99-28355. Regulation of Takeovers and Security Holder Communications  

  • [Federal Register Volume 64, Number 217 (Wednesday, November 10, 1999)]
    [Rules and Regulations]
    [Pages 61408-61466]
    From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
    [FR Doc No: 99-28355]
    
    
    -----------------------------------------------------------------------
    
    SECURITIES AND EXCHANGE COMMISSION
    
    17 CFR Parts 200, 229, 230, 232, 239, and 240
    
    [Release No. 33-7760; 34-42055; IC-24107; File No. S7-28-98]
    RIN 3235-AG84
    
    
    Regulation of Takeovers and Security Holder Communications
    
    AGENCY: Securities and Exchange Commission.
    
    ACTION: Final Rules.
    
    -----------------------------------------------------------------------
    
    SUMMARY: We are adopting comprehensive revisions to the rules and 
    regulations applicable to takeover transactions (including tender 
    offers, mergers, acquisitions and similar extraordinary transactions). 
    The revised rules will permit increased communications with security 
    holders and the markets. The amendments also will: Balance the 
    treatment of cash and stock tender offers; simplify and centralize the 
    disclosure requirements; and eliminate regulatory inconsistencies in 
    mergers and tender offers. In addition, we are updating the tender 
    offer rules by providing for a subsequent offering period, clarifying 
    certain filing and disclosure requirements and reducing compliance 
    burdens where consistent with investor protection. We believe these 
    revisions will lead to a more well informed and efficient market.
    
    EFFECTIVE DATE: The rules and amendments will become effective January 
    24, 2000.
    
    FOR MORE INFORMATION CONTACT: Dennis O. Garris, Chief, or James J. 
    Moloney, Special Counsel, in the Office of Mergers & Acquisitions, 
    Division of Corporation Finance, at (202) 942-2920. For questions on 
    new Rule 14e-5, contact James A. Brigagliano, Assistant Director, Irene 
    Halpin, Florence Harmon or Michael Trocchio, Special Counsels, in the 
    Office of Risk Management and Control, Division of Market Regulation, 
    at (202) 942-0772. For questions on investment companies, contact 
    Martha B. Peterson, Special Counsel, in the Office of Disclosure 
    Regulation, Division of Investment Management, at (202) 942-0721.
    
    SUPPLEMENTARY INFORMATION: We are adopting amendments to Rules 13e-1, 
    13e-3, 13e-4, 14a-4, 14a-6, 14a-12, 14c-5, 14d-1, 14d-2, 14d-3, 14d-4, 
    14d-5, 14d-6, 14d-7, 14d-9, 14e-1\1\ and Schedules 14A, 13E-3, and 14D-
    9\2\ under the Securities Exchange Act of 1934 (``Exchange Act'').\3\ 
    We are rescinding Exchange Act Rule 14a-11.\4\ We are adopting: 
    amendments to Item 10 of Regulation S-K; \5\ a new subpart of 
    Regulation S-K, the 1000 series (``Regulation M-A''); a new tender 
    offer schedule, Schedule TO, to replace Schedules 13E-4 and 14D-1; \6\ 
    new tender offer Rule 14e-5 to replace Rule 10b-13; \7\ and new tender 
    offer Rules 14d-11 and 14e-8. We also are adopting amendments to Rule 
    13(d) of Regulation S-T and Rule of Practice 30-3.\8\ Lastly, we are 
    adopting amendments to Rules 135, 145 and 432, Forms S-4 and F-4, and 
    new Rules 162, 165, 166 and 425 under the Securities Act of 1933 
    (``Securities Act'').\9\
    ---------------------------------------------------------------------------
    
        \1\ 17 CFR 240.13e-1, 13e-3, 13e-4, 14a-4, 14a-6, 14a-12, 14c-
    5,14d-1, 14d-2, 14d-3, 14d-4, 14d-5, 14d-6, 14d-7, 14d-9, and 14e-1.
        \2\ 17 CFR 240.14a-101, 13e-100, and 14d-101.
        \3\ 15 U.S.C. 78a et seq.
        \4\ 17 CFR 240.14a-11.
        \5\ 17 CFR 229.10.
        \6\ 17 CFR 240.13e-101, 14d-100.
        \7\ 17 CFR 240.10b-13.
        \8\ 17 CFR 232.13(d); 17 CFR 200.30-3.
        \9\ 17 CFR 230.135, 145, and 432; 17 CFR 239.25 and 34; 15 
    U.S.C. 77a et seq.
    ---------------------------------------------------------------------------
    
    Table of Contents
    
    I. Executive Summary and Background
    II. Discussion of New Regulatory Scheme
        A. Overview
        1. Increased Communications Permitted Before Filing Disclosure 
    Document
        2. Eligibility
        3. Written Communications with Legend Filed on Date of First Use
        B. Communications Under the Securities Act
        1. Securities Act Exemption and Filing Rules
        2. Liability for Communications
        3. Rules 135 and 145
        4. Public Announcement
        C. Communications Under the Proxy Rules
        1. Rule 14a-12 Expanded
        a. The ``As Soon as Practicable'' Requirement
        b. Participant Information
        c. ``Test the Waters''
        2. Limited Confidential Treatment of Merger Proxy Materials
        3. Timing of Filings
        D. Communications Under the Tender Offer Rules
        1. ``Commencement,'' Communications, and Filing Requirements
        2. Dissemination Requirements
        E. Exchange Offers May Commence On Filing
        1. Early Commencement
        2. Dissemination of a Supplement and Extension of the Offer
        F. Disclosure Requirements for Tender Offers and Mergers
        1. Schedules Combined and Disclosure Requirements Moved to 
    Subpart 1000 of Regulation S-K (``Regulation M-A'')
        2. Streamline and Improve Required Disclosure
        a. ``Plain English'' Summary Term Sheet
        b. Item 14 of Schedule 14A Revised to Clarify Requirements and 
    Harmonize Cash Merger and Cash Tender Offer Disclosure
        c. Reduced Financial Statement Requirements for Non-Reporting 
    Target Companies in Stock Mergers and Stock Tender Offers
        G. Tender Offer Rules Updated
        1. Bidders May Include a ``Subsequent Offering Period'' Without 
    Withdrawal Rights
        2. Bidder Financial Information Clarified for Cash Tender Offers
        a. When a Bidder's Financial Statements Are Not Required; Source 
    of Funds
        b. Content of Bidder's Financial Statements in Cash Tender 
    Offers; Financial Statements in Going-Private Transactions
        c. Pro Forma Financial Information Required in Two-Tier 
    Transactions
        3. Target Is Required to Report Purchases of Its Own Securities 
    After a Third-Party Tender Offer Is Commenced
        4. Tender Offer and Proxy Rules Relating to the Delivery of a 
    Security Holder List and Security Position Listing Harmonized
        5. New Rule 14e-5: Revision and Redesignation of Former Rule 
    10b-13, the Rule Prohibiting Purchases Outside an Offer
        a. Redesignating Rule 10b-13 as Rule 14e-5
        b. Clarification of Rule 14e-5; Prohibited Period
        c. Persons and Securities Subject to the Rule
        d. Excepted Transactions
        e. Additional Exceptions Being Adopted
    III. Effective Date and Transition
        A. Communications
        B. Confidential Treatment of Proxy Materials
        C. Early Commencement
        D. Disclosure Requirements and New Schedules
        E. Subsequent Offering Period
        F. Revised Security Holder List Rule for Tender Offers
        G. New Rules 14e-5
    IV. Cost-Benefit Analysis
        A. Communications
        B. Filings
        C. Tender Offers
    V. Commission Findings and Considerations
        A. Exemptive Authority Findings
        B. Effect on Competition
        C. Promotion of Efficiency, Competition and Capital Formation
    VI. Final Regulatory Flexibility Analysis
        A. Need for Action
        B. Objectives of the Rule Amendments
    
    [[Page 61409]]
    
        C. Summary of Significant Issues Raised by the Public Comments
        D. Description and Estimate of the Number of Small Entities 
    Subject to the New Rules
        E. Projected Reporting, Recordkeeping, and Other Compliance 
    Requirements
        F. Description of Steps Taken to Minimize the Effect on Small 
    Entities
    VII. Paperwork Reduction Act
    VIII. Statutory Basis and Text of Amendments
    
    I. Executive Summary and Background
    
        Last fall, we proposed comprehensive changes to the various 
    regulatory schemes applicable to issuer and third-party tender offers, 
    mergers, going-private transactions and security holder 
    communications.\10\ The proposed changes were prompted by an increase 
    in the number of transactions where securities are offered as 
    consideration; an increase in the number of hostile transactions 
    involving proxy or consent solicitations; and significant technological 
    advances that have resulted in more and faster communications with 
    security holders and the markets. Because these trends have continued 
    since we issued the Proposing Release and commenters, for the most 
    part, viewed the proposals as favorable,\11\ we are adopting the 
    proposals, with some modification.
    ---------------------------------------------------------------------------
    
        \10\ Regulation of Takeovers and Security Holder Communications, 
    Release No. 33-7607 (November 3, 1998) (63 FR 67331) (the 
    ``Proposing Release'').
        \11\ The comment letters are available for inspection and 
    copying in our Public Reference Room in File No. S7-28-98. Comments 
    that were submitted electronically also are available on our web 
    site (www.sec.gov).
    ---------------------------------------------------------------------------
    
        As we noted in the Proposing Release, the existing regulatory 
    framework imposes a number of restrictions on communications with 
    security holders and the marketplace. In addition, the disparate 
    regulatory treatment of cash and stock tender offers \12\ may unduly 
    influence a bidder's \13\ choice of offering cash or securities in a 
    takeover transaction. We also noted unnecessary differences in 
    regulatory requirements between tender offers and other types of 
    extraordinary transactions, such as mergers.\14\  Finally, we noted 
    that the multiple regulatory schemes that can apply to a transaction 
    may impose additional compliance costs without necessarily providing a 
    sufficient marginal benefit to security holders. Our goals in proposing 
    and adopting these changes are to promote communications with security 
    holders and the markets, minimize selective disclosure, harmonize 
    inconsistent disclosure requirements and alleviate unnecessary burdens 
    associated with the compliance process, without a reduction in investor 
    protection.\15\
    ---------------------------------------------------------------------------
    
        \12\ Stock tender offers, also referred to as exchange offers, 
    are tender offers where the consideration offered to security 
    holders includes securities (either equity or debt); these 
    transactions generally are registered under the Securities Act.
        \13\ The term ``bidder'' is used throughout this release to 
    refer to the offeror or purchaser in a tender offer.
        \14\ For a discussion of the regulatory schemes applicable to 
    cash tender offers, exchange offers, cash and stock mergers, see 
    Part II.A of the Proposing Release.
        \15\ In this release we focus on the amendments that we are 
    adopting and how they differ from the original proposals. For a more 
    complete discussion of the background and rationale for the changes, 
    see the Proposing Release.
    ---------------------------------------------------------------------------
    
        We also proposed broad changes to the regulation of securities 
    offerings in a companion release.\16\ Our proposed treatment of 
    communications in the Securities Act Reform Release differs from our 
    approach in the Proposing Release. The differences were due to the 
    special nature of business combination transactions \17\ in contrast to 
    capital-raising transactions. At this time we are not adopting the 
    Securities Act Reform proposals that are unrelated to business 
    combination transactions. We are continuing to evaluate commenters' 
    responses to the Securities Act Reform proposals and in the future we 
    may take action on these proposals. We are adopting, however, several 
    proposals in the Securities Act Reform Release that relate to business 
    combination transactions. As a result, some proposals or concepts 
    previously presented in the Securities Act Reform Release are 
    incorporated into this release. Where we proposed changes that would 
    appear in new forms included in the Securities Act Reform Release 
    (Forms C and SB-3), those changes have been implemented in existing 
    forms (Forms S-4 and F-4). In a separate release, we also are adopting 
    significant changes to the regulatory scheme for cross-border tender 
    offers, exchange offers and rights offerings.\18\
    ---------------------------------------------------------------------------
    
        \16\ Securities Act Reform Release, Release No. 33-7606A 
    (November 13,1998) (63 FR 67174).
        \17\ For purposes of this release, the Proposing Release and the 
    rules adopted in this release, a ``business combination 
    transaction'' means any Rule 145(a) transaction (17 CFR 230.145(a)) 
    (including mergers, recapitalizations, acquisitions, and similar 
    matters) or tender offer (including issuer tender offers).
        \18\ Release No. 33-7759 (October 22, 1999) (the ``Cross-Border 
    Adopting Release'').
    ---------------------------------------------------------------------------
    
        We believe these new rules and revisions should provide 
    participants in the securities markets sufficient flexibility to 
    accommodate changes in deal structure and advances in technology that 
    continue to occur in today's markets. Briefly, the new rules and 
    amendments adopted today will:
    
         Relax existing restrictions on oral and written 
    communications with security holders by permitting the dissemination 
    of more information on a timely basis, so long as the written 
    communications are filed on the date of first use; in particular,
         Permit more communications before the filing of a 
    registration statement in connection with either a stock tender 
    offer or a stock merger transaction;
         Permit more communications before the filing of a proxy 
    statement (whether or not a business combination transaction is 
    involved);
         Permit more communications regarding a proposed tender 
    offer without ``commencing'' the offer and requiring the filing and 
    dissemination of specified information;
         Harmonize the various communications principles 
    applicable to business combinations under the Securities Act, tender 
    offer rules and proxy rules; and
         Eliminate the confidential treatment currently 
    available for merger proxy statements, except when communications 
    made outside the proxy statement are limited to those specified in 
    Rule 135;
         Balance the treatment of stock and cash tender offers 
    by permitting both issuer and third-party stock tender offers to 
    commence as early as the filing of a registration statement;
         Simplify and integrate the various disclosure 
    requirements for tender offers, going-private transactions, and 
    other extraordinary transactions in a new series of rules within 
    Regulation S-K, called ``Regulation M-A'';
         Combine the existing schedules for issuer and third-
    party tender offers into one schedule available for all tender 
    offers, entitled ``Schedule TO'';
         Require a ``plain English'' summary term sheet in all 
    tender offers, mergers and going-private transactions, except when 
    the transaction is already subject to the Securities Act plain 
    English rules;
         Update the financial statement requirements for 
    takeover transactions; in particular,
         Eliminate the requirement to file financial statements 
    for target companies \19\ in most cash mergers, consistent with the 
    treatment of cash tender offers;
    ---------------------------------------------------------------------------
    
        \19\ The term ``target'' is used throughout this release to 
    refer to the company to be acquired in a business combination 
    transaction or the company whose securities are the subject of the 
    transaction, whether the transaction is agreed upon or unsolicited.
    ---------------------------------------------------------------------------
    
         Clarify when financial statements of the acquiring 
    company are not required in cash mergers, and when financial 
    statements are required, reduce the financial statements for the 
    acquiror from three years to two;
         Clarify when the bidder's financial statements are not 
    required in cash tender offers, and when financial statements are 
    required in third-party offers, reduce the requirement from three 
    years to two;
         Require pro forma and related financial information in 
    negotiated cash tender offers where the bidder intends to engage in 
    a back-end securities transaction;
    
    [[Page 61410]]
    
         Reduce the financial statements required for non-
    reporting target companies in stock mergers and stock tender offers;
         Permit an optional subsequent offering period after 
    completion of a tender offer, during which security holders can 
    tender shares without withdrawal rights;
         Clarify Rule 13e-1, which requires issuers to report 
    intended repurchases of their own securities once a third-party 
    tender offer has commenced;
         Conform the security holder list requirement in the 
    tender offer rules with the comparable provision in the proxy rules 
    so that the list will include non-objecting beneficial owners; and * 
    clarify the rule that prohibits purchases outside a tender offer 
    (Rule 10b-13), codify prior interpretations of and exemptions from 
    the rule, and redesignate it as Rule 14e-5.
    
        In several respects the rules adopted today differ from the 
    proposed rule changes. The primary differences are as follows:
    
         The Securities Act exemption for communications is 
    extended to all parties to the transaction and any persons acting on 
    their behalf;
         The Securities Act exemption also is revised to clarify 
    that an unintentional or immaterial breach of the filing requirement 
    will not result in a loss of the exemption so long as a good faith 
    and reasonable attempt was made to file and the material is filed as 
    soon as practicable after discovery of the failure to file;
         A definition of ``public announcement'' is provided so 
    that parties know when they need to begin filing written 
    communications relating to the transaction and when the prohibition 
    against making purchases outside the tender offer begins;
         A written communication relating to a proposed 
    transaction that is a Rule 135 notice must be filed unless the 
    notice only contains information that has already been filed;
         The confidential treatment currently available for 
    preliminary merger proxy statements is retained under limited 
    circumstances;
         The requirement in expanded Rule 14a-12 to furnish a 
    proxy statement as soon as practicable is revised so that a proxy 
    statement must be furnished at the time a form of proxy is given to 
    or requested from security holders;
         Written communications permitted under expanded Rule 
    14a-12 must include either full participant information, as 
    currently required, or a legend directing security holders where 
    they can obtain participant information;
         Long form publication is retained as a means to 
    commence a tender offer, rather than being eliminated as proposed;
         The provision permitting commencement of exchange 
    offers as early as the filing of a registration statement is 
    extended to issuer exchange offers, not limited to third-party 
    offers as proposed;
         A bidder that commences an exchange offer early may not 
    be required to deliver a final prospectus to security holders;
         An acquiror in a stock merger or stock tender offer 
    need not provide any financial statements for a non-reporting target 
    if the acquiror's security holders are not voting on the transaction 
    and the acquisition is not significant to the acquiror at the 20% 
    level;
         Subsequent offering period changes: this period can be 
    between three and 20 business days, and is not fixed at ten business 
    days as initially proposed; a bidder is not required to disclose an 
    intent to engage in a back-end merger; and a bidder must announce 
    the results of the initial offering period before beginning the 
    subsequent offering period;
         A bidder must disclose pro forma financial information 
    in the first tier of a two-tier transaction for negotiated 
    transactions only, not for transactions where access to the target's 
    financial information is limited;
         The information required by Rule 13e-1 regarding issuer 
    repurchases of securities need not be disseminated to security 
    holders; in addition, an exclusion from this rule is provided for 
    certain periodic, routine repurchases; and
         Several additional exceptions are added to new Rule 
    14e-5.
    
        At this time we are not adopting several concepts that we solicited 
    comment on, including:
    
         A modification to the proxy rules that would permit the 
    direct delivery of proxy materials to non-objecting beneficial 
    owners;
         A federally-mandated proxy solicitation period;
         A ``test the waters'' provision for proxy 
    solicitations;
         A requirement that bidders commencing a tender offer by 
    summary advertisement mail their tender offer materials to security 
    holders;
         A proxy analogue to the early commencement provision in 
    exchange offers that would permit the sending of proxy cards with 
    ``preliminary'' proxy materials; and
         An expansion of the Private Securities Litigation 
    Reform Act of 1995 \20\ safe harbor from liability to cover forward-
    looking statements made in connection with tender offers.
    
        \20\ Pub. L. 104-67, 109 Stat. 737 (1995).
    ---------------------------------------------------------------------------
    
        In the future, depending on the effects of today's rule changes, we 
    may consider proposing additional changes to further harmonize the 
    regulatory requirements.
    
    II. Discussion of New Regulatory Scheme
    
    A. Overview
    
    1. Increased Communications Permitted Before Filing Disclosure Document
        Today, merger and acquisition transactions are occurring at a 
    faster pace, due in part to the rapid development of new technologies 
    and advancements in communications. As a result of economic and 
    regulatory pressures, many companies are releasing more information to 
    the market before a registration, proxy or tender offer statement is 
    filed publicly with us.\21\ In many cases, parties are releasing 
    information on proposed transactions including pro forma financial 
    information for the combined entity, estimated cost savings and 
    synergies. As we noted in the Proposing Release, parties to business 
    combination transactions provide several reasons for the need to 
    disclose information early,\22\ including the duty under Rule 10b-5 to 
    disclose material information in a manner that is not misleading.\23\ 
    We also recognize that parties may be subject to other regulatory 
    requirements to disclose information to the markets early.\24\
    ---------------------------------------------------------------------------
    
        \21\ Companies may disclose information in response to the 
    market's demand for information regarding proposed transactions and 
    the need to keep customers, employees and other constituencies 
    adequately informed.
        \22\ See Part II.B.1 of the Proposing Release.
        \23\ 17 CFR 240.10b-5. We have long recognized the needs of 
    issuers to communicate with security holders regarding important 
    business and financial developments. See Releases No. 33-4697 (May 
    28, 1964) (29 FR 7317) and 33-5180 (August 16, 1971) (36 FR 16506). 
    In addition, the Division of Corporation Finance has previously 
    recognized the needs of bidders to disclose information regarding a 
    contemplated ``back-end'' transaction (i.e., a subsequent 
    transaction in which the bidder acquires any remaining securities 
    outstanding). Disclosure of information required by Schedule 14D-1 
    regarding a ``back-end'' transaction generally will not result in 
    ``gun jumping'' because the information is not designed to prime the 
    market for a subsequent registered offering of securities. Instead, 
    the information aids investors in evaluating the terms of a tender 
    offer and deciding whether to tender for cash or wait for securities 
    in a back-end transaction. See Release No. 33-5927 (April 24, 1978) 
    (42 FR 18163).
        \24\ Companies may be required to disclose information under the 
    particular rules of the stock exchange or inter-dealer quotation 
    system upon which their securities are traded.
    ---------------------------------------------------------------------------
    
        Existing restrictions on communications result primarily from the 
    broad concepts of ``offer'' \25\ and ``prospectus'' \26\ under the 
    Securities Act, ``solicitation'' \27\ under the Exchange Act proxy 
    rules, and ``commencement'' \28\ under the Williams
    
    [[Page 61411]]
    
    Act tender offer rules.\29\ We recognize that restricting 
    communications to one document may actually impede, rather than 
    promote, informed investing and voting decisions.
    ---------------------------------------------------------------------------
    
        \25\ Section 2(a)(3) of the Securities Act (15 U.S.C. 77b) 
    broadly defines ``offer'' as including every attempt or offer to 
    dispose of, or solicitation of an offer to buy, a security or 
    interest in a security, for value. Offers are currently prohibited 
    during the pre-filing period and restricted during the waiting 
    period.
        \26\ The term ``prospectus'' is defined in section 2(a)(10) (15 
    U.S.C. 77b) to include any prospectus, notice, circular, 
    advertisement, letter of communication, written or by radio or 
    television, that offers any security for sale or confirms the sale 
    of the security, except for communications that are preceded or 
    accompanied by a statutory prospectus.
        \27\ ``Solicitation'' is broadly defined to include ``the 
    furnishing of a form of proxy or other communication to security 
    holders under circumstances reasonably calculated to result in the 
    procurement, withholding or revocation of a proxy.'' See Rule 14a-
    1(l) (17 CFR 240.14a-1(l)).
        \28\ The Williams Act provides that only very limited 
    information can be announced without either commencing a cash tender 
    offer or requiring the filing of a registration statement in a stock 
    offer. See Rule 14d-2(c) and (d) (17 CFR 240.14d-2(c) and (d)).
        \29\ The Williams Act was enacted in 1968 as an amendment to the 
    Exchange Act (sections 13(d)-(e) and 14(d)-(f)). The Williams Act 
    regulates tender offers and imposes beneficial ownership reporting 
    requirements. 15 U.S.C. 78m(d)-(e) and 15 U.S.C. 78n(d)-(f).
    ---------------------------------------------------------------------------
    
        We are adopting, as proposed, non-exclusive exemptions under the 
    Securities Act, proxy rules and tender offer rules that permit 
    communications for an unrestricted length of time without a cooling-off 
    period between the end of communications and filing. Written 
    communications made in reliance on the exemptions must be filed. In 
    response to comments, we have modified the exemptions slightly from 
    those proposed, as discussed below.
        One major benefit of permitting earlier communications is that more 
    information will be available generally to all security holders, not 
    simply to a limited audience of analysts and financially sophisticated 
    market participants. Because the new rules do not require oral 
    communications to be reduced to writing and filed, some selective 
    disclosure may continue to occur.\30\ Nevertheless, the rules adopted 
    today are designed to reduce selective disclosure by permitting 
    widespread dissemination of information through a variety of media 
    calculated to inform all security holders about the terms, benefits and 
    risks of a planned extraordinary transaction. We believe that parties 
    to business combination transactions generally wish to inform the 
    marketplace at large about their deals, and will use the new rules to 
    accomplish this end. The new regulatory scheme is not intended to be 
    used as a means to substitute selective oral disclosure for written and 
    oral disclosure that becomes public on a widespread basis.\31\ Although 
    this release does not impose new requirements on oral communications, 
    we remain extremely troubled by the selective disclosure of material 
    information.\32\ The staff is considering broader regulatory approaches 
    to limit or inhibit written and oral selective disclosure by issuers in 
    all contexts, including those addressed in this release. If we decide 
    to pursue these approaches, we will issue a separate release seeking 
    public comment.\33\
    ---------------------------------------------------------------------------
    
        \30\ Our exemptions permitting earlier communications do not in 
    any way alter the liability traditionally imposed on insider 
    trading. See Rules 10b-5 and 14e-3 (17 CFR 240.14e-3). Rule 14e-3 
    applies when a person ``has taken a substantial step or steps to 
    commence, or has commenced, a tender offer,'' so the timing of this 
    rule is not affected by the new regulatory scheme.
        \31\ The new rules only provide an exemption from section 5 (and 
    comparable restrictions on communications under the proxy and tender 
    offer rules). Oral communications under the new rules, like written 
    communications, will have liability under the applicable regulatory 
    scheme. See Part II.B.2 below.
        \32\ Chairman Levitt has expressed concerns about the selective 
    disclosure of material information to analysts and institutional 
    investors. See ``A Question of Integrity: Promoting Investor 
    Confidence by Fighting Insider Trading,'' speech given Feb. 27, 
    1998, available on our web site (www.sec.gov).
        \33\ See ``Quality Information: The Lifeblood of Our Markets'' 
    speech given by Chairman Levitt on Oct. 18, 1999, available on our 
    web site (www.sec.gov). ``The behind-the-scenes feeding of material 
    non-public information from companies to analysts is a stain on our 
    markets. This selectiveness is a disservice to investors and it 
    undermines the fundamental principle of fairness. In a time when 
    instantaneous and free flowing information is the norm, these sort 
    of whispers are an insult to fair and public disclosure * * *. (T)he 
    Commission is planning to take action where it can. Within the next 
    few months, we will consider proposing rules to close the gap 
    between those in the so-called `know' and the rest of us in the 
    public.''
    ---------------------------------------------------------------------------
    
        The scheme we adopt today provides the maximum amount of 
    flexibility to disclose information to security holders and the 
    markets.\34\ This new communications scheme, however, does not change 
    the current requirement that security holders receive a mandated 
    disclosure document before they are asked to make a voting or 
    investment decision (e.g., a prospectus, proxy statement, or tender 
    offer statement setting forth complete and balanced information).\35\ 
    Of course, security holders may buy or sell in the market before they 
    receive the mandated disclosure document. That is true under the 
    current regulatory scheme as well as under the new one. Under the new 
    rules, security holders are likely to have information about the 
    transaction at an earlier point in time, and they can choose to act on 
    this information or wait for the complete disclosure document.
    ---------------------------------------------------------------------------
    
        \34\ We solicited comment on two alternatives to our primary 
    communications proposal that were not favored by commenters and are 
    not being adopted.
        \35\ The exemptions also apply to communications made after the 
    mandated disclosure document is filed, so long as written 
    communications are filed. They do not, however, alter the 
    disclosure, filing and delivery requirements for the mandated 
    disclosure documents.
    ---------------------------------------------------------------------------
    
        While it is possible under the new scheme to announce a proposed 
    transaction long before a mandated disclosure document is filed, we do 
    not believe acquirors will delay the filing of a mandated disclosure 
    document unnecessarily because the longer they wait the greater the 
    risk that market forces will affect the terms of the deal or another 
    potential acquiror will announce a competing transaction. We believe 
    that companies announcing a transaction should, and we encourage them 
    to, file the mandated disclosure document as soon as possible after 
    announcing a proposed transaction.
        Our long-held concern regarding communications that could condition 
    the market before dissemination of a mandated disclosure document is 
    mitigated by the continuing requirement to deliver a disclosure 
    document before any voting or investment decision can be made, and the 
    attendant liability for false or misleading statements. Communications 
    made in reliance on the new exemptions would, of course, be subject to 
    section 10(b) liability.\36\ We remind persons relying on the 
    exemptions that fraudulent statements in these communications could not 
    be cured by subsequent filings. In light of these considerations, we 
    believe that the benefits conferred on the marketplace by the 
    disclosure of more information on a timely basis outweigh the risks 
    that the information will be incomplete or potentially misleading.
    ---------------------------------------------------------------------------
    
        \36\ 15 U.S.C. 78j(b). The communications permitted under the 
    exemptions adopted would be subject to liability under the 
    particular regulatory scheme (the Securities Act, proxy or tender 
    offer rules) as well as Rule 10b-5 and the other antifraud rules.
    ---------------------------------------------------------------------------
    
    2. Eligibility
        Our proposals did not make distinctions based on size and seasoned 
    status. Due to the extraordinary nature of business combination 
    transactions, security holders and the markets need full and timely 
    information regarding those transactions regardless of the size or 
    seasoned status of the companies involved. We recognized the inherent 
    difficulties in selecting the appropriate focus for purposes of 
    applying an eligibility test (i.e., should you look at the status of 
    the acquiror, the target or the combined entity?). All commenters who 
    addressed the issue agreed with our view. Therefore, the exemptions are 
    adopted as proposed, without any eligibility requirements.
        We also asked whether the exemptions should be limited to the 
    parties to the transaction or available to others who may be acting on 
    behalf of the parties to the transaction. In particular, we noted that 
    in a third-party stock offer the company to be acquired would not 
    ordinarily be subject to the Securities Act restrictions on 
    communications, but under certain circumstances, it could be viewed as 
    joining with the acquiror in making the offer. In that case, the 
    exemptions would need to extend to additional parties. In addition, we 
    asked whether the parties' affiliates, dealer-managers,
    
    [[Page 61412]]
    
    and others acting on behalf of the parties to the transaction should be 
    permitted to rely on the exemption. Again, most commenters were 
    consistent in recommending that we expand the exemptions to these 
    persons. While we realize that in many circumstances the exemptions 
    would not be necessary for persons other than the parties to the 
    transaction or the party making the offer, we want to encourage full, 
    complete and continuous communications with security holders. 
    Therefore, we are adopting the exemptions to cover all persons acting 
    on the parties' behalf.
    3. Written Communications With Legend Filed on Date of First Use
        We are adopting, as proposed, a condition to the communications 
    exemptions that all written communications in connection with or 
    relating to a business combination transaction be filed on or before 
    the date of first use.\37\ In addition, all written communications must 
    include a prominent legend advising investors to read the registration, 
    proxy or tender offer statement, as applicable.\38\ We believe that a 
    prompt filing requirement is necessary to protect security holders and 
    assure that these communications are available to all investors on a 
    timely basis.\39\ In most cases, this information will need to be filed 
    electronically via the EDGAR System, and thus will be rapidly 
    disseminated to the marketplace.\40\
    ---------------------------------------------------------------------------
    
        \37\ Written communications include all information disseminated 
    otherwise than orally, including electronic communications and other 
    future applications of changing technology. Videos and CD-ROMs, for 
    example, should be filed on EDGAR by means of a transcript. See Rule 
    304 of Regulation S-T (17 CFR 232.304).
        \38\ The legend also would advise investors that they can obtain 
    copies of the filed documents for free at the Commission's web site 
    and explain which documents are available for free from the issuer 
    or filing person, as applicable. See new Rule 165(c)(1) and revised 
    Rules 14a-12(a)(1)(ii), 13e-4(c), 14d-2(b)(2), and 14d-9(a).
        \39\ We did not propose, and are not adopting, a requirement to 
    deliver written communications to security holders.
        \40\ These communications must be filed on EDGAR to the same 
    extent that the related prospectus, proxy statement or tender offer 
    statement must be filed on EDGAR.
    ---------------------------------------------------------------------------
    
        In the Proposing Release, we asked whether parties relying on the 
    exemptions should be permitted to file written communications on a 
    later date (e.g., when the mandated disclosure document is filed or 
    some other date). While several commenters viewed the requirement as 
    reasonable, a few believed it would be burdensome. The latter group of 
    commenters stated that a same-day filing requirement could cause 
    parties to delay the release of information. These commenters believed 
    that communications that would otherwise be made late in the day will 
    be postponed until the materials can be filed on the same day. We 
    believe, however, that in most cases parties to business combination 
    transactions will be able to time their communications so that it is 
    possible to file them on the same day they are made. Also, Rule 13(d) 
    of Regulation S-T permits communications that are made outside of the 
    Commission's business hours to be filed electronically as soon as 
    practicable on the next business day.\41\ Further, we have clarified 
    that an immaterial or unintentional delay in filing will not preclude 
    reliance on the Securities Act exemption.\42\
    ---------------------------------------------------------------------------
    
        \41\ 17 CFR 232.13(d). See Part II.C.3 below.
        \42\ See Part II.B.2 below.
    ---------------------------------------------------------------------------
    
        The filing requirement applies to written communications that are 
    made public or are otherwise provided to persons that are not a party 
    to the transaction.\43\ As a general matter, this would include, for 
    example, scripts used by parties to the transaction to communicate 
    information to the public and other written material (e.g., slides) 
    relating to the transaction that is shown to investors.\44\ In 
    contrast, internal written communications provided solely to parties to 
    the transaction, legal counsel, financial advisors, and similar persons 
    authorized to act on behalf of the parties to the transaction would not 
    need to be filed. Also, as explained in the Proposing Release, business 
    information that is factual in nature and relates solely to ordinary 
    business matters, and not the pending transaction, would not need to be 
    filed. We expect that filing persons will apply traditional legal 
    principles in determining whether a particular written communication is 
    made in connection with or relates to a proposed business combination 
    transaction.\45\
    ---------------------------------------------------------------------------
    
        \43\ Oral communications are covered by the exemptions, but they 
    do not need to be reduced to writing or filed. Oral communications, 
    as proposed, will be subject to liability under the applicable 
    regulatory scheme. For example, pre-filing oral communications 
    regarding a proposed offering of securities in connection with a 
    business combination transaction will be subject to section 12(a)(2) 
    liability. See Part II.B.2 below.
        \44\ Cf. Rule 14a-6(c) (17 CFR 240.14a-6(c)) and Item 1016(g) of 
    Regulation M-A.
        \45\ At this time we are not adopting proposed Rules 168 and 
    169, the exemptions for regularly released forward-looking 
    information and factual business communications from the filing 
    requirements. See Part VII.A.1.c.ii.(A) and (B) of the Securities 
    Act Reform Release and Release No. 33-5009 (Oct. 7, 1969) (34 FR 
    16870). Although we are not adopting these rules, we do not expect 
    parties to file ordinary or routine business communications that 
    refer to the transaction in a non-substantive way.
    ---------------------------------------------------------------------------
    
        Several commenters criticized the proposed filing requirement 
    because it could result in the filing of duplicative or substantially 
    similar information when similar communications are made over time. In 
    response to this concern, we are clarifying that any republication or 
    redissemination of the same information would not need to be filed 
    again to comply with the exemptions. If, however, information is either 
    added to or changed from the content of an earlier communication, then 
    the revised written communication must be filed.\46\
    ---------------------------------------------------------------------------
    
        \46\ If the same written communication is redisseminated or 
    contains only minimal changes (e.g., correction of minor 
    typographical errors, an update regarding a contact person, or 
    stylistic changes including a change in the format, type-size, 
    letterhead, addressee, etc.) without any change to the content of 
    the information, the written communication would not need to be 
    refiled. In addition, we do not expect persons to file responses to 
    specific unsolicited inquiries if the responses are not disseminated 
    to others. Of course, if a response to an unsolicited inquiry 
    contained material information not otherwise available to the 
    investing public (e.g., projections), the communication would need 
    to be filed.
    ---------------------------------------------------------------------------
    
    B. Communications Under the Securities Act
    
    1. Securities Act Exemption and Filing Rules
        We are exercising our exemptive authority to create an exemption 
    that will permit more communications with security holders and the 
    markets regarding a planned business combination transaction.\47\ We 
    find that free communications relating to business combination 
    transactions are in the public interest and consistent with the 
    protection of investors. Accordingly, we adopt new Rules 165, 166 \48\ 
    and 425 \49\ and amend Rules 135 and 145.\50\ These new and amended
    
    [[Page 61413]]
    
    rules permit parties to communicate freely about a planned business 
    combination transaction before a registration statement is filed, as 
    well as during the waiting period and post-effective periods, so long 
    as their written communications used in connection with or relating to 
    the transaction are filed beginning with the first public announcement 
    \51\ and ending with the close of the proposed transaction.\52\ As 
    noted in the Proposing Release, these communications are not excluded 
    from the definition of ``offer'' in the Securities Act,\53\ as no 
    content restriction is imposed on the communications.\54\ Instead, new 
    Rule 165 exempts persons making these communications from sections 
    5(b)(1) and (c) of the Securities Act.\55\
    ---------------------------------------------------------------------------
    
        \47\ Section 28 of the Securities Act (15 U.S.C. 77z-3) gives us 
    authority to, by rule or regulation, conditionally or 
    unconditionally exempt any person, security or transaction, or any 
    class or classes of persons, securities or transactions from any 
    provision of this title or any rule or regulation issued under this 
    title to the extent that such exemption is necessary or appropriate 
    in the public interest, and is consistent with protection of 
    investors.
        \48\ We adopt proposed Securities Act Rules 165, 166 and 167 as 
    new Rules 165(b), 165(a) and 166, respectively. These rules are 
    limited to business combination transactions since the Securities 
    Act Reform Release proposals governing capital-raising transactions 
    are not being adopted at this time.
        \49\In the Securities Act Reform Release, we proposed a 
    requirement that all ``free writing'' materials be filed as 
    prospectus supplements in accordance with Rule 425. In this release, 
    we adopt proposed Rule 425(b) and (c) as new Rule 425(a) and (b) and 
    limit the rule to business combination transactions. Proposed 
    paragraph (a) contained several exceptions from the filing 
    requirement. We retain the exceptions that are still applicable in 
    Rule 425(d).
        \50\ See Part II.B.3 below discussing revised Rules 135 and 145 
    in greater detail.
        \51\ See Part II.B.4 below for the definition of public 
    announcement.
        \52\ See Part II.A.3 above discussing the types of written 
    communications that must be filed. Written communications relating 
    to the transaction before the filing of a registration statement are 
    prospectuses that must be filed under Rule 425. See new Rule 165(a). 
    After a registration statement is filed (during what is called the 
    ``waiting period''), and after effectiveness of the registration 
    statement, written communications relating to the transaction are 
    prospectuses that must be filed under Rule 425. See new Rule 165(b). 
    Communications filed under Rule 425 do not need to be delivered to 
    security holders. This does not, however, change the prospectus 
    delivery requirements for the mandated prospectus that is part of 
    the registration statement, and any supplements either before or 
    after the registration statement is declared effective. These 
    prospectuses and supplements would continue to be delivered to 
    security holders and filed under Rule 424 (17 CFR 230.424) instead 
    of Rule 425.
        \53\ A communication that contains no more information than that 
    specified in Rule 135 will not be an offer, as is currently the 
    case.
        \54\ We note, however, that a communication relating to an 
    investment company that is permitted by the new and amended rules 
    generally would have omitted to state a fact necessary in order to 
    make the statements in the communication not materially misleading 
    unless the communication includes the information specified in Rule 
    34b-1 (17 CFR 270.34b-1) under the Investment Company Act of 1940 
    (17 U.S.C. 80a-1 et seq.)
        \55\ New Rule 166 provides that communications before the first 
    public announcement of a transaction will not be offers, so long as 
    parties to the transaction take reasonable steps to prevent further 
    distribution or publication until the first public announcement or 
    the registration statement is filed.
    ---------------------------------------------------------------------------
    
        New Rules 165 and 166 are available only for business combination 
    transactions. New Rule 165 defines a business combination transaction 
    as a transaction specified in Rule 145(a) or an exchange offer. Thus, 
    either the proxy rules or the tender offer rules must be applicable to 
    the transaction. We have added a preliminary note to Rules 165 and 166 
    to state that the exemption is not available to communications that may 
    technically comply with the rule, but have the primary purpose or 
    effect of conditioning the market for a capital-raising or resale 
    transaction.\56\
    ---------------------------------------------------------------------------
    
        \56\ For example, the exemption would not be available where a 
    non-reporting issuer conducts an exchange offer primarily for the 
    purposes of giving its investors freely tradable securities and 
    creating a public market in, or manipulating the market for, those 
    securities. Likewise, it would be inappropriate to rely on the 
    exemptions in effecting a merger of a public ``shell'' company to 
    take a private company public. These mergers commonly are used to 
    develop a market for the merged entity's securities, often as part 
    of a scheme to manipulate the market for those securities.
    ---------------------------------------------------------------------------
    
    2. Liability for Communications
        As proposed, both oral and written communications made in reliance 
    on the Securities Act exemption would be offers subject to section 
    12(a)(2) liability, based on the belief that this level of liability 
    would adequately protect investors without chilling communications.\57\ 
    Approximately half the commenters who addressed the issue agreed with 
    the proposed liability standard, while the others believed that this 
    potential level of liability could have a chilling effect on 
    communications.
    ---------------------------------------------------------------------------
    
        \57\ Of course, if a communication contains material 
    information, that information must be disclosed in the registration 
    statement that is declared effective. Therefore, the information 
    ultimately will be subject to section 11 liability (15 U.S.C. 77k) 
    as well.
    ---------------------------------------------------------------------------
    
        We are adopting the proposed regulatory scheme. To the extent that 
    these communications constitute offers, they currently would be subject 
    to section 12(a)(2) liability. As a result, we do not believe that the 
    adopted rules alter the current liability levels for these 
    communications.\58\ In light of the extensive pre-filing communications 
    that are ongoing in the marketplace now with respect to business 
    combination transactions, we believe that a section 12(a)(2) standard 
    of liability would not significantly chill communications.
    ---------------------------------------------------------------------------
    
        \58\ In some cases, these communications are filed and 
    incorporated by reference into registration statements, and as a 
    result also are subject to section 11 liability.
    ---------------------------------------------------------------------------
    
        Several commenters also indicated that the proposed section 5(c) 
    exemption should not be conditioned on timely filing of all written 
    communications. Commenters were concerned that a failure to timely file 
    a written communication could result in a loss of protection under the 
    exemption, resulting in a section 5 violation that would give security 
    holders a right of rescission. In proposing the filing requirement, we 
    did not intend to provide security holders with an automatic right of 
    rescission if a communication is either filed late or there is an 
    unintentional failure to file. To clarify this issue, we are revising 
    the filing requirement in new Rule 165 to state that an immaterial or 
    unintentional failure to file or delay in filing will not result in a 
    loss of the exemption from section 5(b)(1) or (c), so long as a good 
    faith and reasonable attempt to file the written communication is made 
    and the communication is filed as soon as practicable after discovery 
    of the failure to file.\59\
    ---------------------------------------------------------------------------
    
        \59\ New Rule 165(e). This provision is similar to the good 
    faith standard in Rule 508(a) of Regulation D (17 CFR 230.508(a)). 
    Although an immaterial or unintentional failure to file or delay in 
    filing is a violation of the filing requirement, it would not render 
    the exemption unavailable. Factors to be considered in determining 
    whether a delay in filing is immaterial or unintentional include: 
    The nature of the information, the length of the delay, and the 
    surrounding circumstances, including whether a bona fide effort was 
    made to file timely. If a written communication is made late in the 
    day and the offeror attempts to file it, but experiences difficulty 
    in filing electronically on EDGAR, and files as soon as practicable 
    after business hours or the following business day, the exemption 
    will continue to be available.
    ---------------------------------------------------------------------------
    
    3. Rules 135 and 145
        Currently, Rule 135 provides that disclosure of certain limited 
    information in notice form will not be deemed an ``offer'' for purposes 
    of section 5 of the Securities Act.\60\ A Rule 135 notice is typically 
    made upon announcement of a proposed securities offering before a 
    registration statement is filed.\61\ Rule 145(b)(1) contains a similar 
    provision regarding the information in a stock merger that will not be 
    deemed a ``prospectus'' or ``offer.'' \62\
    ---------------------------------------------------------------------------
    
        \60\ 15 U.S.C. 77e. Rule 135 generally permits prospective 
    offerors to issue notices that include the following information: 
    (1) The name of the issuer; (2) the title, amount and basic terms of 
    the securities to be offered, the amount of the offering, if any, by 
    selling security holders, the anticipated time of the offering, and 
    a brief statement of the manner and purpose of the offering, without 
    naming the underwriters; and (3) any statement or legend required by 
    state law. Other limited information also is permitted under the 
    rule for rights offerings, exchange offers and offers to employees 
    of the issuer or an affiliate.
        \61\ Cash tender offers and cash mergers do not involve the 
    Securities Act, and thus no reliance on Rule 135 is necessary.
        \62\ Rule 145 is the rule that applies the registration 
    requirements to business combinations involving security holder 
    voting decisions. Rule 145(b)(1) provides that written 
    communications containing only specified information about mergers 
    and similar transactions are not deemed offers or a prospectus. Rule 
    135(a)(4) contains a similar provision for communications about 
    exchange offers. Rule 145(b)(2), which provides that certain 
    communications subject to the proxy rules are not offers, is being 
    rescinded as proposed.
    ---------------------------------------------------------------------------
    
        We proposed several revisions to Rules 135 and 145 in the Proposing 
    Release and the Securities Act Reform Release. In particular, we 
    proposed moving the substance of Rule 145(b)(1) to Rule 135, as both 
    rules contain similar provisions regarding the
    
    [[Page 61414]]
    
    information that will not be deemed an offer. We are adopting those 
    revisions.\63\
    ---------------------------------------------------------------------------
    
        \63\ Changes to Rules 135 and 145 in the Securities Act Reform 
    Release that were specifically tailored to capital-raising 
    transactions are not being adopted at this time.
    ---------------------------------------------------------------------------
    
        In addition to the changes proposed, we asked whether Rule 135 
    notices should be filed. Although Rule 135 does not currently require 
    these notices to be filed, in many cases the 135 notice would be the 
    first written communication relating to a proposed business combination 
    transaction. We believe it is important for this information to reach 
    the marketplace promptly and on a widespread basis. Generally, these 
    notices are short documents (e.g., press release or other form of 
    written notice of an intended offer). Currently, the first press 
    release or other written communication announcing a proposed business 
    combination transaction often is filed under cover of Form 8-K.\64\ In 
    addition, under the new regulatory scheme these communications would 
    have to be filed under the proxy or tender offer rules, if applicable. 
    As a result, we do not believe that a filing requirement for the first 
    public communication regarding a business combination will impose a 
    significant burden.
    ---------------------------------------------------------------------------
    
        \64\ 17 CFR 249.308.
    ---------------------------------------------------------------------------
    
        We are adopting a filing requirement that encompasses Rule 135 
    notices. These notices must be filed under new Rule 425 because they 
    are written communications relating to a proposed transaction. Even 
    though we are requiring these notices to be filed, our rules provide 
    that they will not constitute offers and therefore will not have 
    section 12(a)(2) prospectus liability.\65\ In addition, subsequent 
    notices or announcements made under Rule 135 that do not contain new or 
    different information are not required to be filed. This approach is 
    consistent with the filing requirement under each of the three 
    regulatory schemes.
    ---------------------------------------------------------------------------
    
        \65\ New Rule 425(b).
    ---------------------------------------------------------------------------
    
    4. Public Announcement
        Under the terms of the exemptions, written communications must be 
    filed beginning with the first public announcement of the business 
    combination transaction. Today we are adopting a specific definition of 
    ``public announcement'' that encompasses all communications that put 
    the market on notice of a proposed transaction. For purposes of 
    determining when a filing obligation is incurred under the exemptions, 
    ``public announcement'' means any communication by a party to the 
    transaction, or any person authorized to act on a party's behalf, that 
    is reasonably designed to, or has the effect of, informing the public 
    or security holders in general about the transaction.\66\ We asked in 
    the Proposing Release whether the term ``public announcement'' should 
    be defined, and if so, how it should be defined. Although the 
    commenters that responded favored a bright line definition, they 
    opposed a broad definition that could potentially create difficulties 
    in determining when a filing obligation is triggered.
    ---------------------------------------------------------------------------
    
