US Securities sample - Euromoney Institutional Investor PLC

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TENDER OFFERSHowever, in both cases the offeror must offer those security holders cash considerationinstead of excluding them, if it has offered cash consideration to security holders in anotherstate or in a jurisdiction outside the United States.Tier IIThe Tier II exemption provides relief from selected provisions of the tender offer rules forissuer and third-party tender offers when:• the subject company is a foreign private issuer (and not an investment company, other thana registered closed-end investment company); and• U.S. security holders own no more than 40% of the class of securities sought in thetender offer.As with Tier I, the bidder’s nationality does not matter. The exemptions address a number ofprovisions that frequently conflict with home jurisdiction regulations (principally the U.K.Takeover Code), and from which the SEC staff has from time-to-time granted relief on a caseby-casebasis. The exemptions include:a) equal treatment of target security holders (the ‘all holders’ and ‘best price’ requirements);b) notice of extensions of the offer;c) prompt payment for or return of tendered securities;d) subsequent offering period withdrawal rights; ande) extension of the offer after reduction or waiver of minimum tender condition.The Tier II bidder must comply with the remaining tender offer provisions, including the procedural,disclosure and filing requirements. U.S. tender offer documents (for example,Schedule TO), rather than Form CB, must be used in a Tier II tender offer. Additionally, TierII transactions are not exempt from the ‘going private’ provisions of Rule 13e-3 under theExchange Act.Rule 802Rule 802 provides an exemption for offerings of securities in exchange for the securities offoreign private issuers in an exchange offer or business combination. The exemptions do notrelieve issuers, third-party bidders or other persons from the anti-fraud or anti-manipulationrules or the civil liability provisions of the securities laws.Rule 802 provides an exemption from Securities Act registration for offers and sales inany exchange offer for a class of securities of a foreign private issuer, or in any exchange ofsecurities for the securities of a foreign private issuer in any business combination, if the U.S.holders of the foreign subject company hold no more than 10% of the securities that are thesubject of the exchange offer or business combination.For the exemption to apply, U.S. holders must participate in the exchange offer or businesscombination on terms at least as favorable as the other holders of the subject securities (subjectto an exception comparable to the Tier I blue sky exception). The exemption is not con-To order US Securities Regulation: All you need to know about going public, listing, reporting and private placementsplease visit www.euromoneybooks.com or call +44 (0) 20 7779 8999 or USA + 1 800 437 9997© Euromoney Institutional Investor PLC85
U.S. SECURITIES REGULATIONditioned on delivery of any specific form of disclosure documents, but any information disseminatedto holders of the subject securities or published in the home jurisdiction must besimilarly disseminated or published in English for U.S. holders. This information must alsobe submitted in English on Form CB to the SEC along with, in the case of a foreign offeror,a Form F-X consent to service.The Rule 802 exemption covers only the issues of the securities and the transactions inwhich the securities are exchanged. It does not provide an exemption to affiliates or othersfor resales of the issuer’s securities. Securities acquired in a Rule 802 transaction arerestricted securities if the securities for which they were exchanged were restricted securitiesin the hands of the holders. Conversely, the securities are unrestricted (and thus freely tradable),if the securities for which they were exchanged were unrestricted, except by affiliatesof the issuer in whose hands they will constitute control stock.Blue sky complianceThere is no general exemption from state blue sky laws that parallels Rules 800-802.Therefore, issuers must ensure that they consider the effect of blue sky laws before relying onthese rules. However, to the extent that the offered securities are listed on a national stockexchange (for example, the New York Stock Exchange) or quoted on the Nasdaq NationalMarket, federal regulation has preempted state registration requirements.The MJDS and tender offersRequirementsFor tender offers for Canadian targets, the Multijurisdictional Disclosure System (MJDS) providesrelief from the U.S. tender offer rules. The target must be a Canadian foreign privateissuer, with less than 40% of its stock held in the U.S. The bidder is entitled to rely on a conclusivepresumption that the issuer is a foreign private issuer and that U.S. holders hold lessthan 40% of the subject class of securities unless:i) the bidder has actual knowledge to the contrary;ii) the issuer’s most recent annual report or AIF indicates that U.S. holders hold more than40%; oriii)the aggregate trading volume on Nasdaq and all U.S. exchanges exceeds that of allCanadian exchanges and the CDN over the 12 months preceding the tender offer.The offer must comply with Canadian tender offer rules, and the issuer must not obtain anyregulatory relief from Canadian requirements that provide protections similar to those providedby the U.S. tender offer rules. Bidders of any nationality may rely on MJDS for cashtender offers. However, only Canadian issuers may use MJDS for exchange offers.Share ownershipHostile bidders may rely on a presumption that a target satisfies the non-ownership test if:• the target’s U.S. or Canadian public filings do not disclose otherwise; and86To order US Securities Regulation: All you need to know about going public, listing, reporting and private placementsplease visit www.euromoneybooks.com or call +44 (0) 20 7779 8999 or USA + 1 800 437 9997© Euromoney Institutional Investor PLC
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US Securities sample - Euromoney Institutional Investor PLC

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