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Securities Exchange Act of 1934 Rule 14d-11; Rule 14d-11(f) Rule 14d-10(a)(2) Rule 14e-1(b) - page 12 / 13





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accordance with Gernian law and practice, the Offeror to provide a subscquent offering period that extends 1rom the twenty-first day followiilg the Registration Announcement Date for so long as the Offeror's obligation to purchase Shares at the request of any unaffiliated shareholder pursuant to the Put Rights exists pursuant to applicable Gerinan law. We believe the relief requested herein is virtually identical to the relief granted by the Conln~issio with respect to: the Offer by BCP Crystal Acquisition GmbH & Co., et a1 for Celanese AG, File No. 5-57467 (Dec. 16, 2004); and consistent with that granted by the Conlmission in siinilar situations in the past, such as that granted with respect to: the Offer by Sanofi-Synthilabo for Ordinary Shares and ADSs of Aventis (June 10, 2004); the Offer by Serena Software, Inc. for Shares and ADSs of Merant plc (April 13,2004); the Offer by Schlunlberger Limited for Ordinary Shares of Senla plc (March 2, 200 1); and the Offer by Anlerada Hess Corporation for Shares and ADSs of LASMO plc (December 13, 2000).

Payment of Statutory Interest on the Put Price

As described above, the Offeror is obligated under Genllan law to pay, in addition to the Put Price per Share deterinined in the Doinination Agreement, Statutory Interest tllereon from the day after the Effective Date, but subject to reduction to the extent of any Guaranteed Dividend paynlent that is paid.

Rule 14d-10(a)(2)provides that no bidder shall make a tender offer unless the consideration paid to any security holder pursuant to the tendcr offer is the highest consideration paid to any other security holder during such tender offer. Thc pronlulgating release (Releases Nos. 33-6653 and 34-23241;corrected in Releases No. 33-6653B and 34- 23241B) indicates that the purpose of Rule 14d-10(a)(2) is to eliminate discriininatory treatnlent anlong security holders who inay desire to tender their shares. The obligation o1tlle Offeror to pay Statutory Interest on thc Put Price during the Initial Offer Period and the Subsequent Offer Period, and any reduction thereof as a result of any Guaranteed Dividend payment illade by the Offcror, would conflict with the provisions of Rule 14d-10(a)(2) as the consideration paid to unaffiliated shareholders of Schering who put their Shares would depend on when such Put Rights are exercised. We are therefore respectfully requesting that the Staff of the Division of Corporation Finance grant to the Bayer Entities exeinptive relief under Rule 14d-10(a)(2)under the Exchange Act to perinit the Offeror to pay consideration which will fluctuate during the Initial Offer Period and the Subsequent Offer Period because of the Statutory Interest accrued thcreon and any reductions thereof as a rcsult of Guaranteed Dividend paynlents bciilg made. Because the differeilce in payinents is solely in respect of the interest required to be paid under German law at the statutory rate, we believe that the requcsted relie1is consistent with the purpose of Rule 14d-10(a)(2).

In addition, to the extent that Rule 14e-1(b) under the Exchange Act, which prohibits an offeror from, aillong other things, increasing or decreasing the consideration offcred in a tcnder of1er unless the tender of1er reinains open for at least 10 U.S. business days from the date that notice of such change is first published or sent or given to security holders, could be decnled applicable by virtue of the chailge in the Put Price payable during thc Initial Offer Period or the Subsequent Offer Period due to the Statutory Interest payinent requirements of Gerinan law, we are respectfully requesting that the Staff of the Division of Corporation Finance confirm that it will not reconlnlend any enforcement action against any of the Bayer Entitics under Rule 14e-1(b) to allow the Offeror to offer consideration which will fluctuatc during the Initial Offer Period and the Subsequent Offer Period because of the

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