Securities Act of 1933 - Section 3(a)(10)

SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549

June 19, 2002

Response of the Office of Chief Counsel
Division of Corporation Finance

Based on the facts presented, the Division will not recommend any enforcement action to the Commission, in reliance on your opinion of counsel that the exemption provided by Section 3(a)(10) of the Securities Act is available, Newco issues New Exchangeable Notes, and the Company issues new Company shares, in exchange for the Existing Notes, as described in your letter, without registration under the Securities Act.

In reaching this position, we particularly note your representations that:

• the Cayman Court Will hold a hearing on the petition seeking sanctioning of the Scheme of Arrangement in accordance with the law of the Cayman Islands;
   
• each Holder will receive notice of the Court Hearing and will have an opportunity to be heard at the Court Hearing;
   
• the Cayman Court will determine that an intelligent and honest man, a member of the class concerned and acting in respect of his interest, might reasonably approve the Scheme of Arrangement, and will determine that the Scheme of Arrangement is fair to the Holders; and
   
• the Cayman Court has been advised that, if the Scheme of Arrangement is sanctioned, the New Exchangeable Notes and Company Shares to be issued in the exchange will not be required to be registered under the Securities Act by virtue of the Cayman Court's approval.
   

The Division's views on resales of the securities to be issued in the Scheme of Arrangement are as follows:

• persons who are not affiliates of Newco or the Company at the time the Scheme of Arrangement is submitted for Holder approval or after the Scheme of Arrangement is completed may resell their New Exchangeable Notes and Company Shares received in the exchange without regard to Rule 144 or Rule 145(c) and (d);
   
• persons who are affiliates of Newco or the Company at the time the Scheme of Arrangement is submitted for approval, but not after the Scheme of Arrangement is completed, are persons described in Rule 145(c) and may resell their New Exchangeable Notes and Company Shares received in the Scheme of Arrangement pursuant to Rule 145 (d)(1) without regard to the holding period required by Rule 144(d). In computing the periods used in Rule 145(d)(2) or (3), however, such persons may not take into account the periods during which they held the Existing Notes; and
   
• persons who are affiliates of Newco or the Company after the Scheme of Arrangement is completed may resell their New Exchangeable Notes and Company Shares received in the Scheme of Arrangement in the manner permitted by Rule 145(d)(1).
   

We note that you have not requested a no-action position regarding, and we express no view as to, the availability of an exemption from Securities Act registration for future exchanges of New Exchangeable Notes for Company Shares.

These positions are based on the representations made to the Division in your letter. Any different facts or conditions might require the Division to reach a different conclusion. Further, this response expresses the Division's position on enforcement action only and does not express any legal conclusion on the questions presented.

Sincerely,

Cecilia D. Blye
Special Counsel

Incoming Letter:

The Incoming Letter is in Acrobat format.

http://www.sec.gov/divisions/corpfin/cf-noaction/ashanti061902.htm