|
[Main Tabs]
[Table of Contents - 8000]
[Index]
[Previous Page]
[Next Page]
[Search]
8000 - Miscellaneous Statutes and Regulations
§ 240.13e--3 Going private transactions by certain issuers or
their affiliates.
(a) Definitions. Unless indicated otherwise or the
context otherwise requires, all terms used in this section and in
schedule 13E--3
[§ 240.13e--100]
shall have the same meaning as in the Act or elsewhere in the General
Rules and Regulations thereunder. In addition, the following
definitions apply:
(1) An "affiliate" of an issuer is a person that directly
or indirectly through one or more intermediaries controls, is
controlled by, or is under common control with such issuer. For the
purposes of this section only, a person who is not an affiliate of an
issuer at the commencement of such person's tender offer for a class of
equity securities of such issuer will not be deemed an affiliate of
such issuer prior to the stated termination of such tender offer and
any extensions thereof;
(2) The term "purchase" means any acquisition for value
including, but not limited to, (i) any acquisition pursuant to the
dissolution of an issuer subsequent to the sale or other disposition of
substantially all the assets of such issuer to its affiliate, (ii) any
acquisition pursuant to a merger, (iii) any acquisition of fractional
interests in connection with a reverse stock split, and (iv) any
acquisition subject to the control of an issuer or an affiliate of such
issuer;
(3) A "rule 13e--3 transaction" is any transaction or
series of transactions involving one or more of the transactions
described in paragraph (a)(3)(i) of this section which has either a
reasonable likelihood or a purpose of producing, either directly or
indirectly, any of the effects described in paragraph (a)(3)(ii) of
this section;
(i) The transactions referred to in paragraph (a)(3) of this
section are:
(A) A purchase of any equity security by the issuer of such
security or by an affiliate of such issuer;
(B) A tender offer for or request or invitation for tenders of
any equity security made by the issuer of such class of securities or
by an affiliate of such issuer; or
(C) A solicitation subject to regulation 14A (§§ 240.14a--1 to
240.14b--1) of any proxy, consent or authorization of, or a
distribution subject to regulation 14C (§§ 240.14c--1 to 14c--101)
of information statements to, any equity security holder by the issuer
of the class of securities or by an affiliate of such issuer, in
connection with: a merger, consolidation, reclassification,
recapitalization, reorganization or similar corporate transaction of an
issuer
[The page following this is 9409.]
{{10-31-08 p.9409}}
or between an issuer (or its subsidiaries) and its affiliate; a sale
of substantially all the assets of an issuer to its affiliate or group
of affiliates; or a reverse stock split of any class of equity
securities of the issuer involving the purchase of fractional
interests.
(ii) The effects referred to in paragraph (a)(3) of this section
are:
(A) Causing any class of equity securities of the issuer which is
subject to section 12(g) or
section 15(d) of the Act to
become eligible for termination of registration under Rule 12g--4
(§ 240.12g--4) or Rule 12h--6 (§ 240.12h--6), or causing the
reporting obligations with respect to such class to become eligible for
termination under Rule 12h--6 (§ 240.12h--6); or suspension under
Rule 12h--3 (§ 240.12h--3) or section 15(d); or
(B) Causing any class of equity securities of the issuer which is
either listed on a national securities exchange or authorized to be
quoted in an inter-dealer quotation system of a registered national
securities association to be neither listed on any national securities
exchange nor authorized to be quoted on an inter-dealer quotation
system of any registered national securities association.
(4) An "unaffiliated security holder" is any security
holder of an equity security subject to a rule 13e-3 transaction who is
not an affiliate of the issuer of such security.
(b) Application of section to an issuer (or an affiliate of
such issuer) subject to section
12 of the Act. (1) It shall be a fraudulent, deceptive
or manipulative act or practice, in connection with a rule 13e-3
transaction, for an issuer which has a class of equity securities
registered pursuant to section 12 of the Act or which is a closed-end
investment company registered under the Investment Company Act of 1940,
or an affiliate of such issuer, directly or indirectly
(i) To employ any device, scheme or artifice to defraud any
person;
(ii) To make any untrue statement of a material fact or to omit
to state a material fact necessary in order to make the statements
made, in light of the circumstances under which they were made, not
misleading; or
(iii) To engage in any act, practice or course of business which
operates or would operate as a fraud or deceit upon any person.
(2) As a means reasonably designed to prevent fraudulent,
deceptive or manipulative acts or practices in connection with any rule
13e-3 transaction, it shall be unlawful for an issuer which has a class
of equity securities registered pursuant to section 12 of the Act, or
an affiliate of such issuer, to engage, directly or indirectly, in a
rule 13e-3 transaction unless:
(i) Such issuer or affiliate complies with the requirements of
paragraphs (d), (e) and (f) of this section; and
(ii) The rule 13e-3 transaction is not in violation of paragraph
(b)(1) of this section.
(c) Application of section to an issuer (or an affiliate of
such issuer) subject to section 15(d) of the Act. (1) It shall
be unlawful as a fraudulent, deceptive or manipulative act or practice
for an issuer which is required to file periodic reports pursuant to
section 15(d) of the Act, or an affiliate of such issuer, to engage,
directly or indirectly, in a rule 13e-3 transaction unless such issuer
or affiliate complies with the requirements of paragraphs (d), (e) and
(f) of this section.
(2) An issuer or affiliate which is subject to paragraph (c)(1)
of this section and which is soliciting proxies or distributing
information statements in connection with a transaction described in
paragraph (a)(3)(i)(A) of this section may elect to use the timing
procedures for conducting a solicitation subject to regulation 14A
[§§ 240.14a-1 to 240.14b-1] or a distribution subject to
regulation 14C [§§ 240.14c-1 to 14c-101] in complying with
paragraphs (d), (e) and (f) of this section; Provided, That
if an election is made, such solicitation or distribution is conducted
in accordance with the requirements of the respective regulations,
including the filing of preliminary copies of soliciting materials or
an information statement at the time specified in regulation 14A or
14C, respectively.
(d) Material required to be filed. The issuer or
affiliate engaging in a rule 13e-3 transaction shall, in accordance
with the General Instructions to the rule 13e-3 Transaction Statement
on Schedule 13E-3 [§ 240.13e-100]:
(1) File with the Commission eight copies of such schedule,
including all exhibits thereto;
{{10-31-08 p.9410}}
(2) Report any material change in the information set forth in
such schedule by promptly filing with the Commission eight copies of an
amendment on such schedule; and
(3) Report the results of the rule 13e-3 transaction by filing
with the Commission promptly but no later than ten days (ten business
days if rule 13e-4 [§ 240.13e-4] is applicable) after the
termination of such transaction eight copies of a final amendment to
such schedule.
(e) Disclosure of certain information.
(1) The issuer or affiliate engaging in the rule 13e-3
transaction, in addition to any other information required to be
disclosed pursuant to any other applicable rule or regulation under the
federal securities laws, shall disclose to security holders of the
class of equity securities which is the subject of the transaction, in
the manner prescribed by paragraph (f) of this section, the information
required by items 1, 2, 3, 4, 5, 6, 10, 11, 12, 13, 14, 15 and 16 of
schedule 13e-3 [§ 240.13e-100], or a fair and adequate summary
thereof, and items 7, 8 and 9 and include in the document which
contains such information the exhibit required by item 17(e) of such
schedule. If the rule 13e-3 transaction involves (i) a transaction
subject to regulation 14A [§§ 240.14a-1 to 240.14b-1] or 14C
[§§ 240.14c-1 to 240.14c-101] of the Act, (ii) the registration of
securities pursuant to the Securities Act of 1933 and the General Rules
and Regulations promulgated thereunder, or (iii) a tender offer subject
to regulation 14D [§§ 240.14d-1 to 240.14d-101] or rule 13e-4
[§ 240.13e-4], such information shall be included in the proxy
statement, the information statement, the registration statement or the
tender offer for or request or invitation for tenders of securities
published, sent or given to security holders, respectively.
(2) If any material change occurs in the information previously
disclosed to security holders of the class of equity securities which
is the subject of the transaction, the issuer or affiliate shall
promptly disclose such change to such security holders in the manner
prescribed by paragraph (f)(1)(iii) of this section.
