SEC no-action letter: DB Sechste Vermögensverwaltungsgesellschaft mbH for Stinnes AG

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August 29, 2002 Mark Strauch Frreshfields Bruckhaus Deringer Taunusanlage 11 60329 Frankfurt am Main Re: DB Sechste Vermögensverwaltungsgesellschaft mbH for Stinnes AG File No.: TP 02-111

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. Response: 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:

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, such purchases of Shares by the Prospective Purchasers during the Offer;

The Prospective Purchasers shall disclose in the United States information regarding such purchases of Shares to the extent such information is made public in Germany ;

The Prospective Purchasers shall comply with any applicable rules of German organizations, including the WpÜG and the rules of the Frankfurt and Düsseldorf Stock Exchanges;

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 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 LSE, 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. 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.

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, pursuant to delegated authority, James A. Brigagliano Assistant Director

http://www.sec.gov/divisions/marketreg/mr-noaction/dbsechste082902.htm

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Modified: 02/10/2005