        \66\ New Rule 165(f)(3). A similar definition of ``public 
    announcement'' is included in revised Rules 13e-4(c) and 14d-2(b).
    ---------------------------------------------------------------------------
    
        We agree that a definition is necessary, but we believe that the 
    definition should be sufficiently broad to cover communications that 
    are reasonably designed to, or have the effect of, putting the markets 
    or the security holders on notice of a proposed transaction. We do not 
    believe the definition should be so narrow that the parties must 
    actually intend to effect a broad dissemination of the information.\67\
    ---------------------------------------------------------------------------
    
        \67\ Of course, if the regulations of the self-regulatory 
    organization on which the securities are listed require a public 
    announcement of the transaction, that would constitute a public 
    announcement for purposes of the communications exemptions.
    ---------------------------------------------------------------------------
    
    1C. Communications Under the Proxy Rules
    
    1. Rule 14a-12 Expanded
        We are revising Rule 14a-12,\68\ substantially as proposed, to 
    permit both written and oral communications before the filing of a 
    proxy statement so long as all written communications related to the 
    solicitation are filed on the date of first use.\69\ This is the same 
    filing requirement adopted for the communications exemption under the 
    Securities Act.\70\ This exemption is not limited to business 
    combination transactions, but is available regardless of the subject 
    matter of the solicitation. Oral communications do not need to be 
    reduced to writing and filed. In revising Rule 14a-12, we retain 
    substantially all the proposed conditions to reliance on the exemption. 
    These conditions are that no form of proxy is furnished until a proxy 
    statement is delivered, the obligation to disclose participant 
    information, and the requirement to file all written communications 
    with a prominent legend advising security holders to read the proxy 
    statement.
    ---------------------------------------------------------------------------
    
        \68\ The expansion of Rule 14a-12 to cover all solicitations 
    eliminates the need for many of the provisions in Rule 14a-11. As a 
    result, we are rescinding Rule 14a-11 and moving paragraphs (d) and 
    (f) of Rule 14a-11 to new Rule 14a-12. These two provisions apply if 
    soliciting persons refer to information in annual reports or use 
    reprints or reproductions of previously published materials in their 
    soliciting materials. Revised Rule 14a-12 makes it clear that these 
    provisions are limited to election contests.
        \69\ Written communications by soliciting parties before a proxy 
    statement is furnished to security holders must be filed on the date 
    of first use and must provide information regarding the participants 
    and their interests or include a legend advising security holders 
    where they can obtain this information. See revised Rule 14a-
    12(a)(1). Once a proxy statement is furnished to security holders, 
    any additional soliciting materials used must be filed on the date 
    of first use but need not include participant information or a 
    legend advising where to obtain that information. See revised Rule 
    14a-6(b).
        \70\ Communications under revised Rule 14a-12 generally will be 
    filed under cover of the proxy statement cover sheet, with the Rule 
    14a-12 box checked. If a transaction is subject to the Securities 
    Act in addition to one or more of the other regulatory schemes 
    (i.e., the proxy or tender offer rules), the written communications 
    only need to be filed under Securities Act Rule 425. Although the 
    materials are only filed under the Securities Act, they also would 
    be deemed filed and take liability under the proxy or tender offer 
    rules, as applicable.
    ---------------------------------------------------------------------------
    
        As a result of these changes to Rule 14a-12, management can 
    communicate more freely with security holders about significant 
    corporate events, including a proposed merger or acquisition, or other 
    significant corporate governance matters that may require a security 
    holder vote. Likewise, security holders are able to communicate more 
    freely with one another. The revised rule does not, however, expand a 
    company's or security holder's ability to secure promises to vote a 
    certain way before a proxy statement is provided.\71\ The expansion of 
    Rule 14a-12 to non-contested matters is premised on the same rationale 
    for increasing communications related to business combination 
    transactions under the Securities Act. We recognize the many recent 
    developments in technology that have enabled companies to communicate 
    more frequently with security holders at a significantly reduced cost. 
    In addition, security holders and the markets are demanding more 
    information from public companies about new developments and proposed 
    transactions. In light of the rapid pace of change in the securities 
    markets and developments in technology, we believe the time has come to 
    update the proxy rules to permit security holder communications to flow 
    more freely and to facilitate a more informed security holder base.
    ---------------------------------------------------------------------------
    
        \71\ Similarly, the revised rule does not change a security 
    holder's obligation under section 13(d) of the Exchange Act (15 
    U.S.C. 78m(d)) to file or amend a Schedule 13D (17 CFR 240.13d-101) 
    when a voting arrangement, agreement or understanding is reached 
    with respect to a company's securities.
    ---------------------------------------------------------------------------
    
        We believe that the requirement to file all written communications, 
    the condition that no proxy or form of proxy be furnished to security 
    holders before
    
    [[Page 61415]]
    
    a written proxy statement is delivered, and the requirement to include 
    a legend on all written communications advising security holders to 
    read the proxy statement and where to find participant information 
    should be sufficient to protect against misleading solicitations. 
    Together with the antifraud provisions of Rule 14a-9,\72\ these 
    requirements should maintain the integrity of the solicitation process 
    and adequacy of information disseminated to security holders.\73\ In 
    addition to these safeguards, security holders will receive a complete 
    proxy statement before they can vote.
    ---------------------------------------------------------------------------
    
        \72\ 17 CFR 240.14a-9.
        \73\ We note that a communication relating to an investment 
    company that is permitted by Rule 14a-12 generally would have 
    omitted to state a fact necessary in order to make the statements in 
    the communication not materially misleading unless the communication 
    includes the information specified in Rule 34b-1 under the 
    Investment Company Act of 1940.
    ---------------------------------------------------------------------------
    
        In the Proposing Release we solicited comment on whether a 
    federally mandated proxy solicitation period would be appropriate for 
    mergers and similar transactions in light of the free communications 
    permitted under the exemption. We noted that security holders may need 
    a minimum amount of time (e.g., 20 business days), similar to that in 
    tender offers, to digest the free communications together with the 
    information in the proxy statement. Most commenters that responded to 
    this question were opposed to a minimum solicitation period. Because 
    this is an area that traditionally has been governed by state corporate 
    law, and in light of the improved ability of security holders to access 
    information through electronic means, we believe that the existing 
    solicitation periods are adequate. We are not adopting a minimum 
    solicitation period at this time.
        We also asked whether the proxy rules should be amended to permit 
    direct delivery of proxy statements and other soliciting materials to 
    non-objecting beneficial owners to facilitate more timely and informed 
    voting decisions. We were concerned that security holders holding 
    securities in street name may not receive materials from banks, broker-
    dealers, or other nominees in a timely fashion. While we believe that 
    direct delivery of proxy materials to non-objecting beneficial owners 
    may have benefits for security holders, at this time we reserve this 
    concept for a future rulemaking project.
    
    a. The ``As Soon as Practicable'' Requirement
    
        Many of the commenters urged us to revise the current and proposed 
    condition in Rule 14a-12 that a written proxy statement meeting the 
    requirements of Regulation 14A be sent or given to solicited security 
    holders at the earliest practicable date. These commenters pointed out 
    that, in practice, when the purpose of a solicitation becomes moot or 
    the solicitation is otherwise discontinued, persons making pre-filing 
    communications in reliance on the rule generally do not, and should not 
    be required to, send security holders a written proxy statement. We 
    recognize that literal adherence to the delivery requirement in Rule 
    14a-12 in circumstances where a solicitation is canceled prematurely 
    may not provide a significant benefit to security holders, but could 
    result in unnecessary costs to the soliciting parties and potentially 
    mislead security holders into believing that the solicitation is 
    ongoing.
        In view of these concerns, current practice, and the overall 
    approach to communications adopted today, we are eliminating the 
    current ``as soon as practicable'' requirement. As revised, Rule 14a-12 
    requires that a definitive proxy statement be furnished to security 
    holders when a form of proxy is either given to or requested from 
    security holders.\74\ When proxies are first requested from security 
    holders the mandated disclosure document must be delivered to them so 
    they can make informed voting decisions. This approach is consistent 
    with the delivery requirements adopted under the other regulatory 
    schemes.\75\ As a result, parties relying on the rule are not obligated 
    to furnish a written proxy statement if the solicitation is 
    discontinued for any reason. If a solicitation is discontinued, we 
    believe it would be appropriate for the soliciting persons to inform 
    previously solicited security holders that the solicitation is over and 
    provide a brief explanation of why it is being canceled.
    ---------------------------------------------------------------------------
    
        \74\ Revised Rule 14a-12(a)(2).
        \75\ For example, in Part II.D.1 below, we are revising the 
    definition of commencement in the tender offer rules so that a 
    complete tender offer statement need not be filed and disseminated 
    until the means to tender are provided to security holders.
    ---------------------------------------------------------------------------
    
    b. Participant Information
    
        We are modifying the current requirement to disclose participant 
    information in proxy materials. Instead, the revised rule requires a 
    prominent legend on written communications advising security holders 
    where they can obtain a detailed list of the names, affiliations and 
    interests of participants in the solicitation.\76\ Of course, the 
    soliciting materials could include the participant information in full, 
    as currently required, instead of a legend.
    ---------------------------------------------------------------------------
    
        \76\ In response to our question asking whether to retain the 
    requirement to disclose the names of all participants and their 
    interests, several commenters expressed the view that the 
    requirement has resulted in lengthy and boilerplate disclosure that 
    can be costly for participants without providing any significant 
    benefit for security holders.
    ---------------------------------------------------------------------------
    
        The legend may refer to either a previously filed communication 
    that contains the participant information, or a separate statement that 
    contains the participant information and is filed as Rule 14a-12 
    material.\77\ We are not eliminating the requirement to make 
    participant information available to security holders. Rather, we are 
    requiring disclosure of this information once instead of in every 
    communication.
    ---------------------------------------------------------------------------
    
        \77\ The information must be filed under cover of Schedule 14A 
    with the appropriate box on the cover page checked to designate that 
    the material is filed under Rule 14a-12.
    ---------------------------------------------------------------------------
    
    c. ``Test the Waters''
    
        In addition to our proposal to expand Rule 14a-12, we solicited 
    comment on adopting a broader ``test the waters'' approach to proxy 
    solicitations. Under this approach, parties could engage in soliciting 
    activities without filing proxy material so long as no form of proxy is 
    requested or sent. Test the waters would permit both written and oral 
    proxy solicitations before the filing of a proxy statement. Unlike the 
    proposed expansion of Rule 14a-12, however, test the waters would not 
    require written communications to be filed on first use.
        Many commenters favored our concept of test the waters, but a few 
    commenters expressed concern that it could result in unregulated and 
    secret solicitations. At this time, we believe that our expansion of 
    Rule 14a-12, as adopted, should provide sufficient flexibility to 
    companies to communicate more frequently with security holders on a 
    timely basis. After we gain some experience with communications under 
    the expanded Rule 14a-12, depending on its effects, we may consider 
    moving toward a test the waters approach in future rulemaking.
    2. Limited Confidential Treatment of Merger Proxy Materials
        Today, a proxy statement relating to a merger, consolidation, 
    acquisition or similar matter may be filed confidentially with the 
    Commission.\78\ If the staff decides to review the proxy statement it 
    may issue comments to the
    
    [[Page 61416]]
    
    filing parties. When all comments are resolved, a public filing is made 
    either a definitive proxy statement or, if securities are being 
    offered, a registration statement that wraps around the proxy 
    statement. We proposed to eliminate the provision for confidential 
    treatment. We note the practice of disclosing extensive deal-related 
    information to the market before a registration statement or proxy 
    statement is filed publicly. We do not believe that material public 
    information regarding a merger should receive confidential treatment.
    ---------------------------------------------------------------------------
    
        \78\ Rule 14a-6(e)(2) (17 CFR 240.14a-6(e)(2)).
    ---------------------------------------------------------------------------
    
        Many commenters opposed eliminating confidential treatment due to a 
    concern for increased liability. These commenters pointed out that they 
    may be required to make revisions to their proxy statement disclosure 
    in response to staff comment that would be subject to unnecessary 
    public scrutiny. It is not clear, however, why the proxy statement 
    situation warrants different treatment from exchange offers and other 
    public filings that are routinely amended in response to staff comment. 
    One commenter suggested that we retain confidential treatment when the 
    parties to a transaction do not publicly disclose information about the 
    transaction outside the proxy statement.
        We have decided to retain confidential treatment under limited 
    circumstances. Where the parties to a merger or other business 
    combination transaction limit their public communications to those 
    specified in Rule 135,\79\ confidential treatment will continue to be 
    available for the proxy materials. If, however, the parties elect to 
    publicly disclose, either orally or in writing, information relating to 
    the transaction that goes beyond Rule 135, confidential treatment will 
    not be available.\80\
    ---------------------------------------------------------------------------
    
        \79\ Rule 135 generally exempts from the definition of ``offer'' 
    any notice that states no more than specific limited information; 
    see n.60 above. The Rule 135 limit on communications would apply to 
    all parties to the transaction and anyone acting on their behalf in 
    communicating to the public.
        \80\ Revised Rules 14a-6(e)(2) and 14c-5(c)(2). Confidential 
    treatment will continue to be unavailable for going-private or roll-
    up transactions.
    ---------------------------------------------------------------------------
    
        As a result, the parties to the transaction may choose either to 
    forgo confidential treatment and communicate publicly about the deal in 
    reliance on one of the new exemptions, or invoke confidential treatment 
    and refrain from any publicity outside the proxy statement, except for 
    the basic information permitted by Rule 135. We will use Rule 135 as a 
    bright line in determining whether parties to a transaction have 
    publicly disclosed sufficient information to the point that 
    confidential treatment of the proxy materials is no longer warranted. 
    This bright line will be applied whether or not the transaction is 
    subject to the Securities Act and Rule 135. If a preliminary proxy 
    statement is filed confidentially, but information beyond Rule 135 is 
    subsequently disclosed, confidential treatment will no longer be 
    available and all proxy materials related to the transaction must be 
    filed publicly.
        Two commenters recommended that we institute a procedure that would 
    allow parties to seek an expedited, confidential pre-filing review of 
    pro forma financial statements and other accounting matters if 
    confidential treatment is eliminated. Currently, parties are permitted 
    to, and frequently do, initiate pre-filing conferences with our 
    accounting staff to resolve sensitive accounting issues before the 
    filing a merger proxy statement. Our accounting staff will continue to 
    be available for pre-filing conferences with filing parties.
        Several commenters also indicated that if we decided to eliminate 
    confidential treatment, we should not require that all exhibits be 
    filed with the first public filing of the proxy statement. These 
    commenters noted that in many cases some exhibits may not exist or are 
    not in final form when the proxy statement is first filed. The 
    limitation on confidential treatment adopted today would not require 
    that all exhibits be filed with the initial filing of a proxy 
    statement. As is the case today, a proxy statement may be filed first, 
    without any exhibits. Schedule 14A does not have any exhibit 
    requirements. Exhibits could be filed at a later date when the 
    registration statement is wrapped around the proxy statement. If all 
    exhibits are not final or complete at the time the registration 
    statement is first filed, then those exhibits could be filed in an 
    amendment to the combined proxy statement/registration statement.
    3. Timing of Filings
        Rule 14a-6(b) requires that definitive proxy materials be ``filed 
    with, or mailed for filing to, the Commission not later than the date 
    such material is first sent or given to security holders.'' \81\ 
    Similar language appears in several other proxy and information 
    statement filing rules.\82\ The mailing alternative, however, is no 
    longer an option because companies must file electronically.\83\ 
    Therefore, we are amending the proxy and information statement filing 
    rules as proposed to require filing no later than the date the 
    materials are first sent or given to security holders.\84\ This change 
    is consistent with the filing requirements imposed under the exemptions 
    adopted today.
    ---------------------------------------------------------------------------
    
        \81\ 17 CFR 240.14a-6(b).
        \82\ See Rules 14a-4(f) (17 CFR 240.14a-4(f)), 14a-6(c) (17 CFR 
    240.14a-6(c)), 14a-11(c) (17 CFR 240.14a-11(c)), 14a-12(b) (17 CFR 
    240.14a-12(b)) and 14c-5(b) (17 CFR 240.14c-5(b)).
        \83\ See Rule 101(a)(1)(iii) of Regulation S-T (17 CFR 
    232.101(a)(1)(iii)). Paper filings are permitted only if a hardship 
    exemption is available. Foreign private issuers that are not 
    required to file electronically are exempt from the proxy and 
    information statement requirements. Exchange Act Rule 3a-12-3 (17 
    CFR 240.3a-12-3).
        \84\ We also are adopting the proposed clarification to Rule 
    13(d) of Regulation S-T. The revised rule makes it clear that if a 
    communication takes place after our official business hours (i.e., 
    5:30 p.m. Eastern time) or on a non-business day, the communication 
    must be filed electronically on EDGAR the following business day. 
    This revision supersedes the interpretive position expressed by the 
    Division of Corporation Finance in Henry Lesser, Esq. (November 28, 
    1995). This provision applies to all our rules that require filing 
    on the same date that information is furnished, including the 
    Securities Act, proxy and tender offer rules.
    ---------------------------------------------------------------------------
    
        We continue to believe that definitive materials should be 
    available to security holders, the market and the staff as promptly as 
    possible. EDGAR and other electronic sources of information, including 
    the Internet, increasingly are relied upon by the investment community 
    for information regarding public companies. When there is a lag between 
    the time information is first disseminated and the time it is filed, 
    persons relying on our filings for information on public companies are 
    placed at a disadvantage.
    
    D. Communications Under the Tender Offer Rules
    
    1. ``Commencement,'' Communications, and Filing Requirements
        Currently, the tender offer rules restrict a third-party bidder's 
    communications regarding a proposed tender offer. The restrictions on 
    communications stem from the concept of ``commencement,'' the five 
    business day rule for cash tender offers,\85\ and the requirement that 
    a registration statement be filed promptly for registered exchange 
    offers.\86\ A target's
    
    [[Page 61417]]
    
    communications regarding a tender offer are similarly restricted.\87\ 
    To harmonize the treatment of communications regarding business 
    combination transactions under the three regulatory schemes, and to 
    promote the dissemination of information to all security holders on a 
    more timely basis, we are modifying the definition of ``commencement'' 
    and eliminating the five business day rule and the requirement to 
    promptly file a registration statement after announcing a registered 
    exchange offer.\88\
    ---------------------------------------------------------------------------
    
        \85\ Currently, an offer is deemed to ``commence'' on public 
    announcement of the following limited information: the identity of 
    the bidder, the identity of the subject company, the amount and 
    class of securities sought and the price or range of prices offered, 
    unless a tender offer statement is filed within five business days 
    of the announcement and disseminated to security holders or the 
    bidder makes a subsequent public announcement withdrawing the offer. 
    See Rule 14d-2(b) and (c) (17 CFR 240.14d-2(b) and (c)). We refer to 
    this as the ``five business day rule.''
        \86\ Although third-party bidders offering cash or exempt 
    securities must file a tender offer statement within five business 
    days, bidders offering registered securities are not bound by the 
    same rule. They must file a registration statement relating to the 
    securities offered ``promptly'' after announcing the limited 
    information specified in Rule 135. See Rule 14d-2(e) 17 CFR 240.14d-
    2(e)).
        \87\ If the target company comments on the merits of an offer or 
    otherwise makes a recommendation with respect to an offer, it may be 
    required to file a disclosure document. See Rule 14d-9(a) (17 CFR 
    240.14d-9(a)).
        \88\ Revised Rule 14d-2(c). Rule 13e-4 has no comparable 
    communications restrictions, but we are adopting changes to this 
    rule to conform it to the new communications scheme.
    ---------------------------------------------------------------------------
    
        In place of these rules, we are adopting a filing requirement for 
    all written communications that relate to a tender offer beginning with 
    and including the first public announcement of the transaction.\89\ As 
    with communications subject to the Securities Act and the proxy rules, 
    written communications must be filed on the date that the communication 
    is made.\90\ In addition, written communications must contain a legend 
    advising security holders to read the full tender offer or 
    recommendation statement when it becomes available.
    ---------------------------------------------------------------------------
    
        \89\ The public announcement also triggers the Rule 14e-5 
    restrictions on purchasing outside the tender offer, as discussed in 
    Part II.G.5 below.
        \90\ Revised Rule 14d-2(b)(2). These communications will be 
    filed under cover of Schedule TO or 14D-9, as appropriate. Both 
    schedules have a box to check indicating that these are pre-
    commencement communications. No signature is required. See General 
    Instruction D to Schedule TO and General Instruction B to Schedule 
    14D-9. If the transaction also is subject to the Securities Act, 
    then communications must be filed under Rule 425 only, and those 
    communications will be deemed filed under the tender offer rules.
    ---------------------------------------------------------------------------
    
        Under the revised rules, ``commencement'' is when the bidder first 
    publishes, sends or gives security holders the means to tender 
    securities in the offer.\91\ We believe that security holders need the 
    information required by the tender offer rules when they are either 
    asked or able to tender their securities in an offer.\92\
    ---------------------------------------------------------------------------
    
        \91\ Generally, this will occur if the bidder provides security 
    holders with a transmittal form to use to tender securities or if 
    the bidder publishes an advertisement advising security holders how 
    to tender in the offer or to contact the bidder for more information 
    on how to tender securities in the offer. This also would occur if 
    by some other means persons are able to tender securities to the 
    bidder. At that time, the bidder must file and disseminate the 
    tender offer schedule, and the required 20 business day period that 
    all tender offers must remain open will begin to run. Revised Rule 
    14d-2(a).
        \92\ Although we are changing how a tender offer is commenced 
    for purposes of the tender offer rules, we are not defining the term 
    ``tender offer'' or changing our position on what activities may be 
    deemed to constitute a tender offer. The tender offer rules still 
    may apply to activities that function as unconventional tender 
    offers. We maintain our position that the term ``tender offer'' 
    should be interpreted flexibly in accordance with the intended 
    purposes of sections 14(d) and 14(e). A determination of whether a 
    particular transaction or series of transactions constitutes a 
    tender offer will, of course, depend on the particular facts and 
    circumstances and is not limited to ``conventional'' tender offers. 
    See Release No. 34-15548 (Feb. 5, 1979) (44 FR 9956).
    ---------------------------------------------------------------------------
    
        To minimize the potential for dissemination of false offers into 
    the marketplace in the absence of the five business day rule, we are 
    adopting new Rule 14e-8. As proposed, this rule prohibits bidders from 
    announcing an offer: without an intent to commence the offer within a 
    reasonable time and complete the offer; with the intent to manipulate 
    the price of the bidder or the target's securities; or without a 
    reasonable belief that the person will have the means to purchase the 
    securities sought. We believe that a specific rule prohibiting such 
    conduct is appropriate. This antifraud rule is intended as a means to 
    prevent fraudulent and misleading communications regarding proposed 
    offers under the new communications scheme, in addition to the existing 
    antifraud provisions.
        Two commenters expressed concern that the rule could create new 
    grounds for frivolous litigation, while others supported the proposal. 
    Of course, if a target or other party decided to litigate under this 
    new rule, the plaintiff would have the burden of showing that the 
    bidder either did not have an intent to commence and complete the offer 
    or did not reasonably believe it had the ability to purchase the 
    securities. Although not required, a commitment letter or other 
    evidence of financing ability (e.g., funds on hand or an existing 
    credit facility) would in most cases be adequate to satisfy the rule's 
    requirement that the bidder have a reasonable belief that it can 
    purchase the securities sought.\93\
    ---------------------------------------------------------------------------
    
        \93\ This is not intended to change how bidders legitimately 
    finance their offers today. Bidders may have sufficient funds on 
    hand to complete the offer or they may arrange to borrow funds from 
    an outside source. In most cases when the bidder expects to obtain 
    funds from another source, financing is arranged in advance or 
    immediately after announcing an offer. Bidders typically get a 
    commitment letter from their lenders.
    ---------------------------------------------------------------------------
    
        Although we noted in the Proposing Release that eliminating the 
    current restrictions could have potentially destabilizing effects on 
    the securities markets,\94\ it is not clear that the market effects 
    differ greatly from those caused by merger announcements, which are not 
    subject to the same constraints. Based on our experience with tender 
    offers \95\ and the factors discussed above influencing our decision to 
    permit more communications regarding business combination transactions, 
    we believe that the availability of more information on a timely basis 
    will better assist security holders in making well informed individual 
    investment decisions when confronted with news of a pending or proposed 
    business combination. Accordingly, we are adopting the changes to the 
    tender offer communications provisions substantially as proposed.
    ---------------------------------------------------------------------------
    
        \94\ See Part II.B.7.a of the Proposing Release and Release No. 
    34-15548 (February 5, 1979) (44 FR 9956).
        \95\ We have not observed any disruptive or destabilizing 
    effects in cases where precommencement publicity is currently 
    permitted, such as where Rule 135 information is disclosed regarding 
    a proposed exchange offer more than five business days before a 
    registration statement is filed.
    ---------------------------------------------------------------------------
    
        In reaching this conclusion, we note that communications regarding 
    issuer tender offers are not similarly restrained.\96\ Also, it appears 
    that some bidders do not use the term ``tender offer'' in their public 
    announcement of a proposed business combination transaction in an 
    attempt to avoid triggering application of Rule 14d-2. Furthermore, 
    security holders today, upon hearing news of a proposed tender offer 
    for their securities (either directly by the formal notice published by 
    the bidder or indirectly through rumors in the marketplace), must 
    decide whether to: (i) Retain their securities until a tender offer 
    statement is filed and disseminated so they can tender into the offer; 
    or (ii) sell into the market at prevailing prices based on the limited 
    information available.\97\ Under the new approach, more time may elapse 
    between announcement and the filing of the tender offer statement, but 
    more information also may be available during that period. We do not 
    believe there is a sufficiently compelling basis
    
    [[Page 61418]]
    
    to continue treating third-party cash offers, exchange offers, issuer 
    tender offers and mergers differently.\98\
    ---------------------------------------------------------------------------
    
        \96\ Issuer tender offers are subject to Rule 13e-4, which does 
    not contain a comparable provision to the five business day rule or 
    a requirement to file a registration statement promptly after 
    announcing limited information about a registered exchange offer.
        \97\ Bidders often wait until the fifth business day following 
    public announcement before filing a full tender offer statement in 
    accordance with Rule 14d-3(a) (17 CFR 14d-3(a)). In addition, it can 
    take several days before mailed copies of the tender offer statement 
    are received by beneficial owners. Bidders offering registered 
    securities must promptly file the registration statement after 
    announcement, which in most cases is more than five business days 
    after the announcement.
        \98\ All tender offers must remain open for at least 20 business 
    days. See Rule 14e-1(a) (17 CFR 240.14e-1(a)). If security holders 
    are willing to wait to receive the tender offer statement containing 
    the required information, they can consider the disclosure document 
    in light of all earlier communications relating to the transactions 
    before making an investment decision with respect to the offer. We 
    have no reason to believe that the current minimum time period for 
    tender offers is inadequate.
    ---------------------------------------------------------------------------
    
        Most of the commenters that addressed the proposals favored 
    eliminating the five business days rule and the requirement to promptly 
    file a registration statement after announcement of an exchange offer, 
    as well as the revised definition of ``commencement.'' A few 
    commenters, however, expressed concern that elimination of the five 
    business day rule could revive certain inconsistent state law 
    requirements. We do not believe that elimination of the five business 
    day rule will result in a resurgence of inconsistent state anti-
    takeover statutes that impose disclosure or other requirements 
    incompatible with our new regulatory scheme.
        We have long defined when a tender offer commences. This definition 
    served several purposes, including implementing a uniform nationwide 
    timetable for the tender offer process, regulating the flow of 
    information by identifying the date by which required disclosure 
    filings must be made with the Commission, and helping to create a level 
    playing field between bidders and targets. Under well-established 
    principles, any state law that conflicted with this provision was 
    preempted.
        The new definition continues to serve these sorts of purposes--it 
    establishes a uniform time at which a tender offer is deemed to 
    commence, it continues to balance the rights and obligations of bidders 
    and targets, and it facilitates the free flow of information from both 
    bidders and targets before that date (subject to the antifraud 
    provisions), based on our judgment that this flow of information is in 
    the best interests of the holders of securities. The elimination of the 
    five business day rule and the other changes in the rule are intended 
    to provide security holders with the broadest possible disclosure of 
    information at the earliest date possible.
        We believe that courts would hold that any state law that 
    conflicted with the new rule by attempting to establish a different 
    commencement date or otherwise frustrating operation of the rule would 
    be preempted.\99\ For instance, we believe that any state provision 
    that made it impossible to comply with both state and federal 
    requirements or that created obstacles to the accomplishment and 
    execution of the full purposes and objectives of the new rule would 
    continue to be preempted.\100\
    ---------------------------------------------------------------------------
    
        \99\ See Dynamics Corp. of America v. CTS Corp., 481 U.S. 69, 79 
    (1987).
        \100\ See, e.g., Barnett Bank of Marion County versus Nelson, 
    517 U.S. 25 (1996) (summarizing preemption principles); see also 
    Fidelity Fed. Sav. & Loan Assoc. versus de la Cuesta, 458 U.S. 141, 
    154 (1982).
    ---------------------------------------------------------------------------
    
        Security holders ultimately have the choice to sell into the market 
    based on information disclosed early or wait until a complete, mandated 
    disclosure document is sent to them before making an investment 
    decision. The ability of security holders to sell into the market 
    before a complete disclosure document is filed and disseminated is no 
    different from their current position between the time a transaction is 
    announced and the time a mandated disclosure document is filed and 
    disseminated. However, we believe that liberalizing early 
    communications will better serve investors and the markets by providing 
    them with more information at an earlier date. The bidder continues to 
    have the flexibility to commence promptly after the first public 
    announcement. We encourage bidders to commence their offers as soon as 
    they are able to do so, since security holders and other market 
    participants will benefit from the complete information in the mandated 
    tender offer materials. To the extent, however, that there are delays 
    between announcement and commencement, we believe that investors will 
    benefit from the free flow of information provided by the new 
    regulatory scheme. Therefore, we are changing the current regulatory 
    scheme, and is doing so we are clearly expressing our intent that these 
    new rules serve, as an integrated whole, to regulate the various 
    communications that persons may make regarding a potential or proposed 
    business combination transaction.
        Two commenters favored retaining the five business day rule for 
    hostile offers, but eliminating it for negotiated transactions. We 
    believe, however, that applying the rule only to hostile offers could 
    present problems when the same target is the subject of both a 
    negotiated transaction and a hostile offer, or when a negotiated 
    transaction becomes hostile as a result of changed circumstances or 
    another offer. Further, in light of the communications scheme we adopt 
    today, it does not appear that security holders' best interests would 
    be served by permitting expanded communications only with respect to 
    negotiated transactions.
        One commenter believed that the five business day rule provides 
    investors and the markets with a degree of certainty regarding proposed 
    offers and results in the dissemination of better information in a 
    relatively short time. We believe that our requirements to file all 
    written communications relating to a proposed transaction on first use 
    will result in more information on a timely basis. As noted above, we 
    do not believe bidders will have an incentive to unnecessarily delay 
    commencing their offers because of the risk that market forces may 
    affect the terms of the offer or a competing bidder will emerge.
        Under these new and revised rules, bidders and targets alike have 
    an increased ability to communicate with security holders along with 
    the requirement to file all written communications related to an offer. 
    Under the new scheme, the target must file all written communications 
    relating to the transaction on the date the communication is made.\101\ 
    Targets need not file a formal recommendation statement until after the 
    offer is formally commenced and a recommendation is made. The target 
    remains obligated, however, to take a position with respect to the 
    offer no later than 10 business days after the offer commences under 
    Rule 14d-2.\102\ If the target makes a recommendation after 
    commencement, but before the tenth business day, then it must file a 
    recommendation/solicitation statement on Schedule 14D-9 on or before 
    the time the recommendation is first made.
    ---------------------------------------------------------------------------
    
        \101\ Revised Rule 14d-9. These communications must include a 
    legend similar to the one required on the bidder's pre-commencement 
    communications, advising security holders to read the complete 
    recommendation when it is available. Although we did not propose 
    such a legend, we solicited comment on it, and the commenters who 
    addressed the issue supported a legend requirement.
        \102\ See Rule 14e-2(a) (17 CFR 240.14e-2(a)).
    ---------------------------------------------------------------------------
    
        These rules apply to issuer and third-party tender offers alike. In 
    addition, the new rules make no distinction based on the form of 
    consideration offered to security holders (e.g., cash or stock). We do 
    not believe that there is sufficient justification to treat tender 
    offer communications differently based on either the nature of the 
    bidder or the consideration offered. Security holders ultimately face 
    the same investment decision--whether or not to tender in the offer.
    2. Dissemination Requirements
        We also reviewed the various methods to commence a tender offer in
    
    [[Page 61419]]
    
    the Proposing Release.\103\ In reviewing these methods, we noted that 
    long form publication \104\ is rarely used by bidders due to the cost 
    associated with publishing extensive information about the offer in a 
    newspaper.\105\ We proposed to eliminate long form publication.
    ---------------------------------------------------------------------------
    
        \103\ See Part II.B.7.b of the Proposing Release.
        \104\ Rule 14d-2(a)(1) (17 CFR 240.14d-2(a)(2)).
        \105\ A bidder must publish the information specified in Rule 
    14d-6(e)(1) (17 CFR 240.14d-6(e)(1)).
    ---------------------------------------------------------------------------
    
        Several commenters agreed that long form publication is rarely 
    used, but urged us to retain the method, citing the lack of any abuse 
    under the rule. In addition, these commenters noted that, in the 
    future, long form publication may become a viable means of 
    disseminating an offer using the Internet or another electronic 
    delivery system. At this time, we do not believe that technology has 
    developed to the point where bidders can rely solely on electronic 
    media to disseminate information about a tender offer to security 
    holders. In particular, posting the information on a web site alone 
    would not be adequate dissemination.\106\ Nevertheless, in response to 
    commenters' requests that we retain long form publication as a means of 
    commencement, we have decided not to eliminate it.
    ---------------------------------------------------------------------------
    
        \106\ Not all security holders have access to the Internet. Even 
    those that do have access would not have notice that a tender offer 
    for their company's securities was posted on a web site. All 
    commenters who addressed the question opposed electronic 
    dissemination as the sole means to disseminate an offer, noting that 
    there are no electronic sources of information as commonly available 
    and widely followed as newspapers. Of course, it is permissible to 
    post tender offer materials on a web site in addition to using other 
    methods of dissemination. Electronic media also may be used to 
    satisfy requirements to deliver tender offer material in accordance 
    with our guidelines for electronic delivery. See Release No. 33-7233 
    (October 6, 1995) (60 FR 53458). For example, a summary 
    advertisement for a tender offer could contain a consent form for 
    security holders to indicate their willingness to receive the 
    complete tender offer materials by means of a specified electronic 
    medium.
    ---------------------------------------------------------------------------
    
        We solicited comment on whether the rules should continue to permit 
    an offer to be commenced and disseminated by summary advertisement 
    alone.\107\ Currently, bidders that rely on the summary advertisement 
    method to disseminate an offer tend also to mail their offering 
    documents to security holders using a security holder list under Rule 
    14d-5. We asked whether bidders should always be required to use 
    security holder lists when disseminating an offer. Two commenters 
    favored retaining summary publication without the use of security 
    holder lists. Both cited the lack of any abuse with the rule and the 
    possibility that its elimination could force bidders to tip their hand 
    when requesting a security holder list from the target in hostile 
    transactions. Accordingly, we are not changing this aspect of the 
    summary advertisement rule.\108\ However, in keeping with the expansion 
    of permissible communications, we are eliminating, as proposed, the 
    current restriction on the information that may be included in a 
    summary advertisement.\109\
    ---------------------------------------------------------------------------
    
        \107\ Rule 14d-6(a)(2) (17 CFR 240.14d-6(a)(2)).
        \108\ Similarly, we are retaining the current requirement that 
    bidders using stockholder lists also publish summary advertisements.
        \109\ We are amending Rule 14d-6(a)(2) to delete the language 
    limiting the information that can appear in a summary advertisement. 
    We are retaining the prohibition against including a transmittal 
    form with the summary advertisement. A summary advertisement may 
    (and must, if it is designed to commence the offer) include the 
    means to tender, e.g., a telephone number to call to obtain the 
    complete tender offer materials, including the transmittal form.
    ---------------------------------------------------------------------------
    
        Currently, bidders must hand deliver a copy of their tender offer 
    statement and any additional tender offer materials to the target 
    company as well as any other bidder that has made an offer for the same 
    class of securities.\110\ We proposed a similar delivery requirement 
    for the first written communication disclosing a proposed offer. Under 
    the new communications scheme for tender offers, bidders are able to 
    disclose information about a proposed offer without commencing the 
    offer.\111\ In light of the many different communications media 
    available to bidders, we believe targets need a reliable way to learn 
    about proposed offers for their securities so they can respond in a 
    timely manner. Therefore, we are adopting a requirement that the bidder 
    deliver to the target and any other bidder the first written 
    communication relating to the transaction that is filed, or required to 
    be filed, with the Commission.\112\ This material must be delivered on 
    the date of the communication.\113\
    ---------------------------------------------------------------------------
    
        \110\ Rule 14d-3(a)(2). The current rule also requires 
    telephonic notice and mailing of tender offer material to any 
    securities exchange or the NASD on which the securities are listed 
    or traded. We are not extending this delivery requirement to pre-
    commencement communications because the exchanges and the NASD are 
    relying less on paper filings and more on electronic databases to 
    obtain EDGAR filings.
        \111\ Communications regarding offers can be made without a 
    summary advertisement of the offer appearing in newspapers.
        \112\ As proposed, this requirement would have been triggered by 
    the first communication setting forth specified information. We 
    believe, however, that it will be simpler for bidders to know that 
    this obligation will attach at the same time the first pre-
    commencement communication is filed. Once target companies and other 
    bidders receive notice of the transaction, they can monitor the 
    Commission's filings for subsequent pre-commencement materials.
        \113\ Revised Rule 14d-2(b)(2). Instead of hand delivery, the 
    rule only requires ``delivery,'' so the bidder may use any other 
    means of delivery that is equally prompt and equally likely to 
    receive the attention of the target company (e.g., an e-mail to the 
    corporate secretary, chief executive officer and other persons of 
    similar authority at the target company, where the target company 
    uses these e-mail addresses for public communications). We have 
    similarly modified the bidder's current obligation to hand deliver a 
    copy of the mandated disclosure document. See revised Rule 14d-
    3(a)(2).
    ---------------------------------------------------------------------------
    
    E. Exchange Offers May Commence On Filing
    
    1. Early Commencement
        We are adopting the early commencement provision substantially as 
    proposed, but extended to cover issuer exchange offers. Currently, 
    registered exchange offers may not commence until the related 
    registration statement becomes effective.\114\ As we noted in the 
    Proposing Release, this results in cash and stock tender offers being 
    treated differently. Cash tender offers have a distinct timing 
    advantage over stock tender offers because cash offers can commence as 
    soon as a tender offer statement is filed and disseminated.\115\ This 
    change should minimize this regulatory disparity by permitting stock 
    tender offers to commence as early as the date the related registration 
    statement is first filed.
    ---------------------------------------------------------------------------
    
        \114\ See Rule 14d-2(a)(4). Commencement occurs when definitive 
    copies of the prospectus/tender offer material are first published, 
    sent or given to security holders.
        \115\ As a result, the 20 business day period that a tender 
    offer must remain open typically begins to run earlier for cash 
    offers than stock offers. See Rule 14e-1(a).
    ---------------------------------------------------------------------------
    
        Almost all of the commenters that addressed early commencement 
    indicated that it was a step in the right direction, but they believed 
    more was needed to fully balance the regulation of cash and stock 
    offers. We recognized in the Proposing Release that early commencement 
    alone may not be sufficient to level the playing field between cash and 
    stock tender offers because bidders would not be able to purchase 
    shares tendered in the offer until after the related registration 
    statement is effective. Accordingly, cash offers could close earlier 
    than stock tender offers due to possible staff review and comment on 
    the registration statement.
        We solicited comment on whether there are other changes (e.g., 
    expedited staff review, automatic effectiveness on filing or 
    effectiveness within a specified time after filing), that might further 
    reduce the disparity in regulatory treatment. We also asked whether
    
    [[Page 61420]]
    
    expedited staff review would minimize the regulatory differences.
        Commenters had mixed views. Some commenters favored automatic 
    effectiveness or effectiveness shortly after filing, while others 
    believed the potential for post-effective staff review and comment 
    would discourage bidders from offering securities as consideration in a 
    tender offer.\116\ Most commenters, however, were in agreement that 
    expedited staff review is essential to balancing the regulatory 
    treatment of the two types of offers. Due to the risks associated with 
    automatic effectiveness and effectiveness shortly after filing (before 
    the staff has had an adequate opportunity to review the disclosure), we 
    believe these measures would not be in security holders' best 
    interests, especially in the business combination context where the 
    disclosure and accounting issues can be particularly complex. We are, 
    however, committed to expediting staff review of exchange offers so 
    that they may compete more effectively with cash tender offers.
    ---------------------------------------------------------------------------
    
        \116\ The latter group was primarily concerned that staff 
    comment could necessitate the dissemination of a post-effective 
    amendment.
    ---------------------------------------------------------------------------
    
        As proposed, early commencement was limited to third-party offers. 
    We solicited comment, however, on whether early commencement would 
    provide any benefits to issuers making exchange offers for their own 
    securities. Several of the commenters believed that issuers should have 
    the same ability to commence an exchange offer upon filing.\117\ We 
    agree that there is no reason to exclude issuer exchange offers from 
    early commencement, and therefore, we have decided to treat third-party 
    and issuer exchange offers alike under the new rule.
    ---------------------------------------------------------------------------
    
        \117\ These commenters also urged us to extend early 
    commencement to going-private transactions as well. We do not 
    believe going-private transactions warrant early commencement, 
    especially in light of the numerous comments issued by the staff of 
    the Division of Corporation Finance that result in significant 
    changes to the disclosure. Therefore, we are not extending early 
    commencement to Rule 13e-3 transactions. In addition, as proposed, 
    early commencement is not available to roll-up transactions. A roll-
    up transaction is any transaction or series of transactions that 
    directly or indirectly, through acquisition or otherwise, involves 
    the combination or reorganization of one or more ``finite-life'' 
    entities (usually limited partnerships) where the securities to be 
    issued are registered under the Securities Act. See Release No. 33-
    6900 (June 17, 1991) (56 FR 28979); Release No. 33-6922 (October 30, 
    1991) (56 FR 57237); Release No. 33-7113 (December 1, 1994) (59 FR 
    63676); and the 900 series of Regulation S-K.
    ---------------------------------------------------------------------------
    
        We also asked whether there should be a proxy analogue to early 
    commencement so that parties to a business combination transaction 
    involving a voting decision would be able to furnish proxy cards with 
    preliminary proxy materials. Currently, proxy cards may only accompany 
    the definitive proxy statement/prospectus.\118\ A proxy analogue would 
    further balance the regulatory treatment of mergers and tender offers.
    ---------------------------------------------------------------------------
    
        \118\ Rule 14a-4(f).
    ---------------------------------------------------------------------------
    
        We are not adopting a proxy analogue to early commencement at this 
    time. We note that all tender offers must remain open for at least 20 
    business days.\119\ Currently, the minimum proxy solicitation period is 
    dictated by applicable state corporate law requirements.\120\ A proxy 
    solicitation period, accordingly, could be less than 20 business days. 
    Further, under the new rules adopted today, we are specifying the 
    appropriate time periods necessary for dissemination of a prospectus 
    supplement when there are material changes to the information 
    previously disseminated. The proxy rules do not have similar 
    provisions. Since the proxy solicitation area has traditionally been 
    governed by state law, and because we are not adopting a federally 
    mandated proxy solicitation period,\121\ we are not adopting an 
    analogue to early commencement that would permit the sending of proxy 
    cards along with preliminary proxy materials. We may consider extending 
    the concept to the solicitation of proxies once we have sufficient 
    experience with early commencement of exchange offers. Any proxy 
    analogue to early commencement would, of course, require the 
    establishment of a uniform proxy solicitation period and well-defined 
    time periods for the dissemination and receipt of a supplement 
    containing all material changes from the preliminary proxy statement 
    previously sent or given to security holders.\122\
    ---------------------------------------------------------------------------
    
        \119\ Rule 14e-1(a).
        \120\ Most state corporate laws require that notice of a meeting 
    be sent to security holders no less than 10 days and no more than 60 
    days before the meeting.
        \121\ See Part II.C.1 above.
        \122\ See Part II.E.2 below discussing appropriate time periods 
    for the dissemination of a prospectus supplement containing 
    materials changes.
    ---------------------------------------------------------------------------
    
        Under the new rules,\123\ to commence an exchange offer early 
    (before effectiveness of a registration statement), a bidder must file 
    a registration statement relating to the securities offered and include 
    in the preliminary prospectus all information, including pricing 
    information,\124\ necessary for investors to make an informed 
    investment decision.\125\ Information may not be omitted under Rule 430 
    or Rule 430A under the Securities Act.\126\ Bidders also must 
    disseminate the prospectus and related letter of transmittal to all 
    security holders and file a tender offer statement with us before the 
    exchange offer can commence.\127\
    ---------------------------------------------------------------------------
    
        \123\ New Rule 162 and revised Rules 13e-4(e)(2) and 14d-4(b).
        \124\ If the registration statement as first filed does not 
    contain a prospectus with this information, the bidder may file a 
    pre-effective amendment to supply the requisite information and then 
    commence the offer.
        \125\ We are not changing our current position regarding the 
    level of information necessary to adequately inform security holders 
    of the consideration offered; the pricing information required is 
    the same information that would be required in an effective 
    registration statement today. Often, in a business combination 
    transaction the consideration offered to security holders is based 
    on a formula pricing mechanism that is based on the market price of 
    either the target or the bidder's securities during a specified 
    period. The requirement to provide pricing information in a 
    prospectus that is delivered to security holders to commence an 
    exchange offer would be satisfied if all material elements of the 
    formula are described in sufficient detail so that security holders 
    can evaluate the offer. A fixed price is not required under early 
    commencement.
        \126\ Rule 430 and 430A (17 CFR 230.430 and 430A).
        \127\ Because tender offer statements generally incorporate by 
    reference a substantial amount of the required information from the 
    related registration statement, the actual filing of a tender offer 
    statement would serve primarily as notice to us and the markets that 
    the exchange offer commenced. Of course, any prospectus furnished to 
    security holders before the registration statement is effective must 
    include the red herring legend required by Item 501(b)(10) of 
    Regulation S-K (17 CFR 229.501(b)(10)).
    ---------------------------------------------------------------------------
    
        Early commencement is at the option of the bidder. Exchange offers 
    can commence as early as the filing of a registration statement, or on 
    a later date selected by the bidder up to the date of 
    effectiveness.\128\ If a bidder does not commence its exchange offer 
    before effectiveness of the related registration statement, then the 
    exchange offer would need to commence on or shortly after 
    effectiveness, as is the case today.
    ---------------------------------------------------------------------------
    
        \128\ Regulation M (17 CFR 242.100 through 242.105) prohibits 
    purchases of the bidder's securities during an exchange offer's 
    restricted period, beginning when the bidder commences its offer. 
    The restrictions under Rule 10b-13 (new Rule 14e-5) start when the 
    bidder makes its first public announcement.
    ---------------------------------------------------------------------------
    
        As proposed, we are adopting new Rule 162 to permit the tender of 
    securities into an exchange offer before a registration statement is 
    effective.\129\ New Rule 162(a) exempts the tender of securities from 
    section 5(a) of the Securities Act.\130\ Security holders may
    