(3) Any document transmitted to such security holders which
contains the information required by paragraph (e)(1) of this section
shall:
(i) Set forth prominently the information required by items 7, 8
and 9 of the rule 13e-3 Transaction Statement on schedule 13E-3
[§ 240.13e-100] in
a Special Factors section to be included in the forepart of such
document; and
(ii) Set forth on the outside front cover page, in capital
letters printed in bold face roman type at least as large as ten point
modern type and at least two points leaded, the statement in paragraph
(e)(3)(ii)(A) of this section, if the rule 13e-3 transaction does not
involve a prospectus, or the statement in paragraph (e)(3)(ii)(B) of
this section, if the rule 13e-3 transaction involves a prospectus, and
in the latter case such statement shall be used in lieu of that
required by item 501(c)(5) of regulation S-K (§ 229.501 of this
chapter).
(A) THIS TRANSACTION HAS NOT BEEN APPROVED OR DISAPPROVED
BY THE SECURITIES AND EXCHANGE COMMISSION NOR HAS THE COMMISSION PASSED
UPON THE FAIRNESS OR MERITS OF SUCH TRANSACTION NOR UPON THE ACCURACY
OR ADEQUACY OF THE INFORMATION CONTAINED IN THIS DOCUMENT. ANY
REPRESENTATION TO THE CONTRARY IS UNLAWFUL.
(B) NEITHER THIS TRANSACTION NOR THESE SECURITIES HAVE
BEEN APPROVED OR DISAPPROVED BY THE SECURITIES AND EXCHANGE COMMISSION.
THE COMMISSION HAS NOT PASSED UPON THE FAIRNESS OR MERITS OF THIS
TRANSACTION NOR UPON THE ACCURACY OR ADEQUACY OF THE INFORMATION
CONTAINED IN THIS PROSPECTUS. ANY REPRESENTATION TO THE CONTRARY IS
UNLAWFUL.
Instructions to paragraph (e)(3). 1. Negative
responses to any item of schedule 13E-3 [§ 240.13e-100] need not be
included in the information disseminated to security holders unless
otherwise indicated.
2. Although the financial information necessary to present
a fair and adequate summary of item 14 of schedule 13E-3
[§ 240.13e-100]
may vary depending on the facts
{{10-31-08 p.9411}}and
circumstances involved, the following historical and depending on the
facts pro forma summary financial information normally will be
sufficient for purposes of paragraph (e) of this section:
(a) The following summary financial information for (i) the two
most recent fiscal years and (ii) the latest year-to-date interim
period and corresponding interim period of the preceding year:
Income Statement: Net sales and operating revenues and other revenues Income before extradordinary items Net Income Balance Sheet (at end of period); Working capital Total assets Total assets less deferred research and development charges and
excess of cost of assets acquired over book value. Shareholder's equity Per Share: 1
Income per common share before extraordinary items Extraordinary items Net income per common share (and common share equivalents, if
applicable)
(b) Ratio of earnings to fixed charges for the same periods
required by 2(a) above;
(c) Book value per share as of the most recent fiscal year end
and as of the date of the latest interim balance sheet; and
(d) If material, pro forma data for the summarized financial
information described in 2(a), (b), and (c) above, disclosing the
effect of the transaction, should be provided for the most recent
fiscal year and latest year-to-date interim period.
If the information required by item 14 is summarized, appropriate
instructions should be included stating how more complete financial
information can be obtained.
3. If the information delivered to security holders is
distributed through an electronic medium and the legend required by
paragraph (e)(3)(ii) is included, issuers may satisfy the legibility
requirement relating to type size and font by presenting the legend in
any manner reasonably calculated to draw security holder attention to
it.
(f) Dissemination of disclosure. (1) If the rule 13e-3
transaction involves a purchase as described in paragraph (a)(4)(i)(A)
of this section or a vote, consent, authorization, or distribution of
information statements as described in paragraph (a)(4)(i)(C) of this
section, the issuer or affiliate engaging in the rule 13e-3 transaction
shall:
(i) Provide the information required by paragraph (e) of this
section: (A) In accordance with the provisions of any applicable
Federal or State law, but in no event later than 20 days prior to: any
such purchase; any such vote, consent or authorization; or with respect
to the distribution of information statements, the meeting date, or if
corporate action is to be taken by means of the written authorization
or consent of security holders, the earliest date on which corporate
action may be taken: Provided, however, That if the purchase
subject to this section is pursuant to a tender offer excepted from
rule 13e-4 by paragraph (g)(5) of rule 13e-4, the information required
by paragraph (e) of this section shall be disseminated in accordance
with paragraph (e) of rule 13e-4 no later than 10 business days prior
to any purchase pursuant to such tender offer, (B) to each person who
is a record holder of a class of equity securities subject to the rule
13e-3 transaction as of a date not more than 20 days prior to the date
of dissemination of such information.
(ii) If the issuer or affiliate knows that securities of
the class of securities subject to the rule 13e-3 transaction are held
of record by a broker, dealer, bank or voting trustee or their nominees
such issuer or affiliate shall (unless rule 14a-13(a)
[§ 240.14a-13(a)] or 14c-7
{{10-31-08 p.9412}}[§ 240.14c-7] is applicable)
furnish the number of copies of the information required by paragraph
(e) of this section that are requested by such persons (pursuant to
inquiries by or on behalf of the issuer or affiliate), instruct such
persons to forward such information to the beneficial owners of such
securities in a timely manner and undertake to pay the reasonable
expenses incurred by such persons in forwarding such information; and
(iii) Promptly disseminate disclosure of material changes to the
information required by paragraph (d) of this section in a manner
reasonably calculated to inform security holders.
(2) If the rule 13e-3 transaction is a tender offer or a request
or invitation for tenders of equity securities which is subject to
regulation 14D [§§ 240.14d-1 to 240.14d-101] or rule 13e-4
[§ 240.13e-4], the tender offer containing the information required
by paragraph (e) of this section, and any material change with respect
thereto, shall be published, sent or given in accordance with
regulation 14D or rule 13e-4, respectively, to security holders of the
class of securities being sought by the issuer or affiliate.
(g) Exceptions. This section shall not apply to:
(1) Any rule 13e-3 transaction by or on behalf of a person which
occurs within one year of the date of termination of a tender offer in
which such person was the bidder and became an affiliate of the issuer
as a result of such tender offer: Provided, That the
consideration offered to unaffiliated security holders in such rule
13e-3 transaction is at least equal to the highest consideration
offered during such tender offer and, Provided further,
That:
(i) If such tender offer was made for any or all securities of a
class of the issuer;
(A) Such tender offer fully disclosed such person's intention to
engage in a rule 13e-3 transaction, the form and effect of such
transaction and, to the extent known, the proposed terms thereof; and
(B) Such rule 13e-3 transaction is substantially similar to that
described in such tender offer; or
(ii) If such tender offer was made for less than all the
securities of a class of the issuer;
(A) Such tender offer fully disclosed a plan of merger, a plan of
liquidation or a similar binding agreement between such person and the
issuer with respect to a rule 13e-3 transaction; and
(B) Such rule 13e-3 transaction occurs pursuant to the plan of
merger, plan of liquidation or similar binding agreement disclosed in
the bidder's tender offer.
(2) Any rule 13e-3 transaction in which the security holders are
offered or receive only an equity security, Provided, That:
(i) Such equity security has substantially the same rights as the
equity security which is the subject of the rule 13e-3 transaction
including, but not limited to, voting, dividends, redemption and
liquidation rights except that this requirement shall be deemed to be
satisfied if unaffiliated security holders are offered common stock;
(ii) Such equity security is registered pursuant to
section 12 of the Act or
reports are required to be filed by the issuer thereof pursuant to
section 15(d) of the Act; and
(iii) If the security which is the subject of the rule 13e-3
transaction was either listed on a national securities exchange or
authorized to be quoted in an inter-dealer quotation system of a
registered national securities association, such equity security is
either listed on a national securities exchange or authorized to be
quoted in an inter-dealer quotation system of a registered national
securities association.
