SEC no-action letter: Heat Beteiligungs III GmbH

UNITED STATES
SECURITIES AND EXCHANGE COMMISSION

WASHINGTON, D.C. 20549

DIVISION OF
MARKET REGULATION
December 20,2006
Walter Van Dorn, Esq.
Thacher Proffitt & Wood LLP
Two World Financial Center
New York, NY 1028 1
Re: Offer by Heat Beteiligungs I11 GmbH for Techem AG

File No. TP 07-21

Dear Mr. Van Dorn:
This is in response to your letter dated December 19,2006. 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 the Prospective Purchasers to purchase or arrange to purchase Techem AG ("Techem") Shares otherwise than pursuant to the Offer, particularly in light of the following facts:
The Offer is required to be conducted in accordance with the German Takeover Act (Wertpapiererwerbs-und Ubernahmegesetz); Techem, a 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 Shares of Techem by the Prospective Purchasers will be subject to the German Takeover Act, which among other things requires that the Offer price be increased to match any purchases made outside the Offer at a price per Share hgher than the Offer price; The existence of the Memorandum of Understanding on Exchange of Information between the Commission and the German Bundesaufsichtsamt fiir den Wertpapiershandel Concerning Consultation and Cooperation in the Administration and Enforcement of Securities Laws, dated October 17, 1997.