    [[Page 61421]]
    
    withdraw tendered securities until they are purchased, and bidders may 
    not purchase the tendered securities until the registration statement 
    is declared effective, as is currently the case. Because security 
    holders must receive a mandated disclosure document before having to 
    make an investment decision, we believe that early commencement, 
    together with the communications scheme adopted today, is consistent 
    with the public interest and the protection of investors. Early 
    commencement gives bidders an incentive to disseminate their offering 
    materials broadly to all security holders as soon as practicable. 
    Further, the new rule provides bidders with greater flexibility in 
    choosing the form of consideration to offer in a business combination 
    transaction and should serve to facilitate the growth of our capital 
    markets.
    ---------------------------------------------------------------------------
    
        \129\ Rule 162, as adopted, is extended to issuer exchange 
    offers subject to Rule 13e-4 as well as third-party exchange offers 
    subject to Regulation 14D (17 CFR 240.14d-1 through 17 CFR 240.14d-
    101).
        \130\ This exemption is necessary to prevent the tendering of 
    securities into an offer from being viewed as a ``sale'' without an 
    effective registration statement. We are using our exemptive 
    authority under section 28 of the Securities Act to adopt this new 
    rule.
    ---------------------------------------------------------------------------
    
    2. Dissemination of a Supplement and Extension of the Offer
        Under the early commencement provision adopted, bidders are 
    required to disseminate a prospectus to all security holders. If a 
    bidder wants to commence its exchange offer early, it must disseminate 
    a preliminary prospectus to all security holders as discussed above. 
    The new rules also provide that bidders sending a preliminary 
    prospectus must disseminate a supplement to security holders if there 
    are any material changes, whether as a result of staff review, or due 
    to any other material changes in the information previously disclosed. 
    Exchange offers must remain open for a specified minimum period of time 
    after a supplement is sent to security holders containing the new 
    information, depending on the significance of the change. This is to 
    permit security holders to react to the information by tendering 
    securities or by withdrawing securities already tendered.
        Since the tender offer rules do not currently establish specific 
    minimum time periods necessary for the disclosure and dissemination of 
    material changes, other than those relating to changes in price or the 
    amount of securities sought,\131\ we are establishing well-defined 
    periods necessary for the dissemination of a prospectus supplement that 
    contains material changes under early commencement. The mandated 
    periods we adopt today are consistent with our current rules and 
    interpretive positions in this area.\132\ Therefore, we are revising 
    Rule 14d-4 to specify the minimum time periods necessary for the 
    dissemination of changes to preliminary prospectuses that are used to 
    commence an exchange offer early.\133\ As a result, exchange offers 
    that commence early must remain open for at least:
    
        \131\ Rule 14e-1(b) [17 CFR 240.14e-1(b)]. A tender offer must 
    remain open for ten business days after a notice of an increase or 
    decrease in the percentage of the class of securities being sought, 
    the consideration offered, or the dealer's soliciting fee.
        \132\ See Release No. 34-24296 (April 3, 1987) [52 FR 11458].
        \133\ Revised Rules 14d-4(b) and (d) and 13e-4(e). This approach 
    was favored by all commenters who addressed the issue.
    ---------------------------------------------------------------------------
    
         Five business days for a prospectus supplement 
    containing a material change other than price or share levels;
         Ten business days for a prospectus supplement 
    containing a change in price, the number of shares sought, the 
    dealer's soliciting fee, or other similarly significant change;
         Ten business days for a prospectus supplement included 
    as part of a post-effective amendment; and
         20 business days for a revised prospectus when the 
    initial prospectus was materially deficient; for example, failing to 
    comply with the going-private rules or filing a ``shell'' document 
    solely to trigger commencement and staff review.\134\
    ---------------------------------------------------------------------------
    
        \134\ The 20 business day period required by the tender offer 
    rules will not begin to run if the prospectus disseminated to 
    security holders is materially deficient. For example, if the 
    initial prospectus does not comply with the roll-up rules, the 
    minimum solicitation period under the roll-up rules will not begin 
    until a revised prospectus satisfying the roll-up rules is 
    disseminated.
    ---------------------------------------------------------------------------
    
        Of course, if a material change in the information previously 
    disseminated to security holders occurred shortly before the expiration 
    of the offer, a prospectus supplement would need to be disseminated to 
    security holders and the offer extended for the appropriate length of 
    time. We also believe that these time periods represent general 
    guidelines that should be applied uniformly to all tender offers, 
    including those subject only to Regulation 14E.\135\
    ---------------------------------------------------------------------------
    
        \135\ 17 CFR 240.14e-1 through 17 CFR 240.14e-8.
    ---------------------------------------------------------------------------
    
        We asked whether bidders should be required to deliver a final 
    prospectus to security holders. Commenters who addressed the issue 
    believed that the requirement to deliver prospectus supplements 
    containing all material changes should effectively eliminate the need 
    for the dissemination of a final prospectus. We agree that the 
    informational purpose of the prospectus may best be served by requiring 
    bidders to deliver to security holders prospectus supplements 
    containing material changes rather than redeliver a final prospectus 
    repeating substantial amounts of information that was previously 
    delivered.\136\ The use of prospectus supplements should adequately 
    inform security holders of the information they need to make an 
    informed investment decision.
    ---------------------------------------------------------------------------
    
        \136\ Any supplements sent to security holders should present 
    the informational changes in a clear, concise and understandable 
    manner. See Rule 421 of Regulation C (17 CFR 230.421). If there are 
    a number of changes necessitating the delivery of several 
    supplements, offerors should consider the need to give security 
    holders a complete unified document containing all changes and 
    updates in a revised preliminary or final prospectus.
    ---------------------------------------------------------------------------
    
        Accordingly, we are using our exemptive authority \137\ to exempt 
    exchange offers that commence early from the final prospectus delivery 
    requirement.\138\ In doing so, we are not changing the final prospectus 
    delivery requirement in Exchange Act Rule 15c2-8(d).\139\ Under these 
    circumstances, where a preliminary prospectus is delivered to security 
    holders along with prospectus supplements containing material changes 
    to the information previously disseminated, we believe that the cost of 
    delivering a final prospectus is not justified by any marginal benefit 
    to security holders. Although we are eliminating the requirement to 
    deliver a final prospectus, bidders would still need to file a final 
    prospectus.
    ---------------------------------------------------------------------------
    
        \137\ Section 28 of the Securities Act.
        \138\ See new Rule 162(b), which provides an exemption from 
    section 5(b)(2) of the Securities Act (15 U.S.C. 77e(b)(2)). This 
    rule does not provide an exemption for exchange offers that commence 
    on the date of effectiveness or later, for which a final prospectus 
    must be delivered to security holders. In the Securities Act Reform 
    Release we proposed to eliminate the requirement to deliver a final 
    prospectus for certain capital-raising transactions, but not 
    business combination transactions. See proposed Rule 173 and Part 
    VIII.C.3.b of the Securities Act Reform Release.
        \139\ 17 CFR 240.15c2-8(d). This rule requires all brokers or 
    dealers that participate in a distribution of securities registered 
    under the Securities Act to take reasonable steps to comply promptly 
    with the written request of any person for a copy of the final 
    prospectus. The broker or dealer must comply with this request until 
    the expiration of the applicable 40-day or 90-day period under 
    section 4(3) of the Act. 15 U.S.C. 77(d)(3). See Rule 174 (17 CFR 
    230.174).
    ---------------------------------------------------------------------------
    
    F. Disclosure Requirements for Tender Offers and Mergers
    
    1. Schedules Combined and Disclosure Requirements Moved to Subpart 1000 
    of Regulation S-K (``Regulation M-A'')
        Currently, there are different disclosure schedules for issuer 
    tender offers, third-party tender offers and going-private 
    transactions.\140\ Since a given transaction may involve more than one 
    of these regulatory schemes, a company may be required to file a 
    separate disclosure document to satisfy each applicable disclosure 
    regime. In
    
    [[Page 61422]]
    
    addition, the disclosure requirements appearing in the rules and 
    schedules can often lead to duplicative, and sometimes inconsistent, 
    requirements. In light of the increased pressure to announce a business 
    combination transaction soon after it is entered into and the attendant 
    requirement to file mandated disclosure documents quickly, we proposed 
    to integrate, simplify and update the disclosure requirements currently 
    in the rules and schedules. Our basic approach was to combine all the 
    disclosure requirements in one central location in a subpart of 
    Regulation S-K, called Regulation M-A. The specific disclosure 
    requirements in schedules were keyed to items under Regulation M-A in a 
    manner consistent with the integrated disclosure system previously 
    adopted for proxy and registration statements.
    ---------------------------------------------------------------------------
    
        \140\ Schedules 13E-4, 14D-1 and 13E-3, respectively.
    ---------------------------------------------------------------------------
    
        All commenters addressing the proposed changes in this area 
    believed that it was time to update and simplify the disclosure 
    requirements for business combination transactions.\141\ We are 
    adopting Regulation M-A substantially as proposed. This series of 
    disclosure items incorporates all the current disclosure requirements 
    for issuer and third-party tender offers, tender offer recommendation 
    statements and going-private transactions. The new regulation includes 
    some disclosure items for cash merger proxy statements as well. We have 
    made slight modifications, where necessary, to harmonize and clarify 
    the requirements, as well as a few substantive changes that are 
    discussed below in more detail. In some cases the disclosure 
    requirements may appear different, but that is because we have made an 
    effort to draft the items in Regulation M-A using clear, plain 
    language. In the future, we expect to expand this new regulation to 
    cover additional disclosure items as necessary.
    ---------------------------------------------------------------------------
    
        \141\ One commenter urged us to codify the availability of a 
    procedure for making acquisitions using securities registered on an 
    acquisition shelf registration statement. While we are not codifying 
    this procedure as part of this release, we remind offerors that the 
    procedure continues to be available. See Form S-4, General 
    Instruction H, and Service Corporation International (December 2, 
    1985).
    ---------------------------------------------------------------------------
    
        We are combining current Schedules 13E-4 and 14D-1 (the schedules 
    now used for issuer and third-party tender offers, respectively), into 
    new Schedule TO, as proposed.\142\ In addition, we are changing the 
    rules to allow one filing to satisfy both the tender offer and going-
    private disclosure requirements.\143\ As a result, the information 
    required by Schedules 14D-1, 13E-4 and 13E-3 can be disclosed in one 
    combined filing.\144\ We believe that these revisions will reduce the 
    need to file two or more schedules for what is essentially the same 
    transaction.\145\
    ---------------------------------------------------------------------------
    
        \142\ The format and instructions for Schedules 13E-3 and 14D-9 
    are revised so that they are consistent with new Schedule TO. These 
    schedules refer to Regulation M-A for all substantive disclosure 
    requirements. We did not propose, and are not adopting, any changes 
    to the schedules used in connection with the multijurisdictional 
    disclosure system for Canadian issuers (Schedules 13E-4F, 14D-1F and 
    14D-9F) (17 CFR 240.13e-102; 17 CFR 240.14d-102; 17 CFR 240.14d-
    103).
        \143\ New Schedule TO has boxes on the cover page to check to 
    indicate whether the filing is an issuer tender offer, third-party 
    tender offer, and/or going-private transaction. We are implementing 
    conforming changes to the EDGAR filing tag system so that the type 
    of transaction and filing persons are identified when viewing a 
    document on EDGAR.
        \144\ For example, an affiliate engaged in a tender offer having 
    a going-private effect can now file a Schedule TO that also serves 
    as a Schedule 13E-3. All filing persons and applicable schedules 
    must be identified on the cover page. Separate cover pages are not 
    required. Of course, a Schedule 13E-3 must be filed independently 
    when the underlying transaction is not a tender offer.
        \145\ Schedule TO also may be combined with an amendment to a 
    previously filed Schedule 13D. See General Instruction G to Schedule 
    TO. The ability to file a joint 13D amendment and tender offer 
    statement is the same as currently permitted. See General 
    Instruction E to Schedule 14D-1.
    ---------------------------------------------------------------------------
    
        We have included an instruction in new Schedule TO, as proposed, 
    listing the specific line items that must be complied with for 
    different types of transactions.\146\ In addition, we have revised the 
    current instruction requiring information that is incorporated by 
    reference to be filed as an exhibit. As revised, filers can incorporate 
    information included in documents previously filed electronically on 
    EDGAR without refiling that information as an exhibit to the 
    schedule.\147\ To the extent that the existing schedules permit filers 
    to include negative answers in the schedule, but not in the disclosure 
    document sent to security holders, filers will continue to have the 
    ability to omit that information from documents sent to security 
    holders.\148\
    ---------------------------------------------------------------------------
    
        \146\ General Instruction J to new Schedule TO.
        \147\ Documents filed electronically on EDGAR are readily 
    available to security holders and the public (e.g., through the 
    Internet, our public reference room, brokers and investment 
    advisors). This change also applies to going-private statements.
        \148\ General Instruction E to new Schedules TO and revised 
    Schedule 13E-3 and General Instruction C to revised Schedule 14D-9.
    ---------------------------------------------------------------------------
    
        At this time we are not extending the one filing satisfies all 
    approach to encompass transactions involving the Securities Act and 
    proxy rules as well as the tender offer and going-private rules. In the 
    future, we may consider integrating the requirements further, to permit 
    the satisfaction of the disclosure required under all four regulatory 
    schemes with one filing.
        We also are revising the rules that require filing persons to 
    include a fair and adequate summary of the information required by the 
    schedules in the disclosure document sent to security holders. Instead 
    of specifying some items and excluding others, as the current rules 
    do,\149\ the revised rules simply require that the document given to 
    security holders summarize all items in the schedule (except for 
    exhibits).\150\ As noted in the Proposing Release, this change is not 
    intended to increase the amount of information that is given to 
    security holders. Instead, it is intended to simplify the requirements. 
    We expect filers to exercise their judgment in determining the specific 
    information that must be included in the disclosure document sent to 
    security holders to provide a fair and adequate summary. We are not, 
    however, changing the current requirement that certain disclosure 
    required in a going-private transaction be set forth in full in the 
    disclosure document delivered to security holders.\151\
    ---------------------------------------------------------------------------
    
        \149\ See current Rules 14d-6(e), 14d-9(c), 13e-3(e) and 13e-
    4(d) specifying the information that must be summarized or included 
    in the disclosure document sent to security holders.
        \150\ Revised Rules 14d-6(d), 14d-9(d), 13e-3(e) and 13e-4(d).
        \151\ Items 7, 8 and 9 of current and revised Schedule 13E-3.
    ---------------------------------------------------------------------------
    
        As a result of today's changes, filers no longer need to answer 
    each item of the schedule with a statement that the required 
    information is incorporated by reference from certain pages or sections 
    of the primary disclosure document. Under the revised rules, it is 
    sufficient to include a general statement in the schedule that all 
    information in the disclosure document filed as an exhibit is 
    incorporated by reference in answer to all or some of the items in the 
    schedule. The revised schedules, as proposed, would include a cover 
    page, any exhibits and the required signatures. Specific item numbers 
    from the schedule must be included only to the extent necessary to 
    provide information that is not in the disclosure document sent to 
    security holders, but is required to be disclosed under an item in the 
    schedule.\152\ This change is designed to make the schedules easier to 
    prepare. Of course, filers still must provide all the required 
    information.\153\
    ---------------------------------------------------------------------------
    
        \152\ For example, negative or ``not applicable'' responses or 
    information that goes beyond what is summarized in the disclosure 
    document must be disclosed under the appropriate item number in the 
    schedule if not included in the disclosure document sent to security 
    holders.
        \153\ See General Instructions E and F to new Schedule TO and 
    revised Schedule 13E-3 and General Instructions C and D to revised 
    Schedule 14D-9. We are eliminating the requirement in General 
    Instruction F of current Schedule 13E-3 to provide a cross-reference 
    sheet showing where the responses are located.
    
    ---------------------------------------------------------------------------
    
    [[Page 61423]]
    
    2. Streamline and Improve Required Disclosure
    
    a. ``Plain English'' Summary Term Sheet
    
        We proposed to require a plain English summary term sheet in all 
    cash tender offers and all cash mergers, as well as going-private 
    transactions. The disclosure documents in these transactions often can 
    be difficult to understand, especially in the context of a business 
    combination transaction where a vast amount of information may be 
    available. We believe security holders should be provided with a 
    concise, easy to read term sheet that highlights the most important and 
    relevant information regarding an extraordinary transaction.
        Accordingly, we are adopting the plain English summary term sheet 
    requirement as proposed.\154\ We are not adopting a plain English 
    summary term sheet for transactions involving the registration of 
    securities \155\ because these transactions already are required to 
    have a plain English summary, although the format may be somewhat 
    different from the summary term sheet approach.\156\ The summary term 
    sheet must begin on the first or second page of the disclosure 
    document, and must highlight the most important or material features of 
    a proposed transaction.\157\ This requirement applies to all issuer and 
    third-party cash tender offers, cash mergers and going-private 
    transactions. We believe the disclosure in these transactions can be 
    improved through the use of a plain English summary term sheet.
    ---------------------------------------------------------------------------
    
        \154\ Item 1001 of Regulation M-A. For purposes of this 
    requirement, plain English has the same meaning as in Rule 421(b) 
    and (d).
        \155\ If a transaction is subject both to the registration 
    requirements of the Securities Act and either Rule 13e-3 or the 
    tender offer rules, a plain English summary term sheet is not 
    required. See Item 1 of revised Schedule 13E-3 (17 CFR 240.13e-100) 
    and new Schedule TO (17 CFR 240.14d-100).
        \156\ See Item 3 of Forms S-4 and F-4 and Rule 421(d) of 
    Regulation C (17 CFR 230.421(d)). Effectiveness of a registration 
    statement may be denied or a stop order issued when there has not 
    been a bona fide effort to present information in a reasonably 
    clear, concise and readable manner. See Rule 461(b)(1) of Regulation 
    C (17 CFR 230.461(b)(1)); see also, In the Matter of Franchard 
    Corporation, 42 S.E.C. 163 (1964).
        \157\ The required summary term sheet should present information 
    in bullet-point format and may include cross-references to more 
    detailed information found elsewhere in the disclosure documents 
    provided to security holders, consistent with plain English 
    principles.
    ---------------------------------------------------------------------------
    
        In proposing this requirement, we did not mandate the specific 
    items or questions that must be addressed in every case. Instead, we 
    gave examples of information that most security holders would need when 
    confronted with a tender offer or merger. Most commenters favored the 
    proposed approach of keeping the requirement general and giving filers 
    the flexibility to determine the issues that rise to the level of 
    addressing in a plain English summary term sheet. We are adopting this 
    approach.
        As noted in the Proposing Release, in most cases, we believe 
    bidders should address the following questions in the summary term 
    sheet accompanying their cash tender offers:
    
         Who is offering to buy my securities?
         What are the classes and amounts of securities sought 
    in the offer?
         How much is the bidder offering to pay and what is the 
    form of payment?
         Does the bidder have the financial resources to make 
    payment?
         Is the bidder's financial condition relevant to my 
    decision on whether to tender in the offer?
         How long do I have to decide whether to tender in the 
    offer?
         Can the offer be extended, and under what 
    circumstances?
         How will I be notified if the offer is extended?
         What are the most significant conditions to the offer?
         How do I tender my shares?
         Until what time can I withdraw previously tendered 
    shares?
         How do I withdraw previously tendered shares?
         If the transaction is negotiated, what does my board of 
    directors think of the offer?
         Is this the first step in a going-private transaction?
         Will the tender offer be followed by a merger if all 
    the company's shares are not tendered in the offer?
         If I decide not to tender, how will the offer affect my 
    shares?
         What is the market value (if traded) or the net asset 
    or liquidation value (if not traded) of my shares as of a recent 
    date?
         Who can I talk to if I have questions about the tender 
    offer?
    
        As for merger proxy statements, we believe a summary term sheet 
    should provide a brief outline of the particular matters proposed, the 
    material terms of the proposals, including the parties to the proposed 
    transaction, the consideration to be received by security holders, the 
    board's recommendation on how to vote or their position regarding the 
    transaction, the effect of a vote for and against each matter 
    presented, including the effects of not voting, the procedures for 
    voting and changing or revoking a vote, and the existence of appraisal 
    rights.
        Several commenters provided useful suggestions on other information 
    that may assist security holders. We agree with these commenters that a 
    plain English summary term sheet should address, to the extent 
    applicable, the vote required to approve each matter presented, the 
    number of votes, if any, already committed to vote in a particular way, 
    any material interests of insiders or affiliates, as well as the 
    accounting and federal income tax treatment of the transaction. In the 
    context of a going-private transaction, we believe that the receipt of 
    opinions, appraisals, or other similar reports \158\ regarding the 
    fairness of a transaction would be of material interest to security 
    holders. In addition, the identity of the filing persons, including the 
    affiliates engaged in the transaction, a description of their 
    affiliation or relationship with the issuer, and their role in the 
    transaction may be important disclosure. Of course, we do not attempt 
    to provide an exhaustive list in this release of all the matters or 
    issues that may be material to security holders warranting inclusion in 
    a plain English summary term sheet. We leave that determination for 
    filers based on the particular facts and circumstances of their 
    transaction.
    ---------------------------------------------------------------------------
    
        \158\ See current and revised Item 9 to Schedule 13E-3.
    ---------------------------------------------------------------------------
    
    b. Item 14 of Schedule 14A Revised to Clarify Requirements and 
    Harmonize Cash Merger and Cash Tender Offer Disclosure
    
        Item 14 of Schedule 14A specifies the information required in proxy 
    and information statements relating to extraordinary transactions.\159\ 
    We are revising Item 14 substantially as proposed, except that the 
    revised item refers filers to the applicable disclosure requirements in 
    Forms S-4 and F-4, instead of Forms C and SB-3, which are not being 
    adopted at this time. This approach should make the item easier to 
    understand, and harmonize the proxy and registration statement 
    disclosure requirements. Since the disclosure and incorporation by 
    reference requirements in Forms S-4 and F-4 are essentially the same as 
    in current Item 14, this streamlined approach will not greatly modify 
    the disclosure required in a merger proxy statement. We are retaining 
    in Item 14 the existing
    
    [[Page 61424]]
    
    disclosure requirements applicable to investment companies.\160\
    ---------------------------------------------------------------------------
    
        \159\  17 CFR 240.14a-101. Item 14 disclosure is required when a 
    vote or consent is solicited on: (i) A merger; (ii) a consolidation; 
    (iii) the acquisition of assets, a business or securities; (v) the 
    sale or transfer of all or substantially all the assets of the 
    registrant; (vi) a liquidation; or (vii) a dissolution. This item 
    requires information about the transaction and each party to the 
    transaction (i.e., the acquiror and the target). The information 
    specified in Item 14 may be incorporated by reference or physically 
    included in the disclosure document depending on the extent to which 
    the acquiror or target is eligible to use Form S-2 or S-3.
        \160\ New Item 14(d) of Schedule 14A. We believe that this will 
    be simpler for investment companies than referring to Forms S-4 and 
    F-4, which generally are inapplicable to investment companies. We 
    also have consolidated and conformed current Instructions 6 and 8 to 
    Item 14 for investment companies. Instruction to paragraph (d) of 
    Item 14 of Schedule 14A. The requirements that we are retaining for 
    investment companies were not specifically tailored for investment 
    companies, and we believe that it would be appropriate to reconsider 
    these requirements in a future rulemaking project focused on the 
    registration and disclosure requirements applicable to investment 
    company business combination transactions.
    ---------------------------------------------------------------------------
    
        In addition, we are adopting several substantive changes regarding 
    the information required for acquirors and targets under Item 14. All 
    commenters that addressed the proposed changes to Item 14 believed they 
    were appropriate. We continue to believe that in certain circumstances 
    the disclosure requirements in Item 14 may be unnecessarily burdensome 
    and inconsistent with the level of information that would be required 
    if the same transaction was structured as an all-cash, all-share tender 
    offer. Therefore, we are adopting the following proposed revisions:
    
         Item 14 is revised to clarify that financial statement 
    and other information about the acquiror is required in a cash 
    merger only if that information is material to voting security 
    holders' evaluation of the transaction.\161\ Similar to the need for 
    a bidder's financial statements in a cash tender offer, information 
    about the acquiror in a merger is generally not needed when target 
    security holders are receiving cash and the acquiror has 
    demonstrated its financial ability to satisfy the terms of the 
    offer.\162\
    ---------------------------------------------------------------------------
    
        \161\ Revised Instruction 2(a) to Item 14 of Schedule 14A. Pro 
    forma information about the transaction is not generally required in 
    a cash merger where only the target's security holders are voting on 
    the transaction.
        \162\ Even if the acquiror's security holders are voting, 
    acquiror information may be omitted because the acquiror's security 
    holders are presumed to have access to information about their own 
    company. In this case, pro forma information about the transaction 
    will still be required in accordance with Article 11 of Regulation 
    S-X (17 CFR 210.11-01 through 17 CFR 210.11-03).
    ---------------------------------------------------------------------------
    
         In cases where financial statement information for the 
    acquiror would be material to a security holder's voting decision, 
    acquiror information is required for only two years and not three, 
    consistent with the treatment of tender offers.\163\
    ---------------------------------------------------------------------------
    
        \163\ Revised Item 14(c)(1) to Schedule 14A. If financial 
    statements of the target are required, then three years of financial 
    statements must be provided, consistent with the other requirements 
    for financial statements of acquired companies.
    ---------------------------------------------------------------------------
    
         The requirement to provide information about the target 
    in a cash merger is eliminated when the acquiror's security holders 
    are not voting on the transaction.\164\ Most likely, target security 
    holders will have information about the securities they already 
    hold. As a result, security holders can receive a shorter disclosure 
    document that is focused on the terms and effects of the 
    transaction. This revision harmonizes the disclosure required in 
    cash merger transactions with that required in all-cash, all-share 
    tender offers.\165\
    
        \164\ Revised Instruction 2(b) to Item 14 of Schedule 14A.
        \165\ No target information is required if target security 
    holders are voting on a merger in which the consideration offered 
    consists of acquiror securities that are exempt from Securities Act 
    registration. Revised Instruction 3 to Item 14 of Schedule 14A.
    ---------------------------------------------------------------------------
    
        The changes adopted today do not change the current requirement to 
    provide financial statements of the target and other company 
    information when the acquiror's security holders are voting on the 
    transaction, since those security holders may not know anything about 
    the target. In addition, target information is required in merger 
    proxies that are going-private or roll-up transactions. We believe that 
    target security holders have a need for current financial statements of 
    their company if it is subject to one of these types of transactions.
        We are not adopting two proposed changes. Under the proposal, Item 
    14 would no longer permit information to be incorporated by reference 
    from the ``glossy'' annual report sent to security holders. Further, we 
    proposed to eliminate the instructions in Schedule 14A and Form S-4 
    that require filers to send the mandated disclosure document to 
    security holders at least 20 business days before the meeting date or 
    the expiration date of an exchange offer if information is incorporated 
    by reference.\166\ At this time we believe there still may be a number 
    of security holders that do not have the ability to access information 
    electronically, so we are not eliminating the 20 business day 
    incorporation by reference provision.\167\ We are retaining 
    incorporation by reference from the glossy annual report because this 
    information is delivered to security holders.\168\
    ---------------------------------------------------------------------------
    
        \166\ See Note D.3 to Schedule 14A; General Instruction A.2 to 
    Form S-4; and General Instruction A.2 to Form F-4.
        \167\ We have stated that the 20 business day period must be 
    complied with even if the documents incorporated by reference are 
    delivered along with the disclosure document. See Release No. 33-
    6578 (April 23, 1985) (50 FR 18990) (Form S-4 adopting release). We 
    are changing this interpretation. If filers furnish the information 
    that is incorporated by reference with the disclosure document that 
    is sent to security holders, they do not have to comply with the 20 
    business day requirement.
        \168\ Revised Item 14(e) to Schedule 14A (17 CFR 240.14a-101).
    ---------------------------------------------------------------------------
    
    c. Reduced Financial Statement Requirements for Non-Reporting Target 
    Companies in Stock Mergers and Stock Tender Offers
    
        The previous section addressed information requirements in cash 
    mergers. We also have examined financial statement requirements in the 
    context of stock mergers and stock tender offers. As we noted in the 
    Proposing Release, financial statements of the target generally are 
    required when registered securities are being offered. The rules 
    currently provide special treatment when the target is not subject to 
    the Commission's reporting requirements, but we believe these 
    requirements can be further relaxed. Currently, the rules require the 
    filing person (the acquiror) to provide financial statements of the 
    non-reporting target going back three years.\169\ We noted that 
    providing three years of financial statements prepared in accordance 
    with Regulation S-X \170\ for a non-reporting company can be costly and 
    burdensome to prepare. In some cases they may not be available. 
    Therefore, we proposed to reduce the financial statements required for 
    non-reporting targets when the acquiror's security holders are not 
    being asked to vote on the transaction.
    ---------------------------------------------------------------------------
    
        \169\ See Item 17(b)(7) of Form S-4, Item 17(b)(5) of Form F-4 
    and Item 14(b)(3)(ii)(A) of Schedule 14A. These items specify the 
    information required for non-reporting target companies in a 
    business combination transaction. An acquiror must provide financial 
    statements ``that would have been required to be included in an 
    annual report to security holders'' had the non-reporting company 
    been required to furnish an annual report that complies with Rule 
    14a-3(b) (17 CFR 240.14a-3(b)). This rule requires audited balance 
    sheets for each of the two most recent fiscal years and audited 
    statements of income and cash flows for each of the three most 
    recent fiscal years prepared in accordance with Regulation S-X.
        \170\ The required balance sheet for the year preceding the 
    latest full fiscal year and the income statements for the two years 
    preceding the latest full fiscal year need not be audited if they 
    have not previously been audited. The required financial statements 
    must be audited to the extent practicable.
    ---------------------------------------------------------------------------
    
        Most commenters believed that the proposed reduction was 
    appropriate and would facilitate acquisitions of non-reporting targets. 
    We continue to believe that the requirement to provide target financial 
    statements can be curtailed, particularly because in many cases target 
    security holders likely made their initial investment decision in the 
    non-reporting company based on less extensive information than what is 
    currently required. In addition, security holders are being offered 
    securities in a public company for which there should be significantly 
    more information available and a more liquid market to
    
    [[Page 61425]]
    
    sell into. Therefore, we are reducing the financial statement 
    requirement substantially as proposed.\171\ In addition, where the non-
    reporting target is not significant to the acquiror and the acquiror's 
    security holders are not voting on the transaction, we believe the 
    financial statement requirements can be reduced even further.
    ---------------------------------------------------------------------------
    
        \171\ Since we are not adopting Forms C and SB-3, these changes 
    are implemented in amendments to Forms S-4 and F-4.
    ---------------------------------------------------------------------------
    
        Accordingly, we are eliminating the requirement to provide 
    financial statements for the non-reporting target altogether when the 
    acquiror's security holders are not voting on the transaction and the 
    non-reporting target is not significant to the acquiror above the 20% 
    level.\172\ The security holders that purchased securities in the non-
    reporting company generally would be aware that they invested in a 
    company that is not subject to our reporting requirements and they 
    would not expect to receive the same level of financial information 
    that is required for a public reporting company. Moreover, if the non-
    reporting company is not significant to the acquiror, we believe 
    security holders would likely rely on the financial statements of the 
    acquiror in making their voting or investment decision. Because a 
    combination of an insignificant non-reporting target company and a 
    public acquiror should not materially alter the financial condition of 
    the acquiror, we believe that non-reporting target security holders are 
    likely to rely on the required acquiror financial information 
    alone.\173\ In addition, the 20% threshold is the standard adopted in 
    1996 for the requirement of audited financial statements in filings 
    made under the Securities Act and the Exchange Act for business 
    acquisitions.\174\
    ---------------------------------------------------------------------------
    
        \172\ Determination of the significance of an acquisition to the 
    acquiror is made in accordance with Rule 3-05 of Regulation S-X (17 
    CFR 210.3-05). See Release No. 33-7355 (October 10, 1996) (61 FR 
    54509) and Rule 1-02(w) of Regulation S-X (17 CFR 210.1-02(w)).
        \173\ This change is consonant with our revisions to Item 14 to 
    eliminate the requirement to provide target financial statements in 
    cash mergers when the acquiror's security holders are not voting on 
    the transaction and the information is not material to the target 
    security holders' voting decision.
        \174\ In Release No. 33-7355, we streamlined the requirements 
    with respect to financial statements for business acquisitions. 
    Among other things, the amended rules raised the thresholds of 
    significance that determine whether financial statements of an 
    acquired business must be provided in filings. These rule changes 
    were intended to reduce impediments to registered offerings that may 
    have caused companies to undertake private or offshore offerings 
    instead. We believe the significance threshold for non-reporting 
    targets should be the same in Forms S-4 and F-4 as under our other 
    financial statement requirements. We may, however, consider 
    revisiting this issue in a broader context in a future rulemaking 
    proposal that addresses what the significance thresholds should be 
    in light of the current accounting environment.
    ---------------------------------------------------------------------------
    
        Accordingly, we are revising the financial statement requirements 
    for non-reporting targets when the acquiror's security holders are not 
    voting on the transaction,\175\ as follows:
    
        \175\ These changes do not affect the financial statements 
    required in roll-up transactions.
    ---------------------------------------------------------------------------
    
         If a non-reporting company is being acquired in a 
    business combination transaction, then financial statements for the 
    latest fiscal year prepared in conformity with generally accepted 
    accounting principles (``GAAP'') must be provided.\176\
    ---------------------------------------------------------------------------
    
        \176\ Revised Items 17(b)(7) of Form S-4 and 17(b)(5) of Form F-
    4.
    ---------------------------------------------------------------------------
    
         Also, if the non-reporting target security holders were 
    previously provided with GAAP financial statements for either or 
    both of the two fiscal years before the latest fiscal year, then 
    GAAP financial statements must be provided for those years as well.
         If the non-reporting target is not significant to the 
    acquiror in excess of the 20% level, then no financial information 
    is required for the target.\177\
    
        \177\ Under these facts pro forma and comparative per share 
    information is not required. See Rule 11-01(c) of Regulation S-X (17 
    CFR 210.11-01(c)).
    ---------------------------------------------------------------------------
    
        These revisions apply equally to foreign and domestic non-reporting 
    target companies. If the target's financial statements are prepared on 
    the basis of a comprehensive body of accounting principles other than 
    U.S. GAAP (foreign GAAP), a reconciliation to U.S. GAAP is required 
    unless a reconciliation is unavailable or not otherwise obtainable 
    without unreasonable cost or expense.\178\
    ---------------------------------------------------------------------------
    
        \178\At a minimum, however, a narrative description of the 
    material variations in accounting principles, practices and methods 
    used in preparing the foreign GAAP financial statements from those 
    accepted in the U.S. is required.
    ---------------------------------------------------------------------------
    
        The current requirement to provide ``audited'' financial statements 
    for the non-reporting target remains the same. Financial statements for 
    the latest fiscal year must be audited only to the extent practicable. 
    Audited financial statements are not required for years before the most 
    recent fiscal year if the target's financial statements were not 
    previously audited.
        We are not changing the current requirement that a resale 
    registration statement include audited financial statements in 
    accordance with Rule 3-05 of Regulation S-X.\179\ Also, to the extent 
    that a transaction is significant to the acquiror, audited financial 
    statements would ultimately need to be provided under Item 7 of Form 8-
    K. Of course, if the acquiror's security holders are voting on the 
    transaction, then the current financial statement requirements apply.
    ---------------------------------------------------------------------------
    
        \179\ A resale registration statement is used to register the 
    resale of securities to the public by anyone who is deemed an 
    underwriter within the meaning of Rule 145(c) with respect to the 
    securities being re-offered.
    ---------------------------------------------------------------------------
    
    G. Tender Offer Rules Updated
    
        In addition to the changes discussed above, some of which affect 
    tender offers, we proposed to update the tender offer rules, which have 
    not been revised since 1986. For the most part, commenters favored our 
    approach to updating the regulations. As a result, these changes are 
    being adopted, substantially as proposed.\180\ The significant changes 
    are discussed below.
    ---------------------------------------------------------------------------
    
        \180\ As proposed, we are adopting a technical change to Rule 
    432, which requires the prospectus disseminated to security holders 
    in connection with an exchange offer to include certain information 
    specified by the tender offer rules. The revised rule also clarifies 
    that the requirement includes issuer tender offers. See current Rule 
    13e-4(d)(iv). The requirement is moved to revised Rule 432.
    ---------------------------------------------------------------------------
    
        We also solicited comment on whether the Private Securities 
    Litigation Reform Act of 1995 (``PSLRA'') safe harbor for forward-
    looking statements should be extended to tender offers. We are not 
    extending the PSLRA safe harbor to tender offers at this time. Given 
    the relative infancy of the body of law interpreting the PSLRA 
    generally and the safe harbor in particular, we do not believe that 
    extending the reach of the safe harbor would be prudent. We note, for 
    example, that we recently filed an amicus curiae brief out of concern 
    about certain language in an appellate court decision regarding the 
    application of the safe harbor.\181\
    ---------------------------------------------------------------------------
    
        \181\ See Memorandum of the Securities and Exchange Commission, 
    Amicus Curiae, at 2, Harris v. Ivax Corp., No. 98-4818 (11th Cir. 
    Aug. 1999) (partially supporting a petition for rehearing and 
    rehearing en banc in Harris v. Ivax Corp., 182 F.3d 799 (11th Cir. 
    1999)).
    ---------------------------------------------------------------------------
    
    1. Bidders May Include a ``Subsequent Offering Period'' Without 
    Withdrawal Rights
        We are adopting the subsequent offering period rule with several 
    modifications described below. Under the new rules third-party bidders 
    may provide, at their election, a subsequent offering period during 
    which security holders can tender securities into the offer without 
    withdrawal rights. The purpose of the subsequent offering period is 
    two-fold. First, the period will assist bidders in reaching the 
    statutory state law minimum necessary to engage in a short-form, back-
    end merger with the target. Second, the period will provide security 
    holders who remain after the offer one last opportunity to tender into 
    an offer that is otherwise complete in order to avoid the delay and 
    illiquid market that can result after a tender offer and before a back-
    end merger.
    
    [[Page 61426]]
    
        The subsequent offering period may be disclosed in the bidder's 
    initial offering materials, or in a subsequent amendment to the tender 
    offer materials that is disseminated to security holders. In either 
    case, the bidder's determination to include a subsequent offering 
    period must be disclosed sufficiently in advance of the expiration of 
    the initial offering period.
        Commenters generally were favorable to the proposal, but many 
    commenters criticized the advance notice requirement. They expressed 
    the view that advance notice would create a ``hold-out'' problem with 
    security holders waiting until the subsequent offering period to tender 
    shares. In response to these comments, we are not adopting a specific 
    requirement in the rule that the determination to add a subsequent 
    offering period must be disclosed before the end of the initial 
    offering period. Nevertheless, we continue to believe at this time that 
    the addition of a subsequent offering period once an offer has 
    commenced would constitute a material change to the terms of that 
    offer. Thus, bidders must disseminate the new information to security 
    holders in a manner reasonably calculated to inform them of the change 
    sufficiently in advance of the expiration of the initial offering 
    period (generally five business days).\182\ After the Division of 
    Corporation Finance gains practical experience with the operation of 
    the subsequent offering period, the Division may decide, through staff 
    interpretation, to shorten or possibly eliminate the requirement for 
    advance notice.\183\
    ---------------------------------------------------------------------------
    
        \182\ See Release No. 34-24296 (April 3, 1987) (52 FR 11458).
        \183\ If a bidder announces a subsequent offering period and 
    later decides not to provide the period, clearly this would be a 
    material change in the offer's terms that must be disclosed in 
    advance as provided in Release No. 34-24296. Commenters did not 
    disagree with this view.
    ---------------------------------------------------------------------------
    
        In short, we are adopting new Rule 14d-11, which permits bidders to 
    include a subsequent offering period in a third-party tender offer 
    during which no withdrawal rights are available,\184\ so long as:
    
        \184\ We also are amending Rule 14d-7 to provide an exemption so 
    the withdrawal rights required by section 14(d)(5) of the Exchange 
    Act (15 U.S.C. 78n(d)(5)), which apply 60 days after the start of a 
    tender offer, are not available during a subsequent offering period.
    ---------------------------------------------------------------------------
    
         The offer is for all outstanding securities of the 
    class sought;
         The initial offering period (with withdrawal rights) 
    remains open for at least 20 business days;
         All conditions to the offer are deemed satisfied or 
    waived by the bidder on or before the close of the initial offering 
    period; \185\
    ---------------------------------------------------------------------------
    
        \185\ The subsequent offering period may not be used if payment 
    will be delayed for any reason. In the past we have stated that 
    payment may be delayed for certain governmental regulatory 
    approvals. See Release No. 34-16623 (March 5, 1980) (45 FR 15521). A 
    subsequent offering period, however, cannot be used unless all 
    conditions to payment have been satisfied or waived and the bidder 
    pays for all securities tendered in the initial offering period 
    promptly after the close of the initial offering period. Likewise, 
    there cannot be any conditions to the offer during the subsequent 
    offering period.
    ---------------------------------------------------------------------------
    
         The bidder accepts and promptly pays for all securities 
    tendered during the initial offering period on the closing of the 
    initial offering period;
         The bidder announces the approximate number and 
    percentage of outstanding securities that were deposited by the 
    close of the initial offering period no later than 9:00 a.m. Eastern 
    time on the next business day after the scheduled expiration date of 
    the initial offering period; and
         The bidder immediately accepts and promptly pays for 
    all shares as they are tendered in the subsequent offering 
    period.\186\
    ---------------------------------------------------------------------------
    
        \186\ New Rule 14d-11(e) and revised Rule 14e-1(c).
    ---------------------------------------------------------------------------
    
        The rule, as proposed and adopted, permits bidders to use a 
    subsequent offering period in both cash and stock tender offers.\187\ 
    Similarly, the rule permits bidders to offer either cash or stock in 
    any planned back-end merger. There is no specific requirement that a 
    minimum number of shares be tendered in the initial offering period. Of 
    course, the same consideration must be paid in both the initial and 
    subsequent offering periods.\188\
    ---------------------------------------------------------------------------
    
        \187\ If a bidder offers cash and securities with a limit on the 
    amount of cash or securities that may be paid to security holders, 
    then a subsequent offering period may not be used. The imposition of 
    a cap on one or the other form of consideration could result in 
    proration which, as discussed in the Proposing Release, is why we 
    limited the subsequent offering period to offers for all outstanding 
    securities.
        \188\ The initial and subsequent offering periods are all part 
    of one tender offer. If a different price were paid to security 
    holders it would violate the all-holders best-price rules as well as 
    the subsequent offering period rule. See new Rule 14d-11(f), current 
    Rule 14d-10(a)(2) and Release No. 34-23421 (July 11, 1986) (51 FR 
    25873).
    ---------------------------------------------------------------------------
    
        The new rule includes a requirement that bidders announce the 
    results of the initial offering period (including the number and 
    percentage of securities tendered) before 9 a.m. on the next business 
    day following the close of the initial offering period.\189\ We believe 
    an announcement is necessary to inform remaining security holders 
    whether the offer was successful and whether or not a back-end merger 
    is imminent. Because of this requirement to announce the results before 
    9 a.m. on the next business day, the subsequent offering period must 
    begin on that day. This will avoid any delay in the offer between the 
    initial offering period and the subsequent offering period. We believe 
    that this will prevent any confusion in the market as to whether the 
    offering period is still open.
    ---------------------------------------------------------------------------
    
        \189\ In response to a question in the Proposing Release, two 
    commenters favored such a requirement.
    ---------------------------------------------------------------------------
    
        We proposed conditioning the subsequent offering period on the 
    bidder stating its intention to engage in a back-end merger with the 
    target. Commenters addressing this issue did not believe that this 
    requirement was necessary. We are not adopting this requirement because 
    we believe security holders may benefit from a subsequent offering 
    period whether or not the bidder intends a back-end merger transaction.
        As proposed, Rule 14d-1(e)(8) would have defined the subsequent 
    offering period as a ten business day period following the initial 
    offering period. Several commenters, however, recommended that bidders 
    be permitted to determine the duration of the subsequent offering 
    period. In response to these comments, we have decided to adopt a more 
    flexible approach to the subsequent offering period. New Rule 14d-11 
    will allow the subsequent offering period to be a minimum of three 
    business days and a maximum of 20 business days. Bidders could opt for 
    a relatively short subsequent offering period and later extend the 
    period if necessary. Any extension of the subsequent offering period 
    must be made in accordance with Rule 14e-1(d).\190\
    ---------------------------------------------------------------------------
    
        \190\ 17 CFR 240.14e-1(d). For example, if a bidder elects to 
    provide a three business day subsequent offering period, and later 
    determines that a longer period is necessary, the bidder could 
    extend the subsequent offering period by up to 17 business days. The 
    bidder would, of course, need to announce the extension no later 
    than 9:00 a.m. on the fourth business day after the initial offering 
    period closed, and the total duration of the subsequent offering 
    period could not exceed twenty business days.
    ---------------------------------------------------------------------------
    
    2. Bidder Financial Information Clarified for Cash Tender Offers
    
    a. When a Bidder's Financial Statements Are Not Required; Source of 
    Funds
    
        We are clarifying when financial statement information of the 
    bidder must be disclosed in a cash tender offer.\191\ Currently, this 
    information is
    
    [[Page 61427]]
    
    required in a cash tender offer when the information is material to a 
    security holder's decision whether to tender, sell or hold.\192\ The 
    instructions in Schedule 14D-1 provide some guidance on when financial 
    statement information is material.\193\ These instructions also specify 
    the type of information that will satisfy the financial statement 
    disclosure requirement.\194\
    ---------------------------------------------------------------------------
    
        \191\ If a bidder offers securities instead of or in addition to 
    cash, then financial statements are material. The registration 
    statement form for the securities offered will specify the financial 
    statements required. If the bidder offers securities that are exempt 
    from registration, the financial statements specified in Schedule TO 
    would be filed.
        \192\ Item 9 of Schedule 14D-1 and Item 7 of Schedule 13E-4.
        \193\ Instruction 1 to Item 9 of Schedule 14D-1.
        \194\ Rules 14d-6(e) (17 CFR 240.14d-6) and 13e-4(d) (17 CFR 
    240.13e-4(d)).
    ---------------------------------------------------------------------------
    
        We noted in the Proposing Release that generally there are several 
    factors that should be considered in determining whether financial 
    statements of the bidder are material. Those factors are as follows:
    
         The terms of the tender offer, particularly terms 
    concerning the amount of securities sought, such as any-or-all, a fixed 
    minimum with the right to accept additional shares tendered, all-or-
    none, and a fixed percentage of the outstanding;
         Whether the purpose of the tender offer is for control of 
    the subject company; \195\
    ---------------------------------------------------------------------------
    
        \195\ Financial information can be material when a bidder seeks 
    to acquire the entire equity interest of the target and the bidder's 
    ability to finance the transaction is uncertain. Financial 
    information also can be material when a bidder seeks to acquire a 
    significant equity stake in order to influence the management and 
    affairs of the target. In the latter case, security holders need 
    financial information for the prospective controlling security 
    holder to decide whether to tender in the offer or remain a 
    continuing security holder in a company with a dominant or 
    controlling security holder.
    ---------------------------------------------------------------------------
    
         The plans or proposals of the bidder; and
         The ability of the bidder to pay for the securities 
    sought in the tender offer and/or to repay any loans made by the 
    bidder or its affiliates in connection with the tender offer or 
    otherwise.\196\
    ---------------------------------------------------------------------------
    
        \196\ Release No. 34-13787 (July 21, 1977) (42 FR 38341).
    ---------------------------------------------------------------------------
    
        We also noted that these factors are not exclusive, and not all 
    factors are necessary to meet the materiality test. In order to provide 
    more guidance to bidders, we are adopting a new instruction to Schedule 
    TO specifying when the financial statements of a bidder are not 
    material and do not have to be provided. Commenters generally supported 
    the proposal, offering some suggestions on how to modify the 
    instruction so that it achieves its intended purpose. We are, 
    therefore, adopting the instruction with some minor changes. We believe 
    that under the circumstances specified in the new instruction, the 
    burden of providing the bidder's financial information in tender offer 
    materials may outweigh the usefulness of the information to security 
    holders.\197\
    ---------------------------------------------------------------------------
    