(3) Transactions by a holding company registered under the Public
Utility Holding Company Act of 1935 in compliance with the provisions
of that Act;
(4) Redemptions, calls or similar purchases of an equity security
by an issuer pursuant to specific provisions set forth in the
instrument(s) creating or governing that class of equity securities; or
(5) Any solicitation by an issuer with respect to a plan of
reorganization under Chapter X of the Bankruptcy Act, as amended, if
made after the entry of an order
{{10-31-08 p.9413}}approving
such plan pursuant to section 174 of that Act and after, or
concurrently with, the transmittal of information concerning such plan
as required by section 175 of the Act.
(6) Any tender offer or business combination made in compliance
with § 230.802 of this chapter, § 240.13e--4(h)(8) or
§ 240.14d--1(c).
[Codified to 17 C.F.R. § 240.13e-3]
[Section 240.13e-3 added at 44 Fed. Reg. 46741, August 8, 1979;
amended at 47 Fed. Reg. 11466, March 16, 1982; 48 Fed. Reg. 19877, May
3, 1983; 48 Fed. Reg. 34253, July 28, 1983; 51 Fed. Reg. 42059,
November 20, 1986, effective January 20, 1986 for proxy statements
filed on or after that date; 61 Fed. Reg. 24656, May 15, 1996,
effective June 14, 1996; 64 Fed. Reg. 61403, November 10, 1999,
effective January 24, 2000; 73 Fed. Reg. 58323, October 6, 2008,
effective December 5,
2008]
§ 240.13e-4 Tender offers by issuers.
(a) Definitions. Unless the context otherwise requires,
all terms used in this section and in Schedule TO (§ 240.14d--100)
shall have the same meaning as in the Act or elsewhere in the General
Rules and Regulations thereunder. In addition, the following
definitions shall apply:
(1) The term "issuer" means any issuer which has a class of
equity security registered pursuant to section 12 of the Act, or which
is required to file periodic reports pursuant to section 15(d) of the
Act, or which is a closed-end investment company registered under the
Investment Company Act of 1940.
(2) The term "issuer tender offer" refers to a tender offer
for, or a request or invitation for tenders of, any class of equity
security, made by the issuer of such class of equity security or by an
affiliate of such issuer.
(3) As used in this section and in Schedule TO
(§ 240.14d--100), the term "business day" means any day, other
than Saturday, Sunday, or a federal holiday, and shall consist of the
time period from 12:01 a.m. through 12:00 midnight Eastern Time. In
computing any time period under this Rule or Schedule 13E--4, the date
of the event that begins the running of such time period shall be
included except that if such event occurs on other than a business day
such period shall begin to run on and shall include the first business
day thereafter.
(4) The term "commencement" means 12:01 a.m. on the date
that the issuer or affiliate has first published, sent or given the
means to tender to security holders. For purposes of this section, the
means to tender includes the transmittal form or a statement regarding
how the transmittal form may be obtained.
(5) The term "termination" means the date after which
securities may not be tendered pursuant to an issuer tender offer.
(6) The term "security holders" means holders of record and
beneficial owners of securities of the class of equity security which
is the subject of an issuer tender offer.
(7) The term "security position listing" means, with
respect to the securities of any issuer held by a registered clearing
agency in the name of the clearing agency or its nominee, a list of
those participants in the clearing agency on whose behalf the clearing
agency holds the issuer's securities and of the participants'
respective positions in such securities as of a specified date.
(b) Filing, disclosure and dissemination. As soon as practicable on
the date of commencement of the issuer tender offer, the issuer or
affiliate making the issuer tender offer must comply with:
(1) The filing requirements of paragraph (c)(2) of this section;
(2) The disclosure requirements of paragraph (d)(1) of this
section; and
(3) The dissemination requirements of paragraph (e) of this
section.
(c) Material required to be filed. The issuer or
affiliate making the issuer tender offer must file with the Commission:
(1) All written communications made by the issuer or affiliate
relating to the issuer tender offer, from and including the first
public announcement, as soon as practicable on the date of the
communication;
{{10-31-08 p.9414}}
(2) A Schedule TO (§ 240.14d--100), including all exhibits;
(3) An amendment to Schedule TO (§ 240.14d--100) reporting
promptly any material changes in the information set forth in the
schedule previously filed; and
(4) A final amendment to Schedule TO (§ 240.14d--100) reporting
promptly the results of the issuer tender offer.
Instructions to § 240.13e--4(c):
1. Pre-commencement communications must be filed under cover of
Schedule TO (§ 240.14d--100) and the box on the cover page of the
schedule must be marked.
2. Any communications made in connection with an exchange offer
registered under the Securities Act of 1933 need only be filed under
§ 230.425 of this chapter and will be deemed filed under this
section.
3. Each pre-commencement written communication must include a
prominent legend in clear, plain language advising security holders to
read the tender offer statement when it is available because it
contains important information. The legend also must advise investors
that they can get the tender offer statement and other filed documents
for free at the Commission's web site and explain which documents are
free from the issuer.
4. See §§ 230.135, 230.165 and 230.166 of this chapter for
pre-commencement communications made in connection with registered
exchange offers.
5. "Public announcement" is any oral or written communication
by the issuer, affiliate or any person authorized to act on their
behalf that is reasonably designed to, or has the effect of, informing
the pubic or security holders in general about the issuer tender offer.
(d) Disclosure of tender offer information to security
holders.
(1) The issuer or affiliate making the issuer tender offer must
disclose, in a manner prescribed by paragraph (e)(1) of this section,
the following:
(i) The information required by Item 1 of Schedule TO
(§ 240.14d--100) (summary term sheet); and
(ii) The information required by the remaining items of Schedule
TO for issuer tender offers, except for Item 12 (exhibits), or a fair
and adequate summary of the information.
(2) If there are any material changes in the information
previously disclosed to security holders, the issuer or affiliate must
disclose the changes promptly to security holders in a manner specified
in paragraph (e)(3) of this section.
(3) If the issuer or affiliate disseminates the issuer tender
offer by means of summary publication as described in paragraph
(e)(1)(iii) of this section, the summary advertisement must not include
a transmittal letter that would permit security holders to tender
securities sought in the offer and must disclose at least the following
information:
(i) The identity of the issuer or affiliate making the issuer
tender offer;
(ii) The information required by § 229.1004(a)(1) and
§ 229.1006(a) of this chapter;
(iii) Instructions on how security holders can obtain promptly a
copy of the statement required by paragraph (d)(1) of this section, at
the issuer or affiliate's expense; and
(iv) A statement that the information contained in the statement
required by paragraph (d)(1) of this section is incorporated by
reference.
(e) Dissemination of tender offers to security holders.
An issuer tender offer will be deemed to be published, sent or given to
security holders if the issuer or affiliate making the issuer tender
offer complies fully with one or more of the methods described in this
section.
(1) For issuer tender offers in which the consideration offered
consists solely of cash and/or securities exempt from registration
under section 3 of the Securities Act of 1933 (15 U.S.C. 77c):
(i) Dissemination of cash issuer tender offers by long-form
publication: By making adequate publication of the information
required by paragraph (d)(1) of this section in a newspaper or
newspapers, on the date of commencement of the issuer tender offer.
(ii) Dissemination of any issuer tender offer by use of
stockholder and other lists: (A) By mailing or otherwise
furnishing promptly a statement containing the
information
{{12-29-06 p.9415}}required by
paragraph (d)(1) of this section to each security holder whose name
appears on the most recent stockholder list of the issuer;
(B) By contacting each participant on the most recent security
position listing of any clearing agency within the possession or access
of the issuer or affiliate making the issuer tender offer, and making
inquiry of each participant as to the approximate number of beneficial
owners of the securities sought in the offer that are held by the
participant;
(C) By furnishing to each participant a sufficient number of
copies of the statement required by paragraph (d)(1) of this section
for transmittal to the beneficial owners, and
(D) By agreeing to reimburse each participant promptly for its
reasonable expenses incurred in forwarding the statement to beneficial
owners.
(iii) Dissemination of certain cash issuer tender offers by
summary publication: (A) If the issuer tender offer is not
subject to § 240.13e-3, by making adequate publication of a summary
advertisement containing the information required by paragraph (d)(3)
of this section in a newspaper or newspapers, on the date of
commencement of the issuer tender offer; and
(B) By mailing or otherwise furnishing promptly the statement
required by paragraph (d)(1) of this section and a transmittal letter
to the security holder who requests a copy of the statement or
transmittal letter.
