offer must remain open for acceptance for at least 28 calendar days and for such additional period as may be mandated by the provisions of the Wp�G.

There is no condition with respect to the minimum number of Shares that need to be tendered into the Offer. The only condition to the consummation of the Offer is that the purchase under the Sale and Purchase Agreement shall have occurred. The purchase under the Sale and Purchase Agreement is itself unconditional pending clearance of the transaction with the German Federal Cartel Office.

Securities of listed German companies are frequently, as in this case, uncertificated and held in book entry form through Clearstream Banking AG. Accordingly, once an offer has commenced in Germany, shareholders will accept the offer by informing the bank, financial institution, brokerage or other intermediary (an Intermediary ) at which the shareholder maintains an account for Shares, at any time prior to or on the expiration date of the offer, of the shareholder's desire to tender the Shares and instruct their Intermediary to re-book such Shares into a to be identified German Securities Identification Number at Clearstream Banking AG.

Payment of the purchase price to the Intermediary is to take place in exchange for (Zug um Zug gegen) the transfer of the tendered Shares into the deposit account of a designated German bank at Clearstream Banking AG for transfer to Bidder. The designated German bank will transfer the purchase price to the Intermediary promptly after the tendered Shares have been placed at its disposal, but no earlier than five banking days and no later than seven banking days in Frankfurt am Main following expiration of the Offer and satisfaction of the conditions precedent pursuant to the offer document.

Credit of the purchase price at the Intermediary shall constitute fulfillment by the Bidder of its obligation for payment of the purchase price. The Intermediary shall be responsible to credit the purchase price to each shareholder.

Shareholders of the Company who have accepted the Offer may, if permitted by the Bidder, withdraw from the agreement concluded by such acceptance, without explanation, at any time prior to the expiration of the Offer. Such withdrawal shall be effected by written declaration through the Intermediary of the relevant shareholder and prior to expiration of the Offer, and by re-booking withdrawn Shares into a to be identified German Securities Identification Number at Clearstream Banking AG.

PURCHASES OUTSIDE THE OFFER AND RULE 14E-5

Under the Wp�G, Carlyle and the Bidder, acting directly and through their agents, financial advisors and other nominees or brokers, or through one of their wholly-owned subsidiaries (collectively, the Prospective Purchasers ), are each permitted to purchase Shares in the open market, pursuant to contractual arrangements (i.e., the purchase of Shares contemplated by the Sale and Purchase Agreement) or otherwise prior to and during the pendency, but outside, of the Offer, subject to certain limitations.

Subject to certain exceptions, Rule 14e-5 prohibits a covered person from directly or indirectly purchasing or arranging to purchase any securities to be acquired in a tender offer for equity securities or any securities immediately convertible into, exchangeable for or exercisable for such securities, except as part of the tender offer. This prohibition applies from the time the offer is publicly announced until the offer expires. Rule 14e-5 defines a covered person as (i) the offeror, its dealer-managers, and any of their respective affiliates, (ii) any advisors of the foregoing whose compensation is dependent on the completion of the offer, and (iii) any person acting in concert either directly or indirectly with any of the foregoing. Purchases by the Bidder, Carlyle and other covered persons acting on its behalf of Shares outside the Offer may not fall within any of the excepted activities specifically outlined in Rule 14e-5. Accordingly, in the absence of exemptive relief, such purchases, although permitted and regulated by the Wp�G, may be prohibited after the public announcement of the Offer. 1 In such circumstances, the purchase by the Bidder at the closing under the Sale and Purchase Agreement would not fall within any of the excepted activities specifically outlined in Rule 14e-5, particularly the exceptions to Rule 14e-5 in clause (b)(7) thereof since there was a condition outstanding under this agreement on the Announcement Date. Thus, in the absence of exemptive relief, such purchases may be prohibited by Rule 14e-5.

The Wp�G provides protections similar to those provided by Rule 14e-5, making exemptive relief appropriate in the circumstances of the Offer, by requiring the Bidder to make available to all holders of the securities subject to the tender offer, any more favourable terms, including price terms, agreed to in connection with any purchases by the Bidder or any of its affiliates during the offer period, including any purchases under contractual arrangements (i.e. the purchases under the Sale and Purchase Agreement). Under � 31 para. 4 Wp�G, the Bidder would be obligated to increase the Offer price to the level of any higher purchase price outside the Offer. In addition, pursuant to � 23 para. 2 Wp�G, any purchases by the Bidder during the offer period must be reported to the BaFin and announced publicly immediately following such purchases. Any purchases of the Bidder prior to the commencement of the offer period must be disclosed in the Offer Document.