        \197\ We are not changing bidders' ability to incorporate by 
    reference financial information into their tender offer materials. 
    See Instruction 3 to Item 10 of new Schedule TO.
    ---------------------------------------------------------------------------
    
        As adopted, Item 10 to new Schedule TO \198\ includes an 
    instruction stating that a bidder's financial statement information is 
    not material when:
    ---------------------------------------------------------------------------
    
        \198\ Although proposed Item 10 to Schedule TO did not 
    specifically address the need to provide financial information for a 
    controlling entity that forms an entity for the purpose of making a 
    tender offer, we have revised Item 10 consistent with the 
    requirements currently in Item 9 to Schedule 14D-1. If a bidder is 
    formed by a controlling person for the purpose of making an offer, 
    then financial information for the parent must be provided.
    ---------------------------------------------------------------------------
    
         Only cash consideration is offered;
         The offer is not subject to any financing condition; and 
    either:
         The bidder is a public reporting company that files 
    reports electronically on EDGAR; or
         The offer is for all outstanding securities of the 
    target.\199\
    ---------------------------------------------------------------------------
    
        \199\ Instruction 2 to Item 10 of new Schedule TO.
    ---------------------------------------------------------------------------
    
        Several commenters addressed the financing condition element to the 
    instruction. Most of these commenters indicated that the status of a 
    bidder's financing arrangements (e.g., commitment letter, definitive 
    financing in place, or sufficient funds on hand) is not determinative 
    so long as the offer is not subject to a financing condition. We agree. 
    We believe security holders may need financial information for the 
    bidder when an offer is subject to a financing condition so they can 
    evaluate the terms of the offer, gauge the likelihood of the offer's 
    success and make an informed investment decision. Whether an offer is 
    conditioned on obtaining satisfactory financing arrangements (e.g., 
    receipt of a commitment letter or execution of other definitive 
    financing documents) or the actual receipt of funds from a lender,\200\ 
    the offer is considered subject to a financing condition and the bidder 
    may not omit financial information in reliance on the instruction.
    ---------------------------------------------------------------------------
    
        \200\ The same analysis applies for non-reporting bidders, such 
    as private investors, partnerships or private equity funds. These 
    private bidders often finance their tender offers with funds raised 
    from limited partners through a process known as a ``capital call.'' 
    If the private bidder's offer is conditioned on obtaining funds from 
    limited partners, security holders or other members of the entity, 
    the offer is deemed subject to a financing condition.
    ---------------------------------------------------------------------------
    
        We also asked whether foreign companies whose financial statement 
    information may not be readily available should be treated any 
    differently. Foreign companies are permitted to file reports in paper 
    and are not required to file electronically.\201\ As a result, security 
    holders may have more difficulty obtaining information for foreign 
    bidders. Two commenters indicated that foreign bidders that file 
    reports (e.g., Form 20-F) \202\ in paper should not be able to satisfy 
    the third prong of the instruction. We agree that the instruction 
    should take into account the availability of financial statement 
    information for foreign bidders. If information is available on EDGAR 
    (via the Internet and other sources), we believe there is less need to 
    require disclosure of the bidder's financial statements in its tender 
    offer materials. Therefore, we have revised this condition to state 
    that the bidder must be a reporting company that files reports 
    electronically on EDGAR.\203\ Of course, foreign bidders that choose to 
    file reports electronically on EDGAR can rely fully on this new 
    instruction. Alternatively, a bidder that is non-reporting or files 
    reports in paper may rely on the instruction if the offer is for all 
    outstanding securities of the target.\204\
    ---------------------------------------------------------------------------
    
        \201\ Rule 100(a) of Regulation S-T (17 CFR 232.100).
        \202\ 17 CFR 249.220f.
        \203\ This prong of the instruction will not be deemed satisfied 
    if the bidder's financial statement information is not available on 
    the EDGAR system (e.g., because the bidder is delinquent in its 
    reporting obligations or the bidder has filed this information in 
    paper under a hardship exemption).
        \204\ To the extent financial statements of a foreign bidder are 
    required and are prepared under foreign GAAP, a reconciliation to 
    U.S. GAAP is required unless a reconciliation is unavailable or not 
    otherwise obtainable without unreasonable cost or expense. As noted 
    above in Part II.F.2.c, bidders must provide, at a minimum, a 
    narrative description of the material variations in accounting 
    principles, practices and methods used in preparing the foreign GAAP 
    financial statements from those accepted in the U.S. See n.178 
    above.
    ---------------------------------------------------------------------------
    
        We also proposed to codify the current practice of providing net 
    worth information when the bidder is a natural person. The one 
    commenter that addressed this proposal supported it, but believed the 
    requirement to provide ``appropriate disclosure'' when a bidder's net 
    worth is derived from material amounts of assets that are not readily 
    marketable or there are material guarantees and contingencies was too 
    vague. Therefore, we are adopting this instruction, substantially as 
    proposed, but with a clarification that the bidder must disclose the 
    nature and approximate amount of the individual's net worth consisting 
    of illiquid assets and the magnitude of any guarantees or contingencies 
    that may negatively affect the natural person's net worth.\205\ We 
    believe this information is useful to security holders in evaluating a 
    tender offer made by a natural person.
    ---------------------------------------------------------------------------
    
        \205\ Instruction 4 to Item 10 of new Schedule TO.
    ---------------------------------------------------------------------------
    
        Regardless of the level of financial information that security 
    holders
    
    [[Page 61428]]
    
    receive, a bidder's ability to pay for the securities is a material 
    disclosure item. We believe the disclosure that security holders 
    currently receive in this area can be improved by clarifying the 
    ``Source of Funds'' item requirement for tender offers and going-
    private transactions. As proposed, we are revising this item to require 
    disclosure of information regarding the specific sources of financing, 
    any conditions to the financing, and the filing person's ability to 
    finance the transaction through alternative means if the primary source 
    of financing should fall through.\206\
    ---------------------------------------------------------------------------
    
        \206\ Item 1007 of Regulation M-A.
    ---------------------------------------------------------------------------
    
    b. Content of Bidder's Financial Statements in Cash Tender Offers; 
    Financial Statements in Going-Private Transactions
    
        In the Proposing Release we noted the disparity in the financial 
    statements required in third-party tender offers, issuer tender offers, 
    and going-private transactions. We are reducing the financial statement 
    information required in third-party tender offers as proposed. This 
    change harmonizes the requirements with those for issuer tender offers 
    and going-private transactions.\207\ The commenters that addressed this 
    proposal supported it. We believe that the burden of providing three 
    years of historical financial statements in a third-party cash tender 
    offer outweighs the benefit to security holders.\208\
    ---------------------------------------------------------------------------
    
        \207\ When securities are offered the registration statement 
    requirements prevail. See n.191 above. We also are reducing the 
    financial statements required for acquiring companies in merger 
    proxy statements from three to two years. See Part II.F.2.b above.
        \208\ Item 10 to Schedule TO and Item 1010(a) and (b) of 
    Regulation M-A, as adopted, require financial statements for two 
    fiscal years when the information is material.
    ---------------------------------------------------------------------------
    
        We also proposed to update the disclosure requirements for tender 
    offers and going-private transactions. Currently, information regarding 
    book value per share and the pro forma effect of the transaction on the 
    company's balance sheet and book value per share (as of the most recent 
    fiscal year end and the latest interim balance sheet period) may be 
    required. We are reducing the required information, as proposed, to 
    only the most recent balance sheet date.\209\
    ---------------------------------------------------------------------------
    
        \209\ Item 1010(a)(4), (b)(1) and (3) of Regulation M-A. As 
    proposed, this change also applies to merger proxy statements.
    ---------------------------------------------------------------------------
    
        In addition, when financial statement information is required in 
    tender offer and going-private transactions, the current rules permit 
    filers to include summary financial information,\210\ instead of full 
    financial statements, in the disclosure documents sent to security 
    holders. We proposed to update the summary information requirements to 
    consist of the summarized financial information specified in Rule 1-
    02(bb) of Regulation S-X \211\ as well as ratio of earnings to fixed 
    charges, book value per share and pro forma data. The two commenters 
    that addressed this proposal indicated that the additional information 
    (redeemable preferred stock, minority interests, unconsolidated 
    subsidiaries and 50 percent or less owned persons) called for by Rule 
    1-02(bb) is not relevant or useful to security holders, especially in 
    cash tender offers.
    ---------------------------------------------------------------------------
    
        \210\ See Rule 14d-6(e)(1)(viii) (17 CFR 240.14d-6(e)(1)(viii)); 
    Instruction B to Rule 13e-4(d)(1)(iv) (17 CFR 240.13e-4(d)(1)(iv)); 
    and Instruction 2 to Rule 13e-3(e)(3) (17 CFR 240.13e-3(e)(3)).
        \211\ 17 CFR 210.1-02(bb).
    ---------------------------------------------------------------------------
    
        In response to their concern, we have revised the summary 
    requirement so that information regarding unconsolidated subsidiaries 
    and 50 percent or less owned persons is not required. We continue to 
    believe, however, that the information specified in Rule 1-02(bb)(1) 
    (redeemable preferred stock and minority interests) may be relevant 
    when the bidder's financial information is material \212\ and the 
    bidder elects to provide summary instead of full financial statements 
    in the disclosure document sent to security holders. Under the current 
    rules a fair and adequate summary includes ``shareholders'' equity.'' 
    The additional specificity provided by Rule 1-02(bb)(1) is not 
    inconsistent with the current requirements. Also, information regarding 
    the existence of minority interests may be material to security holders 
    if the filing person (bidder) holds substantial assets or derives 
    substantial revenues from a consolidated subsidiary that is not wholly-
    owned. Accordingly, we do not believe that updating the disclosure 
    requirements to reference the information specified in Rule 1-02(bb)(1) 
    will result in the disclosure of irrelevant information. As this 
    information may be material to security holders, we adopt an updated 
    definition of summary financial information that is substantially as 
    proposed.\213\ These revisions also extend to third-party tender offers 
    the requirement to disclose book value information when that 
    information is material.\214\
    ---------------------------------------------------------------------------
    
        \212\ See Part II.G.2.a above discussing when financial 
    statement information is material.
        \213\ Item 1010(c) of Regulation M-A, Instruction 1 to Item 13 
    of revised Schedule 13E-3, Instruction 6 to Item 10 of new Schedule 
    TO.
        \214\ Item 1010(a)(4), (b)(3) and (c)(5) of Regulation M-A.
    ---------------------------------------------------------------------------
    
        We also proposed to clarify the reconciliation required when non-
    U.S. GAAP financial statement information is summarized in a foreign 
    bidder's disclosure document. We believe that summary financial 
    information must include a reconciliation to the same extent full 
    financial statements must include a reconciliation to U.S. GAAP.\215\ 
    This reconciliation requirement is consistent with that required for 
    the acquisition of a foreign non-reporting target company with foreign 
    GAAP financial statements.\216\
    ---------------------------------------------------------------------------
    
        \215\ See Part II.G.2.a above.
        \216\ See Part II.F.2.c above.
    ---------------------------------------------------------------------------
    
    c. Pro Forma Financial Information Required in Two-Tier Transactions
    
        We believe security holders need pro forma financial information 
    for a bidder and target on a combined basis when deciding whether or 
    not to tender in the first tier of a two-tier transaction.\217\ 
    Security holders need pro forma financial information to make an 
    informed investment decision because if security holders do not tender 
    in an offer they may receive securities of the bidder in exchange for 
    the securities they hold in the target at a later date in a back-end 
    securities transaction. Bidders frequently disclose information 
    regarding expected synergies and other financial information to 
    effectively sell their transaction to the market. We believe that pro 
    forma information may be necessary to balance the disclosure 
    disseminated to security holders and the markets. In addition, 
    disclosure of pro forma financial information is generally consistent 
    with our free communications scheme.\218\ We are, however, adopting a 
    slightly less burdensome pro forma requirement than proposed in 
    response to some of the concerns expressed by commenters.\219\
    ---------------------------------------------------------------------------
    
        \217\ A ``two-tier transaction'' is a business combination 
    structured as a cash tender offer followed by a back-end securities 
    transaction, typically a merger, where remaining security holders of 
    the target receive the bidder's securities as consideration.
        \218\ A requirement to disclose pro forma financial information 
    in the first tier of a two-tier transaction extends the Division of 
    Corporation's interpretive position that disclosure of certain 
    material information known to the bidder regarding a planned back-
    end securities transaction would not result in ``gun-jumping'' under 
    the Securities Act. See n.23 above.
        \219\ Instruction 5 to Item 10 of new Schedule TO. This 
    instruction requires bidders to provide the financial data specified 
    in Item 3(f) (comparative historical and pro forma per share data) 
    and Item 5 (pro forma financial information required by Article 11 
    of Regulation S-X) of Form S-4 in the Schedule filed with the 
    Commission. Bidders may provide only the summary financial 
    information specified in Item 3(d), (e) and (f) of Form S-4 in the 
    disclosure document sent to security holders.
    
    ---------------------------------------------------------------------------
    
    [[Page 61429]]
    
        Three commenters generally supported the proposed pro forma 
    requirement, expressing different views on the appropriate level of pro 
    forma financial information and the circumstances under which the 
    information should be required. Two commenters believed that the pro 
    forma requirement would be burdensome and provide only a marginal 
    benefit to security holders. Several commenters noted that external 
    factors may affect a bidder's ability to prepare pro forma financial 
    information in compliance with the proposed requirement. Some of these 
    factors include: the lack of any agreement with the target regarding 
    the type and amount of consideration to be offered to security holders 
    in any back-end securities transaction; the hostile or negotiated 
    nature of the transaction; and the results of the tender offer.
        We recognize that it may be more difficult for bidders to prepare 
    accurate and complete pro forma financial information when the target 
    is not cooperating with the bidder. We also realize that bidders may 
    decide later not to offer securities in a back-end transaction for a 
    number of reasons. Nevertheless, to the extent that a bidder, at the 
    time of the cash tender offer, intends to offer securities in a back-
    end securities transaction with the target, we believe such information 
    would be material to target security holders.\220\ In addition, bidders 
    that intend to offer securities in a back-end transaction would most 
    likely have prepared some level of pro forma financial information on 
    the combined entity for their own negotiating and planning purposes. As 
    a result, we do not believe the requirement to provide pro forma 
    financial information should be unduly burdensome for the bidder. 
    Therefore, we are adopting a requirement that bidders disclose pro 
    forma financial information prepared in accordance with Article 11 of 
    Regulation S-X, in addition to historical financial statements,\221\ 
    when they intend to engage in a back-end securities transaction 
    following a cash tender offer.\222\ We limit this requirement, however, 
    in two important respects.
    ---------------------------------------------------------------------------
    
        \220\ A bidder that intends to engage in a back-end securities 
    transaction may not avoid the disclosure requirement by not 
    disclosing its intentions because non-disclosure could be a material 
    omission that renders other statements by the bidder false and 
    misleading.
        \221\ The bidder must disclose the historical financial 
    statements specified in Item 1010 of Regulation M-A. See Instruction 
    5 to Item 10 of new Schedule TO. Historical financial information 
    for the bidder is necessary to present the pro forma financial 
    information in context.
        \222\ The pro forma financial information requirement applies 
    whether the first step is a partial offer or an offer for all 
    outstanding securities. In both cases, a bidder could intend to 
    engage in a back-end securities transaction with the target.
    ---------------------------------------------------------------------------
    
        First, the requirement is limited to ``negotiated'' transactions 
    (i.e., management of the target is cooperating with the bidder). 
    Generally, in negotiated transactions, bidders have access to internal 
    financial information of the target necessary to prepare pro forma 
    financial information.\223\ In transactions where the bidder does not 
    have access to the internal information necessary to prepare reliable 
    pro forma financial information in compliance with Article 11 of 
    Regulation S-X (i.e., non-negotiated transactions), we are not 
    requiring pro forma financial information. However, we encourage 
    bidders to provide pro forma or other similar financial information 
    that they consider useful and meaningful to security holders, 
    regardless of whether the transaction is negotiated or not.
    ---------------------------------------------------------------------------
    
        \223\ As required by Article 11, the pro forma financial 
    information disclosed in the first tier must be accompanied by clear 
    and explanatory footnotes that address the nature of all material 
    pro forma adjustments.
    ---------------------------------------------------------------------------
    
        Second, if an acquisition of a target is not significant to the 
    bidder, we do not believe that pro forma financial information for the 
    transaction would be helpful to security holders. Therefore, we are 
    only requiring bidders to disclose pro forma financial information in a 
    first-step tender offer when the acquisition is significant above the 
    20% level.\224\
    ---------------------------------------------------------------------------
    
        \224\ Determination of the significance of an acquisition to the 
    acquiror is made in accordance with Rule 3-05 of Regulation S-X. See 
    Release No. 33-7355 (October 10, 1996).
    ---------------------------------------------------------------------------
    
    3. Target Is Required To Report Purchases of Its Own Securities After a 
    Third-Party Tender Offer Is Commenced
        Rule 13e-1 prohibits an issuer whose securities are the subject of 
    a third-party tender offer from repurchasing any of its equity 
    securities until information about the intended acquisition is filed 
    and disseminated to security holders. We proposed to clarify the timing 
    of the disclosure called for by the rule so that the required 
    information is disclosed only after a third-party tender offer is made, 
    when it is most relevant. We also proposed to rewrite the rule in plain 
    English. We are now adopting the revised rule as proposed, but without 
    a requirement to send information to security holders. We also provide 
    an exclusion from the rule for periodic repurchases in connection with 
    employee benefit plans and other similar plans that are made in the 
    ordinary course and not in response to the third-party offer.
        Several commenters suggested that we rescind Rule 13e-1 based on 
    the relatively low number of filings received during the past several 
    years. Although few filings are made under the rule,\225\ we continue 
    to believe that the requirement serves the useful purpose of informing 
    the marketplace in advance that an issuer plans to repurchase its own 
    equity securities in response to a third party tender offer. While some 
    of the information required by the rule may be provided in Schedule 
    14D-9, that schedule could be filed as late as ten business days after 
    commencement of a third-party offer. Therefore, we are adopting the 
    rule substantially as proposed, but as a filing requirement only. The 
    information would not be required to be sent to security holders.\226\ 
    This will eliminate the cost to issuers of mailing the information, but 
    the information will be publicly available to the marketplace.
    ---------------------------------------------------------------------------
    
        \225\ There is no schedule or form accompanying the rule. The 
    required information is disclosed in a ``Rule 13e-1 Transaction 
    Statement'' filed electronically on EDGAR under the submission-type 
    SC 13E1.
        \226\ If a target is making an issuer tender offer and complies 
    with the filing, disclosure and dissemination requirements of Rule 
    13e-4 before repurchasing any securities, the requirements of Rule 
    13e-1 would be satisfied without a separate Rule 13e-1 filing.
    ---------------------------------------------------------------------------
    
    4. Tender Offer and Proxy Rules Relating to the Delivery of a Security 
    Holder List and Security Position Listing Harmonized
        We are adopting as proposed revisions to Rule 14d-5 to conform the 
    tender offer dissemination requirements with the proxy dissemination 
    requirements in Rule 14a-7.\227\ The revised rule expands the scope of 
    information included in a security holder list under the tender offer 
    rules so that it is consistent with the security holder list 
    requirements in the proxy rules. Under the revised rule, a target 
    company that elects to provide a bidder with a security holder list 
    instead of mailing the bidder's materials to security holders must 
    disclose the most recent list of names, addresses and security 
    positions of non-objecting beneficial owners (as well as record 
    holders) it has in its possession, or subsequently obtains. The 
    security holder list must be in the format requested by the bidder if 
    it can be provided without undue burden or expense. The purpose of the 
    amendment to the rule is to give bidders the same
    
    [[Page 61430]]
    
    ability as target companies to communicate directly with non-objecting 
    beneficial owners of securities.
    ---------------------------------------------------------------------------
    
        \227\ 17 CFR 240.14a-7.
    ---------------------------------------------------------------------------
    
        Most commenters supported the proposal, with one commenter 
    expressing concern on the mechanics of tracking transmittal letters. We 
    do not believe that the revised rule would unduly complicate the tender 
    process or the tracking of transmittal forms. Bidders would mail their 
    tender offer materials to record holders, consistent with current 
    practice, and record holders would then forward the materials to 
    beneficial owners. Bidders also would have the option of supplementing 
    their distribution by mailing directly to non-objecting beneficial 
    owners set forth on the security holder list provided by the target. 
    Transmittal forms would include instructions, as they do today, stating 
    where to send transmittal forms (e.g., forms should be returned to the 
    record holder with directions to tender shares in the offer).
    5. New Rule 14e-5: Revision and Redesignation of Former Rule 10b-13, 
    the Rule Prohibiting Purchases Outside an Offer
        Rule 10b-13 prohibits a person who is making a cash tender offer or 
    exchange offer from purchasing or arranging to purchase, directly or 
    indirectly, the security that is the subject of the offer (or any 
    security that is immediately convertible into or exchangeable for the 
    subject security), otherwise than as part of the offer. We proposed to 
    clarify the rule's text, codify several interpretations and exemptions, 
    and redesignate it as new Rule 14e-5. We are adopting the amendments 
    substantially as proposed. In response to commenters' suggestions, we 
    are adopting four additional exceptions. We also are implementing the 
    changes proposed in the cross-border tender offers proposing release 
    since those proposals are being adopted today.\228\ With these two 
    further exceptions regarding cross-border offers adopted today,\229\ 
    Rule 14e-5 has ten exceptions.
    ---------------------------------------------------------------------------
    
        \228\ See Release No. 34-40678 (December 15, 1998 (63 FR 69136)) 
    (the ``Cross-Border Proposing Release'') and the Cross-Border 
    Adopting Release.
        \229\ These additional exceptions, one for purchases during 
    cross-border tender offers and one for purchases by ``connected 
    exempt market makers'' and ``connected exempt principal traders,'' 
    are discussed in the Cross-Border Proposing and Adopting Releases.
    ---------------------------------------------------------------------------
    
    a. Redesignating Rule 10b-13 as Rule 14e-5
    
        Former Rule 10b-13 is redesignated as Rule 14e-5. We originally 
    promulgated Rule 10b-13 under Sections 10, 13 and 14 of the Exchange 
    Act \230\ to safeguard the interests of persons who sell their 
    securities in response to a tender offer.\231\ As stated in the 
    Proposing Release, because the rule addresses conduct during tender 
    offers, we believe it belongs with the other rules under Regulation 14E 
    under the Exchange Act that address activities in the context of tender 
    offers.\232\ No commenters disagreed with this change, and we are 
    adopting it as proposed.\233\
    ---------------------------------------------------------------------------
    
        \230\ 15 U.S.C. 78j; 15 U.S.C. 78m; 15 U.S.C. 78n.
        \231\ Release No. 34-8712 (October 8, 1969) (34 FR 15836) (the 
    ``Rule 10b-13 Adopting Release'').
        \232\ Section 14(e) of the Exchange Act confers on the 
    Commission the authority to define and prescribe means to prevent 
    fraudulent, deceptive, or manipulative acts or practices in 
    connection with any tender offer. See United States v. O'Hagan, 117 
    S. Ct. 2199, 2217 (1997) (holding that ``under section 14(e), the 
    Commission may prohibit acts, not themselves fraudulent under the 
    common law or section 10(b), if the prohibition is `reasonably 
    designed to prevent . . . acts and practices (that) are fraudulent'' 
    ' (citing 15 U.S.C. 78n(e)).
        \233\ As proposed, we are amending Rule 30-3 delegating 
    exemptive authority to the Director of the Division of Market 
    Regulation, and replacing references to Rule 10b-13 with Rule 14e-5. 
    We also are adding a parallel provision to Rule 30-1 (17 CFR 200.30-
    1) to delegate exemptive authority to the Director of the Division 
    of Corporation Finance, and by operation of Rule 30-5(b) (17 CFR 
    200.30-05(b)), to the Director of the Division of Investment 
    Management. The amended text of Rule 30-1 appears in the Cross-
    Border Adopting Release.
    ---------------------------------------------------------------------------
    
    b. Clarification of Rule 14e-5; Prohibited Period
    
        The amendments to Rule 14e-5 being adopted today do not alter the 
    rule's basic terms. Instead, they modify the rule's text to more 
    clearly set forth the covered activities. Rule 14e-5 will continue to 
    protect investors by preventing an offeror from extending greater or 
    different consideration to some security holders outside the offer, 
    while other security holders are limited to the offer's terms.\234\ 
    Rule 10b-13 prohibited a person who is making a cash tender offer or 
    exchange offer from purchasing or arranging to purchase, directly or 
    indirectly, the security that is the subject of the offer (or any 
    security that is immediately convertible into or exchangeable for the 
    subject security), otherwise than as part of the offer. Similarly, Rule 
    14e-5 prohibits a covered person from purchasing or arranging to 
    purchase any subject securities or any related securities except as 
    part of the tender offer. Rule 14e-5 does not explicitly include the 
    term ``exchange offer'' as former Rule 10b-13 did because in Regulation 
    14E the term ``tender offer'' includes offers to exchange securities 
    for cash and/or securities.\235\
    ---------------------------------------------------------------------------
    
        \234\ See Rule 10b-13 Adopting Release.
        \235\ See n.12 above.
    ---------------------------------------------------------------------------
    
        We are changing the language describing the time period of the 
    rule's restrictions. As adopted, the restrictions of Rule 14e-5 start 
    upon ``public announcement,'' which is defined in the rule as any oral 
    or written communication by the offeror, or any person authorized to 
    act on the offeror's behalf, that is reasonably designed to, or has the 
    effect of, informing the public or security holders in general about 
    the tender offer.\236\ Although the language regarding the commencement 
    of the rule's restrictions is different from the language in Rule 10b-
    13,\237\ the scope is the same; the restrictions apply from the time 
    holders of the subject securities, or the public more generally, are 
    notified of the tender offer.\238\
    ---------------------------------------------------------------------------
    
        \236\ See new Rule 165(f)(3) and revised Rules 13e-4(c) and 14d-
    2(b).
        \237\ Rule 10b-13 applies from the time the offer is publicly 
    announced or otherwise made known to security holders until the 
    offer expires. The phrase ``otherwise made known'' means any form of 
    communication, other than public announcement, that notifies holders 
    of subject securities of an offer.
        \238\ We asked whether the rule should apply if the offeror 
    advises some but not all security holders that it intends to conduct 
    a tender offer for the subject securities. Two of the three 
    commenters that addressed this point believed that a communication 
    to some security holders should not commence the restricted period. 
    These two commenters opposed any such change because it would make 
    negotiations impossible without triggering the rule. We agree with 
    these commenters in that it is not appropriate for private 
    negotiations that do not notify security holders more generally to 
    trigger the rule.
    ---------------------------------------------------------------------------
    
        We are adopting the proposed simplification of the language 
    regarding the end of the rule's restrictions. Under Rule 14e-5, the 
    restrictions end when the offer expires.\239\ Under Rule 14d-11, a 
    tender offer may be extended up to 20 days under specific circumstances 
    without offering withdrawal rights,\240\ thus giving security holders 
    an additional opportunity to tender into the offer.
    ---------------------------------------------------------------------------
    
        \239\ Expiration includes termination by the offeror as well as 
    reaching the time the offeror is required, by the offer's terms, 
    either to accept or reject the tendered securities.
        \240\ See Part II.G.1 above.
    ---------------------------------------------------------------------------
    
        As adopted, Rule 14e-5 does not apply to purchases or arrangements 
    to purchase outside of a tender offer during a subsequent offering 
    period if the consideration is the same in form and amount. In the 
    Proposing Release, we said we believed offeror purchases outside the 
    offer during this subsequent offering period present the same concerns 
    as during the initial offering period; therefore, we proposed that Rule 
    14e-5 restrictions would cover any subsequent offering period provided 
    under proposed Rule 14d-11. Two commenters agreed with the proposal, 
    and two others thought the rule should
    
    [[Page 61431]]
    
    not extend to a subsequent offering period so long as the purchase 
    price does not exceed the offer price. We now believe that the 
    requirements of Rules 14d-11 and 14e-5 are sufficient to avoid any of 
    the problems that Rule 14e-5 is designed to prevent. More specifically, 
    under the terms of Rule 14e-5, any purchases made outside the offer 
    during the subsequent offering period must be made using the same form 
    and amount of consideration offered in the tender offer. Also, under 
    the terms of Rule 14d-11, the offeror must immediately accept and 
    promptly pay for all securities as they are tendered in the subsequent 
    offering period, which eliminates any difference in the time value of 
    money between those who tender and those who sell to the offeror 
    outside the offer. Under these conditions, we believe those people who 
    tender during a subsequent offering period will not be disadvantaged in 
    relation to those whose securities are purchased outside of, but 
    during, a subsequent offering period.
    
    c. Persons and Securities Subject to the Rule
    
    Scope of Persons Subject to the Rule
    
        Rule 10b-13 applied to the person who made the offer, which had 
    been interpreted to cover the offeror, the offeror's affiliates, and 
    the offer's dealer-manager.\241\ Under Rule 14e-5, the Rule 10b-13 term 
    ``person'' is replaced by ``covered person'' to codify this 
    interpretation. The definition of ``covered person'' we are adopting 
    has several changes from the proposed definition. The proposal defined 
    a covered person as: The offeror and its affiliates; the offeror's 
    dealer-manager(s) and other advisors; and any person acting, directly 
    or indirectly, in concert with them. Two commenters objected to 
    including all advisors within the meaning of covered person as too 
    broad. We agree, and have narrowed the scope of the advisor category.
    ---------------------------------------------------------------------------
    
        \241\ See, e.g., Letter regarding Offers for Smith New Court PLC 
    (July 26, 1995) (``Smith New Court Letter''). See also In the Matter 
    of Trinity Acquisition's Offer to Purchase the Ordinary Shares and 
    American Depositary Shares of Willis Corroon Group plc, Release No. 
    34-40246 (July 22, 1998) [67 S.E.C. Docket 1320].
    ---------------------------------------------------------------------------
    
        Covered person, as adopted, means: The offeror and its affiliates; 
    the offeror's dealer-manager and its affiliates; any advisor to the 
    offeror, dealer-manager or their affiliates, if such advisor's 
    compensation is dependent on the completion of the offer; and any 
    person acting, directly or indirectly, in concert with any of the other 
    covered persons in connection with any purchase or arrangement to 
    purchase any subject securities or any related securities.\242\ These 
    changes replace the broader proposed term ``other advisors'' with two 
    narrower categories: affiliates of the dealer-manager; and advisors to 
    the offeror, dealer-manager or their affiliates, if such advisor's 
    compensation is dependent on the completion of the offer. These changes 
    mean that advisors such as attorneys and accountants will not be 
    affected by the rule where they have no stake in the outcome of the 
    offer.
    ---------------------------------------------------------------------------
    
        \242\ In a negotiated transaction, we would consider the target 
    company to be acting in concert with the offeror.
    ---------------------------------------------------------------------------
    
        The proposed definition of an affiliate borrowed heavily from the 
    definition in Rule 12b-2.\243\ As proposed in Rule 14e-5, the term 
    meant any person that ``directly, or indirectly through one or more 
    intermediaries, controls, or is controlled by, or is under common 
    control with, the offeror.'' The only distinction between the two 
    definitions is that the proposed Rule 14e-5 definition was limited to 
    affiliates of the offeror whereas, Rule 12b-2 extends to the affiliate 
    of other relevant persons.\244\ In order to accommodate other changes 
    from proposed Rule 14e-5,\245\ we needed to broaden this definition to 
    include affiliates of the dealer-manager as well as the offeror, so we 
    are adopting the entire definition of affiliate in Rule 12b-2.
    ---------------------------------------------------------------------------
    
        \243\ 17 CFR 240.12b-2.
        \244\ Rule 12b-2 under the Exchange Act (17 CFR 240.12b-2) 
    defines an ``affiliate'' of, or a person ``affiliated'' with, a 
    specified person, as a person that directly, or indirectly through 
    one or more intermediaries, controls, or is controlled by, or is 
    under common control with, the person specified.
        \245\ See, e.g., Part II.G.5.d. below, where we extend the 
    exception for intermediary transactions to include affiliates of the 
    dealer-manager.
    ---------------------------------------------------------------------------
    
    Scope of Securities Subject to the Rule
    
        We are adopting the proposed changes from Rule 10b-13 regarding the 
    scope and treatment of related securities in the definitions of subject 
    securities and related securities. Rule 14e-5 applies only to offers 
    for equity securities, just as Rule 10b-13 did. Moreover, Rule 14e-5, 
    as with Rule 10b-13, prohibits purchases outside the offer of not only 
    the subject securities,\246\ but also related securities. ``Related 
    securities'' are defined as securities that are immediately convertible 
    into, exchangeable for, or exercisable for subject securities. Among 
    other things, this clarifies that securities that are immediately 
    ``exercisable for'' subject securities, such as options, are included 
    in the types of securities that a covered person cannot generally 
    purchase outside the offer.
    ---------------------------------------------------------------------------
    
        \246\ ``Subject securities'' are defined in Item 1000 of 
    Regulation M-A as ``the securities or class of securities that are 
    sought to be acquired in the transaction or that are otherwise the 
    subject of the transaction.''
    ---------------------------------------------------------------------------
    
    d. Excepted Transactions
    
    Exercise of Related Securities
    
        Rule 10b-13 specified that if the person making the offer ``is the 
    owner of another security which is immediately convertible into or 
    exchangeable for the security which is the subject of the offer, his 
    subsequent exercise of his right of conversion or exchange with respect 
    to such other security shall not be prohibited by this rule.'' We are 
    amending this provision as proposed.
        When Rule 10b-13 was adopted, options were not nearly as common as 
    they are today, and the text of this exception did not explicitly 
    include the exercise of options. We believe the exercise of options 
    acquired before announcement of the offer is no more likely to lead to 
    undesirable effects than the exchange or conversion of other related 
    securities, so we want to make it clear that the exercise of options is 
    included in this exception. Thus, Rule 14e-5 will permit, as proposed, 
    a covered person to convert, exchange, or exercise related securities, 
    if the covered person owned the related securities before public 
    announcement.
    
    Purchases by or for Plans
    
        The exception for purchases for plans is adopted as proposed. Since 
    the adoption of Rule 10b-13, there has been an exception for purchases 
    by the issuer of the target security (or a related security) under 
    certain types of plans, by participating employees of the issuer or the 
    employees of its subsidiaries, or by the trustee or other person 
    acquiring the security for the account of the employees.\247\ We are 
    eliminating the references to outdated Internal Revenue Code provisions 
    that were contained in Rule 10b-13 to define permissible plan 
    purchases; instead, we are using the more expansive plan scope 
    contained in the Commission's Regulation M. The exception now permits 
    purchases of subject securities or related securities for any ``plan'' 
    if the purchases are made by an ``agent independent of the issuer'' as 
    these terms are defined in Regulation M.
    ---------------------------------------------------------------------------
    
        \247\ 17 CFR 240.10b-13(c).
    ---------------------------------------------------------------------------
    
    Purchases during Odd-Lot Offers
    
        We are adopting the proposed exception to permit purchases during 
    an issuer odd-lot tender offer conducted in compliance with the 
    provisions of Rule
    
    [[Page 61432]]
    
    13e-4(h)(5) under the Exchange Act.\248\ This exception codifies a 
    class exemption from Rule 10b-13 issued by the Commission in connection 
    with a 1996 revision to Rule 13e-4(h)(5).\249\ Under Rule 13e-4(h)(5), 
    an issuer tender offer is excepted from application of Rule 13e-4 if 
    the offer is directed solely to odd-lot security holders and provides 
    ``all holders'' and ``best price'' protections to tendering security 
    holders.
    ---------------------------------------------------------------------------
    
        \248\ 17 CFR 240.13e-4(h)(5).
        \249\ Release No. 34-38068 (December 20, 1996) (61 FR 68587). 
    This class exemption permitted ``any issuer or agent acting on 
    behalf of an issuer in connection with an odd-lot offer to purchase 
    or arrange to purchase the security that is the subject of the 
    offer.'' The release also states that the exemption, among other 
    things, ``will allow the issuer or its agent to purchase the 
    issuer's securities to satisfy requests of odd-lot holders to 
    ``round-up'' their holdings to 100 shares.'' 61 FR at 68587-8.
    ---------------------------------------------------------------------------
    
    Purchases as Intermediary
    
        We proposed to add an exception for unsolicited purchases by a 
    dealer-manager that are made on an agency basis. We based this 
    exception on a prior exemption \250\ that allowed a dealer-manager to 
    continue to conduct its customary brokerage (i.e., agent) activities 
    during a tender offer. These activities generally do not raise the 
    concerns that proposed Rule 14e-5 is intended to address. In the 
    Proposing Release, we asked if the exception should permit ``riskless 
    principal'' transactions by dealer-managers as well. Two commenters 
    answered this question and both agreed that the exception should be 
    broadened to permit unsolicited purchases as a riskless principal by 
    dealer-managers. One of the two thought it should extend to other 
    financial advisors.
    ---------------------------------------------------------------------------
    
        \250\ Letter regarding Reuters Holdings PLC (August 17, 1993).
    ---------------------------------------------------------------------------
    
        As adopted, we are broadening this exception in two ways from the 
    proposal. First, we are including affiliates of the dealer-manager 
    within the exception. Second, in addition to agency transactions, we 
    are permitting purchases to offset a contemporaneous sale after having 
    received an unsolicited order in the ordinary course of business to buy 
    from a customer who is not a covered person, if the dealer-manager or 
    affiliate is not a market maker.\251\ We believe these changes 
    appropriately accommodate a dealer-manager's and its affiliates' 
    activities as intermediary without allowing the offeror to use the 
    dealer-manager and its affiliates to facilitate the tender offer.
    ---------------------------------------------------------------------------
    
        \251\ Cf. Rule 10b-10(a)(2)(ii)(A) (17 CFR 240.10b-
    10(a)(2)(ii)(A)).
    ---------------------------------------------------------------------------
    
    e. Additional Exceptions Being Adopted
    
        We are adopting four exceptions that were not proposed 
    specifically, although we either sought comment in the Proposing 
    Release or received suggestions from commenters on them.
    
    Purchases Pursuant to Contractual Obligations
    
        In the Proposing Release, we asked whether an offeror should be 
    permitted to purchase subject or related securities outside an offer if 
    a purchase contract was entered into before public announcement of the 
    offer and the per share purchase price is no higher than the offer 
    consideration. Four commenters addressed this issue, and all agreed 
    such purchases should be permitted. One commenter stated that it could 
    not discern any public policy rationale for permitting purchases 
    pursuant to conversions, exchanges or exercises but not pre-
    announcement contracts. We agree with the commenters.
        As adopted, this exception is available only if: the contract was 
    entered into before public announcement; the contract is unconditional 
    and binding on both parties; and the existence of the contract and all 
    material terms, including quantity, price and parties, are disclosed in 
    the offering materials.\252\ We are not requiring that the contract 
    price be the same as the offer price because we view these contracts as 
    the functional equivalents of options that have no such price 
    restriction for their exercise under Rule 14e-5.
    ---------------------------------------------------------------------------
    
        \252\ This exception is not available unless the obligation 
    under the contract is the purchase by the covered person. For 
    example, a purchase necessitated by an obligation to deliver 
    pursuant to a contract is not covered.
    ---------------------------------------------------------------------------
    
    Basket Transactions
    
        In response to a commenter's suggestion, we are adopting an 
    exception for transactions in baskets of securities containing a 
    subject security or a related security.\253\ We are requiring that: the 
    purchase or arrangement to purchase the basket be made in the ordinary 
    course of business and not to facilitate the offer; the basket contains 
    20 or more securities; and covered securities and related securities do 
    not comprise more than 5% of the value of the basket.\254\
    ---------------------------------------------------------------------------
    
        \253\ The staff of the Division of Market Regulation has taken 
    no-action positions under Rule 10b-13 under similar facts and 
    circumstances. See, e.g., Letter regarding Select Sector SPDRs 
    (December 22, 1998).
        \254\ We base this language on a similar provision in Rule 
    101(b)(6)(i) of Regulation M [17 CFR 242.101(b)(6)(i)].
    ---------------------------------------------------------------------------
    
        We believe that transactions in baskets, following the terms of 
    this exception, provide little opportunity for a covered person to 
    facilitate an offer or for a security holder to exact a premium from 
    the offeror. Facilitation of an offer includes purchases intended to 
    bid up the market price of the covered or related security, and 
    includes buying a basket to strip out the covered security in an effort 
    to get the offeror the number of shares it is seeking.
    
    Covering Transactions
    
        In response to a commenter's suggestion, we are adopting an 
    exception from Rule 14e-5 for purchases of subject and related 
    securities that are made to satisfy an obligation to deliver arising 
    from a short sale or from the exercise of an option by a non-covered 
    person. This exception is available to any covered person, so long as 
    the short sale or option transaction was made in the ordinary course of 
    business, not to facilitate the tender offer, and before public 
    announcement. We adopt this exception because we believe such purchases 
    effected for the purpose of making delivery to another party warrant 
    the same treatment as purchases made pursuant to contractual 
    obligations.
    
    Purchases by an Affiliate of the Dealer-Manager
    
        In response to a commenter's suggestion, we are adopting an 
    exception from Rule 14e-5 for purchases of subject and related 
    securities by an affiliate of the dealer-manager.\255\ This exception 
    permits purchases or arrangements to purchase by an affiliate of a 
    dealer-manager if:
    
        \255\ Cf. Rule 100(b) of Regulation M (17 CFR 242.100(b)). In 
    the Proposing Release, we asked whether we should consider 
    provisions like those contained in the U.K. City Code on Takeovers 
    and Mergers (``City Code'') that permit market makers affiliated 
    with the offeror's advisors to continue their market making 
    functions when the market maker is sufficiently independent from the 
    advisor and other protections are present. Three commenters agreed 
    that some exception should be provided for market making activities, 
    and one opposed an exception based on the City Code. This exception 
    for purchases by an affiliate of the dealer-manager permits market 
    making activities by affiliates of the dealer-manager.
    ---------------------------------------------------------------------------
    
         The dealer-manager maintains and enforces written 
    policies and procedures reasonably designed to prevent the flow of 
    information to or from the affiliate that might result in a 
    violation of the federal securities laws and regulations;
         The dealer-manager is registered as a broker or dealer 
    under Section 15(a) of the Exchange Act; \256\
    ---------------------------------------------------------------------------
    
        \256\ 15 U.S.C. 78o.
    ---------------------------------------------------------------------------
    
         The affiliate has no officers (or persons performing 
    similar functions) or employees (other than clerical, ministerial, 
    or support
    
    [[Page 61433]]
    
    personnel) in common with the dealer-manager that direct, effect, or 
    recommend transactions in securities; and
         The purchases or arrangements to purchase are not made 
    to facilitate the tender offer.
    
        This exception, based largely upon the definition of ``affiliated 
    purchaser'' in Rule 100 of Regulation M, allows investment affiliates 
    to continue their investment advisory activities without interruption, 
    on the same basis as they do during distributions subject to Rule 101 
    of Regulation M.\257\ We believe effective information barriers between 
    the dealer-manager and affiliate prevent improper motives from 
    influencing purchases by affiliates while permitting such affiliates to 
    continue their normal advisory activities. We are limiting this 
    exception to the affiliates of dealer-managers that are registered 
    under Section 15(a) of the Exchange Act because the dealer-managers are 
    subject to a high level of regulatory and reporting oversight.
    ---------------------------------------------------------------------------
    
        \257\ Cf. Rule 100(b) of Regulation M.
    ---------------------------------------------------------------------------
    
    III. Effective Date and Transition
    
        The new rules become effective on January 24, 2000. This date has 
    been selected to accommodate the need for EDGAR programming before some 
    of these changes become effective. The new rules are applicable to 
    transactions beginning on or after the effective date, as well as to 
    transactions already in progress on that date. The following addresses 
    the application of the rules to some specific situations.
    
    A. Communications
    
        As of the effective date, the new regulatory scheme for 
    communications is in effect. Even if a registration statement, proxy 
    statement or tender offer statement is filed before the effective date, 
    persons may rely on the new exemptions for communications made on or 
    after the effective date. Of course, they must comply with the 
    conditions of the exemptions, including the filing of written 
    communications.
    
    B. Confidential Treatment of Proxy Material
    
        If preliminary proxy material is filed confidentially as permitted 
    by the current rules before the effective date, the filer may choose to 
    continue relying on the current rules after the effective date until 
    the material is published, sent or given to security holders in 
    definitive form. In that event, so long as parties to the transaction 
    do not make public communications exceeding what would be permitted by 
    the pre-effective date rules, the preliminary proxy material may remain 
    confidential. On the other hand, if the parties to the transaction 
    choose to avail themselves of the new communications exemptions before 
    providing the definitive proxy statement, they must re-file the 
    preliminary material publicly.
    
    C. Early Commencement
    
        If a registration statement for an exchange offer is filed before 
    the effective date of the new rules, and is not effective, the filer 
    has the option of complying with the early commencement provisions as 
    soon as the new rules become effective.
    
    D. Disclosure Requirements and New Schedules
    
        The disclosure requirements have changed in a number of respects. 
    If a registration statement, tender offer statement or proxy/
    information statement is filed before the effective date, the 
    disclosure requirements in existence at that time continue to be 
    applicable until the transaction is completed. Amendments should 
    continue to comply with those requirements, not Regulation M-A or the 
    revised rules. If a tender offer schedule relating to a two-tier 
    transaction is filed before the effective date, pro forma financial 
    information will not be required in the cash tender offer materials, 
    even if it would be required for an offer filed on or after the 
    effective date. However, we encourage offerors to provide this 
    information. Amendments to tender offers filed before the effective 
    date for the new rules should continue to be filed as amendments to 
    Schedules 14D-1 or 13E-4, not Schedule TO. Tender offers commenced on 
    or after the effective date must be filed on Schedule TO.
    
    E. Subsequent Offering Period
    
        If a tender offer statement is filed before the effective date, the 
    bidder may choose to provide a subsequent offering period beginning on 
    or after the effective date. Of course, it must advise security holders 
    of the decision to include a subsequent offering period in accordance 
    with the timing discussed above, as this would be viewed as a material 
    change. The announcement of a subsequent offering period may be made 
    before the effective date.
    
    F. Revised Security Holder List Rule for Tender Offers
    
        A request for the security holder list on or after the effective 
    date is governed by the revised rule, whether or not the tender offer 
    statement was filed before the effective date.
    
    G. New Rule 14e-5
    
        All tender offers that are publicly announced before the effective 
    date of the amendment and redesignation of Rule 10b-13 as Rule 14e-5 
    are governed by Rule 10b-13, even if the tender offer extends beyond 
    the effective date. Rule 14e-5 only applies to tender offers publicly 
    announced on or after the effective date of the changes.
    
    IV. Cost-Benefit Analysis
    
        We expect that the amendments adopted today will facilitate and 
    enhance security holder communications, especially before a 
    registration statement relating to a business combination transaction, 
    proxy statement or tender offer statement is filed. The amendments also 
    will update and simplify the rules and regulations applicable to 
    business combination transactions, including tender offers, mergers, 
    and similar extraordinary transactions. Accordingly, we expect the cost 
    of compliance with the applicable rules and regulations will decrease 
    as a result of these amendments.
        In addition to permitting more communications with security 
    holders, the amendments attempt to place cash and stock tender offers 
    on a more equal regulatory footing. We also have integrated the forms 
    and disclosure requirements applicable to issuer tender offers, third-
    party tender offers and going-private transactions while consolidating 
    the disclosure requirements in one central location within the 
    regulations. We expect that these changes will simplify compliance with 
    the regulations. Further, the amendments will permit bidders to provide 
    a subsequent offering period after the successful completion of a 
    tender offer when security holders can tender their securities without 
    having to wait for a back-end merger. The regulations are revised to 
    more closely align the merger and tender offer requirements as well as 
    update the tender offer rules to clarify certain requirements and 
    reduce compliance burdens consistent with investor protection. We 
    expect that these changes will reduce the compliance burden on 
    registrants and generally facilitate the consummation of transactions.
        In the Proposing Release we provided our preliminary cost-benefit 
    analysis and requested that commenters provide their views on the 
    specific costs and benefits associated with our proposals. We also 
    requested that commenters provide any data supporting their views. 
    While commenters addressed the potential costs and benefits of the
    
    [[Page 61434]]
    
    proposals in general terms, none provided empirical data to support 
    their views. We discuss below the expected benefits and costs of the 
    revisions and focus on the groups of persons and entities that are 
    likely to be affected by the changes adopted today.
    