Instruction to paragraph (e)(1): For purposes of paragraphs
(e)(1)(i) and (e)(1)(iii) of this section, adequate publication of the
issuer tender offer may require publication in a newspaper with a
national circulation, a newspaper with metropolitan or regional
circulation, or a combination of the two, depending upon the facts and
circumstances involved.
(2) For tender offers in which the consideration consists
solely or partially of securities registered under the Securities Act
of 1933, a registration statement containing all of the required
information, including pricing information, has been filed and a
preliminary prospectus or a prospectus that meets the requirements of
Section 10(a) of the Securities Act (15 U.S.C. (15 U.S.C. 77j(a)),
including a letter of transmittal, is delivered to security holders.
However, for going-private transactions (as defined by § 240.13e-3)
and roll-up transactions (as described by Item 901 of Regulation S-K
(§ 229.901 of this chapter)), a registration statement registering
the securities to be offered must have become effective and only a
prospectus that meets the requirements of Section 10(a) of the
Securities Act may be delivered to security holders on the date of
commencement.
Instructions to paragraph (e)(2):
1. If the prospectus is being delivered by mail, mailing on the
date of commencement is sufficient.
2. A preliminary prospectus used under this section may not omit
information under § 230.430 or § 230.430A of this chapter.
3. If a preliminary prospectus is used under this section and the
issuer must disseminate material changes, the tender offer must remain
open for the period specified in paragraph (e)(3) of this section.
4. If a preliminary prospectus is used under this section, tenders
may be requested in accordance with § 230.162(a) of this chapter.
(3) If a material change occurs in the information
published, sent or given to security holders, the issuer or affiliate
must disseminate promptly disclosure of the change in a manner
reasonably calculated to inform security holders of the change. In a
registered securities offer where the issuer or affiliate disseminates
the preliminary prospectus as permitted by paragraph (e)(2) of this
section, the offer must remain open from the date that material changes
to the tender offer materials are disseminated to security holders, as
follows:
(i) Five business days for a prospectus supplement containing a
material change other than price or share levels;
(ii) Ten business days for a prospectus supplement containing a
change in price, the amount of securities sought, the dealer's
soliciting fee, or other similarly significant change;
{{12-29-06 p.9416}}
(iii) Ten business days for a prospectus supplement included as
part of a post-effective amendment; and
(iv) Twenty business days for a revised prospectus when the
initial prospectus was materially deficient.
(f) Manner of making tender offer. (1) The issuer tender
offer, unless withdrawn, shall remain open until the expiration of:
(i) at least twenty business days from its commencement; and
(ii) At least ten business days from the date that notice of an
increase or decrease in the percentage of the class of securities being
sought or the consideration offered or the dealer's soliciting fee to
be given is first published, sent or given to security holders.
Provided, however, that, for purposes of this paragraph, the acceptance
for payment by the issuer or affiliate of an additional amount of
securities not to exceed two percent of the class of securities that is
the subject of the tender offer shall not be deemed to be an increase.
For purposes of this paragraph, the percentage of a class of securities
shall be calculated in accordance with section 14(d)(3) of the Act.
(2) The issuer or affiliate making the issuer tender offer shall
permit securities tendered pursuant to the issuer tender offer to be
withdrawn:
(i) At any time during the period such issuer tender offer
remains open; and
(ii) If not yet accepted for payment, after the expiration of
forty business days from the commencement of the issuer tender offer.
(3) If the issuer or affiliate makes a tender offer for less than
all of the outstanding equity securities of a class, and if a greater
number of securities is tendered pursuant thereto than the issuer or
affiliate is bound or willing to take up and pay for, the securities
taken up and paid for shall be taken up and paid for as nearly as may
be pro rata, disregarding fractions, according to the number of
securities tendered by each security holder during the period such
offer remains open; Provided, however, that this provision shall not
prohibit the issuer or affiliate making the issuer tender offer from:
(i) Accepting all securities tendered by persons who own,
beneficially or of record, an aggregate of not more than a specified
number which is less than one hundred shares of such security and who
tender all their securities, before prorating securities tendered by
others; or
(ii) Accepting by lot securities tendered by security holders who
tender all securities held by them and who, when tendering their
securities, elect to have either all or none or at least a minimum
amount or none accepted, if the issuer or affiliate first accepts all
securities tendered by security holders who do not so elect;
(4) In the event the issuer or affiliate making the issuer tender
increases the consideration offered after the issuer tender offer has
commenced, such issuer or affiliate shall pay such increased
consideration to all security holders whose tendered securities are
accepted for payment by such issuer or affiliate.
(5) The issuer or affiliate making the tender offer shall either
pay the consideration offered, or return the tendered securities,
promptly after the termination or withdrawal of the tender offer.
(6) Until the expiration of at least ten business days after the
date of termination of the issuer tender offer, neither the issuer nor
any affiliate shall make any purchases, otherwise than pursuant to the
tender offer, of:
(i) Any security which is the subject of the issuer tender offer,
or any security of the same class and series, or any right to purchase
any such securities; and
(ii) In the case of an issuer tender offer which is an exchange
offer, any security being offered pursuant to such exchange offer, or
any security of the same class and series, or any right to purchase any
such security.
(7) The time periods for the minimum offering periods pursuant to
this section shall be computed on a concurrent as opposed to a
consecutive basis.
(8) No issuer or affiliate shall make a tender offer unless:
(i) The tender offer is open to all security holders of the class
of securities subject to the tender offer; and
(ii) The consideration paid to any security holder for securities
tendered in the tender offer is the highest consideration paid to any
other security holder for securities tendered in the tender
offer.
{{12-29-06 p.9417}}
(9) Paragraph (f)(8)(i) of this section shall not:
(i) Affect dissemination under paragraph (e) of this section; or
(ii) Prohibit an issuer or affiliate from making a tender offer
excluding all security holders in a state where the issuer or affiliate
is prohibited from making the tender offer by administrative or
judicial action pursuant to a state statute after a good faith effort
by the issuer or affiliate to comply with such statute.
(10) Paragraph (f)(8)(ii) of this section shall not prohibit the
offer of more than one type of consideration in a tender offer,
provided that:
(i) Security holders are afforded equal right to elect among each
of the types of consideration offered; and
(ii) The highest consideration of each type paid to any security
holder is paid to any other security holder receiving that type of
consideration.
(11) If the offer and sale of securities constituting
consideration offered in an issuer tender offer is prohibited by the
appropriate authority of a state after a good faith effort by the
issuer or affiliate to register or qualify the offer and sale of such
securities in such state:
(i) The issuer or affiliate may offer security holders in such
state an alternative form of consideration; and
(ii) Paragraph (f)(10) of this section shall not operate to
require the issuer or affiliate to offer or pay the alternative form of
consideration to security holders in any other state.
(12)(i) Paragraph (f)(8)(ii) of this section shall not prohibit
the negotiation, execution or amendment of an employment compensation,
severance or other employee benefit arrangement, or payments made or to
be made or benefits granted or to be granted according to such an
arrangement, with respect to any security holder of the issuer, where
the amount payable under the arrangement:
(A) Is being paid or granted as compensation for past services
performed, future services to be performed, or future services to be
refrained from performing, by the security holder (and matters
incidental thereto); and
(B) Is not calculated based on the number of securities tendered
or to be tendered in the tender offer by the security holder.
(ii) The provisions of paragraph (f)(12)(i) of this section shall
be satisfied and, therefore, pursuant to this nonexclusive safe harbor,
the negotiation, execution or amendment of an arrangement and any
payments made or to be made or benefits granted or to be granted
according to that arrangement shall not be prohibited by paragraph
(f)(8)(ii) of this section, if the arrangement is approved as an
employment compensation, severance or other employee benefit
arrangement solely by independent directors as follows:
(A) The compensation committee or a committee of the board of
directors that performs functions similar to a compensation committee
of the issuer approves the arrangement, regardless of whether the
issuer is a party to the arrangement, or, if an affiliate is a party to
the arrangement, the compensation committee or a committee of the board
of directors that performs functions similar to a compensation
committee of the affiliate approves the arrangement; or
(B) If the issuer's or affiliate's board of directors, as
applicable, does not have a compensation committee or a commitee of the
board of directors that performs functions similar to a compensation
committee or if none of the members of the issuer's or affiliate's
compensation committee or committee that performs functions similar to
a compensation committee is independent, a special committee of the
board of directors formed to consider and approve the arrangement
approves the arrangement; or
(C) If the issuer or affiliate, as applicable, is a foreign
private issuer, any or all members of the board of directors or any
committee of the board of directors authorized to approve employment
compensation, severance or other employee benefit arrangements under
the laws or regulations of the home country approves the arrangement.