REQUESTED EXEMPTIVE RELIEF

Based on the foregoing, we respectfully request that each of the Prospective Purchasers be granted exemptive relief from the provisions of Rule 14e-5 in order to permit open market purchases of Shares outside the Offer by any Prospective Purchaser (by or on behalf of Carlyle or the Bidder) that would otherwise be prohibited by Rule 14e-5. In particular, we respectfully request that the Bidder be granted exemptive relief from the provisions of Rule 14e-5 to permit any direct or indirect purchase of Shares outside the Offer that may be made under or pursuant to the Sale and Purchase Agreement while the Offer is pending. The foregoing request for exemptive relief will be subject to the following conditions:

No purchases or arrangements to purchase Shares, otherwise than pursuant to the Offer, will be made in the United States;

Disclosure of the possibility of such purchases by the Prospective Purchasers, otherwise than pursuant to the Offer, will be included prominently in the Offer Document;

The Prospective Purchasers shall disclose in the United States, to the extent such information is made public in Germany pursuant to the Wp�G, information regarding all purchases of Shares otherwise than pursuant to the Offer since the Announcement Date, including the dates of such purchases, the number of shares purchased on any given date, and the average market price of such purchases;

The Bidder shall disclose to the Division of Market Regulation of the Commission (the Division of Market Regulation ) upon request, a daily time-sequenced schedule of all purchases of Shares made by any of the Prospective Purchasers during the Offer, on a transaction-by-transaction basis, including size, broker (if any), time of execution, and price of purchase; and (2) if not executed on the Frankfurt Stock Exchange, the exchange, quotation system, or other facility through which the purchase occurred;

Upon request of the Division of Market Regulation, the Bidder shall transmit the information specified in d(1) and d(2) above to the Division of Market Regulation at its offices in Washington, D.C. within 30 days of its request;

The Prospective Purchasers shall comply with the applicable requirements under the Wp�G and other applicable German laws;

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 of the Offer;

Representatives of the Prospective Purchasers shall be made available (in person at the offices of the Division of Market Regulation in Washington, D.C. or by telephone) to respond to inquiries of the Division of Market Regulation relating to such records; and

Except as otherwise exempted herein, the Prospective Purchasers shall comply with Rule 14e-5.

We believe the exemptive relief requested herein under Rule 14e-5 is consistent with that granted by the Commission in the letter regarding the offer by DB Sechste Verm�gensverwaltungsgesellschaft mbH for Stinnes AG (available August 29, 2002). In addition, similar relief has been granted under old Rule 10b-13 (the predecessor of Rule 14e-5) in the letter regarding the offer by Vodafone AirTouch Plc for Mannesmann Aktiengesellschaft (available December 22, 1999), and in other jurisdictions in the past such as the letter regarding the offer by Glaxo plc for Wellcome plc (available February 7, 1995), the letter regarding the offer by PacifiCorp for the Energy Group plc (available June 23, 1997), the letter regarding the offer by Textron for Ransomes plc (available December 2, 1997), the letters regarding the offer by Doncasters plc for Triplex Lloyd plc dated December 19, 1997 and March 11, 1998, the letter regarding the offer by Akzo Nobel N.V. for Cortaulds plc (available April 20, 1998), the letter regarding the offer by Kuoni Holdings plc for Kuoni Reisen Holdings AG (available June 16, 1999). In addition, we note the existence of the Memorandum of Understanding Between the Commission and the German Bundesaufsichtsamt f�r den Wertpapierhandel Concerning Consultation and Cooperation in the Administration and Enforcement of Securities Laws, dated October 17, 1997.

Pursuant to 14 C.F.R. 200.81(b), we respectfully request on behalf of the Bidder and Carlyle that this exemptive request and the response be accorded confidential treatment until 120 days after the date of the response to such request or such earlier date as the staff of the Commission is advised that all of the information in this letter has been made public. This request for confidential treatment is made on behalf of the Bidder for the reason that certain of the facts set forth in this letter have not been made public.

In compliance with Securities Act Release No. 6269 (5 December 1980), seven additional copies of this letter are enclosed.

If you require any further information or have any questions, please contact the undersigned on +49 69 27308 826 or my colleague Steven M. Davidoff (tel: + 44 20 7427 3201).

Very truly yours,

Mark Strauch

Endnotes

1 In our view, there are serious doubts as to whether the jurisdictional predicate for the application of the Exchange Act -- namely that there be a purchase of a security "by the use of any means or instrumentality of interstate commerce, or of the mails or of any facility of any national securities exchange" -- would be satisfied if the Bidder, Carlyle, or financial institutions acting on their behalf, made purchases of, or arrangements to purchase, Shares outside the United States. We nonetheless apply, on behalf of such persons, for exemptive relief for such purchases from the provisions of Rule 14e-5 pursuant to Rule 14e-5, on the conditions set forth below. We have been requested by the Bidder and Carlyle to emphasise that this letter does not reflect an admission that Rule 14e-5 would apply to such purchases of Shares outside the United States in the absence of such exemptive relief.

http://www.sec.gov/divisions/marketreg/mr-noaction/gmbh062404.htm

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Modified: 08/17/2004