    A. Communications
    
        Overall, the amendments should enhance price discovery and market 
    efficiency by permitting companies to communicate earlier and more 
    freely about proposed business combination transactions and other 
    significant corporate events. Currently, provisions of the Securities 
    Act and Exchange Act, including the Williams Act, restrict the 
    dissemination of information before a registration, proxy or tender 
    offer statement is filed. The amendments allow companies to communicate 
    more freely with security holders both before and after the filing of a 
    registration, proxy, or tender offer statement.\258\ The revisions 
    allowing more communications treat bidders and targets alike--both are 
    free to communicate with security holders regarding the merits and 
    potential risks of a proposed transaction.
    ---------------------------------------------------------------------------
    
        \258\ See new Rule 165 and revised Rules 14a-12, 14d-2 and 14d-
    9.
    ---------------------------------------------------------------------------
    
        We expect that the increased flow of information will assist 
    investors in making better-informed tender or voting decisions. We 
    recognize that under the regulatory scheme adopted today there is a 
    risk some persons may attempt to ``condition the market'' with false, 
    misleading or confusing information.\259\ Nevertheless, we believe that 
    investors will benefit from an increased flow of information and they 
    will eventually receive a registration, tender offer or proxy statement 
    before an investment, tender or voting decision must be made with 
    respect to a particular transaction. As a result, we expect investors 
    will have adequate opportunity to consider the full information in the 
    mandated disclosure document together with any information disseminated 
    earlier before needing to act on that information.
    ---------------------------------------------------------------------------
    
        \259\ As discussed below, we are adopting new Rule 14e-8 to 
    specifically prohibit certain conduct that would mislead investors.
    ---------------------------------------------------------------------------
    
        In addition, the increased flow of information will be subject to 
    liability. Communications that are made at any time will be subject to 
    the antifraud provisions of Rule 10b-5 under the Exchange Act, as well 
    as to the antifraud provisions of Rule 14a-9 and Section 14(e) if a 
    transaction involves the proxy or tender offer rules, respectively. 
    Also, if the transaction involves the Securities Act, the 
    communications will be subject to Section 12(a)(2) liability as well. 
    In addition, all material information must be included in the 
    registration statement that is ultimately declared effective; therefore 
    the information will be subject to Section 11 liability. In the 
    aggregate, the liability imposed on these communications is appropriate 
    to discourage the dissemination of false or misleading information into 
    the market while at the same time providing investors with more 
    information about a proposed transaction on a timely basis. We do not 
    expect that these amendments will present a significant burden to 
    investors or offerors.\260\ Although communications are subject to 
    liability, the amendments essentially permit communications that would 
    not otherwise be permitted today and parties have the option of whether 
    or not to communicate more with security holders and the markets.
    ---------------------------------------------------------------------------
    
        \260\ Under the exemptions adopted, all written communications 
    relating to a proposed transaction following first public 
    announcement must be publicly filed.
    ---------------------------------------------------------------------------
    
        The amendments also should reduce the current regulatory 
    uncertainty relating to security holder communications. Companies have 
    indicated difficulty in complying with the current restrictions on 
    communications while at the same time fulfilling their duties to make 
    full and fair disclosure under Rule 10b-5 of the Exchange Act. By 
    relaxing the current restrictions on communications, this regulatory 
    tension should be minimized. This clarification is expected to benefit 
    issuers and security holders alike.
        One potential cost or risk of the amendments is that some security 
    holders may make investment decisions based on information received 
    before a complete disclosure statement containing the required 
    information is filed. While some investors may make premature 
    investment decisions, the same risk exists today under the current 
    rules. For example, the tender offer rules currently limit 
    communications with investors until an offer is formally commenced. The 
    required disclosure statement, however, is not required to be filed 
    until five business days after the announcement of an offer. In 
    addition, the information required in the mandated disclosure document 
    may not be received by security holders until several days after the 
    material is filed. By allowing companies to publicly announce 
    transactions without having to file mandated disclosure documents, 
    together with the requirement that all written communications relating 
    to a proposed transaction be publicly filed and contain a legend 
    advising security holders to read the complete disclosure document when 
    it is available,\261\ we believe investors will have more information 
    and more time to make an informed investment decision. Further, 
    investors will receive a mandated disclosure document before the time 
    they must decide whether or not to tender in an offer.
    ---------------------------------------------------------------------------
    
        \261\ See new Rule 165(c) and revised Rules 13e-4(c), 14a-12(a), 
    14d-2(b), and 14d-9(a).
    ---------------------------------------------------------------------------
    
        To protect investors from possible misleading information, we are 
    adopting new Rule 14e-8 which specifically prohibits the announcement 
    of a tender offer if the bidder does not intend to commence and 
    complete the offer; intends to manipulate the market price of the 
    bidder or target; or does not have a reasonable belief it will have the 
    means to purchase the securities sought in the offer. This new rule 
    should encourage only bona fide offers to be publicly announced and 
    minimize the potential for dissemination of false or misleading 
    information in the marketplace.
        In addition to permitting more communications, we believe that the 
    amendments will reduce selective disclosure of information because 
    companies must publicly file all written communications relating to the 
    transaction. This filing requirement will make written communications 
    available to a broader base of investors than is currently the case. 
    The amendments also should increase the uniformity and timeliness of 
    information received by investors. We recognize, of course, that the 
    amendments will not eliminate selective disclosure entirely. In fact, 
    the amendments may encourage companies to communicate orally instead of 
    in writing to avoid the filing requirement. Because the market will 
    likely demand that information be reduced to writing and companies 
    generally will want to disseminate information broadly in order to sell 
    their transaction to the market, we expect that the communications 
    scheme adopted will reduce selective disclosure overall.
        The revisions also will permit significantly more communications 
    under the proxy rules, regardless of whether the communications relate 
    to a business combination transaction. Under the amended rules, 
    companies and security holders may communicate more freely before 
    having to furnish a written proxy statement.\262\ The increased ability 
    to communicate under the amendments adopted today applies equally to 
    security holders and companies. As a result, we expect
    
    [[Page 61435]]
    
    security holders will receive more information regarding matters on 
    which a vote may be solicited in the future. In addition, the revisions 
    should result in the dissemination of information earlier than is 
    currently the case, giving security holders more time to consider that 
    information.
    ---------------------------------------------------------------------------
    
        \262\ No proxy card or form of proxy may be given or requested 
    unless preceded or accompanied by a proxy statement.
    ---------------------------------------------------------------------------
    
        We are requiring companies to provide security holders with a short 
    ``plain English'' summary term sheet in all cash mergers, cash tender 
    offers, and going-private transactions.\263\ We expect that the 
    required summary term sheet will facilitate investors' understanding of 
    the basic terms of a proposed transaction, allowing them to make 
    better-informed voting and investment decisions. We do not expect the 
    requirement to impose a significant burden on filers because the 
    information required in a summary term sheet must be gathered to 
    respond to existing disclosure requirements in any event. Further, most 
    filers should be sufficiently experienced with the plain English 
    requirements applicable to Securities Act filings.
    ---------------------------------------------------------------------------
    
        \263\ Forms S-4 and F-4 are already subject to the plain English 
    requirements; thus we are not requiring a summary term sheet for 
    securities offerings.
    ---------------------------------------------------------------------------
    
    B. Filings
    
        The amendments should effectively reduce the cost of complying with 
    many of the current disclosure and other regulatory requirements. We 
    have integrated and streamlined the current disclosure requirements 
    applicable to business combination and going-private transactions. To a 
    large extent the amendments harmonize and integrate the disclosure 
    requirements for tender offer, merger proxy, and going-private 
    transaction statements. The various disclosure requirements now appear 
    in one location and are written in a more reader-friendly manner. Also, 
    the amendments permit the filing of one schedule, rather than two, to 
    satisfy the tender offer and going-private disclosure requirements when 
    both sets of regulations apply to a particular transaction.
        Consistent with the free communications scheme adopted today, we 
    are limiting the availability of confidential treatment of merger proxy 
    statements. Under the amendments, filers will be permitted to file a 
    merger proxy statement confidentially so long as the parties limit 
    their public oral and written communications to the information 
    specified in Rule 135 of the Securities Act. If the parties to the 
    transaction elect to publicly disclose more information than that 
    specified in Rule 135, the proxy statement must be filed publicly. We 
    do not expect that this limitation on confidential treatment will 
    impose significant costs on filers. The revised treatment of merger 
    proxy statements is consistent with the current requirement to publicly 
    file all other registration, proxy, tender offer and going-private 
    statements. The same information must be filed regardless of whether 
    confidential treatment is invoked by the filer.
        We expect the amendments also will reduce the burden of complying 
    with the merger proxy and tender offer requirements by, among other 
    things:
         Clarifying the disclosure requirements;
         Clarifying that an acquiror's financial statements are 
    required in all-cash transactions only when the acquiror cannot 
    demonstrate a financial ability to satisfy the terms of the 
    transaction or the information is otherwise material;
         Eliminating the requirement to provide target financial 
    statement information in an all-cash merger when the acquiror's 
    security holders are not voting on the transaction;
         Reducing from three years to as little as one year, and 
    in some cases eliminating, the required financial statements for a 
    non-reporting target company when the acquiring company's security 
    holders are not voting on the transaction; and
         Reducing from three years to two the required financial 
    statements for an acquiring company in cash mergers and third-party 
    cash tender offers.
    
        We are adopting, however, a new disclosure requirement that may 
    impose an additional cost on acquirors in negotiated two-tier business 
    combination transactions. If security holders will be offered cash 
    first in a tender offer followed by securities in a back-end merger, an 
    acquiror must disclose certain pro forma and related financial 
    information for the combined entity in the cash tender offer materials. 
    We do not expect that this requirement will impose a significant burden 
    on acquirors because the same information would eventually be required 
    for the back-end merger. The amendments require disclosure at an 
    earlier point in time, when security holders are confronted with a cash 
    tender offer and must decide whether to tender in the offer or wait to 
    receive securities in the back-end. The pro forma information required 
    will benefit investors and should not impose a significant burden on 
    acquirors. Therefore, the costs associated with providing pro forma 
    information is reasonable. We recognize, however, that some acquirors 
    may have difficulty in generating reliable pro forma financial 
    information in situations when the target is not cooperating with the 
    bidder. In response to this concern, we have limited the pro forma 
    requirement to negotiated transactions.
        For the purposes of the Paperwork Reduction Act, Table 2 in Part 
    VII below summarizes our estimate of the paperwork burden hours that 
    parties would expend to comply with the amended rules. In arriving at 
    these estimates we note that U.S. merger and acquisition activity in 
    1998 was valued in excess of $1.3 trillion.\264\ These estimates 
    include the burden hours incurred by companies from filing pre-filing 
    communications. We have based these estimates on current burden hour 
    estimates and the staff's experience with these filings. The estimates 
    in the table indicate that parties would expend approximately 234,759 
    burden hours/year complying with the revised rules. If we assume that 
    70% of the burden hours would be expended by persons that cost the 
    affected parties $85/hour (e.g., professionals) and 30% of these burden 
    hours would be expended by persons that cost $10/hour (e.g., clerical 
    support), then the proposals would cost approximately $14,691,250/year 
    in internal staff time. We expect that a majority of the compliance 
    burden will fall on professionals while approximately one-third of the 
    burden will rest on clerical staff that will monitor and implement the 
    compliance process.
    ---------------------------------------------------------------------------
    
        \264\ See Mergers & Acquisitions, The Dealmaker's Journal, 1998 
    Almanac (March/April 1999), at 42.
    ---------------------------------------------------------------------------
    
        For purposes of the Paperwork Reduction Act, we also estimate that 
    parties would spend approximately $122,929,990/year on outside 
    professional assistance to comply with the proposals. Thus, we estimate 
    that affected parties would spend approximately $137,621,240/year to 
    comply with the paperwork requirements of the amended rules. Applying 
    the same cost estimates to the burden imposed by the current rules, we 
    estimate that companies and affected parties spend approximately 
    $163,268,490/year.\265\ Note that these estimates do not attempt to 
    quantify intangible benefits of the amended rules, such as the benefits 
    to issuers and investors of enhanced communications
    
    [[Page 61436]]
    
    and possible improvements in price discovery, nor intangible costs.
    ---------------------------------------------------------------------------
    
        \265\ For the purposes of the Paperwork Reduction Act, we 
    estimate in Table 2 of Part VII the burden hours imposed on parties 
    to comply with the current rules. Assuming (as we did for the 
    proposed rules) that 25% of the hours required to comply with the 
    rules are provided by corporate staff at a cost of $63/hour (70% of 
    the expended corporate staff time cost $85/hour, whereas 30% of the 
    expended corporate staff time cost $10/hour), and 75% of the hours 
    required to comply with the rules are provided by external 
    professional help at a cost of $175/hour, we estimate that affected 
    parties spend approximately 1,110,670 burden hours/year * $147/
    hour=$163,268,490/year.
    ---------------------------------------------------------------------------
    
    C. Tender Offers
    
        We are providing bidders with more flexibility regarding the timing 
    of exchange offers. Currently, bidders may not commence an exchange 
    offer until the related registration statement is effective. Under the 
    amendments, bidders will be able to commence an exchange offer as soon 
    as they file a registration statement, or on a later date if desired. 
    Offerors will no longer need to wait for effectiveness to commence an 
    exchange offer. We expect that this increased flexibility will 
    encourage issuers to file their registration statements earlier, 
    thereby creating an incentive to publicly disseminate more information 
    sooner rather than selectively communicate with a limited number of 
    security holders. In addition, we expect the attempt at balancing the 
    regulatory treatment of cash and stock offers will enhance the 
    attractiveness of offering securities, more so than is currently the 
    case. The increased feasibility of offering securities as an 
    alternative to cash should result in a more competitive market for 
    target companies overall.
        We realize that the ability to commence an offer early will likely 
    shorten the period of time necessary to complete an exchange offer 
    relative to the time currently required. We retain, however, certain 
    investor protection mechanisms, including a requirement that a bidder 
    may not purchase securities tendered in an exchange offer until the 
    related registration statement is effective. In addition, the exchange 
    offer may not expire until after the mandatory 20-business day tender 
    offer period has elapsed. The bidder must disseminate a supplement to 
    security holders containing all material changes to the information 
    previously disseminated and security holders may withdraw tendered 
    securities at any time until purchased by the bidder.
        We also recognize that early commencement may increase the risk 
    that bidders offering securities will need to disseminate supplements 
    to disclose changes in material information. This may cause bidders to 
    incur additional costs in redisseminating information and security 
    holders will need to reconsider their investment decisions upon receipt 
    of the new information. The risk is not unique to exchange offers, 
    however, because bidders run the same risk today in cash tender offers 
    when there is a material change in information. We do not expect that 
    the costs associated with redissemination will be overly burdensome 
    because early commencement is at the bidder's election. Bidders are not 
    required to commence immediately upon filing. Instead, bidders can file 
    a registration statement and wait for staff comments before 
    disseminating offering materials and commencing the offer, thereby 
    minimizing both the need for supplements and the costs associated with 
    redissemination.
        The amendments also permit bidders to purchase (at the stated offer 
    price) securities from holders who did not tender their shares during 
    the offer in a follow-on period called a ``subsequent offering 
    period.'' We expect this change will minimize the delay security 
    holders currently encounter in liquidating their investment in a target 
    company when the bidder is successful in purchasing a significant or 
    controlling interest in the target. We recognize that some security 
    holders might wait to tender their shares until the subsequent offering 
    period, thus creating a hold-out problem for some bidders. We do not 
    believe, however, that the need to announce a subsequent offering 
    period in advance will pose a significant hold-out risk because most 
    bidders will not be willing to close the initial offering period until 
    a sufficient number of securities have been tendered in the offer. 
    Therefore, security holders will need to tender a sufficient number of 
    securities into an offer before the bidder will close the initial 
    offering period and purchase the securities tendered in the offer. As a 
    result, the economics of the transaction will drive a sufficient number 
    of security holders to tender. In addition, we note that bidders are 
    not required to provide a subsequent offering period, but may do so at 
    their election.
        We are reducing the financial statement requirement in third-party 
    cash tender offers from three years to two when the information is 
    material. This change harmonizes the financial statement requirement in 
    third-party tender offers with the requirements for issuer tender 
    offers and going-private transactions. We expect that this reduction 
    from three to two years of historical financial statements will lower a 
    bidder's costs to comply with our rules, while continuing to give 
    security holders adequate information to make investment decisions.
        The amendments also allow bidders greater access to security 
    holders in tender offers by enabling them to contact non-objecting 
    beneficial owners if the target company maintains a list of these 
    persons. The amendment is expected to give bidders the same ability as 
    target companies to communicate directly with non-objecting beneficial 
    owners of securities similar to that provided under the proxy rules. 
    This revision should benefit both bidders and security holders because 
    communications regarding tender offers will be more efficient than they 
    are today. The amendments do not require targets to gather this 
    information. Instead, the information must be provided only when the 
    target has the information and elects to provide the bidder with 
    security holder list information instead of mailing the tender offer 
    materials for the bidder. Accordingly, we do not expect the revised 
    rule will impose significant costs on target companies.
    
    V. Commission Findings and Considerations
    
    A. Exemptive Authority Findings
    
        We find that it is appropriate, in the public interest and 
    consistent with the protection of investors to exempt: (i) Persons 
    making communications regarding planned business combination or similar 
    takeover transactions from Sections 5(b)(1) and (c) of the Securities 
    Act; and (ii) exchange offers commencing early from section 5(a) and 
    (b)(2) of the Securities Act. We make these findings based on the 
    reasons described in this release. In particular, we believe that 
    investors will be better served if they are able to receive more 
    information concerning business combination transactions before the 
    time they must make an investment decision.
        Our use of exemptive authority will allow companies to communicate 
    more freely with security holders and the markets and will permit 
    investors to receive more information in a timely manner. If security 
    holders receive more information sooner, they will be able to better 
    inform themselves before having to make an investment decision. In 
    addition, our use of exemptive authority will help minimize the 
    regulatory disparity between exchange offers and cash tender offers. If 
    bidders can choose more freely between offering cash or securities as 
    consideration in a business combination, the markets will operate more 
    efficiently and security holders will benefit as a result.
        In light of improved technologies that permit more and faster 
    communications with security holders and the markets, and the 
    increasing speed at which business combination transactions are 
    consummated, we believe that removing restraints on communications will 
    benefit investors. Therefore, we have found that persons making 
    communications regarding these types of transactions should be free to 
    communicate earlier, before a formal
    
    [[Page 61437]]
    
    registration statement is filed or a prospectus meeting the 
    requirements of Section 10(a) of the Securities Act is delivered.
        We realize that these exemptions will lead to significantly more 
    communications, some of which could be incomplete in the absence of a 
    mandated disclosure document. We believe, however, that investors will 
    be adequately protected by our continuing requirement to furnish 
    security holders with a complete disclosure document before an 
    investment decision must be made. In addition, we believe that the 
    level of liability imposed on these pre- and post-filing communications 
    will be adequate to protect investors.
    
    B. Effect on Competition
    
        Section 23(a) of the Exchange Act \266\ requires us, in adopting 
    rules under the Exchange Act, to consider the impact those rules would 
    have on competition. We cannot adopt any rule that would impose a 
    burden on competition not necessary or appropriate in the public 
    interest. We did not receive any information from commenters on the 
    impact of increased competition for capital in connection with business 
    combination transactions. We also received no comments on whether the 
    new rules, schedules and amendments will have an adverse effect on 
    competition or will impose a burden on competition that is neither 
    necessary nor appropriate in furthering the purposes of the Exchange 
    Act. Harmonizing the requirements between cash and exchange offers 
    removes burdens on competition. Our view, therefore, is that any anti-
    competitive effects of the new rules, schedules and amendments adopted 
    today are necessary or appropriate in the public interest.
    ---------------------------------------------------------------------------
    
        \266\ 15 U.S.C. 78w(a)(2).
    ---------------------------------------------------------------------------
    
    C. Promotion of Efficiency, Competition and Capital Formation
    
        Section 2(b) of the Securities Act \267\ and section 3(f) of the 
    Exchange Act,\268\ as amended by the National Securities Markets 
    Improvement Act of 1996,\269\ provide that whenever the Commission is 
    engaged in rulemaking and is required to consider or determine whether 
    an action is necessary or appropriate in the public interest, the 
    Commission also must consider, in addition to the protection of 
    investors, whether the action will promote efficiency, competition and 
    capital formation. We believe that harmonizing the regulatory 
    requirements between cash tender and exchange offers will promote 
    efficiency and competition. In addition, facilitating communications 
    with security holders will promote efficiency and capital formation.
    ---------------------------------------------------------------------------
    
        \267\ 15 U.S.C. 77b.
        \268\ 15 U.S.C. 78c.
        \269\ Pub. L. 104-290, Sec. 106, 110 Stat. 3416 (1996).
    ---------------------------------------------------------------------------
    
    VI. Final Regulatory Flexibility Analysis
    
        This Final Regulatory Flexibility Analysis (``FRFA'') has been 
    prepared in accordance with the provisions of the Regulatory 
    Flexibility Act (``RFA''), as amended by Public Law 104-121, 110 Stat. 
    847, 864 (1996), 5 U.S.C. 604. The FRFA relates to the new rules, 
    amendments, and schedules adopted today, which are primarily intended 
    to enhance communications with security holders; harmonize the 
    regulations affecting cash and stock tender offers; facilitate 
    compliance with the rules and regulations associated with business 
    combination transactions and similar extraordinary transactions; and 
    promote investor protection.
    
    A. Need for Action
    
    Communications
        Currently, the rules and regulations applicable to business 
    combination transactions impose restrictions on communications during 
    the period before a mandated disclosure document is publicly filed with 
    us. These restrictions appear in the registration, proxy and tender 
    offer rules.\270\ Companies, security holders and other market 
    participants have expressed an increasing desire to communicate and 
    receive information about proposed business combination transactions 
    before the time that a mandated disclosure document (e.g., a 
    registration, proxy or tender offer statement) is filed. This desire is 
    partly attributable to the emergence of new and developing technologies 
    that allow for faster and less expensive means to communicate. In 
    addition, disclosure requirements under both the federal securities 
    laws and applicable exchange rules and regulations may require 
    disclosure. Further, participants to business combination transactions 
    often feel compelled to promptly inform the marketplace, their 
    employees, suppliers, and customers about a proposed business 
    combination transaction that potentially could impact their 
    relationships with these constituencies. We also have recognized that 
    business combination transactions differ from capital-raising 
    transactions to the extent that security holders may be forced to take 
    cash or securities in exchange for their securities even though no 
    action is taken with respect to the transaction.
    ---------------------------------------------------------------------------
    
        \270\ For example, see section 5 of the Securities Act, Rules 
    14a-3, 14a-6, 14a-11 and 14a-12 (proxy rules) and Rules 14d-1, 14d-2 
    and 14d-3 (tender offer rules).
    ---------------------------------------------------------------------------
    
        Accordingly, we have decided to eliminate many of the restrictions 
    imposed on communications before a mandated disclosure document is 
    filed by adopting specific exemptions under each regulatory scheme that 
    could apply to a business combination transaction. Revised Securities 
    Act Rules 135 and 145 and new Rules 165, 166 and 425 permit more 
    communications regarding a business combination transaction before a 
    registration statement is filed. Revised proxy Rule 14a-12 permits more 
    communications regardless of whether a business combination transaction 
    is involved before a proxy statement must be filed. Revised tender 
    offer Rule 14d-2 permits a bidder to communicate more information 
    without having to formally commence its tender offer or file a tender 
    offer statement. Revised tender offer Rule 14d-9 permits a target to 
    respond to a bidder's announcement of a proposed tender offer before 
    commencement of the offer without having to file a solicitation/
    recommendation statement.
        In each case, the person making communications must file all 
    written communications made in connection with or relating to the 
    transaction on the date of first use. The written communications must 
    contain a brief legend advising security holders to read the applicable 
    mandated disclosure document when it is filed together with any other 
    documents that may be available. Under the new regulatory scheme 
    security holders must be furnished with the traditional mandated 
    disclosure document before they must make an investment or voting 
    decision. This new regulatory scheme facilitates the dissemination of 
    more information to security holders at an earlier point in time, 
    providing security holders with a greater opportunity to consider the 
    information in light of all other information available, including the 
    mandated disclosure document that must be furnished before action can 
    be taken.
    Balancing the Regulation of Stock and Cash Tender Offers
        Currently, a bidder offering securities as consideration in an 
    exchange offer may not commence the offer until a related registration 
    statement is effective.\271\ This differs in a significant
    
    [[Page 61438]]
    
    respect from cash tender offers that may commence as soon as a tender 
    statement is filed and the required information disseminated to 
    security holders. This disparity in regulatory treatment of cash and 
    stock tender offers may influence a bidder's choice of consideration 
    offered in a tender offer. In order to provide bidders with more 
    flexibility on the form of consideration to offer in a business 
    combination transaction, we are revising the rules to permit the 
    commencement of exchange offers before a related registration statement 
    is effective.\272\ A bidder, however, may not close its exchange offer 
    and purchase the tendered securities until after the related 
    registration statement is effective. Bidders also must deliver a 
    preliminary prospectus containing all required information in addition 
    to supplements or amendments that disclose material changes from the 
    prospectus previously furnished. This balancing of the regulatory 
    treatment of cash and stock tender offers will provide bidders with 
    increased flexibility to choose between cash and securities as 
    consideration in a business combination transaction without impairing 
    the current level of investor protection afforded to security holders.
    ---------------------------------------------------------------------------
    
        \271\ See Rule 14d-2(a)(4) stating that commencement occurs when 
    definitive copies of the prospectus/tender offer material are first 
    published, sent or given to security holders.
        \272\ See new Rule 162 and revised Rule 14d-2(a).
    ---------------------------------------------------------------------------
    
    Harmonizing, Clarifying and Updating the Disclosure Requirements
        In some cases the current rules relating to business combination 
    transactions require differing levels and types of information based on 
    how the transaction is structured. If a transaction is structured as a 
    merger instead of a tender offer, the required disclosure may differ 
    unnecessarily. For example, a fully-financed, all-cash merger generally 
    requires three years of financial statements for the company to be 
    acquired,\273\ while a fully-financed, all-cash all-share tender offer 
    generally will not require any financial statement information for 
    either the bidder or the target unless that information is 
    material.\274\ In addition, there are other areas where the required 
    level of information may differ unnecessarily. For example, issuer 
    tender offers and going-private transactions generally require two 
    years of financial statements while third-party tender offers require 
    three years of financial statements, when material.
    ---------------------------------------------------------------------------
    
        \273\ See Item 14 of Schedule 14A.
        \274\ See Item 9 to Schedule 14D-1.
    ---------------------------------------------------------------------------
    
        This disparity in required disclosure may be attributed in part to 
    the fact that the disclosure requirements were not adopted at the same 
    time, resulting in some minor inconsistencies or differences. The new 
    and revised schedules \275\ and disclosure items \276\ serve to 
    integrate the disclosure requirements, harmonizing the requirements to 
    the extent practicable and appropriate. The revisions adopted will 
    facilitate compliance with the disclosure requirements applicable to 
    business combination transactions and going-private transactions while 
    maintaining all substantive disclosure requirements appropriate to the 
    transaction.
    ---------------------------------------------------------------------------
    
        \275\ New Schedule TO (replacing Schedules 13E-4 and 14D-1) and 
    revised Schedules 13E-3 and 14D-9.
        \276\ Regulation M-A, Items 1000 through 1016 and revised Item 
    14 of Schedule 14A.
    ---------------------------------------------------------------------------
    
    B. Objectives of the Rule Amendments
    
        The new rules, schedules and amendments are expected to reduce 
    compliance costs overall for all persons that are subject to our rules 
    and regulations, benefiting both small and large business entities. As 
    a result of the amendments adopted, security holders, including small 
    entities, should receive more information on a timely basis. In 
    addition, persons subject to our rules should have greater flexibility 
    in structuring and completing tender offers, mergers, and other 
    extraordinary transactions. Also as a result of the amendments, bidders 
    should realize greater flexibility in selecting the form of 
    consideration to offer in a tender offer (e.g., cash or securities). We 
    expect that our revisions harmonizing, clarifying and updating the 
    disclosure requirements will facilitate compliance with the rules and 
    regulations as well as improve the disclosure that security holders 
    ultimately receive in business combination transactions.
    
    C. Summary of Significant Issues Raised by the Public Comments
    
        We requested comment with respect to the Initial Regulatory 
    Flexibility Analysis (``IRFA'') that was prepared when the new rules, 
    amendments and schedules were proposed. We did not receive any comments 
    with respect to the IRFA.
    
    D. Description and Estimate of the Number of Small Entities Subject to 
    the New Rules
    
        We adopted definitions of the term ``small business'' for the 
    various entities subject to our rulemaking. Rule 157 under the 
    Securities Act \277\ and Rule 0-10 under the Exchange Act \278\ provide 
    that ``small business issuer'' includes an issuer, other than an 
    investment company, that has total assets of $5 million or less as of 
    the end of its most recent fiscal year. For purposes of the RFA, an 
    investment company is a small business if the investment company, 
    together with other investment companies in the same group of related 
    investment companies, has net assets of $50 million or less as of the 
    end of its most recent fiscal year.\279\
    ---------------------------------------------------------------------------
    
        \277\ 17 CFR 230.157.
        \278\ 17 CFR 240.0-10.
        \279\ 17 CFR 270.0-10.
    ---------------------------------------------------------------------------
    
        Currently, we are aware of approximately 836 reporting companies 
    that are not investment companies with assets of $5 million or less. In 
    addition, there are approximately 320 investment companies that satisfy 
    the ``small business'' definition. All of these companies could 
    potentially be subject to at least some of the new rules, schedules, 
    and amendments. We expect small businesses will be affected by these 
    amendments to the extent that they are involved in a business 
    combination transaction. In addition, small businesses may be affected 
    by the amendments made to the proxy rules, which permit significantly 
    greater communications with and among security holders. Small entities 
    that are required to file registration statements, proxy statements, 
    tender offer statements and other reports under the Securities Act, 
    Exchange Act, and Investment Company Act will be affected by these 
    amendments. Finally, small entities may be affected as shareholders in 
    companies that are part of a business combination.
        We have no reliable way of determining or estimating the number of 
    reporting or non-reporting small businesses that may seek to rely on or 
    would otherwise be affected by the new rules, schedules and amendments. 
    We believe, however, that these amendments will substantially benefit 
    both small and large entities to the extent they will substantially 
    reduce current restrictions on communications and generally facilitate 
    compliance with existing rules and regulations. In addition, because 
    many of the amendments represent exemptions from existing rules and 
    regulations, small businesses can decide whether the burdens imposed by 
    the requirements (e.g., the filing of written communications) outweigh 
    the related benefits (e.g., the ability to communicate more freely).
    
    E. Projected Reporting, Recordkeeping, and Other Compliance 
    Requirements
    
        We believe that the new rules, schedules and amendments are 
    primarily deregulatory in nature because they significantly expand the 
    ability of businesses to structure and
    
    [[Page 61439]]
    
    time their business combination transactions and communicate with 
    security holders. In addition, security holders in general will be 
    afforded a greater opportunity to receive information and communicate 
    with other security holders. The resulting increase in flexibility to 
    communicate will benefit companies as well as security holders.
        Under the amendments, small businesses will report and file 
    essentially the same information as they do today. One exception to 
    this generalization, however, is that both large and small bidders are 
    required to publicly file all pre-and post-filing written 
    communications relating to proposed business combination transactions. 
    This filing requirement is necessary due to the deregulation of pre-
    filing communications. Companies are not obligated to communicate with 
    security holders, but to the extent that they do communicate in 
    writing, those communications must be filed on the date of first use. 
    The new rules, schedules, and amendments adopted today treat all 
    persons and entities alike, and do not make any distinctions based on 
    size.
    
    F. Description of Steps Taken To Minimize the Effect on Small Entities
    
        We are directed by the RFA to consider significant alternatives to 
    proposals that would accomplish our stated objectives while minimizing 
    any significant adverse economic impact on small entities. In 
    connection with the proposals presented in the Proposing Release, the 
    views expressed by commenters, and our extensive review of existing 
    rules and regulations, we considered several possible alternatives, 
    including:
    
         Establishing different compliance and reporting 
    requirements or timetables that take into account the resources of 
    small businesses;
         Clarifying, consolidating or simplifying compliance and 
    reporting requirements under the rule for small businesses;
         Using performance rather than design standards; and
         Exempting small businesses from all or part of the 
    requirements.
    
        Because the new rules, schedules, and amendments are primarily 
    deregulatory in nature, any different treatment of small business 
    entities would likely be more burdensome to small business entities. 
    The amendments significantly expand the ability of businesses to 
    structure and time their business combination transactions and 
    communicate with security holders, while maintaining investor 
    protections. While we considered excluding smaller entities from the 
    new rules, schedules, and amendments, we concluded that the benefits of 
    the amendments should apply to all businesses regardless of their size. 
    If small business were exempted, in most cases they would be subject to 
    more rather than less regulation. Accordingly, we decided not to limit 
    the new rules and amendments and their corresponding benefits to larger 
    issuers.
        Accordingly, we do not believe any benefit can be achieved by 
    providing separate disclosure requirements for small issuers based on 
    the use of performance rather than design standards.
    
    VII. Paperwork Reduction Act
    
        In November, 1998, the staff submitted the proposed new rules, 
    schedules and amendments to the Office of Management and Budget (OMB) 
    for review in accordance with 44 U.S.C. 3507(d) and 5 CFR 1320.11. 
    Also, in accordance with the Paperwork Reduction Act, we solicited 
    comment on the compliance burdens associated with the proposals. We did 
    not receive any public comments that quantified the estimated paperwork 
    burdens associated with the new rules, schedules and amendments. The 
    comments we received primarily addressed the costs and benefits of the 
    proposals in general terms. We discuss these general comments above in 
    more detail.
        The new rules, schedules and amendments will affect several 
    regulations and forms that contain ``collection of information 
    requirements'' within the meaning of the Paperwork Reduction Act of 
    1995.\280\ An agency may not conduct or sponsor, and a person is not 
    required to respond to, a collection of information unless it displays 
    a currently valid OMB control number. Table 1 below provides the titles 
    for the affected collections of information under the Exchange Act, 
    current OMB control numbers, where applicable, a summary of the 
    collection of information, and a description of the likely respondents 
    to each collection of information.\281\
    ---------------------------------------------------------------------------
    
        \280\ 44 U.S.C. 3501 et seq.
        \281\ Although Regulations S-K and S-B do not actually impose 
    reporting burdens directly on public companies, for administrative 
    convenience, we have assigned each of these regulations one burden 
    hour. The burden hours imposed by the disclosure regulations are 
    included in the estimates for the forms that refer to the 
    regulations.
    
                                          Table 1: Collections of Information Under the Securities Act and Exchange Act
    --------------------------------------------------------------------------------------------------------------------------------------------------------
                                                   OMB Control
                       Title                         Number             Summary of the collection of information and description of likely respondents
    --------------------------------------------------------------------------------------------------------------------------------------------------------
    Schedule 14A...............................       3235-0059  If a vote of security holders is required, persons soliciting proxies with respect to
                                                                  securities registered under Section 12 of the Exchange Act must furnish security holders
                                                                  with a proxy statement containing the information specified in Schedule 14A. The proxy
                                                                  statement is intended to provide security holders with the information necessary to enable
                                                                  them to make an informed voting decision on any matters that will be acted upon at an
                                                                  annual or special meeting of security holders.
    Schedule 14C...............................       3235-0057  If a vote of security holders is required, but proxies are not being solicited, companies
                                                                  with securities registered under Section 12 of Exchange Act must send an information
                                                                  statement containing the information specified in Schedule 14C to every security holder
                                                                  that would be entitled to vote on the matters presented at a meeting at which a vote will
                                                                  be taken.
    Schedule 13E-3.............................       3235-0007  Companies or their affiliates engaging in specified transactions that cause a class of the
                                                                  company's equity securities registered under the Exchange Act to be: (1) Held by fewer
                                                                  than 300 record holders; or (2) de-listed from a securities exchange or inter-dealer
                                                                  quotation system must file and disseminate to security holders the information specified
                                                                  in Schedule 13E-3. This schedule requires detailed information addressing whether the
                                                                  filing persons believe the transaction is fair to unaffiliated security holders and why.
    Schedule 14D-9.............................       3235-0102  Issuers of securities registered under Section 12 of the Exchange Act that make a
                                                                  solicitation or recommendation to security holders regarding a third-party tender offer
                                                                  subject to Regulation 14D must file and send to security holders the information specified
                                                                  in Schedule 14D-9.
    
    [[Page 61440]]
    
     
    Schedule 13E-4.............................       3235-0203  Issuers of securities registered under Section 12 or reporting under Section 15(d) of the
                                                                  Exchange Act, and certain of their affiliates, must file and disseminate to security
                                                                  holders the information specified in Schedule 13E-4 when making a tender offer for any
                                                                  class of the issuer's equity securities.
    Schedule 14D-1.............................       3235-0102  Any person, other than the issuer, making a tender offer for equity securities registered
                                                                  under Section 12 of the Exchange Act, that would result in that person owning greater than
                                                                  five percent of the class of the securities subject to the offer, must at the time of the
                                                                  offer file and disseminate the information specified in Schedule 14D-1 to the issuer,
                                                                  security holders and competing bidders.
    Schedule TO................................       3235-0515  Any person making a tender offer for securities that would have to file a Schedule 13E-4 or
                                                                  14D-1 must now file and disseminate to security holders the information specified in
                                                                  Schedule TO, instead of Schedule 13E-4 or 14D-1.
    --------------------------------------------------------------------------------------------------------------------------------------------------------
    
        The new rules, schedules, and amendments update and simplify the 
    rules and regulations applicable to business combination transactions. 
    The information required by these schedules is needed so that security 
    holders can make an informed tender or voting decision with respect to 
    tender offers, mergers, acquisitions, and other extraordinary 
    transactions. We enhance communications between public companies and 
    investors by providing companies with greater flexibility to determine 
    when to file their registration statements involving takeover 
    transactions, proxy statements, and tender offer statements. We also 
    attempt to put cash and stock tender offers on a more equal regulatory 
    footing; integrate the forms and disclosure requirements in issuer 
    tender offers, third-party tender offers and going-private 
    transactions; and consolidate the disclosure requirements in one 
    location in the regulations. In addition, we allow bidders to accept 
    tenders from security holders during a limited period after the 
    successful completion of the tender offer; more closely align the 
    merger and tender offer requirements; and update the tender offer rules 
    to clarify certain requirements and reduce compliance burdens where 
    consistent with investor protection.
        The schedules and regulations affected by these changes set forth 
    the public disclosures that offerors are required to make concerning 
    business combination transactions. For the most part the disclosure 
    requirements in the above schedules remain the same, with a few limited 
    exceptions. Specifically, revised Schedules 14A, 14C, 13E-3, 14D-9, and 
    new Schedule TO requires a brief ``plain English'' summary term sheet 
    highlighting the most significant aspects of a particular transaction 
    in all cash mergers, cash tender offers, and going-private 
    transactions.\282\ The amendments also reduce in certain instances the 
    number of years of financial statements that are required in Schedules 
    14A and 14C for acquirors and companies being acquired in cash mergers. 
    For example, Schedules 14A and 14C no longer require the financial 
    statements of the target in a cash merger when the acquiror's security 
    holders are not voting on the transaction.
    ---------------------------------------------------------------------------
    
        \282\ Forms S-4 and F-4 are currently subject to summary and 
    plan English requirements. Therefore, we are not requiring a plain 
    English summary term sheet for business combination transactions 
    that are registered on one of these forms.
    ---------------------------------------------------------------------------
    
        New Schedule TO, which replaces current Schedules 13E-4 and 14D-1, 
    harmonizes and clarifies the disclosure requirements in issuer and 
    third-party tender offers. For example, currently when a third-party 
    bidder's financial statement information is material to security 
    holders, three years of financial statements are required while only 
    two years is required for issuers making an issuer tender offer. New 
    Schedule TO requires only two years of financial statements for the 
    bidder if that information is material, regardless of whether an issuer 
    or third-party is making the tender offer. In a negotiated two-tier 
    transaction, Schedule TO will require the bidder to provide security 
    holders with certain pro forma financial and other related information 
    for the combined entity at the time of the cash tender offer. In 
    addition, the amendments permit the filing of one schedule, rather than 
    two, to satisfy the tender offer and going-private disclosure 
    requirements when both sets of regulations apply to the transaction. As 
    a result, the amendments are expected to reduce the number of filings 
    required.
        The information collection requirements imposed by the schedules 
    and regulations are mandatory to the extent that companies are 
    publicly-owned and engage in business combination transactions. There 
    is no mandatory retention period for the information disclosed. The 
    information gathered by these schedules and regulation is made publicly 
    available, unless confidential treatment is available. Confidential 
    treatment of information in preliminary merger proxy statements is 
    retained to a limited extent.
        As discussed in more detail in Part IV above, the amendments reduce 
    the burden of complying with the disclosure and transaction 
    requirements applicable to business combination transactions. We 
    estimate that public companies will expend approximately 988,986 burden 
    hours/year to comply with the new rules, schedules, and amendments.
        Table 2 below summarizes our estimates of the burden hours that 
    filers will expend to comply with the new rules, amendments and 
    schedules. We expect compliance costs will be less than current costs 
    because the amendments primarily integrate and streamline the 
    disclosure requirements for business combination transactions. Our 
    estimates include the burden hours that will be incurred by companies 
    to file pre-filing written communications. We base these estimates on 
    current burden hour estimates and the staff's experience with these 
    filings. The estimates in the table indicate that filers will expend 
    approximately 234,759 burden hours/year to comply with the amendments. 
    In addition, as discussed in more detail below, we estimate that filers 
    will spend approximately $122,929,990/year on outside professional help 
    to comply with the amendments. The estimates are discussed in greater 
    detail below.
    
    [[Page 61441]]
    
    
    
                                             Table 2: Burden Hour Estimates
    ----------------------------------------------------------------------------------------------------------------
                                         Estimated burden Hours/   Estimated filings/year    Estimated burden hours
                                                 filing                     \283\          -------------------------
                 Schedule              ----------------------------------------------------
                                           Before       After        Before       After        Before       After
                                         revisions    revisions    revisions    revisions    revisions    revisions
                                                (A)          (B)          (C)          (D)      (E =A*C      (F)=B*D
    ----------------------------------------------------------------------------------------------------------------
    14A...............................        87.00        13.12        9,892       13,255      860,604      173,906
    14C...............................        87.00        13.12          253          339       22,011        4,448
    13E-3.............................       139.25        34.31           96           96       13,368        3,294
    14D-9.............................       354.25        64.43          258          353       91,397       22,744
    13E-4.............................       232.00         0.00          139            0       32,248            0
    14D-1.............................       354.25         0.00          257            0       91,042            0
    TO................................            0        43.50            0          705            0       30,668
    Rule 425 filings..................            0         0.25            0       10,628            0        2,657
                                       -----------------------------------------------------------------------------
        Total.........................  ...........  ...........  ...........  ...........    1,110,670     237,717
    ----------------------------------------------------------------------------------------------------------------
    \283\ The estimated filings/year are based on the number of filings in fiscal year 1998.
    
        We expect that the amendments will reduce the number of burden 
    hours required to file a full Schedule 14A from 87 hours today to 70 
    hours under the amendments.\284\ Of the 70 hours, we estimate that 25% 
    (17.5 internal burden hours) will be provided by corporate staff, and 
    75% (52.5 hours) by external professional help. Based on filings 
    received in fiscal year 1998, we anticipate that companies and other 
    filers will file approximately 9,892 full Schedule 14As/year. Under the 
    amendments, companies and other filers also are required to file under 
    cover of Schedule 14A any pre-filing written communications (in 
    addition to the required proxy statement) concerning business 
    combinations for cash.\285\ Revised Rule 14a-12 requires filers to file 
    their pre- and post-filing written communications and include certain 
    information including a legend advising security holders to read the 
    proxy statement. In fiscal year 1998, approximately 9,892 full Schedule 
    14As were filed. We estimate that approximately 34% of the full 
    Schedule 14As filed will involve cash rather than securities.\286\ We 
    also estimate that filers, on average, will file one written 
    communication (in addition to the required proxy statement) for each 
    cash transaction. We estimate that a firm's corporate staff will expend 
    approximately 15 burden minutes (0.25 internal burden hours) to file a 
    written communication under the amended rules.\287\ Thus, we estimate 
    filers will file 9,892 full Schedule 14As/year (expending 17.5 internal 
    burden hours/filing) and 3,363 written communications/year (expending 
    0.25 internal burden hours/filing). On average, filers will require 
    approximately 13.12 internal burden hours to file 13,255 full Schedule 
    14As and written communications. In addition, we anticipate filers will 
    spend, at an estimated $175/hour, approximately $9,188/filing in 
    professional labor costs to file a Schedule 14A.\288\
    ---------------------------------------------------------------------------
    
        \284\ The numbers in Column B of Table 2 differ significantly 
    from those in Column A of Table 2 for two reasons. First, the 
    estimated burden hours in Column A include the estimated corporate 
    burden hours and outside labor hours that filers would require to 
    file each disclosure document. In Column B, we estimate only the 
    corporate burden hours needed to file each disclosure document (we 
    estimate separately the expense, in dollar terms, of outside labor). 
    Second, the estimates in Column B include the estimated burden hours 
    that bidders would require to file pre-filing communications. 
    Because parties would require less time to file communications than 
    full Schedule 14As, the average estimated burden hours in Column B 
    are lower than in Column A.
        \285\ Under the amendments, bidders will file their pre- and 
    post-filing written communications relating to a business 
    combination transaction under Rule 425 in transactions where 
    securities are offered as consideration.
        \286\ This estimate is based on data from the Securities Data 
    Corporation indicating that security holders had received only cash 
    in 34% of the merger transactions reported in 1996.
        \287\ We base this estimate on the burden imposed by a similar 
    filing requirement under Item 901(c) of Regulation S-K for roll-up 
    transactions.
        \288\ We base this estimate on 52.50 hours of professional 
    labor/full Schedule 14A filing * $175/hour. In aggregate, we 
    estimate that filers will spend $90,887,696/year to file 9,892 full 
    Schedule 14As/year.
    ---------------------------------------------------------------------------
    
        We anticipate the amendments will reduce the number of hours 
    required to file a full Schedule 14C from 87 hours today to 70 hours 
    under the amendments. Of the 70 hours, we estimate that 25% (17.5 
    internal burden hours) will be provided by corporate staff, and 75% 
    (52.5 hours) by external professional help. Based on filings in fiscal 
    year 1998, we anticipate that companies and other filers will file 
    approximately 253 full Schedule 14Cs/year. Under the amended rules, 
    companies and other filers also are required to file under cover of 
    Schedule 14C any pre-filing written communications (in addition to the 
    required proxy statement) concerning business combinations for 
    cash.\289\ The amendments require filers to file their written 
    communications and include certain information including a legend 
    advising security holders to read the information statement. In fiscal 
    year 1998, approximately 253 full Schedule 14Cs were filed. We estimate 
    that 34% of the full Schedule 14Cs will involve cash rather than 
    securities.\290\ We estimate that filers, on average, will file one 
    written communication (in addition to the required information 
    statement) for each cash transaction. We estimate that a firm's 
    corporate staff will expend approximately 15 burden minutes (0.25 
    internal burden hours) to file a written communication under the 
    amended rules. Thus, we estimate filers will file 253 full Schedule 
    14Cs/year (expending 52.50 burden hours/filing) and 86 written 
    communications/year (expending 0.25 internal burden hours/filing). On 
    average, filers will require approximately 13.12 internal burden hours 
    to file 339 full Schedule 14Cs and written communications. In addition, 
    we anticipate filers will spend, at an estimated $175/hour, 
    approximately $9,188/filing in professional labor costs to file a full 
    Schedule 14C.\291\
    ---------------------------------------------------------------------------
    
        \289\ Under the amendments, bidders will file under rule 425 
    pre- and post-filing written communications relating to a business 
    combination transaction where securities are offered as 
    consideration.
        \290\ This estimate is based on data from the Securities Data 
    Corporation indicating that in security holders had received only 
    cash in 34% of merger transactions in 1996.
        \291\ We base this estimate on 52.50 hours of professional 
    laborfull Schedule 14C filing * $175/hour. In aggregate, we estimate 
    that filers will spend $2,324,564/year to file 253 full Schedule 
    14Cs/year.
    