Instructions to paragraph (f)(12)(ii): For purposes of
determining whether the members of the committee approving an
arrangement in accordance with the provisions of paragraph (f)(12)(ii)
of this section are independent, the following provisions shall apply:
1. If the issuer or affiliate, as applicable, is a listed issuer
(as defined in § 240.10A--3 of this chapter) whose securities are
listed either on a national securities exchange
registered
{{12-29-06 p.9418}}
pursuant to section 6(a) of the Exchange Act (15 U.S.C. 78f(a)) or in an
inter-dealer quotation system of a national securities association
registered pursuant to section 15A(a) of the Exchange Act (15 U.S.C.
78o--3(a)) that has independence requirements for compensation
committee members that have been approved by the Commission (as those
requirements may be modified or supplemented), apply the issuer's or
affiliate's definition of independence that it uses for determining
that the members of the compensation committee are independent in
compliance with the listing standards applicable to compensation
committee members of the listed issuer.
2. If the issuer or affiliate, as applicable, is not a listed
issuer (as defined in § 240.10A--3 of this chapter), apply the
independence requirements for compensation committee members of a
national securities exchange registered pursuant to section 6(a) of the
Exchange Act (15 U.S.C. 78f(a)) or an inter-dealer quotation system of
a national securities association registered pursuant to section 15A(a)
of the Exchange Act (15 U.S.C. 78o--3(a)) that have been approved by
the Commission (as those requirements may be modified or supplemented).
Whatever definition the issuer or affiliate, as applicable, chooses, it
must apply that definition consistently to all members of the committee
approving the arrangement.
3. Notwithstanding Instructions 1 and 2 to paragraph (f)(12)(ii),
if the issuer or affiliate, as applicable, is a closed-end investment
company registered under the Investment Company Act of 1940, a director
is considered to be independent if the director is not, other than in
his or her capacity as a member of the board of directors or any board
committee, an "interested person" of the investment company, as
defined in section 2(a)(19) of the Investment Company Act of 1940 (15
U.S.C. 80a--2(a)(19)).
4. If the issuer or affiliate, as applicable, is a foreign private
issuer, apply either the independence standards set forth in
Instructions 1 and 2 to paragraph (f)(12)(ii) or the independence
requirements of the laws, regulations, codes or standards of the home
country of the issuer or affiliate, as applicable, for members of the
board of directors or the committee of the board of directors approving
the arrangement.
5. A determination by the issuer's or affiliate's board of
directors, as applicable, that the members of the board of directors or
the committee of the board of directors, as applicable, approving an
arrangement in accordance with the provisions of paragraph (f)(12)(ii)
are independent in accordance with the provisions of this instruction
to paragraph (f)(12)(ii) shall satisfy the independence requirements of
paragraph (f)(12)(ii).
Instruction to paragraph (f)(12): The fact that the
provisions of paragraph (f)(12) of this section extend only to
employment compensation, severance and other employee benefit
arrangements and not to other arrangements, such as commercial
arrangements, does not raise any inference that a payment under any
such other arrangement constitutes consideration paid for securities in
a tender offer.
(13) Electronic filings. If the issuer or affiliate is an
electronic filer, the minimum offering periods set forth in paragraph
(f)(1) of this section shall be tolled for any period during which it
fails to file in electronic format, absent a hardship exemption
(§§ 232.201 and 232.202 of this chapter), the Schedule TO
(§ 240.14d--100), the tender offer material specified in Item
1016(a)(1) of Regulation M-A (§ 229.1016(a)(1) of this chapter), and
any amendments thereto. If such documents were filed in paper pursuant
to a hardship exemption (see § 232.201 and § 232.202 of this
chapter), the minimum offering periods shall be tolled for any period
during which a required confirming electronic copy of such Schedule and
tender offer material is delinquent.
(g) The requirements of section 13(e)(1) of the Act and Rule 13e-4
and Schedule TO (§ 240.14d-100) thereunder shall be deemed satisfied
with respect to any issuer tender offer, including any exchange offer,
where the issuer is incorporated or organized under the laws of Canada
or any Canadian province or territory, is a foreign private issuer, and
is not an investment company registered or required to be registered
under the Investment Company Act of 1940, if less than 40 percent of
the class of securities that is the subject of the tender offer is held
by U.S. holders, an the tender offer is subject to, and the issuer
complies with, the laws, regulations and policies of Canada and/or any
of its provinces or territories governing the conduct of the offer
(unless the issuer has received an exemption(s) from, and the issuer
tender offer does not comply with, requirements that otherwise would be
prescribed by this section), provided that:
{{12-29-06 p.9418.01}}
(1) Where the consideration for an issuer tender offer subject to
this paragraph consists solely of cash, the entire disclosure document
or documents required to be furnished to holders of the class of
securities to be acquired shall be filed with the Commission on
Schedule 13E--4F (§ 240.13e-102) and disseminated to shareholders
residing in the United States in accordance with such Canadian laws,
regulations and policies; or
(2) Where the consideration for an issuer tender offer subject to
this paragraph includes securities to be issued pursuant to the offer,
any registration statement and/or prospectus relating thereto shall be
filed with the Commission along with the Schedule 13E--4F referred to
in paragraph (g)(1) of this section, and shall be disseminated,
together with the home jurisdiction document(s) accompanying such
Schedule, to shareholders of the issuer residing in the United States
in accordance with such Canadian laws, regulations and policies.
Note: Notwithstanding the grant of an exemption from one or more of
the applicable Canadian regulatory provisions imposing requirements
that otherwise would be prescribed by this section, the issuer tender
offer will be eligible to proceed in accordance with the requirements
of this section if the Commission by order determines that the
applicable Canadian regulatory provisions are adequate to protect the
interest of investors.
(h) This section shall not apply to: (1) Calls or
redemptions of any security in accordance with the terms and conditions
of its governing instruments;
(2) Offers to purchase securities evidenced by a scrip
certificate, order form or similar document which represents a
fractional interest in a share of stock or similar security;
(3) Offers to purchase securities pursuant to a statutory
procedure for the purchase of dissenting security holders' securities;
(4) Any tender offer which is subject to section 14(d) of the
Act;
(5) Offers to purchase from security holders who own an aggregate
of not more than a specified number of shares that is less than one
hundred: Provided, however, That:
(i) The offer complies with paragraph (f)(8)(i) of this section
with respect to security holders who own a number of shares equal to or
less than the specified number of shares, except that an issuer can
elect to exclude participants in a plan as that term is defined in
§ 242.100 of this chapter, or to exclude security holders who do not
own their shares as of a specified date determined by the issuer; and
(ii) The offer complies with paragraph (f)(8)(ii) of this section
or the consideration paid pursuant to the offer is determined on the
basis of a uniformly applied formula based on the market price of the
subject security;
(6) An issuer tender offer made solely to effect a rescission
offer: Provided, however, That the offer is registered under the
Securities Act of 1933 (15 U.S.C. 77a et seq.), and the consideration
is equal to the price paid by each security holder, plus legal interest
if the issuer elects to or is required to pay legal interest;
(7) Offers by closed-end management investment companies to
repurchase equity securities pursuant to § 270.23c-3 of this chapter;
(8) Cross-border tender offers (Tier I). Any issuer tender offer
(including any exchange offer) where the issuer is a foreign private
issuer as defined in § 240.3b-4 if the following conditions are
satisfied.
(i) Except in the case of an issuer tender offer which is
commenced during the pendency of a tender offer made by a third party
in reliance on § 240.14d-1(c), U.S. holders do not hold more than 10
percent of the class of securities sought in the offer (as determined
under Instruction 2 to paragraph (h)(8) and paragraph (i) of this
section); and
(ii) The issuer or affiliate must permit U.S. holders to
participate in the offer on terms at least as favorable as those
offered any other holder of the same class of securities that is the
subject of the offer; however:
(A) Registered exchange offers. If the issuer or
affiliate offers securities registered under the Securities Act of 1933
(15 U.S.C. 77a et seq.), the issuer or affiliate need not extend the
offer to security holders in those states or jurisdictions that
prohibit the offer or sale of the securities after the issuer or
affiliate has made a good faith effort to register or qualify the offer
and sale of securities in that state or jurisdiction, except that the
issuer or affiliate must offer the same cash alternative to security
holders in any such state or jurisdiction that it has offered to
security holders in any other state or jurisdiction.
{{12-29-06 p.9418.02}}
(B) Exempt exchange offers. If the issuer or affiliate
offers securities exempt from registration under § 230.802 of this
chapter, the issuer or affiliate need not extend the offer to security
holders in those states or jurisdictions that require registration or
qualification, except that the issuer or affiliate must offer the same
cash alternative to security holders in any such state or jurisdiction
that it has offered to security holders in any other state or
jurisdiction.
(C) Cash only consideration. The issuer or affiliate
may offer U.S. holders cash only consideration for the tender of the
subject securities, notwithstanding the fact that the issuer or
affiliate is offering security holders outside the United States a
consideration that consists in whole or in part of securities of the
issuer or affiliate, if the issuer or affiliate has a reasonable basis
for believing that the amount of cash is substantially equivalent
to
{{6-30-05 p.9419}}the value
of the consideration offered to non-U.S. holders, and either of the
following conditions are satisfied:
(1) The offered security is a "margin security" within the
meaning of Regulation T (12 CFR 220.2) and the issuer or affiliate
undertakes to provide, upon the request of any U.S. holder or the
Commission staff, the closing price and daily trading volume of the
security on the principal trading market for the security as of the
last trading day of each of the six months preceding the announcement
of the offer and each of the trading days thereafter; or
(2) If the offered security is not a "margin security"
within the meaning of Regulation T (12 CFR 220.2) the issuer or
affiliate undertakes to provide, upon the request of any U.S. holder or
the Commission staff, an opinion of an independent expert stating that
the cash consideration offered to U.S. holders is substantially
equivalent to the value of the consideration offered security holders
outside the United States.
(D) Disparate tax treatment. If the issuer or
affiliate offers "loan notes" solely to offer sellers tax
advantages not available in the United States and these notes are
neither listed on any organized securities market nor registered under
the Securities Act of 1933 (15 U.S.C. 77a et seq.), the loan notes need
not be offered to U.S. holders.
(iii) Informational documents.
(A) If the issuer or affiliate publishes or otherwise
disseminates an informational document to the holders of the securities
in connection with the issuer tender offer (including any exchange
offer), the issuer or affiliate must furnish that informational
document, including any amendments thereto, in English, to the
Commission on Form CB (§ 249.480 of this chapter) by the first
business day after publication or dissemination. If the issuer or
affiliate is a foreign company, it must also file a Form F-X
(§ 239.42 of this chapter) with the Commission at the same time as
the submission of Form CB to appoint an agent for service in the Untied
States.
(B) The issuer or affiliate must disseminate any informational
document to U.S. holders, including any amendments thereto, in English,
on a comparable basis to that provided to security holders in the home
jurisdiction.
(C) If the issuer or affiliate disseminates by publication in its
home jurisdiction, the issuer or affiliate must publish the information
in the United States in a manner reasonably calculated to inform U.S.
holders of the offer.
(iv) An investment company registered or required to be
registered under the Investment Company Act of 1940 (15 U.S.C. 80a-1 et
seq.), other than a registered closed-end investment company, may not
use this paragraph (h)(8); or
(9) Any other transaction or transactions, if the Commission,
upon written request or upon its own motion, exempts such transaction
or transactions, either unconditionally, or on specified terms and
conditions, as not constituting a fraudulent, deceptive or manipulative
act or practice comprehended within the purpose of this section.
(i) Cross-border tender offers (Tier II). Any issuer tender offer
(including any exchange offer) that meets the conditions in paragraph
(i)(1) of this section shall be entitled to the exemptive relief
specified in paragraph (i)(2) of this section provided that such issuer
tender offer complies with all the requirements of this section other
than those for which an exemption has been specifically provided in
paragraph (i)(2) of this section:
(1) Conditions. (i) The issuer is a foreign private
issuer as defined in § 240.3b-4 and is not an investment company
registered or required to be registered under the Investment Company
Act of 1940 (15 U.S.C. 80a-1 et seq.), other than a registered
closed-end investment company; and
(ii) Except in the case of an issuer tender offer which is
commenced during the pendency of a tender offer made by a third party
in reliance on § 240.14d-1(d), U.S. holders do not hold more than 40
percent of the class of securities sought in the offer (as determined
under Instruction 2 to paragraphs (h)(8) and (i) of this section).
(2) Exemptions. The issuer tender offer shall comply
with all requirements of this section other than the
following:
{{6-30-05 p.9420}}
(i) Equal treatment--loan notes. If the issuer or affiliate
offers loan notes solely to offer sellers tax advantages not available
in the United States and these notes are neither listed on any
organized securities market nor registered under the Securities Act (15
U.S.C. 77a et seq.), the loan notes need not be offered to U.S.
holders, notwithstanding paragraph (f)(8) and (h)(9) of this section.
(ii) Equal treatment--separate U.S. and foreign offers.
Notwithstanding the provisions of paragraph (f)(8) of this section, an
issuer or affiliate conducting an issuer tender offer meeting the
conditions of paragraph (i)(1) of this section may separate the offer
into two offers: One offer made only to U.S. holders and another offer
made only to non-U.S. holders. The offer to U.S. holders must be made
on terms at least as favorable as those offered any other holder of the
same class of securities that is the subject of the tender offer.
(iii) Notice of extension. Notice of extensions made
in accordance with the requirements of the home jurisdiction law or
practice will satisfy the requirements of § 240.14e-1(d).
(iv) Prompt payment. Payment made in accordance with
the requirements of the home jurisdiction law or practice will satisfy
the requirements of § 240.14c-1(c).
Instructions to paragraph (h)(8) and (i) of this section:
1. Home jurisdiction means both the jurisdiction of the issuer's
incorporation, organization or chartering and the principal foreign
market where the issuer's securities are listed or quoted.
2. U.S. holder means any security holder resident in the United
States. To determine the percentage of outstanding securities held by
U.S. holders:
i. Calculate the U.S. ownership as of 30 days before the
commencement of the issuer tender offer;
ii. Include securities underlying American Depositary Shares
convertible or exchangeable into the securities that are the subject of
the tender offer when calculating the number of subject securities
outstanding, as well as the number held by U.S. holders. Exclude from
the calculations other types of securities that are convertible or
exchangeable into the securities that are the subject of the tender
offer, such as warrants, options and convertible securities. Exclude
from those calculations securities held by persons who hold more than
10 percent of the subject securities;
iii. Use the method of calculating record ownership in
§ 240.12g3-2(a), except that your inquiry as to the amount of
securities represented by accounts of customers resident in the United
States may be limited to brokers, dealers, banks and other nominees
located in the United States, your jurisdiction of incorporation, and
the jurisdiction that is the primary trading market for the subject
securities, if different than your jurisdiction of incorporation;
iv. If, after reasonable inquiry, you are unable to obtain
information about the amount of securities represented by accounts of
customers resident in the United States, you may assume, for purposes
of this definition, that the customers are residents of the
jurisdiction in which the nominee has its principal place of business;
and
v. Count securities as beneficially owned by residents of the
United States as reported on reports of beneficial ownership that are
provided to you or publicly filed and based on information otherwise
provided to you.
3. United States. United States means the United States of America,
its territories and possessions, any State of the United States, and
the District of Columbia.
4. The exemptions provided by paragraphs (h)(8) and (i) of this
section are not available for any securities transaction or series of
transactions that technically complies with paragraph (h)(8) or (i) of
this section but are part of a plan or scheme to evade the provisions
of this section.