    ---------------------------------------------------------------------------
    
    [[Page 61442]]
    
        The amendments clarify and make several technical changes to 
    Schedule 13E-3. As a result, we anticipate a savings of two hours, from 
    139.25 hours/filing to 137.25 hours/filing, to file Schedule 13E-3 
    under the amendments. Of the 137.25 hours, we estimate that 25% (34.31 
    internal burden hours) will be provided by corporate staff, and 75% 
    (102.94 hours) by external professional help. Based on filings in 
    fiscal year 1998, we estimate filers will file 96 Schedule 13E-3s/year. 
    In addition, we anticipate filers will spend, at an estimated $175/
    hour, approximately $18,015/filing in professional labor costs to file 
    a full Schedule 13E-3.\292\
    ---------------------------------------------------------------------------
    
        \292\  We base this estimate on 102.94 hours of professional 
    labor/full Schedule 13E-3 filing * $175/hour. In aggregate, we 
    estimate that filers will spend $1,729,440/year to file 96 full 
    Schedule 13E-3s/year.
    ---------------------------------------------------------------------------
    
        The amendments clarify and make several technical changes to 
    Schedule 14D-9. As a result, we anticipate a savings of two hours, from 
    354.25 hours/filing to 352.25 hours/filing, to file a full Schedule 
    14D-9 under the amendments. Of the 352.25 hours, we estimate that 25% 
    (88.06 internal burden hours) will be provided by corporate staff, and 
    75% (264.19 hours) by external professional help. Based on filings in 
    fiscal year 1998, we anticipate that companies and other filers will 
    file approximately 258 full Schedule 14D-9s/year. Under the amendments, 
    companies and other filers also are required to file under cover of 
    Schedule 14D-9 any pre- or post-filing written communications (in 
    addition to the required proxy statement) concerning business 
    combinations for cash.\293\ The rule requires filers to attach their 
    written communications and include certain information including a 
    legend advising security holders to read the full recommendation 
    statement. In fiscal year 1998, approximately 258 full Schedule 14D-9s 
    were filed. We estimate that 37% of the full Schedule 14D-9s filed will 
    involve cash rather than securities.\294\ We estimate that filers, on 
    average, will file one written communication (in addition to the 
    required information statement) for each cash transaction. We estimate 
    that a firm's corporate staff will expend approximately 15 burden 
    minutes (0.25 internal burden hours) to file a written communication 
    under Rule 425. Thus, we estimate filers will file 258 full Schedule 
    14D-9s /year (expending 88.06 internal burden hours/filing) and 95 
    written communications/year (expending 0.25 internal burden hours/
    filing). On average, filers will require approximately 64.43 internal 
    burden hours to file 353 full Schedule 14D-9s and written 
    communications. In addition, we anticipate filers will spend, at an 
    estimated $175/hour, approximately $46,233/filing in professional labor 
    costs to file a full Schedule 14D-9.\295\
    ---------------------------------------------------------------------------
    
        \293\ Under the amendments, bidders must file under Rule 425 any 
    pre- or post-filing written communications in business combination 
    transactions where securities are offered as consideration.
        \294\ This estimate is based on data from the Securities Data 
    Corporation and Mergerstat, indicating that security holders 
    received only cash in 37% of merger and tender offer transactions in 
    1996.
        \295\ We base this estimate on 264.19 hours of professional 
    laborfull Schedule 14D-9 filing * $175/hour. In aggregate, we 
    estimate that filers will spend $11,928,114/year to file 258 full 
    Schedule 14D-9s/year.
    ---------------------------------------------------------------------------
    
        Under the amendments new Schedule TO replaces current Schedules 
    13E-4 and 14D-1. Schedule TO harmonizes and clarifies the requirements 
    in current Schedules 13E-4 and 14D-1. Based on the number of Schedule 
    13E-4 and Schedule 14D-1s filed in fiscal year 1998, and the number of 
    hours required to complete them, we estimate that bidders will require 
    approximately 309 hours to file a full Schedule TO under the amended 
    rules.\296\ Of the 309 hours, we estimate that 25% (77.25 internal 
    burden hours) will be provided by corporate staff, and 75% (231.75 
    hours) by external professional help. Based on filings in fiscal year 
    1998, we anticipate that companies and other filers will file 
    approximately 396 full Schedule TOs/year. Under the amendments, 
    companies and other filers also will be required to file under Schedule 
    TO all pre- and post filing written communications (in addition to the 
    required tender offer statement) concerning all cash tender 
    offers.\297\ The amendments require filers to file their written 
    communications with certain information including a legend advising 
    security holders to read the tender offer disclosure statement. We 
    estimate that filers, on average, will file one written communication 
    (in addition to the required information statement) for each cash 
    tender offer transaction. We estimate that a firm's corporate staff 
    will expend approximately 15 burden minutes (0.25 internal burden 
    hours) to file a written communication under the amendments. Based on 
    data from fiscal year 1998, we estimate filers will file 396 full 
    Schedule TOs/year (expending 77.25 internal burden hours/filing) and 
    309 written communications/year (expending 0.25 internal burden hours/
    filing).\298\ On average, filers will require approximately 43.50 
    internal burden hours to file 705 full Schedule TOs and written 
    communications. In addition, we anticipate filers will spend, at an 
    estimated $175/hour, approximately $40,556/filing in professional labor 
    costs to file a full Schedule TO.\299\
    ---------------------------------------------------------------------------
    
        \296\  Offerors currently require 232 hours to complete Schedule 
    13E-4, and 354.25 hours to complete Schedule 14D-1. In fiscal year 
    1998, offerors registered 139 business combinations on Schedule 13E-
    4 and 257 business combinations on Schedule 14D-1. We estimate the 
    number of burden hours to file a full Schedule TO will be [(139 
    Schedule TO filings that previously would have been filed on 
    Schedule 13E-4 * 232 hours/Schedule TO filing that previously would 
    have been filed on Schedule 13E-4) + (257 Schedule TO filings that 
    previously would have been filed on Schedule 14D-1 * 354.25 hours/
    Schedule TO filing that previously would have been filed on Schedule 
    14D-1)--2 burden hours from simplication]/396 filings on Schedule TO 
    = 309 hours/filing on Schedule TO.
        \297\ Under the new rules, bidders must file under Rule 425 any 
    pre-filing communications in transactions where securities are 
    offered as consideration.
        \298\ According to Mergerstat, in 1996 security holders received 
    only cash in 78% of tender offer transactions.
        \299\ We base this estimate on 231.75 hours of professional 
    labor/full Schedule TO filing * $175/hour. In aggregate, we estimate 
    that filers will spend $16,060,176/year to file 396 full Schedule 
    TOs/year.
    ---------------------------------------------------------------------------
    
    VIII. Statutory Basis and Text of Amendments
    
        We are adopting amendments to the rules under sections 2(3), 5, 7, 
    8, 10, 12, 19 and 28, of the Securities Act of 1933, as amended, and 
    sections 3(b), 4(e), 10(b), 13, 14, 18, 23(a), 24 and 36 of the 
    Securities Act of 1934, as amended.
    
    List of Subjects
    
    17 CFR Part 200
    
        Administrative practice and procedure, Authority delegation.
    
    17 CFR Parts 229, 230, 232, 239 and 240
    
        Reporting and recordkeeping requirements, Securities.
    
    Text of Amendments
    
        For the reasons set out in the preamble, Title 17, Chapter II of 
    the Code of Federal Regulations is amended as follows:
    
    PART 200--ORGANIZATION; CONDUCT AND ETHICS; AND INFORMATION AND 
    REQUESTS
    
        1. The authority citation for part 200 continues to read in part as 
    follows:
    
        Authority: 15 U.S.C. 77s, 78d-1, 78d-2, 78w, 78ll(d), 78mm, 79t, 
    77sss, 80a-37, 80b-11, unless otherwise noted.
    * * * * *
    
    
    Sec. 200.30-3  [Amended]
    
        2. By amending paragraph (a)(6) of Sec. 200.30-3 by removing the 
    phrase
    
    [[Page 61443]]
    
    ``Rules 10b-13(d), 14e-4(c), and 15c2-11(h) (Secs. 240.10b-13(d), 
    240.14e-4(c), and 240.15c2-11(h) of this chapter)'' and in its place 
    adding ``Rules 14e-4(c), 14e-5(d), and 15c2-11(h) (Secs. 240.14e-4(c), 
    240.14e-5(d), and 240.15c2-11(h) of this chapter)'', and removing the 
    phrase ``to grant requests for exemptions from Rules 10b-13, 14e-4, and 
    15c2-11) (Secs. 240.10b-13, 240.14e-4, and 240.15c2-11 of this 
    chapter)'' and in its place adding ``to grant requests for exemptions 
    from Rules 14e-4, 14e-5, and 15c2-11 (Secs. 240.14e-4, 240.14e-5, and 
    240.15c2-11 of this chapter)''.
    * * * * *
    
    PART 229--STANDARD INSTRUCTIONS FOR FILING FORMS UNDER SECURITIES 
    ACT OF 1933, SECURITIES EXCHANGE ACT OF 1934 AND ENERGY POLICY AND 
    CONSERVATION ACT OF 1975--REGULATION S-K
    
        3. The authority citation for part 229 continues to read in part as 
    follows:
    
        Authority: 15 U.S.C. 77e, 77f, 77g, 77h, 77j, 77k, 77s, 77z-2, 
    77aa(25), 77aa(26), 77ddd, 77eee, 77ggg, 77hhh, 77iii, 77jjj, 77nnn, 
    77sss, 78c, 78i, 78j, 78l, 78m, 78n, 78o, 78u-5, 78w, 78ll(d), 79e, 
    79n, 79t, 80a-8, 80a-29, 80a-30, 80a-37, 80b-11, unless otherwise 
    noted.
    * * * * *
        4. By revising paragraph (a)(2) of Sec. 229.10 to read as follows:
    
    
    Sec. 229.10  General.
    
        (a) Application of Regulation S-K. * * *
        (2) Registration statements under section 12 (subpart C of part 249 
    of this chapter), annual or other reports under sections 13 and 15(d) 
    (subparts D and E of part 249 of this chapter), going-private 
    transaction statements under section 13 (part 240 of this chapter), 
    tender offer statements under sections 13 and 14 (part 240 of this 
    chapter), annual reports to security holders and proxy and information 
    statements under section 14 (part 240 of this chapter), and any other 
    documents required to be filed under the Exchange Act, to the extent 
    provided in the forms and rules under that Act.
    * * * * *
        5. By adding subpart 229.1000 consisting of Secs. 229.1000 through 
    229.1016 to read as follows:
    
    Subpart 229.1000--Mergers and Acquisitions (Regulation M-A)
    
    Sec.
    229.1000  (Item 1000) Definitions.
    229.1001  (Item 1001) Summary term sheet.
    229.1002  (Item 1002) Subject company information.
    229.1003  (Item 1003) Identity and background of filing person.
    229.1004  (Item 1004) Terms of the transaction.
    229.1005  (Item 1005) Past contacts, transactions, negotiations and 
    agreements.
    229.1006  (Item 1006) Purposes of the transaction and plans or 
    proposals.
    229.1007  (Item 1007) Source and amount of funds or other 
    consideration.
    229.1008  (Item 1008) Interest in securities of the subject company.
    229.1009  (Item 1009) Persons/assets, retained, employed, 
    compensated or used.
    229.1010  (Item 1010) Financial statements.
    229.1011  (Item 1011) Additional information.
    229.1012  (Item 1012) The solicitation or recommendation.
    229.1013  (Item 1013) Purposes, alternatives, reasons and effects in 
    a going-private transaction.
    229.1014  (Item 1014) Fairness of the going-private transaction.
    229.1015  (Item 1015) Reports, opinions, appraisals and 
    negotiations.
    229.1016  (Item 1016) Exhibits.
    
    Subpart 229.1000--Mergers and Acquisitions (Regulation M-A)
    
    
    Sec. 229.1000  (Item 1000) Definitions.
    
        The following definitions apply to the terms used in Regulation M-A 
    (Secs. 229.1000 through 229.1016), unless specified otherwise:
        (a) Associate has the same meaning as in Sec. 240.12b-2 of this 
    chapter;
        (b) Instruction C means General Instruction C to Schedule 13E-3 
    (Sec. 240.13e-100 of this chapter) and General Instruction C to 
    Schedule TO (Sec. 240.14d-100 of this chapter);
        (c) Issuer tender offer has the same meaning as in Sec. 240.13e-
    4(a)(2) of this chapter;
        (d) Offeror means any person who makes a tender offer or on whose 
    behalf a tender offer is made;
        (e) Rule 13e-3 transaction has the same meaning as in Sec. 240.13e-
    3(a)(3) of this chapter;
        (f) Subject company means the company or entity whose securities 
    are sought to be acquired in the transaction (e.g., the target), or 
    that is otherwise the subject of the transaction;
        (g) Subject securities means the securities or class of securities 
    that are sought to be acquired in the transaction or that are otherwise 
    the subject of the transaction; and
        (h) Third-party tender offer means a tender offer that is not an 
    issuer tender offer.
    
    
    Sec. 229.1001  (Item 1001) Summary term sheet.
    
        Summary term sheet. Provide security holders with a summary term 
    sheet that is written in plain English. The summary term sheet must 
    briefly describe in bullet point format the most material terms of the 
    proposed transaction. The summary term sheet must provide security 
    holders with sufficient information to understand the essential 
    features and significance of the proposed transaction. The bullet 
    points must cross-reference a more detailed discussion contained in the 
    disclosure document that is disseminated to security holders.
    
        Instructions to Item 1001:
        1. The summary term sheet must not recite all information 
    contained in the disclosure document that will be provided to 
    security holders. The summary term sheet is intended to serve as an 
    overview of all material matters that are presented in the 
    accompanying documents provided to security holders.
        2. The summary term sheet must begin on the first or second page 
    of the disclosure document provided to security holders.
        3. Refer to Rule 421(b) and (d) of Regulation C of the 
    Securities Act (Sec. 230.421 of this chapter) for a description of 
    plain English disclosure.
    
    
    Sec. 229.1002  (Item 1002) Subject company information.
    
        (a) Name and address. State the name of the subject company (or the 
    issuer in the case of an issuer tender offer), and the address and 
    telephone number of its principal executive offices.
        (b) Securities. State the exact title and number of shares 
    outstanding of the subject class of equity securities as of the most 
    recent practicable date. This may be based upon information in the most 
    recently available filing with the Commission by the subject company 
    unless the filing person has more current information.
        (c) Trading market and price. Identify the principal market in 
    which the subject securities are traded and state the high and low 
    sales prices for the subject securities in the principal market (or, if 
    there is no principal market, the range of high and low bid quotations 
    and the source of the quotations) for each quarter during the past two 
    years. If there is no established trading market for the securities 
    (except for limited or sporadic quotations), so state.
        (d) Dividends. State the frequency and amount of any dividends paid 
    during the past two years with respect to the subject securities. 
    Briefly describe any restriction on the subject company's current or 
    future ability to pay dividends. If the filing person is not the 
    subject company, furnish this information to the extent known after 
    making reasonable inquiry.
        (e) Prior public offerings. If the filing person has made an 
    underwritten public
    
    [[Page 61444]]
    
    offering of the subject securities for cash during the past three years 
    that was registered under the Securities Act of 1933 or exempt from 
    registration under Regulation A (Sec. 230.251 through Sec. 230.263 of 
    this chapter), state the date of the offering, the amount of securities 
    offered, the offering price per share (adjusted for stock splits, stock 
    dividends, etc. as appropriate) and the aggregate proceeds received by 
    the filing person.
        (f) Prior stock purchases. If the filing person purchased any 
    subject securities during the past two years, state the amount of the 
    securities purchased, the range of prices paid and the average purchase 
    price for each quarter during that period. Affiliates need not give 
    information for purchases made before becoming an affiliate.
    
    
    Sec. 229.1003  (Item 1003) Identity and background of filing person.
    
        (a) Name and address. State the name, business address and business 
    telephone number of each filing person. Also state the name and address 
    of each person specified in Instruction C to the schedule (except for 
    Schedule 14D-9 (Sec. 240.14d-101 of this chapter)). If the filing 
    person is an affiliate of the subject company, state the nature of the 
    affiliation. If the filing person is the subject company, so state.
        (b) Business and background of entities. If any filing person 
    (other than the subject company) or any person specified in Instruction 
    C to the schedule is not a natural person, state the person's principal 
    business, state or other place of organization, and the information 
    required by paragraphs (c)(3) and (c)(4) of this section for each 
    person.
        (c) Business and background of natural persons. If any filing 
    person or any person specified in Instruction C to the schedule is a 
    natural person, provide the following information for each person:
        (1) Current principal occupation or employment and the name, 
    principal business and address of any corporation or other organization 
    in which the employment or occupation is conducted;
        (2) Material occupations, positions, offices or employment during 
    the past five years, giving the starting and ending dates of each and 
    the name, principal business and address of any corporation or other 
    organization in which the occupation, position, office or employment 
    was carried on;
        (3) A statement whether or not the person was convicted in a 
    criminal proceeding during the past five years (excluding traffic 
    violations or similar misdemeanors). If the person was convicted, 
    describe the criminal proceeding, including the dates, nature of 
    conviction, name and location of court, and penalty imposed or other 
    disposition of the case;
        (4) A statement whether or not the person was a party to any 
    judicial or administrative proceeding during the past five years 
    (except for matters that were dismissed without sanction or settlement) 
    that resulted in a judgment, decree or final order enjoining the person 
    from future violations of, or prohibiting activities subject to, 
    federal or state securities laws, or a finding of any violation of 
    federal or state securities laws. Describe the proceeding, including a 
    summary of the terms of the judgment, decree or final order; and
        (5) Country of citizenship.
        (d) Tender offer. Identify the tender offer and the class of 
    securities to which the offer relates, the name of the offeror and its 
    address (which may be based on the offeror's Schedule TO (Sec. 240.14d-
    100 of this chapter) filed with the Commission).
    
        Instruction to Item 1003
        If the filing person is making information relating to the 
    transaction available on the Internet, state the address where the 
    information can be found.
    
    
    Sec. 229.1004  (Item 1004) Terms of the transaction.
    
        (a) Material terms. State the material terms of the transaction.
        (1) Tender offers. In the case of a tender offer, the information 
    must include:
        (i) The total number and class of securities sought in the offer;
        (ii) The type and amount of consideration offered to security 
    holders;
        (iii) The scheduled expiration date;
        (iv) Whether a subsequent offering period will be available, if the 
    transaction is a third-party tender offer;
        (v) Whether the offer may be extended, and if so, how it could be 
    extended;
        (vi) The dates before and after which security holders may withdraw 
    securities tendered in the offer;
        (vii) The procedures for tendering and withdrawing securities;
        (viii) The manner in which securities will be accepted for payment;
        (ix) If the offer is for less than all securities of a class, the 
    periods for accepting securities on a pro rata basis and the offeror's 
    present intentions in the event that the offer is oversubscribed;
        (x) An explanation of any material differences in the rights of 
    security holders as a result of the transaction, if material;
        (xi) A brief statement as to the accounting treatment of the 
    transaction, if material; and
        (xii) The federal income tax consequences of the transaction, if 
    material.
        (2) Mergers or similar transactions. In the case of a merger or 
    similar transaction, the information must include:
        (i) A brief description of the transaction;
        (ii) The consideration offered to security holders;
        (iii) The reasons for engaging in the transaction;
        (iv) The vote required for approval of the transaction;
        (v) An explanation of any material differences in the rights of 
    security holders as a result of the transaction, if material;
        (vi) A brief statement as to the accounting treatment of the 
    transaction, if material; and
        (vii) The federal income tax consequences of the transaction, if 
    material.
    
        Instruction to Item 1004(a):
        If the consideration offered includes securities exempt from 
    registration under the Securities Act of 1933, provide a description 
    of the securities that complies with Item 202 of Regulation S-K 
    (Sec. 229.202). This description is not required if the issuer of 
    the securities meets the requirements of General Instructions I.A, 
    I.B.1 or I.B.2, as applicable, or I.C. of Form S-3 (Sec. 239.13 of 
    this chapter) and elects to furnish information by incorporation by 
    reference; only capital stock is to be issued; and securities of the 
    same class are registered under section 12 of the Exchange Act and 
    either are listed for trading or admitted to unlisted trading 
    privileges on a national securities exchange; or are securities for 
    which bid and offer quotations are reported in an automated 
    quotations system operated by a national securities association.
    
        (b) Purchases. State whether any securities are to be purchased 
    from any officer, director or affiliate of the subject company and 
    provide the details of each transaction.
        (c) Different terms. Describe any term or arrangement in the Rule 
    13e-3 transaction that treats any subject security holders differently 
    from other subject security holders.
        (d) Appraisal rights. State whether or not dissenting security 
    holders are entitled to any appraisal rights. If so, summarize the 
    appraisal rights. If there are no appraisal rights available under 
    state law for security holders who object to the transaction, briefly 
    outline any other rights that may be available to security holders 
    under the law.
        (e) Provisions for unaffiliated security holders. Describe any 
    provision made
    
    [[Page 61445]]
    
    by the filing person in connection with the transaction to grant 
    unaffiliated security holders access to the corporate files of the 
    filing person or to obtain counsel or appraisal services at the expense 
    of the filing person. If none, so state.
        (f) Eligibility for listing or trading. If the transaction involves 
    the offer of securities of the filing person in exchange for equity 
    securities held by unaffiliated security holders of the subject 
    company, describe whether or not the filing person will take steps to 
    assure that the securities offered are or will be eligible for trading 
    on an automated quotations system operated by a national securities 
    association.
    
    
    Sec. 229.1005  (Item 1005) Past contacts, transactions, negotiations 
    and agreements.
    
        (a) Transactions. Briefly state the nature and approximate dollar 
    amount of any transaction, other than those described in paragraphs (b) 
    or (c) of this section, that occurred during the past two years, 
    between the filing person (including any person specified in 
    Instruction C of the schedule) and;
        (1) The subject company or any of its affiliates that are not 
    natural persons if the aggregate value of the transactions is more than 
    one percent of the subject company's consolidated revenues for:
        (i) The fiscal year when the transaction occurred; or
        (ii) The past portion of the current fiscal year, if the 
    transaction occurred in the current year; and
    
        Instruction to Item 1005(a)(1):
        The information required by this Item may be based on 
    information in the subject company's most recent filing with the 
    Commission, unless the filing person has reason to believe the 
    information is not accurate.
    
        (2) Any executive officer, director or affiliate of the subject 
    company that is a natural person if the aggregate value of the 
    transaction or series of similar transactions with that person exceeds 
    $60,000.
        (b) Significant corporate events. Describe any negotiations, 
    transactions or material contacts during the past two years between the 
    filing person (including subsidiaries of the filing person and any 
    person specified in Instruction C of the schedule) and the subject 
    company or its affiliates concerning any:
        (1) Merger;
        (2) Consolidation;
        (3) Acquisition;
        (4) Tender offer for or other acquisition of any class of the 
    subject company's securities;
        (5) Election of the subject company's directors; or
        (6) Sale or other transfer of a material amount of assets of the 
    subject company.
        (c) Negotiations or contacts. Describe any negotiations or material 
    contacts concerning the matters referred to in paragraph (b) of this 
    section during the past two years between:
        (1) Any affiliates of the subject company; or
        (2) The subject company or any of its affiliates and any person not 
    affiliated with the subject company who would have a direct interest in 
    such matters.
        Instruction to paragraphs (b) and (c) of Item 1005
        Identify the person who initiated the contacts or negotiations.
    
        (d) Conflicts of interest. If material, describe any agreement, 
    arrangement or understanding and any actual or potential conflict of 
    interest between the filing person or its affiliates and:
        (1) The subject company, its executive officers, directors or 
    affiliates; or
        (2) The offeror, its executive officers, directors or affiliates.
    
        Instruction to Item 1005(d)
        If the filing person is the subject company, no disclosure 
    called for by this paragraph is required in the document 
    disseminated to security holders, so long as substantially the same 
    information was filed with the Commission previously and disclosed 
    in a proxy statement, report or other communication sent to security 
    holders by the subject company in the past year. The document 
    disseminated to security holders, however, must refer specifically 
    to the discussion in the proxy statement, report or other 
    communication that was sent to security holders previously. The 
    information also must be filed as an exhibit to the schedule.
    
        (e) Agreements involving the subject company's securities. Describe 
    any agreement, arrangement, or understanding, whether or not legally 
    enforceable, between the filing person (including any person specified 
    in Instruction C of the schedule) and any other person with respect to 
    any securities of the subject company. Name all persons that are a 
    party to the agreements, arrangements, or understandings and describe 
    all material provisions.
        Instructions to Item 1005(e)
        1. The information required by this Item includes: the transfer 
    or voting of securities, joint ventures, loan or option 
    arrangements, puts or calls, guarantees of loans, guarantees against 
    loss, or the giving or withholding of proxies, consents or 
    authorizations.
        2. Include information for any securities that are pledged or 
    otherwise subject to a contingency, the occurrence of which would 
    give another person the power to direct the voting or disposition of 
    the subject securities. No disclosure, however, is required about 
    standard default and similar provisions contained in loan 
    agreements.
    
    
    Sec. 229.1006  (Item 1006) Purposes of the transaction and plans or 
    proposals.
    
        (a) Purposes. State the purposes of the transaction.
        (b) Use of securities acquired. Indicate whether the securities 
    acquired in the transaction will be retained, retired, held in 
    treasury, or otherwise disposed of.
        (c) Plans. Describe any plans, proposals or negotiations that 
    relate to or would result in:
        (1) Any extraordinary transaction, such as a merger, reorganization 
    or liquidation, involving the subject company or any of its 
    subsidiaries;
        (2) Any purchase, sale or transfer of a material amount of assets 
    of the subject company or any of its subsidiaries;
        (3) Any material change in the present dividend rate or policy, or 
    indebtedness or capitalization of the subject company;
        (4) Any change in the present board of directors or management of 
    the subject company, including, but not limited to, any plans or 
    proposals to change the number or the term of directors or to fill any 
    existing vacancies on the board or to change any material term of the 
    employment contract of any executive officer;
        (5) Any other material change in the subject company's corporate 
    structure or business, including, if the subject company is a 
    registered closed-end investment company, any plans or proposals to 
    make any changes in its investment policy for which a vote would be 
    required by Section 13 of the Investment Company Act of 1940 (15 U.S.C. 
    80a-13);
        (6) Any class of equity securities of the subject company to be 
    delisted from a national securities exchange or cease to be authorized 
    to be quoted in an automated quotations system operated by a national 
    securities association;
        (7) Any class of equity securities of the subject company becoming 
    eligible for termination of registration under section 12(g)(4) of the 
    Act (15 U.S.C. 78l);
        (8) The suspension of the subject company's obligation to file 
    reports under Section 15(d) of the Act (15 U.S.C. 78o);
        (9) The acquisition by any person of additional securities of the 
    subject company, or the disposition of securities of the subject 
    company; or (10) Any changes in the subject company's charter, bylaws 
    or other governing instruments or other actions that could impede the 
    acquisition of control of the subject company.
        (d) Subject company negotiations. If the filing person is the 
    subject company:
    
    [[Page 61446]]
    
        (1) State whether or not that person is undertaking or engaged in 
    any negotiations in response to the tender offer that relate to:
        (i) A tender offer or other acquisition of the subject company's 
    securities by the filing person, any of its subsidiaries, or any other 
    person; or
        (ii) Any of the matters referred to in paragraphs (c)(1) through 
    (c)(3) of this section; and
        (2) Describe any transaction, board resolution, agreement in 
    principle, or signed contract that is entered into in response to the 
    tender offer that relates to one or more of the matters referred to in 
    paragraph (d)(1) of this section.
        Instruction to Item 1006(d)(1)
        If an agreement in principle has not been reached at the time of 
    filing, no disclosure under paragraph (d)(1) of this section is 
    required of the possible terms of or the parties to the transaction 
    if in the opinion of the board of directors of the subject company 
    disclosure would jeopardize continuation of the negotiations. In 
    that case, disclosure indicating that negotiations are being 
    undertaken or are underway and are in the preliminary stages is 
    sufficient.
    
    
    Sec. 229.1007  (Item 1007) Source and amount of funds or other 
    consideration.
    
        (a) Source of funds. State the specific sources and total amount of 
    funds or other consideration to be used in the transaction. If the 
    transaction involves a tender offer, disclose the amount of funds or 
    other consideration required to purchase the maximum amount of 
    securities sought in the offer.
        (b) Conditions. State any material conditions to the financing 
    discussed in response to paragraph (a) of this section. Disclose any 
    alternative financing arrangements or alternative financing plans in 
    the event the primary financing plans fall through. If none, so state.
        (c) Expenses. Furnish a reasonably itemized statement of all 
    expenses incurred or estimated to be incurred in connection with the 
    transaction including, but not limited to, filing, legal, accounting 
    and appraisal fees, solicitation expenses and printing costs and state 
    whether or not the subject company has paid or will be responsible for 
    paying any or all expenses.
        (d) Borrowed funds. If all or any part of the funds or other 
    consideration required is, or is expected, to be borrowed, directly or 
    indirectly, for the purpose of the transaction:
        (1) Provide a summary of each loan agreement or arrangement 
    containing the identity of the parties, the term, the collateral, the 
    stated and effective interest rates, and any other material terms or 
    conditions of the loan; and
        (2) Briefly describe any plans or arrangements to finance or repay 
    the loan, or, if no plans or arrangements have been made, so state.
    
        Instruction to Item 1007(d):
        If the transaction is a third-party tender offer and the source 
    of all or any part of the funds used in the transaction is to come 
    from a loan made in the ordinary course of business by a bank as 
    defined by section 3(a)(6) of the Act (15 U.S.C. 78c), the name of 
    the bank will not be made available to the public if the filing 
    person so requests in writing and files the request, naming the 
    bank, with the Secretary of the Commission.
    
    
    Sec. 229.1008  (Item 1008) Interest in securities of the subject 
    company.
    
        (a) Securities ownership. State the aggregate number and percentage 
    of subject securities that are beneficially owned by each person named 
    in response to Item 1003 of Regulation M-A (Sec. 229.1003) and by each 
    associate and majority-owned subsidiary of those persons. Give the name 
    and address of any associate or subsidiary.
        Instructions to Item 1008(a)
    
        1. For purposes of this section, beneficial ownership is 
    determined in accordance with Rule 13d-3 (Sec. 240.13d-3 of this 
    chapter) under the Exchange Act. Identify the shares that the person 
    has a right to acquire.
        2. The information required by this section may be based on the 
    number of outstanding securities disclosed in the subject company's 
    most recently available filing with the Commission, unless the 
    filing person has more current information.
        3. The information required by this section with respect to 
    officers, directors and associates of the subject company must be 
    given to the extent known after making reasonable inquiry.
    
        (b) Securities transactions. Describe any transaction in the 
    subject securities during the past 60 days. The description of 
    transactions required must include, but not necessarily be limited to:
        (1) The identity of the persons specified in the Instruction to 
    this section who effected the transaction;
        (2) The date of the transaction;
        (3) The amount of securities involved;
        (4) The price per share; and
        (5) Where and how the transaction was effected.
    
        Instructions to Item 1008(b)
        1. Provide the required transaction information for the 
    following persons:
        (a) The filing person (for all schedules);
        (b) Any person named in Instruction C of the schedule and any 
    associate or majority-owned subsidiary of the issuer or filing 
    person (for all schedules except Schedule 14D-9 (Sec. 240.14d-101 of 
    this chapter));
        (c) Any executive officer, director, affiliate or subsidiary of 
    the filing person (for Schedule 14D-9 (Sec. 240.14d-101 of this 
    chapter);
        (d) The issuer and any executive officer or director of any 
    subsidiary of the issuer or filing person (for an issuer tender 
    offer on Schedule TO (Sec. 240.14d-100 of this chapter)); and
        (e) The issuer and any pension, profit-sharing or similar plan 
    of the issuer or affiliate filing the schedule (for a going-private 
    transaction on Schedule 13E-3 (Sec. 240.13e-100 of this chapter)).
        2. Provide the information required by this Item if it is 
    available to the filing person at the time the statement is 
    initially filed with the Commission. If the information is not 
    initially available, it must be obtained and filed with the 
    Commission promptly, but in no event later than three business days 
    after the date of the initial filing, and if material, disclosed in 
    a manner reasonably designed to inform security holders. The 
    procedure specified by this instruction is provided to maintain the 
    confidentiality of information in order to avoid possible misuse of 
    inside information.
    
    
    Sec. 229.1009  (Item 1009) Persons/assets, retained, employed, 
    compensated or used.
    
        (a) Solicitations or recommendations. Identify all persons and 
    classes of persons that are directly or indirectly employed, retained, 
    or to be compensated to make solicitations or recommendations in 
    connection with the transaction. Provide a summary of all material 
    terms of employment, retainer or other arrangement for compensation.
        (b) Employees and corporate assets. Identify any officer, class of 
    employees or corporate assets of the subject company that has been or 
    will be employed or used by the filing person in connection with the 
    transaction. Describe the purpose for their employment or use.
    
        Instruction to Item 1009(b):
        Provide all information required by this Item except for the 
    information required by paragraph (a) of this section and Item 1007 
    of Regulation M-A (Sec. 229.1007).
    
    
    Sec. 229.1010  (Item 1010) Financial statements.
    
        (a) Financial information. Furnish the following financial 
    information:
        (1) Audited financial statements for the two fiscal years required 
    to be filed with the company's most recent annual report under sections 
    13 and 15(d) of the Exchange Act (15 U.S.C. 78m; 15 U.S.C. 78o);
        (2) Unaudited balance sheets, comparative year-to-date income 
    statements and related earnings per share data, statements of cash 
    flows, and comprehensive income required to be included in the 
    company's most recent quarterly report filed under the Exchange Act;
        (3) Ratio of earnings to fixed charges, computed in a manner 
    consistent with Item 503(d) of Regulation S-K (Sec. 229.503(d)), for 
    the two most recent fiscal years and the interim periods provided under 
    paragraph (a)(2) of this section; and
    
    [[Page 61447]]
    
        (4) Book value per share as of the date of the most recent balance 
    sheet presented.
        (b) Pro forma information. If material, furnish pro forma 
    information disclosing the effect of the transaction on:
        (1) The company's balance sheet as of the date of the most recent 
    balance sheet presented under paragraph (a) of this section;
        (2) The company's statement of income, earnings per share, and 
    ratio of earnings to fixed charges for the most recent fiscal year and 
    the latest interim period provided under paragraph (a)(2) of this 
    section; and
        (3) The company's book value per share as of the date of the most 
    recent balance sheet presented under paragraph (a) of this section.
        (c) Summary information. Furnish a fair and adequate summary of the 
    information specified in paragraphs (a) and (b) of this section for the 
    same periods specified. A fair and adequate summary includes:
        (1) The summarized financial information specified in Sec. 210.1-
    02(bb)(1) of this chapter;
        (2) Income per common share from continuing operations (basic and 
    diluted, if applicable);
        (3) Net income per common share (basic and diluted, if applicable);
        (4) Ratio of earnings to fixed charges, computed in a manner 
    consistent with Item 503(d) of Regulation S-K (Sec. 229.503(d));
        (5) Book value per share as of the date of the most recent balance 
    sheet; and
        (6) If material, pro forma data for the summarized financial 
    information specified in paragraphs (c)(1) through (c)(5) of this 
    section disclosing the effect of the transaction.
    
    
    Sec. 229.1011  (Item 1011) Additional information.
    
        (a) Agreements, regulatory requirements and legal proceedings. If 
    material to a security holder's decision whether to sell, tender or 
    hold the securities sought in the tender offer, furnish the following 
    information:
        (1) Any present or proposed material agreement, arrangement, 
    understanding or relationship between the offeror or any of its 
    executive officers, directors, controlling persons or subsidiaries and 
    the subject company or any of its executive officers, directors, 
    controlling persons or subsidiaries (other than any agreement, 
    arrangement or understanding disclosed under any other sections of 
    Regulation M-A (Secs. 229.1000 through 229.1016));
    
        Instruction to paragraph (a)(1):
        In an issuer tender offer disclose any material agreement, 
    arrangement, understanding or relationship between the offeror and 
    any of its executive officers, directors, controlling persons or 
    subsidiaries.
    
        (2) To the extent known by the offeror after reasonable 
    investigation, the applicable regulatory requirements which must be 
    complied with or approvals which must be obtained in connection with 
    the tender offer;
        (3) The applicability of any anti-trust laws;
        (4) The applicability of margin requirements under section 7 of the 
    Act (15 U.S.C. 78g) and the applicable regulations; and
        (5) Any material pending legal proceedings relating to the tender 
    offer, including the name and location of the court or agency in which 
    the proceedings are pending, the date instituted, the principal 
    parties, and a brief summary of the proceedings and the relief sought.
    
        Instruction to Item 1011(a)(5):
        A copy of any document relating to a major development (such as 
    pleadings, an answer, complaint, temporary restraining order, 
    injunction, opinion, judgment or order) in a material pending legal 
    proceeding must be furnished promptly to the Commission staff on a 
    supplemental basis.
    
        (b) Other material information. Furnish such additional material 
    information, if any, as may be necessary to make the required 
    statements, in light of the circumstances under which they are made, 
    not materially misleading.
    
    
    Sec. 229.1012  (Item 1012) The solicitation or recommendation.
    
        (a) Solicitation or recommendation. State the nature of the 
    solicitation or the recommendation. If this statement relates to a 
    recommendation, state whether the filing person is advising holders of 
    the subject securities to accept or reject the tender offer or to take 
    other action with respect to the tender offer and, if so, describe the 
    other action recommended. If the filing person is the subject company 
    and is not making a recommendation, state whether the subject company 
    is expressing no opinion and is remaining neutral toward the tender 
    offer or is unable to take a position with respect to the tender offer.
        (b) Reasons. State the reasons for the position (including the 
    inability to take a position) stated in paragraph (a) of this section. 
    Conclusory statements such as ``The tender offer is in the best 
    interests of shareholders'' are not considered sufficient disclosure.
        (c) Intent to tender. To the extent known by the filing person 
    after making reasonable inquiry, state whether the filing person or any 
    executive officer, director, affiliate or subsidiary of the filing 
    person currently intends to tender, sell or hold the subject securities 
    that are held of record or beneficially owned by that person.
        (d) Intent to tender or vote in a going-private transaction. To the 
    extent known by the filing person after making reasonable inquiry, 
    state whether or not any executive officer, director or affiliate of 
    the issuer (or any person specified in Instruction C to the schedule) 
    currently intends to tender or sell subject securities owned or held by 
    that person and/or how each person currently intends to vote subject 
    securities, including any securities the person has proxy authority 
    for. State the reasons for the intended action.
    
        Instruction to Item 1012(d):
        Provide the information required by this section if it is 
    available to the filing person at the time the statement is 
    initially filed with the Commission. If the information is not 
    available, it must be filed with the Commission promptly, but in no 
    event later than three business days after the date of the initial 
    filing, and if material, disclosed in a manner reasonably designed 
    to inform security holders.
    
        (e) Recommendations of others. To the extent known by the filing 
    person after making reasonable inquiry, state whether or not any person 
    specified in paragraph (d) of this section has made a recommendation 
    either in support of or opposed to the transaction and the reasons for 
    the recommendation.
    
    
    Sec. 229.1013  (Item 1013) Purposes, alternatives, reasons and effects 
    in a going-private transaction.
    
        (a) Purposes. State the purposes for the Rule 13e-3 transaction.
        (b) Alternatives. If the subject company or affiliate considered 
    alternative means to accomplish the stated purposes, briefly describe 
    the alternatives and state the reasons for their rejection.
        (c) Reasons. State the reasons for the structure of the Rule 13e-3 
    transaction and for undertaking the transaction at this time.
        (d) Effects. Describe the effects of the Rule 13e-3 transaction on 
    the subject company, its affiliates and unaffiliated security holders, 
    including the federal tax consequences of the transaction.
    
        Instructions to Item 1013:
        1. Conclusory statements will not be considered sufficient 
    disclosure in response to this section.
        2. The description required by paragraph (d) of this section 
    must include a reasonably detailed discussion of both the benefits 
    and detriments of the Rule 13e-3 transaction to the subject company, 
    its affiliates and unaffiliated security holders. The benefits and 
    detriments of the Rule 13e-3 transaction must be quantified to the 
    extent practicable.
    
    [[Page 61448]]
    
        3. If this statement is filed by an affiliate of the subject 
    company, the description required by paragraph (d) of this section 
    must include, but not be limited to, the effect of the Rule 13e-3 
    transaction on the affiliate's interest in the net book value and 
    net earnings of the subject company in terms of both dollar amounts 
    and percentages.
    
    
    Sec. 229.1014  (Item 1014) Fairness of the going-private transaction.
    
        (a) Fairness. State whether the subject company or affiliate filing 
    the statement reasonably believes that the Rule 13e-3 transaction is 
    fair or unfair to unaffiliated security holders. If any director 
    dissented to or abstained from voting on the Rule 13e-3 transaction, 
    identify the director, and indicate, if known, after making reasonable 
    inquiry, the reasons for the dissent or abstention.
        (b) Factors considered in determining fairness. Discuss in 
    reasonable detail the material factors upon which the belief stated in 
    paragraph (a) of this section is based and, to the extent practicable, 
    the weight assigned to each factor. The discussion must include an 
    analysis of the extent, if any, to which the filing person's beliefs 
    are based on the factors described in Instruction 2 of this section, 
    paragraphs (c), (d) and (e) of this section and Item 1015 of Regulation 
    M-A (Sec. 229.1015).
        (c) Approval of security holders. State whether or not the 
    transaction is structured so that approval of at least a majority of 
    unaffiliated security holders is required.
        (d) Unaffiliated representative. State whether or not a majority of 
    directors who are not employees of the subject company has retained an 
    unaffiliated representative to act solely on behalf of unaffiliated 
    security holders for purposes of negotiating the terms of the Rule 13e-
    3 transaction and/or preparing a report concerning the fairness of the 
    transaction.
        (e) Approval of directors. State whether or not the Rule 13e-3 
    transaction was approved by a majority of the directors of the subject 
    company who are not employees of the subject company.
        (f) Other offers. If any offer of the type described in paragraph 
    (viii) of Instruction 2 to this section has been received, describe the 
    offer and state the reasons for its rejection.
    
        Instructions to Item 1014:
        1. A statement that the issuer or affiliate has no reasonable 
    belief as to the fairness of the Rule 13e-3 transaction to 
    unaffiliated security holders will not be considered sufficient 
    disclosure in response to paragraph (a) of this section.
        2. The factors that are important in determining the fairness of 
    a transaction to unaffiliated security holders and the weight, if 
    any, that should be given to them in a particular context will vary. 
    Normally such factors will include, among others, those referred to 
    in paragraphs (c), (d) and (e) of this section and whether the 
    consideration offered to unaffiliated security holders constitutes 
    fair value in relation to:
        (i) Current market prices;
        (ii) Historical market prices;
        (iii) Net book value;
        (iv) Going concern value;
        (v) Liquidation value;
        (vi) Purchase prices paid in previous purchases disclosed in 
    response to Item 1002(f) of Regulation M-A (Sec. 229.1002(f));
        (vii) Any report, opinion, or appraisal described in Item 1015 
    of Regulation M-A (Sec. 229.1015); and
        (viii) Firm offers of which the subject company or affiliate is 
    aware made by any unaffiliated person, other than the filing 
    persons, during the past two years for:
        (A) The merger or consolidation of the subject company with or 
    into another company, or vice versa;
        (B) The sale or other transfer of all or any substantial part of 
    the assets of the subject company; or
        (C) A purchase of the subject company's securities that would 
    enable the holder to exercise control of the subject company.
        3. Conclusory statements, such as ``The Rule 13e-3 transaction 
    is fair to unaffiliated security holders in relation to net book 
    value, going concern value and future prospects of the issuer'' will 
    not be considered sufficient disclosure in response to paragraph (b) 
    of this section.
    
    
    Sec. 229.1015  (Item 1015) Reports, opinions, appraisals and 
    negotiations.
    
        (a) Report, opinion or appraisal. State whether or not the subject 
    company or affiliate has received any report, opinion (other than an 
    opinion of counsel) or appraisal from an outside party that is 
    materially related to the Rule 13e-3 transaction, including, but not 
    limited to: Any report, opinion or appraisal relating to the 
    consideration or the fairness of the consideration to be offered to 
    security holders or the fairness of the transaction to the issuer or 
    affiliate or to security holders who are not affiliates.
        (b) Preparer and summary of the report, opinion or appraisal. For 
    each report, opinion or appraisal described in response to paragraph 
    (a) of this section or any negotiation or report described in response 
    to Item 1014(d) of Regulation M-A (Sec. 229.1014) or Item 14(b)(6) of 
    Schedule 14A (Sec. 240.14a-101 of this chapter) concerning the terms of 
    the transaction:
        (1) Identify the outside party and/or unaffiliated representative;
        (2) Briefly describe the qualifications of the outside party and/or 
    unaffiliated representative;
        (3) Describe the method of selection of the outside party and/or 
    unaffiliated representative;
        (4) Describe any material relationship that existed during the past 
    two years or is mutually understood to be contemplated and any 
    compensation received or to be received as a result of the relationship 
    between:
        (i) The outside party, its affiliates, and/or unaffiliated 
    representative; and
        (ii) The subject company or its affiliates;
        (5) If the report, opinion or appraisal relates to the fairness of 
    the consideration, state whether the subject company or affiliate 
    determined the amount of consideration to be paid or whether the 
    outside party recommended the amount of consideration to be paid; and
        (6) Furnish a summary concerning the negotiation, report, opinion 
    or appraisal. The summary must include, but need not be limited to, the 
    procedures followed; the findings and recommendations; the bases for 
    and methods of arriving at such findings and recommendations; 
    instructions received from the subject company or affiliate; and any 
    limitation imposed by the subject company or affiliate on the scope of 
    the investigation.
    
        Instruction to Item 1015(b):
        The information called for by paragraphs (b)(1), (2) and (3) of 
    this section must be given with respect to the firm that provides 
    the report, opinion or appraisal rather than the employees of the 
    firm that prepared the report.
    
        (c) Availability of documents. Furnish a statement to the effect 
    that the report, opinion or appraisal will be made available for 
    inspection and copying at the principal executive offices of the 
    subject company or affiliate during its regular business hours by any 
    interested equity security holder of the subject company or 
    representative who has been so designated in writing. This statement 
    also may provide that a copy of the report, opinion or appraisal will 
    be transmitted by the subject company or affiliate to any interested 
    equity security holder of the subject company or representative who has 
    been so designated in writing upon written request and at the expense 
    of the requesting security holder.
    
    
    Sec. 229.1016  (Item 1016) Exhibits.
    
        File as an exhibit to the schedule:
        (a) Any disclosure materials furnished to security holders by or on 
    behalf of the filing person, including:
        (1) Tender offer materials (including transmittal letter);
        (2) Solicitation or recommendation (including those referred to in 
    Item 1012 of Regulation M-A (Sec. 229.1012));
        (3) Going-private disclosure document;
    
    [[Page 61449]]
    
        (4) Prospectus used in connection with an exchange offer where 
    securities are registered under the Securities Act of 1933; and
        (5) Any other disclosure materials;
        (b) Any loan agreement referred to in response to Item 1007(d) of 
    Regulation M-A (Sec. 229.1007(d));
    
        Instruction to Item 1016(b):
        If the filing relates to a third-party tender offer and a 
    request is made under Item 1007(d) of Regulation M-A 
    (Sec. 229.1007(d)), the identity of the bank providing financing may 
    be omitted from the loan agreement filed as an exhibit.
    