(j)(1) It shall be a fraudulent, deceptive or manipulative
act or practice, in connection with an issuer tender offer, for an
issuer or an affiliate of such issuer, in connection with an issuer
tender offer:
(i) To employ any device, scheme or artifice to defraud any
person;
{{12-29-06 p.9421}}
(ii) To make any untrue statement of a material fact or to omit
to state a material fact necessary in order to make the statements
made, in the light of the circumstances under which they were made, not
misleading; or
(iii) To engage in any act, practice or course of business which
operates or would operate as a fraud or deceit upon any person.
(2) As a means reasonably designed to prevent fraudulent,
deceptive or manipulative acts or practices in connection with any
issuer tender offer, it shall be unlawful for an issuer or an affiliate
of such issuer to make an issuer tender offer unless:
(i) Such issuer or affiliate complies with the requirements of
paragraphs (b), (c), (d), (e) and (f) of this section; and
(ii) The issuer tender offer is not in violation of paragraph
(j)(1) of this section.
[Codified to 17 C.F.R. § 240.13e--4]
[Section 240.13e--4 added at 44 Fed. Reg. 49410, August 22, 1979;
amended at 47 Fed. Reg. 54780, December 6, 1982, effective December 4,
1982; 48 Fed. Reg. 34253, July 28, 1983; 51 Fed. Reg. 3034, January 23,
1986, effective March 1, 1986; 51 Fed. Reg. 5515, February 14, 1986,
effective March 1, 1986; 51 Fed. Reg. 25882, July 17, 1986, rule
240.13e--4(f)(8)(i) effective July 17, 1986, other provisions effective
August 18, 1986, except that a tender offer commenced after August 18,
1986 in competition with an offer that commenced prior to that date
would be permitted to rely on the rules in effect prior to such date;
51 Fed. Reg. 32630, September 15, 1986; 56 Fed. Reg. 30067 and 30069,
July 1, 1991; 58 Fed. Reg. 14683, March 18, 1993, effective April 26,
1993; 58 Fed. Reg. 19343, April 14, 1993; 61 Fed. Reg. 24656, May 15,
1996, effective June 14, 1996; 61 Fed. Reg. 68589, December 30, 1996;
62 Fed. Reg. 544, January 3, 1997; 62 Fed. Reg. 11323, March 12, 1997;
62 Fed. Reg. 36459, July 8, 1997; 64 Fed. Reg. 61403, and 61453,
November 10, 1999, effective January 24, 2000; 71 Fed. Reg. 65407,
November 8, 2006, effective December 8,
2006]
§ 240.13e--100 Schedule 13E--3, Transaction statement under
section 13(e) of the Securities Exchange Act of 1934 and Rule 13e--3
(§ 240.13e--3) thereunder.
Securities and Echange Commission, Washington, D.C.
20549
Rule 13e--3 Transaction Statement under Section 13(e) of the
Securities Exchange Act of 1934 (Amendment No. ____________________________________________ )
_______ (Name of the Issuer)
_______ (Names of Persons Filing Statement)
_______ (Title of Class of Securities)
_______ (CUSIP Number of Class of Securities)
_______ (Name, Address, and Telephone Numbers of
Person Authorized to Receive Notices and Communications on Behalf of
the Persons Filing Statement)
This statement is filed in connection with (check the appropriate
box):
a. [ ] The filing of solicitation materials or an information
statement subject to Regulation 14A (§§ 240.14a--1 through
240.14b--2), Regulation 14C (§§ 240.14c--1 through 240.14c--101) or
Rule 13e--3(c) (§ 240.13e--3(c)) under the Securities Exchange Act of
1934 ("the Act").
b. [ ] The filing of a registration statement under the
Securities Act of 1933.
{{12-29-06 p.9422}}
c. [ ] A tender offer.
d. [ ] None of the above.
Check the following box if the soliciting materials or information
statement referred to in checking box (a) are preliminary copies:
[ ]
Check the following box if the filing is a final amendment reporting
the results of the transaction [ ]
CALCULATION OF FILING
FEE
| Transaction valuation* |
Amount
of filing fee |
|---|
| |
|
|
| |
*Set forth the amount on which the filing fee
is calculated and state how it was determined.
[ ] Check the box if any part of the fee is offset as
provided by § 240.0--11(a)(2) and identify the filing with which the
offsetting fee was previously paid. Identify the previous filing by
registration statement number, or the Form or Schedule and the date of
its filing.
Amount Previously Paid: _______
Form or Registration No. _______
Filing Party: _______
Date Filed: _______
General Instructions:
A. File eight copies of the statement, including all
exhibits, with the Commission if paper filing is permitted.
B. This filing must be accompanied by a fee payable to the
Commission as required by § 240.0--11(b),
C. If the statement if filed by a general or limited partnership,
syndicate or other group, the information called for by Items 3, 5, 6,
10 and 11 must be given with respect to: (i) Each partner of the
general partnership; (ii) each partner who is, or functions as, a
general partner of the limited partnership; (iii) each member of the
syndicate or group; and (iv) each person controlling the partner or
member. If the statement is filed by a corporation or if a person
referred to in (i), (ii), (iii) or (iv) of this Instruction is a
corporation, the information called for by the items specified above
must be given with respect to: (a) Each executive officer and director
of the corporation; (b) each person controlling the corporation; and
(c) each executive officer and director of any corporation or other
person ultimately in control of the corporation.
D. Depending on the type of Rule 13e--3 transaction
(§ 240.13e--3(a)(3)), this statement must be filed with the
Commission:
1. At the same time as filing preliminary or definitive
soliciting materials or an information statement under Regulations 14A
or 14C of the Act;
2. At the same time as filing a registration statement under the
Securities Act of 1933;
3. As soon as practicable on the date a tender offer is first
published, sent or given to security holders; or
4. At least 30 days before any purchase of securities of the
class of securities subject to the Rule 13e--3 transaction, if the
transaction does not involve a solicitation, an information statement,
the registration of securities or a tender offer, as described in
paragraphs 1, 2 or 3 of this Instruction; and
5. If the Rule 13e--3 transaction involves a series of
transactions, the issuer or affiliate must file this statement at the
time indicated in paragraphs 1 through 4 of this Instruction for the
first transaction and must amend the schedule promptly with respect to
each subsequent transaction.
E. If an item is inapplicable or the answer is in the negative, so
state. The statement published, sent or given to security holders may
omit negative and not applicable responses, except that responses to
Items 7, 8 and 9 of this schedule must be provided in full. If the
schedule includes any information that is not published, sent or given
to security holders,
{{6-30-05 p.9423}}provide
that information or specifically incorporate it by reference under the
appropriate item number and heading in the schedule. Do not recite the
text of disclosure requirements in the schedule or any document
published, sent or given to security holders. Indicate clearly the
coverage of the requirements without referring to the text of the
items.
F. Information contained in exhibits to the statement may be
incorporated by reference in answer or partial answer to any item
unless it would render the answer misleading, incomplete, unclear or
confusing. A copy of any information that is incorporated by reference
or a copy of the pertinent pages of a document containing the
information must be submitted with this statement as an exhibit, unless
it was previously filed with the Commission electronically on EDGAR. If
an exhibit contains information responding to more than one item in the
schedule, all information in that exhibit may be incorporated by
reference once in response to the several items in the schedule for
which it provides an answer. Information incorporated by reference is
deemed filed with the Commission for all purposes of the Act.
G. If the Rule 13e--3 transaction also involves a transaction
subject to Regulation 14A (§§ 240.14a--1 through 240.14b--2) or 14C
(§§ 240.14c--1 through 240.14c--101) of the Act, the registration of
securities under the Securities Act of 1933 and the General Rules and
Regulations of that Act, or a tender offer subject to Regulation 14D
(§§ 240.14d--1 through 240.14d--101) or § 240.13e--4, this
statement must incorporate by reference the information contained in
the proxy, information, registration or tender offer statement in
answer to the items of this statement.
H. The information required by the items of this statement is
intended to be in addition to any disclosure requirements of any other
form or schedule that may be filed with the Commission in connection
with the Rule 13e--3 transaction. If those forms or schedules require
less information on any topic than this statement, the requirements of
this statement control.
I. If the Rule 13e--3 transaction involves a tender offer, then a
combined statement on Schedules 13E--3 and TO may be filed with the
Commission under cover of Schedule TO (§ 240.14d--100). See
Instruction J of Schedule TO (§ 240.14d--100).