        (c) Any report, opinion or appraisal referred to in response to 
    Item 1014(d) or Item 1015 of Regulation M-A (Sec. 229.1014(d) or 
    Sec. 229.1015);
        (d) Any document setting forth the terms of any agreement, 
    arrangement, understanding or relationship referred to in response to 
    Item 1005(e) or Item 1011(a)(1) of Regulation M-A (Sec. 229.1005(e) or 
    Sec. 229.1011(a)(1));
        (e) Any agreement, arrangement or understanding referred to in 
    response to Sec. 229.1005(d), or the pertinent portions of any proxy 
    statement, report or other communication containing the disclosure 
    required by Item 1005(d) of Regulation M-A (Sec. 229.1005(d));
        (f) A detailed statement describing security holders' appraisal 
    rights and the procedures for exercising those appraisal rights 
    referred to in response to Item 1004(d) of Regulation M-A 
    (Sec. 229.1004(d));
        (g) Any written instruction, form or other material that is 
    furnished to persons making an oral solicitation or recommendation by 
    or on behalf of the filing person for their use directly or indirectly 
    in connection with the transaction; and
        (h) Any written opinion prepared by legal counsel at the filing 
    person's request and communicated to the filing person pertaining to 
    the tax consequences of the transaction.
    
    Exhibit Table to Item 1016 of Regulation M-A [13E-3 to 14D-9]
    
     
    ------------------------------------------------------------------------
     
    Disclosure Material...........            X             X             X
    Loan Agreement................            X             X   ............
    Report, Opinion or Appraisal..            X   ............  ............
    Contracts, Arrangements or                X             X             X
     Understandings...............
    Statement re: Appraisal Rights            X   ............  ............
    Oral Solicitation Materials...            X             X             X
    Tax Opinion                     ............            X   ............
    ------------------------------------------------------------------------
    
    PART 230--GENERAL RULES AND REGULATIONS, SECURITIES ACT OF 1933
    
        6. The authority citation for part 230 is revised to read in part 
    as follows:
    
        Authority: 15 U.S.C. 77b, 77f, 77g, 77h, 77j, 77r, 77s, 77sss, 
    77z-3, 78c, 78d, 781, 78m, 78n, 78o, 78w, 78ll(d), 79t, 80a-8, 80a-
    24, 80a-28, 80a-29, 80a-30, and 80a-37, unless otherwise noted.
    * * * * *
        7. By revising Sec. 230.135 to read as follows:
    
    
    Sec. 230.135  Notice of proposed registered offerings.
    
        (a) When notice is not an offer. For purposes of section 5 of the 
    Act (15 U.S.C. 77e) only, an issuer or a selling security holder (and 
    any person acting on behalf of either of them) that publishes through 
    any medium a notice of a proposed offering to be registered under the 
    Act will not be deemed to offer its securities for sale through that 
    notice if:
        (1) Legend. The notice includes a statement to the effect that it 
    does not constitute an offer of any securities for sale; and
        (2) Limited notice content. The notice otherwise includes no more 
    than the following information:
        (i) The name of the issuer;
        (ii) The title, amount and basic terms of the securities offered;
        (iii) The amount of the offering, if any, to be made by selling 
    security holders;
        (iv) The anticipated timing of the offering;
        (v) A brief statement of the manner and the purpose of the 
    offering, without naming the underwriters;
        (vi) Whether the issuer is directing its offering to only a 
    particular class of purchasers;
        (vii) Any statements or legends required by the laws of any state 
    or foreign country or administrative authority; and
        (viii) In the following offerings, the notice may contain 
    additional information, as follows:
        (A) Rights offering. In a rights offering to existing security 
    holders:
        (1) The class of security holders eligible to subscribe;
        (2) The subscription ratio and expected subscription price;
        (3) The proposed record date;
        (4) The anticipated issuance date of the rights; and
        (5) The subscription period or expiration date of the rights 
    offering.
        (B) Offering to employees. In an offering to employees of the 
    issuer or an affiliated company:
        (1) The name of the employer;
        (2) The class of employees being offered the securities;
        (3) The offering price; and
        (4) The duration of the offering period.
        (C) Exchange offer. In an exchange offer:
        (1) The basic terms of the exchange offer;
        (2) The name of the subject company;
        (3) The subject class of securities sought in the exchange offer.
        (D) Rule 145(a) offering. In a Sec. 230.145(a) offering:
        (1) The name of the person whose assets are to be sold in exchange 
    for the securities to be offered;
        (2) The names of any other parties to the transaction;
        (3) A brief description of the business of the parties to the 
    transaction;
        (4) The date, time and place of the meeting of security holders to 
    vote on or consent to the transaction; and
        (5) A brief description of the transaction and the basic terms of 
    the transaction.
        (b) Corrections of misstatements about the offering. A person that 
    publishes a notice in reliance on this section may issue a notice that 
    contains no more information than is necessary to correct inaccuracies 
    published about the proposed offering.
    
        Note to Sec. 230.135: Communications under this section relating 
    to business combination transactions must be filed as required by 
    Sec. 230.425(b).
    
        8. By amending Sec. 230.145 by revising paragraph (b) to read as 
    follows:
    
    [[Page 61450]]
    
    Sec. 230.145  Reclassification of securities, mergers, consolidations 
    and acquisitions of assets.
    
    * * * * *
        (b) Communications before a Registration Statement is filed. 
    Communications made in connection with or relating to a transaction 
    described in paragraph (a) of this section that will be registered 
    under the Act may be made under Sec. 230.135, Sec. 230.165 or 
    Sec. 230.166.
    * * * * *
        9. By adding Sec. 230.162 to read as follows:
    
    
    Sec. 230.162  Submission of tenders in registered exchange offers.
    
        (a) Notwithstanding section 5(a) of the Act (15 U.S.C. 77e(a)), 
    offerors may solicit tenders of securities in an exchange offer subject 
    to Sec. 240.13e-4(e) or Sec. 240.14d-4(b) of this chapter before a 
    registration statement is effective as to the security offered, so long 
    as no securities are purchased until the registration statement is 
    effective and the tender offer has expired in accordance with the 
    tender offer rules.
        (b) Notwithstanding section 5(b)(2) of the Act (15 U.S.C. 
    77e(b)(2)), a prospectus that meets the requirements of section 10(a) 
    of the Act (15 U.S.C. 77j(a)) need not be delivered to security holders 
    in an exchange offer subject to Sec. 240.13e-4(e) or Sec. 240.14d-4(b) 
    of this chapter, so long as a preliminary prospectus, prospectus 
    supplements and revised prospectuses are delivered to security holders 
    in accordance with Sec. 240.13e-4(e)(2) or Sec. 240.14d-4(b) of this 
    chapter, as applicable.
        10. By adding Sec. 230.165 to read as follows:
    
    
    Sec. 230.165  Offers made in connection with a business combination 
    transaction.
    
        Preliminary Note: This section is available only to 
    communications relating to business combinations. The exemption does 
    not apply to communications that may be in technical compliance with 
    this section, but have the primary purpose or effect of conditioning 
    the market for another transaction, such as a capital-raising or 
    resale transaction.
    
        (a) Communications before a registration statement is filed. 
    Notwithstanding section 5(c) of the Act (15 U.S.C. 77e(c)), the offeror 
    of securities in a business combination transaction to be registered 
    under the Act may make an offer to sell or solicit an offer to buy 
    those securities from and including the first public announcement until 
    the filing of a registration statement related to the transaction, so 
    long as any written communication (other than non-public communications 
    among participants) made in connection with or relating to the 
    transaction (i.e., prospectus) is filed in accordance with Sec. 230.425 
    and the conditions in paragraph (c) of this section are satisfied.
        (b) Communications after a registration statement is filed. 
    Notwithstanding section 5(b)(1) of the Act (15 U.S.C. 77e(b)(1)), any 
    written communication (other than non-public communications among 
    participants) made in connection with or relating to a business 
    combination transaction (i.e., prospectus) after the filing of a 
    registration statement related to the transaction need not satisfy the 
    requirements of section 10 (15 U.S.C. 77j) of the Act, so long as the 
    prospectus is filed in accordance with Sec. 230.424 or Sec. 230.425 and 
    the conditions in paragraph (c) of this section are satisfied.
        (c) Conditions. To rely on paragraphs (a) and (b) of this section:
        (1) Each prospectus must contain a prominent legend that urges 
    investors to read the relevant documents filed or to be filed with the 
    Commission because they contain important information. The legend also 
    must explain to investors that they can get the documents for free at 
    the Commission's web site and describe which documents are available 
    free from the offeror; and
        (2) In an exchange offer, the offer must be made in accordance with 
    the applicable tender offer rules (Secs. 240.14d-1 through 240.14e-8 of 
    this chapter); and, in a transaction involving the vote of security 
    holders, the offer must be made in accordance with the applicable proxy 
    or information statement rules (Secs. 240.14a-1 through 240.14a-101 and 
    Secs. 240.14c-1 through 240.14c-101 of this chapter).
        (d) Applicability. This section is applicable not only to the 
    offeror of securities in a business combination transaction, but also 
    to any other participant that may need to rely on and complies with 
    this section in communicating about the transaction.
        (e) Failure to file or delay in filing. An immaterial or 
    unintentional failure to file or delay in filing a prospectus described 
    in this section will not result in a violation of section 5(b)(1) or 
    (c) of the Act (15 U.S.C. 77e(b)(1) and (c)), so long as:
        (1) A good faith and reasonable effort was made to comply with the 
    filing requirement; and
        (2) The prospectus is filed as soon as practicable after discovery 
    of the failure to file.
        (f) Definitions.
        (1) A business combination transaction means any transaction 
    specified in Sec. 230.145(a) or exchange offer;
        (2) A participant is any person or entity that is a party to the 
    business combination transaction and any persons authorized to act on 
    their behalf; and
        (3) Public announcement is any oral or written communication by a 
    participant that is reasonably designed to, or has the effect of, 
    informing the public or security holders in general about the business 
    combination transaction.
        11. By adding Sec. 230.166 to read as follows:
    
    
    Sec. 230.166  Exemption from section 5(c) for certain communications in 
    connection with business combination transactions.
    
        Preliminary Note: This section is available only to 
    communications relating to business combinations. The exemption does 
    not apply to communications that may be in technical compliance with 
    this section, but have the primary purpose or effect of conditioning 
    the market for another transaction, such as a capital-raising or 
    resale transaction.
    
        (a) Communications. In a registered offering involving a business 
    combination transaction, any communication made in connection with or 
    relating to the transaction before the first public announcement of the 
    offering will not constitute an offer to sell or a solicitation of an 
    offer to buy the securities offered for purposes of section 5(c) of the 
    Act (15 U.S.C. 77e(c)), so long as the participants take all reasonable 
    steps within their control to prevent further distribution or 
    publication of the communication until either the first public 
    announcement is made or the registration statement related to the 
    transaction is filed.
        (b) Definitions. The terms business combination transaction, 
    participant and public announcement have the same meaning as set forth 
    in Sec. 230.165(f).
        12. By adding Sec. 230.425 to read as follows:
    
    
    Sec. 230.425  Filing of certain prospectuses and communications under 
    Sec. 230.135 in connection with business combination transactions.
    
        (a) All written communications made in reliance on Sec. 230.165 are 
    prospectuses that must be filed with the Commission under this section 
    on the date of first use.
        (b) All written communications that contain no more information 
    than that specified in Sec. 230.135 must be filed with the Commission 
    on or before the date of first use except as provided in paragraph 
    (d)(1) of this section. A communication limited to the information 
    specified in Sec. 230.135 will
    
    [[Page 61451]]
    
    not be deemed an offer in accordance with Sec. 230.135 even though it 
    is filed under this section.
        (c) Each prospectus or Sec. 230.135 communication filed under this 
    section must identify the filer, the company that is the subject of the 
    offering and the Commission file number for the related registration 
    statement or, if that file number is unknown, the subject company's 
    Exchange Act or Investment Company Act file number, in the upper right 
    corner of the cover page.
        (d) Notwithstanding paragraph (a) of this section, the following 
    need not be filed under this section:
        (1) Any written communication that is limited to the information 
    specified in Sec. 230.135 and does not contain new or different 
    information from that which was previously publicly disclosed and filed 
    under this section.
        (2) Any research report used in reliance on Sec. 230.137, 
    Sec. 230.138 and Sec. 230.139;
        (3) Any confirmation described in Sec. 240.10b-10 of this chapter; 
    and
        (4) Any prospectus filed under Sec. 230.424.
    
        Notes to Sec. 230.425: 1. File five copies of the prospectus or 
    Sec. 230.135 communication if paper filing is permitted.
        2. No filing is required under Sec. 240.13e-4(c), Sec. 240.14a-
    12(b), Sec. 240.14d-2(b), or Sec. 240.14d-9(a), if the communication 
    is filed under this section. Communications filed under this section 
    also are deemed filed under the other applicable sections.
    
        13. By revising Sec. 230.432 to read as follows:
    
    
    Sec. 230.432  Additional information required to be included in 
    prospectuses relating to tender offers.
    
        Notwithstanding the provisions of any form for the registration of 
    securities under the Act, any prospectus relating to securities to be 
    offered in connection with a tender offer for, or a request or 
    invitation for tenders of, securities subject to either Sec. 240.13e-4 
    or section 14(d) of the Securities Exchange Act of 1934 (15 U.S.C. 
    78n(d)) must include the information required by Sec. 240.13e-4(d)(1) 
    or Sec. 240.14d-6(d)(1) of this chapter, as applicable, in all tender 
    offers, requests or invitations that are published, sent or given to 
    security holders.
    
    PART 232--REGULATION S-T--GENERAL RULES AND REGULATIONS FOR 
    ELECTRONIC FILINGS
    
        14. The authority citation for Part 232 continues to read as 
    follows:
    
        Authority: 15 U.S.C. 77f, 77g, 77h, 77j, 77s(a), 77sss(a), 
    78c(b), 78l, 78m, 78n, 78o(d), 78w(a), 78ll(d), 79t(a), 80a-8, 80a-
    29, 80a-30 and 80a-37.
    
    
    Sec. 232.13  [Amended]
    
        15. By amending Sec. 232.13 in the first sentence of paragraph (d) 
    by removing the phrase ``may be `mailed for filing with the Commission' 
    at the same time'' and adding in its place ``must be filed on the same 
    day'' and by removing the phrase ``on a business day'' and adding in 
    its place ``during the official business hours''.
    
    PART 239--FORMS PRESCRIBED UNDER THE SECURITIES ACT OF 1933
    
        16. The authority citation for part 239 continues to read in part 
    as follows:
    
        Authority: 15 U.S.C. 77f, 77g, 77h, 77j, 77s, 77z-2, 77sss, 78c, 
    78l, 78m, 78n, 78o(d), 78u-5, 78w(a), 78ll(d), 79e, 79f, 79g, 79j, 
    79l, 79m, 79n, 79q, 79t, 80a-8, 80a-24, 80a-29, 80a-30 and 80a-37, 
    unless otherwise noted.
    
    
    Sec. 239.25  (Form S-4 [Amended]
    
    * * * * *
        17. By amending Form S-4 (referenced in Sec. 239.25) by revising 
    paragraph (b)(7) of Item 17 to read as follows:
    
        [Note: Form S-4 does not and this amendment will not appear in 
    the Code of Federal Regulations.]
    
    Form S-4
    
    * * * * *
    
    Item 17. Information With Respect to Companies Other Than S-3 or S-2 
    Companies.
    
    * * * * *
        (b) * * **
        (7) Financial statements that would be required in an annual 
    report sent to security holders under Rules 14a-3(b)(1) and (b)(2) 
    (Sec. 240.14b-3 of this chapter), if an annual report was required. 
    If the registrant's security holders are not voting, the transaction 
    is not a roll-up transaction (as described by Item 901 of Regulation 
    S-K (Sec. 229.901 of this chapter)), and:
        (i) The company being acquired is significant to the registrant 
    in excess of the 20% level as determined under Sec. 210.3-05(b)(2), 
    provide financial statements of the company being acquired for the 
    latest fiscal year in conformity with GAAP. In addition, if the 
    company being acquired has provided its security holders with 
    financial statements prepared in conformity with GAAP for either or 
    both of the two fiscal years before the latest fiscal year, provide 
    the financial statements for those years; or
        (ii) The company being acquired is significant to the registrant 
    at or below the 20% level, no financial information (including pro 
    forma and comparative per share information) for the company being 
    acquired need be provided.
        Instructions:
        1. The financial statements required by this paragraph for the 
    latest fiscal year need be audited only to the extent practicable. 
    The financial statements for the fiscal years before the latest 
    fiscal year need not be audited if they were not previously audited.
        2. If the financial statements required by this paragraph 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 (Sec. 249.220f of this 
    chapter) unless a reconciliation is unavailable or not obtainable 
    without unreasonable cost or expense. At a minimum, provide a 
    narrative description of all material variations in accounting 
    principles, practices and methods used in preparing the non-U.S. 
    GAAP financial statements from those accepted in the U.S. when the 
    financial statements are prepared on a basis other than U.S. GAAP.
        3. If this Form is used to register resales to the public by any 
    person who is deemed an underwriter within the meaning of Rule 
    145(c) (Sec. 230.145(c) of this chapter) with respect to the 
    securities being reoffered, the financial statements must be audited 
    for the fiscal years required to be presented under paragraph (b)(2) 
    of Rule 3-05 of Regulation S-X (17 CFR 210.3-05(b)(2)).
        4. In determining the significance of an acquisition for 
    purposes of this paragraph, apply the tests prescribed in Rule 1-
    02(w) (Sec. 210.1-02(w) of this chapter).
    * * * * *
    
    
    Sec. 239.34  (Form F-4) [Amended]
    
        18. By amending Form F-4 (referenced in Sec. 239.34) by revising 
    paragraph (b)(5) of Item 17, removing the instruction at the end of 
    Item 17 and in its place adding a new instruction to paragraphs (b)(5) 
    and (b)(6) to read as follows:
    
        [Note: Form F-4 does not and this amendment will not appear in 
    the Code of Federal Regulations.]
    
    Form F-4
    
    * * * * *
    
    Item 17. Information With Respect to Foreign Companies Other Than F-2 
    or F-3 Companies.
    
    * * * * *
        (b) * * *
        (5) Financial statements that would have been required to be 
    included in an annual report on Form 20-F (Sec. 249.220f of this 
    chapter) had the company being acquired been required to prepare 
    such a report. If the registrant's security holders are not voting, 
    the transaction is not a roll-up transaction (as described by Item 
    901 of Regulation S-K (Sec. 229.901 of this chapter)), and:
        (i) The company being acquired is significant to the registrant 
    in excess of the 20% level as determined under Sec. 210.3-05(b)(2), 
    provide financial statements of the company being acquired for the 
    latest fiscal year in conformity with GAAP. In addition, if the 
    company being acquired has provided its security holders with 
    financial statements prepared in conformity with GAAP for either or 
    both of the two fiscal years before the latest fiscal year, provide 
    the financial statements for those years; or
        (ii) the company being acquired is significant to the registrant 
    at or below the 20% level, no financial information
    
    [[Page 61452]]
    
    (including pro forma and comparative per share information) for the 
    company being acquired need be provided.
        Instructions:
        1. The financial statements required by this paragraph for the 
    latest fiscal year need be audited only to the extent practicable. 
    The financial statements for the fiscal years before the latest 
    fiscal year need not be audited if they were not previously audited.
        2. If this Form is used to register resales to the public by any 
    person who is deemed an underwriter within the meaning of Rule 
    145(c) (Sec. 230.145(c) of this chapter) with respect to the 
    securities being reoffered, the financial statements must be audited 
    for the fiscal years required to be presented under paragraph (b)(2) 
    of Rule 3-05 of Regulation S-X (17 CFR 210.3-05(b)(2)).
        3. In determining the significance of an acquisition for 
    purposes of this paragraph, apply the tests prescribed in Rule 1-
    02(w) (Sec. 210.1-02(w) of this chapter).
    * * * * *
        Instruction to paragraphs (b)(5) and (b)(6): If the financial 
    statements required by paragraphs (b)(5) and (b)(6) 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 (Sec. 249.220f of this chapter) unless a reconciliation is 
    unavailable or not obtainable without unreasonable cost or expense. At 
    a minimum, provide a narrative description of all material variations 
    in accounting principles, practices and methods used in preparing the 
    non-U.S. GAAP financial statements from those accepted in the U.S. when 
    the financial statements are prepared on a basis other than U.S. GAAP.
    * * * * *
    
    PART 240--GENERAL RULES AND REGULATIONS, SECURITIES EXCHANGE ACT OF 
    1934
    
        19. The authority citation for part 240 continues to read in part 
    as follows:
    
        Authority: 15 U.S.C. 77c, 77d, 77g, 77j, 77s, 77z-2, 77eee, 
    77ggg, 77nnn, 77sss, 77ttt, 78c, 78d, 78f, 78i, 78j, 78j-1, 78k, 
    78k-1, 78l, 78m, 78n, 78o, 78p, 78q, 78s, 78u-5, 78w, 78x, 78ll(d), 
    78mm, 79q, 79t, 80a-20, 80a-23, 80a-29, 80a-37, 80b-3, 80b-4 and 
    80b-11, unless otherwise noted.
    
    
    Sec. 240.10b-13  [Removed and reserved]
    
        20. By removing and reserving Sec. 240.10b-13.
        21. By revising Sec. 240.13e-1 to read as follows:
    
    
    Sec. 240.13e-1  Purchase of securities by the issuer during a third-
    party tender offer.
    
        An issuer that has received notice that it is the subject of a 
    tender offer made under Section 14(d)(1) of the Act (15 U.S.C. 78n), 
    that has commenced under Sec. 240.14d-2 must not purchase any of its 
    equity securities during the tender offer unless the issuer first:
        (a) Files a statement with the Commission containing the following 
    information:
        (1) The title and number of securities to be purchased;
        (2) The names of the persons or classes of persons from whom the 
    issuer will purchase the securities;
        (3) The name of any exchange, inter-dealer quotation system or any 
    other market on or through which the securities will be purchased;
        (4) The purpose of the purchase;
        (5) Whether the issuer will retire the securities, hold the 
    securities in its treasury, or dispose of the securities. If the issuer 
    intends to dispose of the securities, describe how it intends to do so; 
    and
        (6) The source and amount of funds or other consideration to be 
    used to make the purchase. If the issuer borrows any funds or other 
    consideration to make the purchase or enters any agreement for the 
    purpose of acquiring, holding, or trading the securities, describe the 
    transaction and agreement and identify the parties; and
        (b) Pays the fee required by Sec. 240.0-11 when it files the 
    initial statement.
        (c) This section does not apply to periodic repurchases in 
    connection with an employee benefit plan or other similar plan of the 
    issuer so long as the purchases are made in the ordinary course and not 
    in response to the tender offer.
    
    Instruction to Sec. 240.13e-1:
    
        File eight copies if paper filing is permitted.
    
        22. By amending Sec. 240.13e-3 as follows:
        a. By revising paragraphs (d) and (e);
        b. Revising the heading of paragraph (f);
        c. Removing the reference ``Chapter X'' in paragraph (g)(5) and in 
    its place add ``Chapter XI'';
        d. Removing the reference ``section 174'' in paragraph (g)(5) and 
    in its place adding ``section 1125(b)''; and
        e. Removing the reference ``section 175 of the Act'' in paragraph 
    (g)(5) and in its place adding ``section 1125(b) of that Act''.
        The revisions to Sec. 240.13e-3 read as follows:
    
    
    Sec. 240.13e-3  Going private transactions by certain issuers or their 
    affiliates.
    
    * * * * *
        (d) Material required to be filed. The issuer or affiliate engaging 
    in a Rule 13e-3 transaction must file with the Commission:
        (1) A Schedule 13E-3 (Sec. 240.13e-100), including all exhibits;
        (2) An amendment to Schedule 13E-3 reporting promptly any material 
    changes in the information set forth in the schedule previously filed; 
    and
        (3) A final amendment to Schedule 13E-3 reporting promptly the 
    results of the Rule 13e-3 transaction.
        (e) Disclosure of information to security holders.
        (1) In addition to disclosing the information required by any other 
    applicable rule or regulation under the federal securities laws, the 
    issuer or affiliate engaging in a Sec. 240.13e-3 transaction must 
    disclose to security holders of the class that is the subject of the 
    transaction, as specified in paragraph (f) of this section, the 
    following:
        (i) The information required by Item 1 of Schedule 13E-3 
    (Sec. 240.13e-100) (Summary Term Sheet);
        (ii) The information required by Items 7, 8 and 9 of Schedule 13E-
    3, which must be prominently disclosed in a ``Special Factors'' section 
    in the front of the disclosure document;
        (iii) A prominent legend on the outside front cover page that 
    indicates that neither the Securities and Exchange Commission nor any 
    state securities commission has: approved or disapproved of the 
    transaction; passed upon the merits or fairness of the transaction; or 
    passed upon the adequacy or accuracy of the disclosure in the document. 
    The legend also must make it clear that any representation to the 
    contrary is a criminal offense;
        (iv) The information concerning appraisal rights required by 
    Sec. 229.1016(f) of this chapter; and
        (v) The information required by the remaining items of Schedule 
    13E-3, except for Sec. 229.1016 of this chapter (exhibits), or a fair 
    and adequate summary of the information.
    
        Instructions to paragraph (e)(1):
        1. If the Rule 13e-3 transaction also is subject to Regulation 
    14A (Secs. 240.14a-1 through 240.14b-2) or 14C (Secs. 240.14c-1 
    through 240.14c-101), the registration provisions and rules of the 
    Securities Act of 1933, Regulation 14D or Sec. 240.13e-4, the 
    information required by paragraph (e)(1) of this section must be 
    combined with the proxy statement, information statement, prospectus 
    or tender offer material sent or given to security holders.
        2. If the Rule 13e-3 transaction involves a registered 
    securities offering, the legend required by Sec. 229.501(b)(7) of 
    this chapter must be combined with the legend required by paragraph 
    (e)(1)(iii) of this section.
        3. The required legend must be written in clear, plain language.
    
        (2) If there is any material change in the information previously 
    disclosed to
    
    [[Page 61453]]
    
    security holders, the issuer or affiliate must disclose the change 
    promptly to security holders as specified in paragraph (f)(1)(iii) of 
    this section.
        (f) Dissemination of information to security holders. * * *
    * * * * *
    
    
    Sec. 240.13e-4  [Amended]
    
        23. By amending Sec. 240.13e-4 by removing the reference:
        a. ``Schedule 13E-4 [Sec. 240.13E-101]'' that appears in the 
    introductory text of paragraph (a) and in its place adding ``Schedule 
    TO (Sec. 240.14d-100)'';
        b. ``Schedule 13E-4 [Sec. 240.13e-101]'' that appears in paragraph 
    (a)(3) and in its place adding ``Schedule TO (Sec. 240.14d-100)'';
        c. ``Schedule 13E-4 Issuer Tender Offer Statement (Sec. 240.13e-
    101),'' that appears in paragraph (f)(12) and in its place adding 
    ``Schedule TO (Sec. 240.14d-100),'';
        d. ``paragraph (a) of Item 9 of that Schedule'' that appears in 
    paragraph (f)(12) and in its place adding ``Item 1016(a)(1) of 
    Regulation M-A (Sec. 229.1016(a)(1) of this chapter)''; and
        e. ``Schedule 13E-4'' that appears in the introductory text of 
    paragraph (g) and in its place adding ``Schedule TO (Sec. 240.14d-
    100)''.
        24. By amending Sec. 240.13e-4 as follows:
        a. By revising paragraph (a)(4);
        b. Redesignating paragraph (b) as paragraph (j);
        c. Adding new paragraph (b);
        d. Removing the reference ``paragraphs (c), (d), (e) and (f)'' in 
    newly redesignated paragraph (j)(2)(i) and in its place adding 
    ``paragraphs (b), (c), (d), (e) and (f)'';
        e. Removing the reference ``paragraph (b)(1)'' in newly 
    redesignated paragraph (j)(2)(ii) and in its place adding ``paragraph 
    (j)(1)''; and
        f. revising the section heading and paragraphs (c), (d) and (e).
        The additions and revisions to 240.13e-4 read as follows:
    
    
    Sec. 240.13e-4  Tender offers by issuers.
    
        (a) Definitions. * * *
        (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.
    * * * * *
        (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;
        (2) A Schedule TO (Sec. 240.14d-100), including all exhibits;
        (3) An amendment to Schedule TO (Sec. 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 (Sec. 240.14d-100) reporting 
    promptly the results of the issuer tender offer.
    
        Instructions to Sec. 240.13e-4(c):
        1. Pre-commencement communications must be filed under cover of 
    Schedule TO (Sec. 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 
    Sec. 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 Secs. 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 public 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 
    (Sec. 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 Sec. 229.1004(a)(1) and 
    Sec. 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 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
    
    [[Page 61454]]
    
    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 Sec. 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 any 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 
    Sec. 240.13e-3) and roll-up transactions (as described by Item 901 
    of Regulation S-K (Sec. 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 Sec. 230.430 or Sec. 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 Sec. 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;
        (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.
    * * * * *
        25. By revising Sec. 240.13e-100 to read as follows:
    
    
    Sec. 240.13e-100  Schedule 13E-3, Transaction statement under section 
    13(e) of the Securities Exchange Act of 1934 and Rule 13e-3 
    (Sec. 240.13e-3) thereunder.
    
    Securities and Exchange 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 (Secs. 240.14a-1 through 
    240.14b-2), Regulation 14C (Secs. 240.14c-1 through 240.14c-101) or 
    Rule 13e-3(c) (Sec. 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.
        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 Sec. 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 Sec. 240.0-11(b).
        C. If the statement is 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 
    (Sec. 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
    
    [[Page 61455]]
    
        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, 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 (Secs. 240.14a-1 through 240.14b-2) or 14C 
    (Secs. 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 (Secs. 240.14d-1 through 240.14d-101) or Sec. 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 (Sec. 240.14d-100). See 
    Instruction J of Schedule TO (Sec. 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 
    (Sec. 229.1001 of this chapter) unless information is disclosed to 
    security holders in a prospectus that meets the requirements of 
    Sec. 230.421(d) of this chapter.
    
    Item 2. Subject Company Information
    
        Furnish the information required by Item 1002 of Regulation M-A 
    (Sec. 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 (Sec. 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 (Sec. 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 (Sec. 229.1005 of this chapter).
    
    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 (Sec. 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 
    (Sec. 229.1013 of this chapter).
    
    Item 8. Fairness of the Transaction
    
        Furnish the information required by Item 1014 of Regulation M-A 
    (Sec. 229.1014 of this chapter).
    
    Item 9. Reports, Opinions, Appraisals and Negotiations
    
        Furnish the information required by Item 1015 of Regulation M-A 
    (Sec. 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 
    (Sec. 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 
    (Sec. 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 (Sec. 229.1012 of this chapter).
    
    Item 13. Financial Statements
    
        Furnish the information required by Item 1010(a) through (b) of 
    Regulation M-A (Sec. 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 (Sec. 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 (Sec. 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 meet 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 
    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 
    (Sec. 229.1009 of this chapter).
    
    Item 15. Additional Information
    
        Furnish the information required by Item 1011(b) of Regulation 
    M-A (Sec. 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 
    (Sec. 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.
    
    
    [[Page 61456]]
    
    
    ----------------------------------------------------------------------
    (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 
    Sec. 240.12b-11 with respect to signature requirements.
    
    
    Sec. 240.13e-101  [Removed and reserved]
    
        26. By removing and reserving Sec. 240.13e-101.
    
    
    Sec. 240.14a-4  [Amended]
    
        27. By amending Sec. 240.14a-4, paragraph (f), by removing the 
    words ``, or mailed for filing to,''.
        28. By amending Sec. 240.14a-6 as follows:
        a. By revising paragraphs (b), (c), (e)(2) and (j),
        b. Removing the note following paragraph (b), and
        c. Adding paragraph (o) to read as follows:
    
    
    Sec. 240.14a-6  Filing requirements.
    
    * * * * *
        (b) Definitive proxy statement and other soliciting material. Eight 
    definitive copies of the proxy statement, form of proxy and all other 
    soliciting materials, in the same form as the materials sent to 
    security holders, must be filed with the Commission no later than the 
    date they are first sent or given to security holders. Three copies of 
    these materials also must be filed with, or mailed for filing to, each 
    national securities exchange on which the registrant has a class of 
    securities listed and registered.
        (c) Personal solicitation materials. If part or all of the 
    solicitation involves personal solicitation, then eight copies of all 
    written instructions or other materials that discuss, review or comment 
    on the merits of any matter to be acted on, that are furnished to 
    persons making the actual solicitation for their use directly or 
    indirectly in connection with the solicitation, must be filed with the 
    Commission no later than the date the materials are first sent or given 
    to these persons.
    * * * * *
        (e)(1) * * *
        (2) Confidential treatment. If action will be taken on any matter 
    specified in Item 14 of Schedule 14A (Sec. 240.14a-101), all copies of 
    the preliminary proxy statement and form of proxy filed under paragraph 
    (a) of this section will be for the information of the Commission only 
    and will not be deemed available for public inspection until filed with 
    the Commission in definitive form so long as:
        (i) The proxy statement does not relate to a matter or proposal 
    subject to Sec. 240.13e-3 or a roll-up transaction as defined in Item 
    901(c) of Regulation S-K (Sec. 229.901(c) of this chapter);
        (ii) Neither the parties to the transaction nor any persons 
    authorized to act on their behalf have made any public communications 
    relating to the transaction except for statements where the content is 
    limited to the information specified in Sec. 230.135 of this chapter; 
    and
        (iii) The materials are filed in paper and marked ``Confidential, 
    For Use of the Commission Only.'' In all cases, the materials may be 
    disclosed to any department or agency of the United States Government 
    and to the Congress, and the Commission may make any inquiries or 
    investigation into the materials as may be necessary to conduct an 
    adequate review by the Commission.
    
        Instruction to paragraph (e)(2): If communications are made 
    publicly that go beyond the information specified in Sec. 230.135 of 
    this chapter, the preliminary proxy materials must be re-filed 
    promptly with the Commission as public materials.
    * * * * *
        (j) Merger proxy materials. (1) Any proxy statement, form of proxy 
    or other soliciting material required to be filed by this section that 
    also is either
        (i) Included in a registration statement filed under the Securities 
    Act of 1933 on Forms S-4 (Sec. 239.25 of this chapter), F-4 
    (Sec. 239.34 of this chapter) or N-14 (Sec. 239.23 of this chapter); or
        (ii) Filed under Sec. 230.424, Sec. 230.425 or Sec. 230.497 of this 
    chapter is required to be filed only under the Securities Act, and is 
    deemed filed under this section.
        (2) Under paragraph (j)(1) of this section, the fee required by 
    paragraph (i) of this section need not be paid.
    * * * * *
        (o) Solicitations before furnishing a definitive proxy statement. 
    Solicitations that are published, sent or given to security holders 
    before they have been furnished a definitive proxy statement must be 
    made in accordance with Sec. 240.14a-12 unless there is an exemption 
    available under Sec. 240.14a-2.
    
    
    Sec. 240.14a-11  [Removed and reserved]
    
        29. By removing and reserving Sec. 240.14a-11.
        30. By revising Sec. 240.14a-12 to read as follows:
    
    
    Sec. 240.14a-12  Solicitation before furnishing a proxy statement.
    
        (a) Notwithstanding the provisions of Sec. 240.14a-3(a), a 
    solicitation may be made before furnishing security holders with a 
    proxy statement meeting the requirements of Sec. 240.14a-3(a) if:
        (1) Each written communication includes:
        (i) The identity of the participants in the solicitation (as 
    defined in Instruction 3 to Item 4 of Schedule 14A (Sec. 240.14a-101)) 
    and a description of their direct or indirect interests, by security 
    holdings or otherwise, or a prominent legend in clear, plain language 
    advising security holders where they can obtain that information; and
        (ii) A prominent legend in clear, plain language advising security 
    holders to read the proxy statement when it is available because it 
    contains important information. The legend also must explain to 
    investors that they can get the proxy statement, and any other relevant 
    documents, for free at the Commission's web site and describe which 
    documents are available free from the participants; and
        (2) A definitive proxy statement meeting the requirements of 
    Sec. 240.14a-3(a) is sent or given to security holders solicited in 
    reliance on this section before or at the same time as the forms of 
    proxy, consent or authorization are furnished to or requested from 
    security holders.
        (b) Any soliciting material published, sent or given to security 
    holders in accordance with paragraph (a) of this section must be filed 
    with the Commission no later than the date the material is first 
    published, sent or given to security holders. Three copies of the 
    material must at the same time be filed with, or mailed for filing to, 
    each national securities exchange upon which any class of securities of 
    the registrant is listed and registered. The soliciting material must 
    include a cover page in the form set forth in Schedule 14A 
    (Sec. 240.14a-101) and the appropriate box on the cover page must be 
    marked. Soliciting material in connection with a registered offering is 
    required to be filed only under Sec. 230.424 or Sec. 230.425 of this 
    chapter, and will be deemed filed under this section.
        (c) Solicitations by any person or group of persons for the purpose 
    of opposing a solicitation subject to this regulation by any other 
    person or group of persons with respect to the election or removal of 
    directors at any annual or
    
    [[Page 61457]]
    
    special meeting of security holders also are subject to the following 
    provisions:
        (1) Application of this rule to annual report. Notwithstanding the 
    provisions of Sec. 240.14a-3 (b) and (c), any portion of the annual 
    report referred to in Sec. 240.14a-3(b) that comments upon or refers to 
    any solicitation subject to this rule, or to any participant in the 
    solicitation, other than the solicitation by the management, must be 
    filed with the Commission as proxy material subject to this regulation. 
    This must be filed in electronic format unless an exemption is 
    available under Rules 201 or 202 of Regulation S-T (Sec. 232.201 or 
    Sec. 232.202 of this chapter).
        (2) Use of reprints or reproductions. In any solicitation subject 
    to this Sec. 240.14a-12(c), soliciting material that includes, in whole 
    or part, any reprints or reproductions of any previously published 
    material must:
        (i) State the name of the author and publication, the date of prior 
    publication, and identify any person who is quoted without being named 
    in the previously published material.
        (ii) Except in the case of a public or official document or 
    statement, state whether or not the consent of the author and 
    publication has been obtained to the use of the previously published 
    material as proxy soliciting material.
        (iii) If any participant using the previously published material, 
    or anyone on his or her behalf, paid, directly or indirectly, for the 
    preparation or prior publication of the previously published material, 
    or has made or proposes to make any payments or give any other 
    consideration in connection with the publication or republication of 
    the material, state the circumstances.
    
        Instructions to Sec. 240.14a-12
        1. If paper filing is permitted, file eight copies of the 
    soliciting material with the Commission, except that only three 
    copies of the material specified by Sec. 240.14a-12(c)(1) need be 
    filed.
        2. Any communications made under this section after the 
    definitive proxy statement is on file but before it is disseminated 
    also must specify that the proxy statement is publicly available and 
    the anticipated date of dissemination.
    
        31. By amending Sec. 240.14a-101 by removing the reference:
        a. ``Soliciting Material Pursuant to Sec. 240.14a-11(c) or 
    Sec. 240.14a-12'' on the cover page and in its place adding 
    ``Soliciting Material under Sec. 240.14a-12'';
        b. ``Item 14(b)'' in paragraph (3) of Note D and in its place 
    adding ``Item 14(e)(1)'';
        c. ``In Items 13 and 14'' in the introductory text of Note E and in 
    its place adding ``In Item 13'';
        d. ``or to an `other person' specified in Item 14(a) of this 
    Schedule'' each time it appears in the introductory text of Note E; and
        e. ``or other person'' each time it appears in Note E.
        32. By amending Sec. 240.14a-101 by removing the reference:
        a. ``Rule 14a-11 (Sec. 240.14a-11 of this chapter.)'' in the 
    introductory text of paragraph (a) of Item 4 and in its place adding 
    ``Rule 14a-12(c) (Sec. 240.14a-12(c)).'';
        b. ``Rule 14a-11 (Sec. 240.14a-11 of this chapter).'' in the 
    introductory text of paragraph (b) of Item 4 and in its place adding 
    ``Rule 14a-12(c) (Sec. 240.14a-12(c)).'';
        c. ``Rule 14a-11 (Sec. 240.14a-11 of this chapter),'' in 
    Instruction 1 to Item 4 and in its place adding ``Rule 14a-12(c) 
    (Sec. 240.14a-12(c)),''; and
        d. ``Rule 14a-11 (Sec. 240.14a-11 of this chapter).'' in the 
    introductory text of paragraphs (a) and (b) of Item 5 and in its place 
    adding ``Rule 14a-12(c) (Sec. 240.14a-12(c)).'' each time it appears.
        33. By amending Sec. 240.14a-101 by revising paragraphs (2) and (3) 
    in Note G and Item 14 to read as follows:
    * * * * *
    
    
    Sec. 240.14a-101  Schedule 14A. Information required in proxy 
    statement.
    
    * * * * *
        G. Special Note for Small Business Issuers
        (1) * * *
        (2) Registrants and acquirees that relied upon Alternative 1 in 
    their most recent Form 10-KSB may provide the following information 
    (Question numbers are in reference to Model A of Form 1-A): (a) 
    Questions 37 and 38 instead of Item 6(d); (b) Question 43 instead of 
    Item 7(a); (c) Questions 29-36 and 39 instead of Item 7(b); (d) 
    Questions 40-42 instead of Item 8; (e) Questions 40-42 instead of 
    Item 10; (f) the information required in Part F/S of Form 10-SB 
    instead of the financial statement requirements of Items 13 or 14; 
    (g) Questions 4, 11, and 47-50 instead of Item 13(a)(1)(3); (h) 
    Question 3 instead of the information specified in Items 101 and 102 
    of Regulation S-B (Sec. 228.101 and Sec. 228.102 of this chapter); 
    and (i) Questions 4, 11, and 47-50 instead of the information 
    specified in Item 303 of Regulation S-B(Sec. 228.303 of this 
    chapter).
        (3) Registrants and acquirees that relied upon Alternative 2 in 
    their most recent Form 10-KSB may provide the following information 
    (``Model B'' refers to Model B of Form 1-A): (a) Item 10 of Model B 
    instead of Item 6(d) of Schedule 14A; (b) Item 8(d) of Model B 
    instead of Item 7(a) of Schedule 14A; (c) Items 8(a)(8(c) and Item 
    11 of Model B instead of Item 7(b) of Schedule 14A; (d) Item 9 of 
    Model B instead of Item 8 of Schedule 14A; (e) Item 9 of Model B 
    instead of Item 10 of Schedule 14A; (f) the information required in 
    Part F/S of Form 10-SB instead of the financial statements 
    requirements of Items 13 or 14 of Schedule 14A; (g) Item 6(a)(3)(i) 
    of Model B instead of Item 13(a)(1)(3) of Schedule 14A; (h) Items 6 
    and 7 of Model B instead of the information specified in Items 101 
    and 102 of Regulation S-B (Sec. 228.101 and Sec. 228.102 of this 
    chapter); and (i) Item 6(a)(3)(i) of Model B instead of the 
    information specified in Item 303 of Regulation S-B (Sec. 228.303 of 
    this chapter).
    * * * * *
        Item 14. Mergers, consolidations, acquisitions and similar 
    matters. (See Notes A and D at the beginning of this Schedule.)
        Instructions to Item 14.
        1. In transactions in which the consideration offered to 
    security holders consists wholly or in part of securities registered 
    under the Securities Act of 1933, furnish the information required 
    by Form S-4 (Sec. 239.25 of this chapter), Form F-4 (Sec. 239.34 of 
    this chapter), or Form N-14 (Sec. 239.23 of this chapter), as 
    applicable, instead of this Item. Only a Form S-4, Form F-4, or Form 
    N-14 must be filed in accordance with Sec. 240.14a-6(j).
        2. (a) In transactions in which the consideration offered to 
    security holders consists wholly of cash, the information required 
    by paragraph (c)(1) of this Item for the acquiring company need not 
    be provided unless the information is material to an informed voting 
    decision (e.g., the security holders of the target company are 
    voting and financing is not assured).
        (b) Additionally, if only the security holders of the target 
    company are voting:
        i. The financial information in paragraphs (b)(8)--(11) of this 
    Item for the acquiring company and the target need not be provided; 
    and
        ii. The information in paragraph (c)(2) of this Item for the 
    target company need not be provided.
        If, however, the transaction is a going-private transaction (as 
    defined by Sec. 240.13e-3), then the information required by 
    paragraph (c)(2) of this Item must be provided and to the extent 
    that the going-private rules require the information specified in 
    paragraph (b)(8)--(b)(11) of this Item, that information must be 
    provided as well.
        3. In transactions in which the consideration offered to 
    security holders consists wholly of securities exempt from 
    registration under the Securities Act of 1933 or a combination of 
    exempt securities and cash, information about the acquiring company 
    required by paragraph (c)(1) of this Item need not be provided if 
    only the security holders of the acquiring company are voting, 
    unless the information is material to an informed voting decision. 
    If only the security holders of the target company are voting, 
    information about the target company in paragraph (c)(2) of this 
    Item need not be provided. However, the information required by 
    paragraph (c)(2) of this Item must be provided if the transaction is 
    a going-private (as defined by Sec. 240.13e-3) or roll-up (as 
    described by Item 901 of Regulation S-K (Sec. 229.901 of this 
    chapter)) transaction.
        4. The information required by paragraphs (b)(8)--(11) and (c) 
    need not be provided if
    
    [[Page 61458]]
    
    the plan being voted on involves only the acquiring company and one 
    or more of its totally held subsidiaries and does not involve a 
    liquidation or a spin-off.
        5. To facilitate compliance with Rule 2-02(a) of Regulation S-X 
    (Sec. 210.2-02(a) of this chapter) (technical requirements relating 
    to accountants' reports), one copy of the definitive proxy statement 
    filed with the Commission must include a signed copy of the 
    accountant's report. If the financial statements are incorporated by 
    reference, a signed copy of the accountant's report must be filed 
    with the definitive proxy statement. Signatures may be typed if the 
    document is filed electronically on EDGAR. See Rule 302 of 
    Regulation S-T (Sec. 232.302 of this chapter).
        6. Notwithstanding the provisions of Regulation S-X, no 
    schedules other than those prepared in accordance with Sec. 210.12-
    15, Sec. 210.12-28 and Sec. 210.12-29 of this chapter (or, for 
    management investment companies, Secs. 210.12-12 through 210.12-14 
    of this chapter) of that regulation need be furnished in the proxy 
    statement.
        7. If the preliminary proxy material incorporates by reference 
    financial statements required by this Item, a draft of the financial 
    statements must be furnished to the Commission staff upon request if 
    the document from which they are incorporated has not been filed 
    with or furnished to the Commission.
        (a) Applicability. If action is to be taken with respect to any 
    of the following transactions, provide the information required by 
    this Item:
        (1) A merger or consolidation;
        (2) An acquisition of securities of another person;
        (3) An acquisition of any other going business or the assets of 
    a going business;
        (4) A sale or other transfer of all or any substantial part of 
    assets; or
        (5) A liquidation or dissolution.
        (b) Transaction information. Provide the following information 
    for each of the parties to the transaction unless otherwise 
    specified:
        (1) Summary term sheet. The information required by Item 1001 of 
    Regulation M-A (Sec. 229.1001 of this chapter).
        (2) Contact information. The name, complete mailing address and 
    telephone number of the principal executive offices.
        (3) Business conducted. A brief description of the general 
    nature of the business conducted.
        (4) Terms of the transaction. The information required by Item 
    1004(a)(2) of Regulation M-A (Sec. 229.1004 of this chapter).
        (5) Regulatory approvals. A statement as to whether any federal 
    or state regulatory requirements must be complied with or approval 
    must be obtained in connection with the transaction and, if so, the 
    status of the compliance or approval.
        (6) Reports, opinions, appraisals. If a report, opinion or 
    appraisal materially relating to the transaction has been received 
    from an outside party, and is referred to in the proxy statement, 
    furnish the information required by Item 1015(b) of Regulation M-A 
    (Sec. 229.1015 of this chapter).
        (7) Past contacts, transactions or negotiations. The information 
    required by Items 1005(b) and 1011(a)(1) of Regulation M-A 
    (Sec. 229.1005 of this chapter and Sec. 229.1011 of this chapter), 
    for the parties to the transaction and their affiliates during the 
    periods for which financial statements are presented or incorporated 
    by reference under this Item.
        (8) Selected financial data. The selected financial data 
    required by Item 301 of Regulation S-K (Sec. 229.301 of this 
    chapter).
        (9) Pro forma selected financial data. If material, the 
    information required by Item 301 of Regulation S-K (Sec. 229.301 of 
    this chapter) for the acquiring company, showing the pro forma 
    effect of the transaction.
        (10) Pro forma information. In a table designed to facilitate 
    comparison, historical and pro forma per share data of the acquiring 
    company and historical and equivalent pro forma per share data of 
    the target company for the following Items:
        (i) Book value per share as of the date financial data is 
    presented pursuant to Item 301 of Regulation S-K (Sec. 229.301 of 
    this chapter);
        (ii) Cash dividends declared per share for the periods for which 
    financial data is presented pursuant to Item 301 of Regulation S-K 
    (Sec. 229.301 of this chapter); and
        (iii) Income (loss) per share from continuing operations for the 
    periods for which financial data is presented pursuant to Item 301 
    of Regulation S-K (Sec. 229.301 of this chapter).
        Instructions to paragraphs (b)(8), (b)(9) and (b)(10): 
        1. For a business combination accounted for as a purchase, 
    present the financial information required by paragraphs (b)(9) and 
    (b)(10) only for the most recent fiscal year and interim period. For 
    a business combination accounted for as a pooling, present the 
    financial information required by paragraphs (b)(9) and (b)(10) 
    (except for information with regard to book value) for the most 
    recent three fiscal years and interim period. For purposes of these 
    paragraphs, book value information need only be provided for the 
    most recent balance sheet date.
        2. Calculate the equivalent pro forma per share amounts for one 
    share of the company being acquired by multiplying the exchange 
    ratio times each of:
        (i) The pro forma income (loss) per share before non-recurring 
    charges or credits directly attributable to the transaction;
        (ii) The pro forma book value per share; and
        (iii) The pro forma dividends per share of the acquiring 
    company.
        3. Unless registered on a national securities exchange or 
    otherwise required to furnish such information, registered 
    investment companies need not furnish the information required by 
    paragraphs (b)(8) and (b)(9) of this Item.
        (11) Financial information. If material, financial information 
    required by Article 11 of Regulation S-X (Secs. 210.10-01 through 
    229.11-03 of this chapter) with respect to this transaction.
        Instructions to paragraph (b)(11): 
        1. Present any Article 11 information required with respect to 
    transactions other than those being voted upon (where not 
    incorporated by reference) together with the pro forma information 
    relating to the transaction being voted upon. In presenting this 
    information, you must clearly distinguish between the transaction 
    being voted upon and any other transaction.
        2. If current pro forma financial information with respect to 
    all other transactions is incorporated by reference, you need only 
    present the pro forma effect of this transaction.
        (c) Information about the parties to the transaction. 
        (1) Acquiring company. Furnish the information required by Part 
    B (Registrant Information) of Form S-4 (Sec. 239.25 of this chapter) 
    or Form F-4 (Sec. 239.34 of this chapter), as applicable, for the 
    acquiring company. However, financial statements need only be 
    presented for the latest two fiscal years and interim periods.
        (2) Acquired company. Furnish the information required by Part C 
    (Information with Respect to the Company Being Acquired) of Form S-4 
    (Sec. 239.25 of this chapter) or Form F-4 (Sec. 239.34 of this 
    chapter), as applicable.
        (d) Information about parties to the transaction: registered 
    investment companies and business development companies. If the 
    acquiring company or the acquired company is an investment company 
    registered under the Investment Company Act of 1940 or a business 
    development company as defined by Section 2(a)(48) of the Investment 
    Company Act of 1940, provide the following information for that 
    company instead of the information specified by paragraph (c) of 
    this Item:
        (1) Information required by Item 101 of Regulation S-K 
    (Sec. 229.101 of this chapter), description of business;
        (2) Information required by Item 102 of Regulation S-K 
    (Sec. 229.102 of this chapter), description of property;
        (3) Information required by Item 103 of Regulation S-K 
    (Sec. 229.103 of this chapter), legal proceedings;
        (4) Information required by Item 201 of Regulation S-K 
    (Sec. 229.201 of this chapter), market price of and dividends on the 
    registrant's common equity and related stockholder matters;
        (5) Financial statements meeting the requirements of Regulation 
    S-X, including financial information required by Rule 3-05 and 
    Article 11 of Regulation S-X (Sec. 210.3-05 and Sec. 210.11-01 
    through Sec. 210.11-03 of this chapter) with respect to transactions 
    other than that as to which action is to be taken as described in 
    this proxy statement;
        (6) Information required by Item 301 of Regulation S-K 
    (Sec. 229.301 of this chapter), selected financial data;
        (7) Information required by Item 302 of Regulation S-K 
    (Sec. 229.302 of this chapter), supplementary financial information;
        (8) Information required by Item 303 of Regulation S-K 
    (Sec. 229.303 of this chapter), management's discussion and analysis 
    of financial condition and results of operations; and
        (9) Information required by Item 304 of Regulation S-K 
    (Sec. 229.304 of this chapter), changes in and disagreements with 
    accountants on accounting and financial disclosure.
    