J. Amendments disclosing a material change in the information set
forth in this statement may omit any information previously disclosed
in this statement.
Item 1. Summary Term Sheet
Furnish the information required by Item 1001 of Regulation M--A
(§ 229.1001 of this chapter) unless information is disclosed to
security holders in a prospectus that meets the requirements of
§ 230.421(d) of this chapter.
Item 2. Subject Company Information
Furnish the information required by Item 1002 of Regulation M--A
(§ 229.1002 of this chapter).
Item 3. Identity and Background of Filing Person
Furnish the information required by Item 1003(a) through (c) of
Regulation M--A (§ 229.1003 of this chapter).
Item 4. Terms of the Transaction
Furnish the information required by Item 1004(a) and (c) through (f)
of Regulation M--A (§ 229.1004 of this chapter).
Item 5. Past Contacts, Transactions, Negotiations and
Agreements
Furnish the information required by Item 1005(a) through (c) and (e)
of Regulation M--A (§ 229.1005 of this chapter).
{{6-30-05 p.9424}}
Item 6. Purposes of the Transaction and Plans or Proposals
Furnish the information required by Item 1006(b) and (c)(1) through
(8) of Regulation M--A (§ 229.1006 of this chapter).
Instruction to Item 6: In providing the information
specified in Item 1006(c) for this item, discuss any activities or
transactions that would occur after the Rule 13e--3 transaction.
Item 7. Purposes, Alternatives, Reasons and Effects
Furnish the information required by Item 1013 of Regulation M--A
(§ 229.1013 of this chapter).
Item 8. Fairness of the Transaction
Furnish the information required by Item 1014 of Regulation M--A
(§ 229.1014 of this chapter).
Item 9. Reports, Opinions, Appraisals and Negotiations
Furnish the information required by Item 1015 of Regulation M--A
(§ 229.1015 of this chapter).
Item 10. Source and Amounts of Funds or Other Consideration
Furnish the information required by Item 1007 of Regulation M--A
(§ 229.1007 of this chapter).
Item 11. Interest in Securities of the Subject Company
Furnish the information required by Item 1008 of Regulation M--A
(§ 229.1008 of this chapter).
Item 12. The Solicitation or Recommendation
Furnish the information required by Item 1012(d) and (e) of
Regulation M--A (§ 229.1012 of this chapter).
Item 13. Financial Statements
Furnish the information required by Item 1010(a) through (b) of
Regulation M--A (§ 229.1010 of this chapter) for the issuer of the
subject class of securities.
Instructions to Item 13:
1. The disclosure materials disseminated to security holders may
contain the summarized financial information required by Item 1010(c)
of Regulation M--A (§ 229.1010 of this chapter) instead of the
financial information required by Item 1010(a) and (b). In that case,
the financial information required by Item 1010(a) and (b) of
Regulation M--A must be disclosed directly or incorporated by reference
in the statement. If summarized financial information is disseminated
to security holders, include appropriate instructions on how more
complete financial information can be obtained. If the summarized
financial information is prepared on the basis of a comprehensive body
of accounting principles other than U.S. GAAP, the summarized financial
information must be accompanied by a reconciliation as described in
Instruction 2.
2. If the financial statements required by this Item are prepared
on the basis of a comprehensive body of accounting principles other
than U.S. GAAP, provide a reconciliation to U.S. GAAP in accordance
with Item 17 of Form 20--F (§ 249.220f of this chapter).
3. The filing person may incorporate by reference financial
statements contained in any document filed with the Commission, solely
for the purposes of this schedule, if: (a) The financial statements
substantially met the requirements of this Item; (b) an express
statement is made that the financial statements are incorporated by
reference; (c) the matter incorporated by reference is clearly
identified by page, paragraph, caption or otherwise; and (d) if the
matter incorporated by reference is not filed with this Schedule, an
indication is made where the information may be inspected and copies
obtained. Financial statements that are required to be presented in
comparative form for two or more fiscal years or periods may not be
incorporated by reference unless the
{{10-31-07 p.9425}}material
incorporated by reference includes the entire period for which the
comparative data is required to be given. See General
Instruction F to this Schedule.
Item 14. Persons/Assets, Retained, Employed, Compensated or
Used
Furnish the information required by Item 1009 of Regulation M--A
(§ 229.1009 of this chapter).
Item 15. Additional Information
Furnish the information required by Item 1011(b) of Regulation M--A
(§ 229.1011 of this chapter).
Item 16. Exhibits
File as an exhibit to the Schedule all documents specified in Item
1016(a) through (d), (f) and (g) of Regulation M--A (§ 229.1016 of
this chapter).
Signature. After due inquiry and to the best of my
knowledge and belief, I certify that the information set forth in this
statement is true, complete and correct.
_______ (Signature)
_______ (Name and title)
_______ (Date)
Instruction to Signature: The statement must be
signed by the filing person or that person's authorized
representative. If the statement is signed on behalf of a person by an
authorized representative (other than an executive officer of a
corporation or general partner of a partnership), evidence of the
representative's authority to sign on behalf of the person must be
filed with the statement. The name and any title of each person who
signs the statement must be typed or printed beneath the signature. See
§ 240.12b--11 with respect to signature requirements.
[Codified to 17 C.F.R. § 240.13e-100]
[Section 240.13e-100 added at 44 Fed. Reg. 46743, August 8, 1979;
amended at 51 Fed. Reg. 2477, January 17, 1986, effective February 18,
1986; 51 Fed. Reg. 42059, November 20, 1986, effective January 20, 1987
for proxy statements filed on or after that date; 64 Fed. Reg. 61454,
November 10, 1999, effective January 24, 2000]
§ 240.13f--1 Reporting by institutional investment managers of
information with respect to accounts over which they exercise
investment discretion.
(a) (1) Every institutional investment manager which exercises
investment discretion with respect to accounts holding section 13(f)
securities, as defined in paragraph (c) of this section, having an
aggregate fair market value on the last trading day of any month of any
calendar year of at least $100,000,000 shall file a report on Form 13F
[§ 249.325 of this Chapter] with the Commission within 45 days
after the last day of such calendar year and within 45 days after the
last day of each of the first three calendar quarters of the subsequent
calendar year.
(2) An amendment to a Form 13F (§ 249.325 of this chapter)
report, other than one reporting only holdings that were not previously
reported in a public filing for the same period, must set forth the
complete text of the Form 13F. Amendments must be numbered
sequentially.
(b) For the purposes of this rule, "investment discretion"
has the meaning set forth in section 3(a)(35) of the Act [15 U.S.C.
78c(a)(35)]. An institutional investment manager shall also be deemed
to exercise "investment discretion" with respect to all accounts
over which any person under its control exercises investment
discretion.
{{10-31-07 p.9426}}
(c) For purposes of this rule "section 13(f) securities"
shall mean equity securities of a class described in section 13(d)(1)
of the Act that are admitted to trading on a national securities
exchange or quoted on the automated quotation system of a registered
securities association. In determining what classes of securities are
section 13(f) securities, an institutional investment manager may rely
on the most recent list of such securities published by the Commission
pursuant to section 13(f)(3) of the Act [15 U.S.C. 78m(f)(3)]. Only
securities of a class on such list shall be counted in determining
whether an institutional investment manager must file a report under
this rule [240.13f--1(a)] and only those securities shall be reported
in such report. Where a person controls the issuer of a class of equity
securities which are "section 13(f) securities" as defined in
this rule, those securities shall not be deemed to be "section 13(f)
securities" with respect to the controlling person, provided that
such person does not otherwise exercise investment discretion with
respect to accounts with a fair market value of at least $100,000,000
within the meaning of paragraph (a) of this section.
[Codified to 17 C.F.R. § 240.13f--1]
[Section 240.13f--1 added at 43 Fed. Reg. 26705, June 22, 1978,
effective July 31, 1978; amended at 44 Fed. Reg. 3034 and 3035, January
15, 1979, effective February 5, 1979; 64 Fed. Reg. 2849, January 19,
1999, effective, February 18, 1999]
* * * * *
1 Average number of shares of common stock outstanding during
each period was--(as adjusted to give effect to stock dividends or
stock splits). Go Back to Text
[Main Tabs]
[Table of Contents - 8000]
[Index]
[Previous Page]
[Next Page]
[Search]
|