    [[Page 61459]]
    
        Instruction to paragraph (d) of Item 14: Unless registered on a 
    national securities exchange or otherwise required to furnish such 
    information, registered investment companies need not furnish the 
    information required by paragraphs (d)(6), (d)(7) and (d)(8) of this 
    Item.
        (e) Incorporation by reference. 
        (1) The information required by paragraph (c) of this section 
    may be incorporated by reference into the proxy statement to the 
    same extent as would be permitted by Form S-4 (Sec. 239.25 of this 
    chapter) or Form F-4 (Sec. 239.34 of this chapter), as applicable.
        (2) Alternatively, the registrant may incorporate by reference 
    into the proxy statement the information required by paragraph (c) 
    of this Item if it is contained in an annual report sent to security 
    holders in accordance with Sec. 240.14a-3 of this chapter with 
    respect to the same meeting or solicitation of consents or 
    authorizations that the proxy statement relates to and the 
    information substantially meets the disclosure requirements of Item 
    14 or Item 17 of Form S-4 (Sec. 239.25 of this chapter) or Form F-4 
    (Sec. 239.34 of this chapter), as applicable.
    * * * * *
        34. By amending Sec. 240.14c-5 by revising paragraphs (b) and 
    (d)(2), and removing the note following paragraph (b) to read as 
    follows:
    
    
    Sec. 240.14c-5  Filing requirements.
    
    * * * * *
        (b) Definitive information statement. Eight definitive copies of 
    the information statement, in the form in which it is furnished to 
    security holders, must be filed with the Commission no later than the 
    date the information statement is first sent or given to security 
    holders. Three copies of these materials also must be filed with, or 
    mailed for filing to, each national securities exchange on which the 
    registrant has a class of securities listed and registered.
    * * * * *
        (d)(1) * * *
        (2) Confidential treatment. If action will be taken on any matter 
    specified in Item 14 of Schedule 14A (Sec. 240.14a-101), all copies of 
    the preliminary information statement filed under paragraph (a) of this 
    section will be for the information of the Commission only and will not 
    be deemed available for public inspection until filed with the 
    Commission in definitive form so long as:
        (i) The information statement does not relate to a matter or 
    proposal subject to Sec. 240.13e-3 or a roll-up transaction as defined 
    in Item 901(c) of Regulation S-K (Sec. 229.901(c) of this chapter);
        (ii) Neither the parties to the transaction nor any persons 
    authorized to act on their behalf have made any public communications 
    relating to the transaction except for statements where the content is 
    limited to the information specified in Sec. 230.135 of this chapter; 
    and
        (iii) The materials are filed in paper and marked ``Confidential, 
    For Use of the Commission Only.'' In all cases, the materials may be 
    disclosed to any department or agency of the United States Government 
    and to the Congress, and the Commission may make any inquiries or 
    investigation into the materials as may be necessary to conduct an 
    adequate review by the Commission.
    
        Instruction to paragraph (d)(2): If communications are made 
    publicly that go beyond the information specified in Sec. 230.135, 
    the materials must be re-filed publicly with the Commission.
    * * * * *
        35. By amending Sec. 240.14d-1 as follows:
        a. By removing the reference ``Schedules 14D-1'' in the 
    introductory text of paragraph (b) and adding in its place ``Schedules 
    TO'';
        b. Redesignating paragraphs (g)(1), (g)(2), (g)(3), (g)(4), (g)(5), 
    (g)(6) and (g)(7) as paragraphs (g)(2), (g)(7), (g)(5), (g)(1), (g)(9), 
    (g)(3) and (g)(6), respectively;
        c. In newly redesignated paragraph (g)(1) removing the reference 
    ``Rule 14d-3, Rule 14d-9(d) and Item 6 of Schedule 14D-1'' and in its 
    place adding ``Rule 14d-3 and Rule 14d-9(d)''; and
        d. Adding new paragraphs (g)(4) and (g)(8) to read as follows:
    
    
    Sec. 240.14d-1  Scope of and definitions applicable to Regulations 14D 
    and 14E.
    
    * * * * *
        (g) Definitions. * * *
        (4) The term initial offering period means the period from the time 
    the offer commences until all minimum time periods, including 
    extensions, required by Regulations 14D (Secs. 240.14d-1 through 
    240.14d-103) and 14E (Secs. 240.14e-1 through 240.14e-8) have been 
    satisfied and all conditions to the offer have been satisfied or waived 
    within these time periods.
    * * * * *
        (8) The term subsequent offering period means the period 
    immediately following the initial offering period meeting the 
    conditions specified in Sec. 240.14d-11.
    * * * * *
        36. By revising Sec. 240.14d-2 to read as follows:
    
    
    Sec. 240.14d-2  Commencement of a tender offer.
    
        (a) Date of commencement. A bidder will have commenced its tender 
    offer for purposes of section 14(d) of the Act (15 U.S.C. 78n) and the 
    rules under that section at 12:01 a.m. on the date when the bidder 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.
        (b) Pre-commencement communications. A communication by the bidder 
    will not be deemed to constitute commencement of a tender offer if:
        (1) It does not include the means for security holders to tender 
    their shares into the offer; and
        (2) All written communications relating to the tender offer, from 
    and including the first public announcement, are filed under cover of 
    Schedule TO (Sec. 240.14d-100) with the Commission no later than the 
    date of the communication. The bidder also must deliver to the subject 
    company and any other bidder for the same class of securities the first 
    communication relating to the transaction that is filed, or required to 
    be filed, with the Commission.
    
    Instructions to paragraph (b)(2) 
    
        1. The box on the front of Schedule TO indicating that the 
    filing contains pre-commencement communications must be checked.
        2. Any communications made in connection with an exchange offer 
    registered under the Securities Act of 1933 need only be filed under 
    Sec. 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 offeror.
        4. See Secs. 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 bidder, or any person authorized to act on the bidder's 
    behalf, that is reasonably designed to, or has the effect of, 
    informing the public or security holders in general about the tender 
    offer.
    
        (c) Filing and other obligations triggered by commencement. As soon 
    as practicable on the date of commencement, a bidder must comply with 
    the filing requirements of Sec. 240.14d-3(a), the dissemination 
    requirements of Sec. 240.14d-4(a) or (b), and the disclosure 
    requirements of Sec. 240.14d-6(a).
    
    [[Page 61460]]
    
        37. By amending Sec. 240.14d-3 as follows:
        a. By removing the reference ``Schedule 14D-1'' in paragraphs 
    (a)(1), (a)(2), (a)(2)(ii), the introductory text of (a)(3), and 
    paragraph (c) each time it appears and adding in its place ``Schedule 
    TO'';
        b. Removing the phrase ``ten copies of'' in paragraphs (a)(1);
        c. Removing the phrase ``Hand delivers'' in paragraph (a)(2), and 
    adding in its place ``Delivers'', and
        d. Revising paragraph (b) to read as follows:
    
    
    Sec. 240.14d-3  Filing and transmission of tender offer statement.
    
    * * * * *
        (b) Post-commencement amendments and additional materials. The 
    bidder making the tender offer must file with the Commission:
        (1) An amendment to Schedule TO (Sec. 240.14d-100) reporting 
    promptly any material changes in the information set forth in the 
    schedule previously filed and including copies of any additional tender 
    offer materials as exhibits; and
        (2) A final amendment to Schedule TO (Sec. 240.14d-100) reporting 
    promptly the results of the tender offer.
    
        Instruction to paragraph (b): A copy of any additional tender 
    offer materials or amendment filed under this section must be sent 
    promptly to the subject company and to any exchange and/or NASD, as 
    required by paragraph (a) of this section, but in no event later 
    than the date the materials are first published, sent or given to 
    security holders.
    * * * * *
        38. Amend Sec. 240.14d-4 as follows:
        a. By revising the section heading;
        b. Adding an introductory text to Sec. 240.14d-4;
        c. Revising the introductory text of paragraph (a) and paragraph 
    (a)(3);
        d. Adding an Instruction to paragraph (a);
        e. Redesignating paragraphs (b) and (c) as paragraphs (c) and 
    (d)(1) and adding a new paragraph (b);
        f. Revising the heading of newly redesignated paragraph (d);
        g. In the first sentence of newly redesignated paragraph (d)(1) 
    removing the phrase ``paragraph (a) of''; and
        h. Adding paragraph (d)(2) to read as follows:
    
    
    Sec. 240.14d-4  Dissemination of tender offers to security holders.
    
        As soon as practicable on the date of commencement of a tender 
    offer, the bidder must publish, send or give the disclosure required by 
    Sec. 240.14d-6 to security holders of the class of securities that is 
    the subject of the offer, by complying with all of the requirements of 
    any of the following:
        (a) Cash tender offers and exempt securities offers. For tender 
    offers in which the consideration consists solely of cash and/or 
    securities exempt from registration under section 3 of the Securities 
    Act of 1933 (15 U.S.C. 77c):
    * * * * *
        (3) Use of stockholder lists and security position listings. Any 
    bidder using stockholder lists and security position listings under 
    Sec. 240.14d-5 must comply with paragraph (a)(1) or (2) of this section 
    on or before the date of the bidder's request under Sec. 240.14d-5(a).
    
        Instruction to paragraph (a): Tender offers may be published or 
    sent or given to security holders by other methods, but with respect 
    to summary publication and the use of stockholder lists and security 
    position listings under Sec. 240.14d-5, paragraphs (a)(2) and (a)(3) 
    of this section are exclusive.
    
        (b) Registered securities offers. 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. 77j(a)), 
    including a letter of transmittal, is delivered to security holders. 
    However, for going-private transactions (as defined by Sec. 240.13e-3) 
    and roll-up transactions (as described by Item 901 of Regulation S-K 
    (Sec. 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 (b) 
    
        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 Sec. 230.430 or Sec. 230.430A of this chapter.
        3. If a preliminary prospectus is used under this section and 
    the bidder must disseminate material changes, the tender offer must 
    remain open for the period specified in paragraph (d)(2) of this 
    section.
        4. If a preliminary prospectus is used under this section, 
    tenders may be requested in accordance with Sec. 230.162(a) of this 
    chapter.
    * * * * *
        (d) Publication of changes and extension of the offer. (1) * * *
        (2) In a registered securities offer where the bidder disseminates 
    the preliminary prospectus as permitted by paragraph (b) 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;
        (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.
        39. By amending Sec. 240.14d-5 by revising paragraph (c)(1) to read 
    as follows:
    
    
    Sec. 240.14d-5  Dissemination of certain tender offers by the use of 
    stockholder lists and security position listings.
    
    * * * * *
        (c) * * *
        (1) No later than the third business day after the date of the 
    bidder's request, the subject company must furnish to the bidder at the 
    subject company's principal executive office a copy of the names and 
    addresses of the record holders on the most recent stockholder list 
    referred to in paragraph (a)(2) of this section; the names and 
    addresses of participants identified on the most recent security 
    position listing of any clearing agency that is within the access of 
    the subject company; and the most recent list of names, addresses and 
    security positions of beneficial owners as specified in Sec. 240.14a-
    13(b), in the possession of the subject company, or that subsequently 
    comes into its possession. All security holder list information must be 
    in the format requested by the bidder to the extent the format is 
    available to the subject company without undue burden or expense.
    * * * * *
        40. By revising Sec. 240.14d-6 to read as follows:
    
    
    Sec. 240.14d-6  Disclosure of tender offer information to security 
    holders.
    
        (a) Information required on date of commencement.--(1) Long-form 
    publication. If a tender offer is published, sent or given to security 
    holders on the date of commencement by means of long-form publication 
    under Sec. 240.14d-4(a)(1), the long-form publication must include the 
    information required by paragraph (d)(1) of this section.
        (2) Summary publication. If a tender offer is published, sent or 
    given to security holders on the date of
    
    [[Page 61461]]
    
    commencement by means of summary publication under Sec. 240.14d-
    4(a)(2):
        (i) The summary advertisement must contain at least the information 
    required by paragraph (d)(2) of this section; and
        (ii) The tender offer materials furnished by the bidder upon 
    request of any security holder must include the information required by 
    paragraph (d)(1) of this section.
        (3) Use of stockholder lists and security position listings. If a 
    tender offer is published, sent or given to security holders on the 
    date of commencement by the use of stockholder lists and security 
    position listings under Sec. 240.14d-4(a)(3):
        (i) The summary advertisement must contain at least the information 
    required by paragraph (d)(2) of this section; and
        (ii) The tender offer materials transmitted to security holders 
    pursuant to such lists and security position listings and furnished by 
    the bidder upon the request of any security holder must include the 
    information required by paragraph (d)(1) of this section.
        (4) Other tender offers. If a tender offer is published or sent or 
    given to security holders other than pursuant to Sec. 240.14d-4(a), the 
    tender offer materials that are published or sent or given to security 
    holders on the date of commencement of such offer must include the 
    information required by paragraph (d)(1) of this section.
        (b) Information required in other tender offer materials published 
    after commencement. Except for tender offer materials described in 
    paragraphs (a)(2)(ii) and (a)(3)(ii) of this section, additional tender 
    offer materials published, sent or given to security holders after 
    commencement must include:
        (1) The identities of the bidder and subject company;
        (2) The amount and class of securities being sought;
        (3) The type and amount of consideration being offered; and
        (4) The scheduled expiration date of the tender offer, whether the 
    tender offer may be extended and, if so, the procedures for extension 
    of the tender offer.
    
        Instruction to paragraph (b): If the additional tender offer 
    materials are summary advertisements, they also must include the 
    information required by paragraphs (d)(2)(v) of this section.
    
        (c) Material changes. A material change in the information 
    published or sent or given to security holders must be promptly 
    disclosed to security holders in additional tender offer materials.
        (d) Information to be included.--(1) Tender offer materials other 
    than summary publication. The following information is required by 
    paragraphs (a)(1), (a)(2)(ii), (a)(3)(ii) and (a)(4) of this section:
        (i) The information required by Item 1 of Schedule TO 
    (Sec. 240.14d-100) (Summary Term Sheet); and
        (ii) The information required by the remaining items of Schedule TO 
    (Sec. 240.14d-100) for third-party tender offers, except for Item 12 
    (exhibits) of Schedule TO (Sec. 240.14d-100), or a fair and adequate 
    summary of the information.
        (2) Summary Publication. The following information is required in a 
    summary advertisement under paragraphs (a)(2)(i) and (a)(3)(i) of this 
    section:
        (i) The identity of the bidder and the subject company;
        (ii) The information required by Item 1004(a)(1) of Regulation M-A 
    (Sec. 229.1004(a)(1) of this chapter);
        (iii) If the tender offer is for less than all of the outstanding 
    securities of a class of equity securities, a statement as to whether 
    the purpose or one of the purposes of the tender offer is to acquire or 
    influence control of the business of the subject company;
        (iv) A statement that the information required by paragraph (d)(1) 
    of this section is incorporated by reference into the summary 
    advertisement;
        (v) Appropriate instructions as to how security holders may obtain 
    promptly, at the bidder's expense, the bidder's tender offer materials; 
    and
        (vi) In a tender offer published or sent or given to security 
    holders by use of stockholder lists and security position listings 
    under Sec. 240.14d-4(a)(3), a statement that a request is being made 
    for such lists and listings. The summary publication also must state 
    that tender offer materials will be mailed to record holders and will 
    be furnished to brokers, banks and similar persons whose name appears 
    or whose nominee appears on the list of security holders or, if 
    applicable, who are listed as participants in a clearing agency's 
    security position listing for subsequent transmittal to beneficial 
    owners of such securities. If the list furnished to the bidder also 
    included beneficial owners pursuant to Sec. 240.14d-5(c)(1) and tender 
    offer materials will be mailed directly to beneficial holders, include 
    a statement to that effect.
        (3) No transmittal letter. Neither the initial summary 
    advertisement nor any subsequent summary advertisement may include a 
    transmittal letter (the letter furnished to security holders for 
    transmission of securities sought in the tender offer) or any amendment 
    to the transmittal letter.
        41. By amending Sec. 240.14d-7 by redesignating paragraph (a) as 
    (a)(1) and adding paragraph (a)(2) to read as follows:
    
    
    Sec. 240.14d-7  Additional withdrawal rights.
    
        (a) * * *
        (2) Exemption during subsequent offering period. Notwithstanding 
    the provisions of section 14(d)(5) of the Act (15 U.S.C. 78n(d)(5)) and 
    paragraph (a) of this section, the bidder need not offer withdrawal 
    rights during a subsequent offering period.
    * * * * *
        42. By amending Sec. 240.14d-9 as follows:
        a. By revising the section heading;
        b. Redesignating paragraphs (a) through (f) as paragraphs (b) 
    through (g);
        c. Adding new paragraph (a); and
        d. Revising the introductory text of newly redesignated paragraph 
    (b) to read as follows:
    
    
    Sec. 240.14d-9  Recommendation or solicitation by the subject company 
    and others.
    
        (a) Pre-commencement communications. A communication by a person 
    described in paragraph (e) of this section with respect to a tender 
    offer will not be deemed to constitute a recommendation or solicitation 
    under this section if:
        (1) The tender offer has not commenced under Sec. 240.14d-2; and
        (2) The communication is filed under cover of Schedule 14D-9 
    (Sec. 240.14d-101) with the Commission no later than the date of the 
    communication.
    
        Instructions to paragraph (a)(2):
        1. The box on the front of Schedule 14D-9 (Sec. 240.14d-101) 
    indicating that the filing contains pre-commencement communications 
    must be checked.
        2. Any communications made in connection with an exchange offer 
    registered under the Securities Act of 1933 need only be filed under 
    Sec. 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 company's solicitation/recommendation statement when it 
    is available because it contains important information. The legend 
    also must advise investors that they can get the recommendation and 
    other filed documents for free at the Commission's web site and 
    explain which documents are free from the filer.
        4. See Secs. 230.135, 230.165 and 230.166 of this chapter for 
    pre-commencement communications made in connection with registered 
    exchange offers.
    
        (b) Post-commencement communications. After commencement by a 
    bidder under Sec. 240.14d-2, no solicitation or recommendation to
    
    [[Page 61462]]
    
    security holders may be made by any person described in paragraph (e) 
    of this section with respect to a tender offer for such securities 
    unless as soon as practicable on the date such solicitation or 
    recommendation is first published or sent or given to security holders 
    such person complies with the following:
        (1) * * *
    * * * * *
        43. By amending Sec. 240.14d-9 by removing the reference:
        a. ``eight copies of'' in newly redesignated paragraph (b)(1);
        b. ``14D-1'' in newly redesignated paragraphs (b)(2)(i) and 
    (b)(3)(i) and in its place adding ``TO'';
        c. ``Items 2 and 4(a) of Schedule 14D-9'' in newly redesignated 
    paragraph (b)(2)(ii) and in its place adding ``Items 1003(d) and 
    1012(a) of Regulation M-A (Sec. 229.1003(d) and Sec. 229.1012(a))'';
        d. ``paragraph (a)(2) or (3)'' in newly redesignated paragraph 
    (c)(2) and in its place adding ``paragraph (b)(2) or (3)'';
        e. ``Items 1, 2, 3(b), 4, 6, 7 and 8'' in newly redesignated 
    paragraph (d) and in its place adding ``Items 1 through 8'';
        f. ``paragraphs (d)(2) and (e)'' in the introductory text of newly 
    redesignated paragraph (e)(1) and in its place adding ``paragraphs 
    (e)(2) and (f)'';
        g. ``paragraph (d)(1)'' each time it appears in newly redesignated 
    paragraph (e)(2) and in its place adding ``paragraph (e)(1)'';
        h. ``14D-1 (Sec. 240.14d-101)'' in newly redesignated paragraph 
    (e)(2)(i) and in its place adding ``TO (Sec. 240.14d-100)''; and
        i. ``paragraph (e)(3)'' in newly redesignated paragraph (f)(4) and 
    in its place adding ``paragraph (f)(3)''.
        44. By adding Sec. 240.14d-11 to read as follows:
    
    
    Sec. 240.14d-11  Subsequent offering period.
    
        A bidder may elect to provide a subsequent offering period of three 
    business days to 20 business days during which tenders will be accepted 
    if:
        (a) The initial offering period of at least 20 business days has 
    expired;
        (b) The offer is for all outstanding securities of the class that 
    is the subject of the tender offer, and if the bidder is offering 
    security holders a choice of different forms of consideration, there is 
    no ceiling on any form of consideration offered;
        (c) The bidder immediately accepts and promptly pays for all 
    securities tendered during the initial offering period;
        (d) The bidder announces the results of the tender offer, including 
    the approximate number and percentage of securities deposited to date, 
    no later than 9:00 a.m. Eastern time on the next business day after the 
    expiration date of the initial offering period and immediately begins 
    the subsequent offering period;
        (e) The bidder immediately accepts and promptly pays for all 
    securities as they are tendered during the subsequent offering period; 
    and
        (f) The bidder offers the same form and amount of consideration to 
    security holders in both the initial and the subsequent offering 
    period.
    
        Note Sec. 240.14d-11: No withdrawal rights apply during the 
    subsequent offering period in accordance with Sec. 240.14d-7(a)(2).
    
        45. By revising Sec. 240.14d-100 to read as follows:
    
    
    Sec. 240.14d-100  Schedule TO. Tender offer statement under section 
    14(d)(1) or 13(e)(1) of the Securities Exchange Act of 1934.
    
    Securities and Exchange Commission,
    Washington, D.C. 20549
    
    Schedule TO
    
    Tender Offer Statement under Section 14(d)(1) or 13(e)(1) of the 
    Securities Exchange Act of 1934
    
    (Amendment No. ______)*
    
    ----------------------------------------------------------------------
    (Name of Subject Company (issuer))
    
    ----------------------------------------------------------------------
    (Names of Filing Persons (identifying status as offeror, issuer or 
    other person))
    
    ----------------------------------------------------------------------
    (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 filing persons)
    
                            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 Rule 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:------------------------------------------------------------
        [  ] Check the box if the filing relates solely to preliminary 
    communications made before the commencement of a tender offer.
        Check the appropriate boxes below to designate any transactions 
    to which the statement relates:
        [  ] third-party tender offer subject to Rule 14d-1.
        [  ] issuer tender offer subject to Rule 13e-4.
        [  ] going-private transaction subject to Rule 13e-3.
        [  ] amendment to Schedule 13D under Rule 13d-2.
        Check the following box if the filing is a final amendment 
    reporting the results of the tender offer: [  ]
        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 Sec. 240.0-11.
        C. If the statement is filed by a general or limited 
    partnership, syndicate or other group, the information called for by 
    Items 3 and 5-8 for a third-party tender offer and Items 5-8 for an 
    issuer tender offer 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. If the filing contains only preliminary communications made 
    before the commencement of a tender offer, no signature or filing 
    fee is required. The filer need not respond to the items in the 
    schedule. Any pre-commencement communications that are filed under 
    cover of this schedule need not be incorporated by reference into 
    the schedule.
        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. If the schedule 
    includes any information that is not published, sent or given to 
    security holders, 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
    
    [[Page 61463]]
    
    it provides an answer. Information incorporated by reference is 
    deemed filed with the Commission for all purposes of the Act.
        G. A filing person may amend its previously filed Schedule 13D 
    (Sec. 240.13d-101) on Schedule TO (Sec. 240.14d-100) if the 
    appropriate box on the cover page is checked to indicate a combined 
    filing and the information called for by the fourteen disclosure 
    items on the cover page of Schedule 13D (Sec. 240.13d-101) is 
    provided on the cover page of the combined filing with respect to 
    each filing person.
        H. The final amendment required by Sec. 240.14d-3(b)(2) and 
    Sec. 240.13e-4(c)(4) will satisfy the reporting requirements of 
    section 13(d) of the Act with respect to all securities acquired by 
    the offeror in the tender offer.
        I. Amendments disclosing a material change in the information 
    set forth in this statement may omit any information previously 
    disclosed in this statement.
        J. If the tender offer disclosed on this statement involves a 
    going-private transaction, a combined Schedule TO (Sec. 240.14d-100) 
    and Schedule 13E-3 (Sec. 240.13e-100) may be filed with the 
    Commission under cover of Schedule TO. The Rule 13e-3 box on the 
    cover page of the Schedule TO must be checked to indicate a combined 
    filing. All information called for by both schedules must be 
    provided except that Items 1--3, 5, 8 and 9 of Schedule TO may be 
    omitted to the extent those items call for information that 
    duplicates the item requirements in Schedule 13E-3.
        K. For purposes of this statement, the following definitions 
    apply:
        (1) The term offeror means any person who makes a tender offer 
    or on whose behalf a tender offer is made;
        (2) The term issuer tender offer has the same meaning as in Rule 
    13e-4(a)(2); and
        (3) The term third-party tender offer means a tender offer that 
    is not an issuer tender offer.
    
    Special Instructions for Complying With Schedule to
    
        Under Sections 13(e), 14(d) and 23 of the Act and the rules and 
    regulations of the Act, the Commission is authorized to solicit the 
    information required to be supplied by this schedule.
        Disclosure of the information specified in this schedule is 
    mandatory, except for I.R.S. identification numbers, disclosure of 
    which is voluntary. The information will be used for the primary 
    purpose of disclosing tender offer and going-private transactions. 
    This statement will be made a matter of public record. Therefore, 
    any information given will be available for inspection by any member 
    of the public.
        Because of the public nature of the information, the Commission 
    can use it for a variety of purposes, including referral to other 
    governmental authorities or securities self-regulatory organizations 
    for investigatory purposes or in connection with litigation 
    involving the Federal securities laws or other civil, criminal or 
    regulatory statutes or provisions. I.R.S. identification numbers, if 
    furnished, will assist the Commission in identifying security 
    holders and, therefore, in promptly processing tender offer and 
    going-private statements.
        Failure to disclose the information required by this schedule, 
    except for I.R.S. identification numbers, may result in civil or 
    criminal action against the persons involved for violation of the 
    Federal securities laws and rules.
    
    Item 1. Summary Term Sheet
    
        Furnish the information required by Item 1001 of Regulation M-A 
    (Sec. 229.1001 of this chapter) unless information is disclosed to 
    security holders in a prospectus that meets the requirements of 
    Sec. 230.421(d) of this chapter.
    
    Item 2. Subject Company Information
    
        Furnish the information required by Item 1002(a) through (c) of 
    Regulation M-A (Sec. 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 (Sec. 229.1003 of this chapter) for a third-party 
    tender offer and the information required by Item 1003(a) of 
    Regulation M-A (Sec. 229.1003 of this chapter) for an issuer tender 
    offer.
    
    Item 4. Terms of the Transaction
    
        Furnish the information required by Item 1004(a) of Regulation 
    M-A (Sec. 229.1004 of this chapter) for a third-party tender offer 
    and the information required by Item 1004(a) through (b) of 
    Regulation M-A (Sec. 229.1004 of this chapter) for an issuer tender 
    offer.
    
    Item 5. Past Contacts, Transactions, Negotiations and Agreements
    
        Furnish the information required by Item 1005(a) and (b) of 
    Regulation M-A (Sec. 229.1005 of this chapter) for a third-party 
    tender offer and the information required by Item 1005(e) of 
    Regulation M-A (Sec. 229.1005) for an issuer tender offer.
    
    Item 6. Purposes of the Transaction and Plans or Proposals
    
        Furnish the information required by Item 1006(a) and (c)(1) 
    through (7) of Regulation M-A (Sec. 229.1006 of this chapter) for a 
    third-party tender offer and the information required by Item 
    1006(a) through (c) of Regulation M-A (Sec. 229.1006 of this 
    chapter) for an issuer tender offer.
    
    Item 7. Source and Amount of Funds or Other Consideration
    
        Furnish the information required by Item 1007(a), (b) and (d) of 
    Regulation M-A (Sec. 229.1007 of this chapter).
    
    Item 8. Interest in Securities of the Subject Company
    
        Furnish the information required by Item 1008 of Regulation M-A 
    (Sec. 229.1008 of this chapter).
    
    Item 9. Persons/Assets, Retained, Employed, Compensated or Used
    
        Furnish the information required by Item 1009(a) of Regulation 
    M-A (Sec. 229.1009 of this chapter).
    
    Item 10. Financial Statements
    
        If material, furnish the information required by Item 1010(a) 
    and (b) of Regulation M-A (Sec. 229.1010 of this chapter) for the 
    issuer in an issuer tender offer and for the offeror in a third-
    party tender offer.
        Instructions to Item 10:
        1. Financial statements must be provided when the offeror's 
    financial condition is material to security holder's decision 
    whether to sell, tender or hold the securities sought. The facts and 
    circumstances of a tender offer, particularly the terms of the 
    tender offer, may influence a determination as to whether financial 
    statements are material, and thus required to be disclosed.
        2. Financial statements are not considered material when: (a) 
    The consideration offered consists solely of cash; (b) the offer is 
    not subject to any financing condition; and either: (c) the offeror 
    is a public reporting company under Section 13(a) or 15(d) of the 
    Act that files reports electronically on EDGAR, or (d) the offer is 
    for all outstanding securities of the subject class. Financial 
    information may be required, however, in a two-tier transaction. See 
    Instruction 5 below.
        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 meet the requirements of this item; (b) an 
    express statement is made that the financial statements are 
    incorporated by reference; (c) the information incorporated by 
    reference is clearly identified by page, paragraph, caption or 
    otherwise; and (d) if the information 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 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.
        4. If the offeror in a third-party tender offer is a natural 
    person, and such person's financial information is material, 
    disclose the net worth of the offeror. If the offeror's net worth is 
    derived from material amounts of assets that are not readily 
    marketable or there are material guarantees and contingencies, 
    disclose the nature and approximate amount of the individual's net 
    worth that consists of illiquid assets and the magnitude of any 
    guarantees or contingencies that may negatively affect the natural 
    person's net worth.
        5. Pro forma financial information is required in a negotiated 
    third-party cash tender offer when securities are intended to be 
    offered in a subsequent merger or other transaction in which 
    remaining target securities are acquired and the acquisition of the 
    subject company is significant to the offeror under Sec. 210.11-
    01(b)(1) of this chapter. The offeror must disclose the financial 
    information specified in Item 3(f) and Item 5 of Form S-4 
    (Sec. 239.25 of this chapter) in the schedule filed with the 
    Commission, but may furnish only the summary financial information 
    specified in
    
    [[Page 61464]]
    
    Item 3(d), (e) and (f) of Form S-4 in the disclosure document sent 
    to security holders. If pro forma financial information is required 
    by this instruction, the historical financial statements specified 
    in Item 1010 of Regulation M-A (Sec. 229.1010 of this chapter) are 
    required for the bidder.
        6. The disclosure materials disseminated to security holders may 
    contain the summarized financial information specified by Item 
    1010(c) of Regulation M-A (Sec. 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 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 8 of 
    this Item.
        7. If the offeror is not subject to the periodic reporting 
    requirements of the Act, the financial statements required by this 
    Item need not be audited if audited financial statements are not 
    available or obtainable without unreasonable cost or expense. Make a 
    statement to that effect and the reasons for their unavailability.
        8. 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 (Sec. 249.220f of this 
    chapter), unless a reconciliation is unavailable or not obtainable 
    without unreasonable cost or expense. At a minimum, however, when 
    financial statements are prepared on a basis other than U.S. GAAP, a 
    narrative description of all material variations in accounting 
    principles, practices and methods used in preparing the non-U.S. 
    GAAP financial statements from those accepted in the U.S. must be 
    presented.
    
    Item 11. Additional Information
    
        Furnish the information required by Item 1011 of Regulation M-A 
    (Sec. 229.1011 of this chapter).
    
    Item 12. Exhibits
    
        File as an exhibit to the Schedule all documents specified by 
    Item 1016 (a), (b), (d), (g) and (h) of Regulation M-A 
    (Sec. 229.1016 of this chapter).
    
    Item 13. Information Required by Schedule 13E-3
    
        If the Schedule TO is combined with Schedule 13E-3 
    (Sec. 240.13e-100), set forth the information required by Schedule 
    13E-3 that is not included or covered by the items in Schedule TO.
    
    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 
    Secs. 240.12b-11 and 240.14d-1(f) with respect to signature 
    requirements.
    
        46. By revising Sec. 240.14d-101 to read as follows:
    
    
    Sec. 240.14d-101  Schedule 14D-9.
    
    Securities and Exchange Commission,
    Washington, D.C. 20549
    
    Schedule 14D-9
    
    Solicitation/Recommendation Statement under Section 14(d)(4) of the 
    Securities Exchange Act of 1934
    
    (Amendment No. ______)
    
    ----------------------------------------------------------------------
    (Name of Subject Company)
    
    ----------------------------------------------------------------------
    (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)
    
        [  ] Check the box if the filing relates solely to preliminary 
    communications made before the commencement of a tender offer.
        General Instructions:
        A. File eight copies of the statement, including all exhibits, 
    with the Commission if paper filing is permitted.
        B. If the filing contains only preliminary communications made 
    before the commencement of a tender offer, no signature is required. 
    The filer need not respond to the items in the schedule. Any pre-
    commencement communications that are filed under cover of this 
    schedule need not be incorporated by reference into the schedule.
        C. 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. If the schedule 
    includes any information that is not published, sent or given to 
    security holders, 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.
        D. 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.
        E. Amendments disclosing a material change in the information 
    set forth in this statement may omit any information previously 
    disclosed in this statement.
    
    Item 1. Subject Company Information
    
        Furnish the information required by Item 1002(a) and (b) of 
    Regulation M-A (Sec. 229.1002 of this chapter).
    
    Item 2. Identity and Background of Filing Person
    
        Furnish the information required by Item 1003(a) and (d) of 
    Regulation M-A (Sec. 229.1003 of this chapter).
    
    Item 3. Past Contacts, Transactions, Negotiations and Agreements
    
        Furnish the information required by Item 1005(d) of Regulation 
    M-A (Sec. 229.1005 of this chapter).
    
    Item 4. The Solicitation or Recommendation
    
        Furnish the information required by Item 1012(a) through (c) of 
    Regulation M-A (Sec. 229.1012 of this chapter).
    
    Item 5. Person/Assets, Retained, Employed, Compensated or Used
    
        Furnish the information required by Item 1009(a) of Regulation 
    M-A (Sec. 229.1009 of this chapter).
    
    Item 6. Interest in Securities of the Subject Company
    
        Furnish the information required by Item 1008(b) of Regulation 
    M-A (Sec. 229.1008 of this chapter).
    
    Item 7. Purposes of the Transaction and Plans or Proposals
    
        Furnish the information required by Item 1006(d) of Regulation 
    M-A (Sec. 229.1006 of this chapter).
    
    Item 8. Additional Information
    
        Furnish the information required by Item 1011(b) of Regulation 
    M-A (Sec. 229.1011 of this chapter).
    
    Item 9. Exhibits
    
        File as an exhibit to the Schedule all documents specified by 
    Item 1016(a), (e) and (g) of Regulation M-A (Sec. 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.
    
    
    [[Page 61465]]
    
    
    ----------------------------------------------------------------------
    (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 
    Sec. 240.14d-1(f) with respect to signature requirements.
    
        47. By adding a note at the beginning of Regulation 14E 
    (Sec. 240.14e-1 through Sec. 240.14e-8) that reads as follows:
    
        Note: For the scope of and definitions applicable to Regulation 
    14E, refer to Sec. 240.14d-1.
    
        48. By amending Sec. 240.14e-1 by revising paragraph (c) to read as 
    follows:
    
    
    Sec. 240.14e-1  Unlawful tender offer practices.
    
    * * * * *
        (c) Fail to pay the consideration offered or return the securities 
    deposited by or on behalf of security holders promptly after the 
    termination or withdrawal of a tender offer. This paragraph does not 
    prohibit a bidder electing to offer a subsequent offering period under 
    Sec. 240.14d-11 from paying for securities during the subsequent 
    offering period in accordance with that section.
    * * * * *
        49. By adding Sec. 240.14e-5 to read as follows:
    
    
    Sec. 240.14e-5  Prohibiting purchases outside of a tender offer.
    
        (a) Unlawful activity. As a means reasonably designed to prevent 
    fraudulent, deceptive or manipulative acts or practices in connection 
    with a tender offer for equity securities, no covered person may 
    directly or indirectly purchase or arrange to purchase any subject 
    securities or any related securities except as part of the tender 
    offer. This prohibition applies from the time of public announcement of 
    the tender offer until the tender offer expires. This prohibition does 
    not apply to any purchases or arrangements to purchase made during the 
    time of any subsequent offering period as provided for in Sec. 240.14d-
    11 if the consideration paid or to be paid for the purchases or 
    arrangements to purchase is the same in form and amount as the 
    consideration offered in the tender offer.
        (b) Excepted activity. The following transactions in subject 
    securities or related securities are not prohibited by paragraph (a) of 
    this section:
        (1) Exercises of securities. Transactions by covered persons to 
    convert, exchange, or exercise related securities into subject 
    securities, if the covered person owned the related securities before 
    public announcement;
        (2) Purchases for plans. Purchases or arrangements to purchase by 
    or for a plan that are made by an agent independent of the issuer;
        (3) Purchases during odd-lot offers. Purchases or arrangements to 
    purchase if the tender offer is excepted under Sec. 240.13e-4(h)(5);
        (4) Purchases as intermediary. Purchases by or through a dealer-
    manager or its affiliates that are made in the ordinary course of 
    business and made either:
        (i) On an agency basis not for a covered person; or
        (ii) As principal for its own account if the dealer-manager or its 
    affiliate is not a market maker, and the purchase is made to offset a 
    contemporaneous sale after having received an unsolicited order to buy 
    from a customer who is not a covered person;
        (5) Basket transactions. Purchases or arrangements to purchase a 
    basket of securities containing a subject security or a related 
    security if the following conditions are satisfied:
        (i) The purchase or arrangement to purchase is made in the ordinary 
    course of business and not to facilitate the tender offer;
        (ii) The basket contains 20 or more securities; and
        (iii) Covered securities and related securities do not comprise 
    more than 5% of the value of the basket;
        (6) Covering transactions. Purchases or arrangements to purchase 
    that are made to satisfy an obligation to deliver a subject security or 
    a related security arising from a short sale or from the exercise of an 
    option by a non-covered person if:
        (i) The short sale or option transaction was made in the ordinary 
    course of business and not to facilitate the offer;
        (ii) In the case of a short sale, the short sale was entered into 
    before public announcement of the tender offer; and
        (iii) In the case of an exercise of an option, the covered person 
    wrote the option before public announcement of the tender offer;
        (7) Purchases pursuant to contractual obligations. Purchases or 
    arrangements to purchase pursuant to a contract if the following 
    conditions are satisfied:
        (i) The contract was entered into before public announcement of the 
    tender offer;
        (ii) The contract is unconditional and binding on both parties; and
        (iii) The existence of the contract and all material terms 
    including quantity, price and parties are disclosed in the offering 
    materials;
        (8) Purchases or arrangements to purchase by an affiliate of the 
    dealer-manager. Purchases or arrangements to purchase by an affiliate 
    of a dealer-manager if the following conditions are satisfied:
        (i) The dealer-manager maintains and enforces written policies and 
    procedures reasonably designed to prevent the flow of information to or 
    from the affiliate that might result in a violation of the federal 
    securities laws and regulations;
        (ii) The dealer-manager is registered as a broker or dealer under 
    Section 15(a) of the Act;
        (iii) The affiliate has no officers (or persons performing similar 
    functions) or employees (other than clerical, ministerial, or support 
    personnel) in common with the dealer-manager that direct, effect, or 
    recommend transactions in securities; and
        (iv) The purchases or arrangements to purchase are not made to 
    facilitate the tender offer;
        (9) Purchases by connected exempt market makers or connected exempt 
    principal traders. Purchases or arrangements to purchase if the 
    following conditions are satisfied:
        (i) The issuer of the subject security is a foreign private issuer, 
    as defined in Sec. 240.3b-4(c);
        (ii) The tender offer is subject to the United Kingdom's City Code 
    on Takeovers and Mergers;
        (iii) The purchase or arrangement to purchase is effected by a 
    connected exempt market maker or a connected exempt principal trader, 
    as those terms are used in the United Kingdom's City Code on Takeovers 
    and Mergers;
        (iv) The connected exempt market maker or the connected exempt 
    principal trader complies with the applicable provisions of the United 
    Kingdom's City Code on Takeovers and Mergers; and
        (v) The tender offer documents disclose the identity of the 
    connected exempt market maker or the connected exempt principal trader 
    and disclose, or describe how U.S. security holders can obtain, 
    information regarding market making or principal purchases by such 
    market maker or principal trader to the extent that this information is 
    required to be made public in the United Kingdom; and
        (10) Purchases during cross-border tender offers. Purchases or 
    arrangements
    
    [[Page 61466]]
    
    to purchase if the following conditions are satisfied:
        (i) The tender offer is excepted under Sec. 240.13e-4(h)(8) or 
    Sec. 240.14d-1(c);
        (ii) The offering documents furnished to U.S. holders prominently 
    disclose the possibility of any purchases, or arrangements to purchase, 
    or the intent to make such purchases;
        (iii) The offering documents disclose the manner in which any 
    information about any such purchases or arrangements to purchase will 
    be disclosed;
        (iv) The offeror discloses information in the United States about 
    any such purchases or arrangements to purchase in a manner comparable 
    to the disclosure made in the home jurisdiction, as defined in 
    Sec. 240.13e-4(i)(3); and
        (v) The purchases comply with the applicable tender offer laws and 
    regulations of the home jurisdiction.
        (c) Definitions. For purposes of this section, the term:
        (1) Affiliate has the same meaning as in Sec. 240.12b-2;
        (2) Agent independent of the issuer has the same meaning as in 
    Sec. 242.100(b) of this chapter;
        (3) Covered person means:
        (i) The offeror and its affiliates;
        (ii) The offeror's dealer-manager and its affiliates;
        (iii) Any advisor to any of the persons specified in paragraph 
    (c)(3)(i) and (ii) of this section, whose compensation is dependent on 
    the completion of the offer; and
        (iv) Any person acting, directly or indirectly, in concert with any 
    of the persons specified in this paragraph (c)(3) in connection with 
    any purchase or arrangement to purchase any subject securities or any 
    related securities;
        (4) Plan has the same meaning as in Sec. 242.100(b) of this 
    chapter;
        (5) Public announcement is any oral or written communication by the 
    offeror or any person authorized to act on the offeror's behalf that is 
    reasonably designed to, or has the effect of, informing the public or 
    security holders in general about the tender offer;
        (6) Related securities means securities that are immediately 
    convertible into, exchangeable for, or exercisable for subject 
    securities; and
        (7) Subject securities has the same meaning as in Sec. 229.1000 of 
    this chapter.
        (d) Exemptive authority. Upon written application or upon its own 
    motion, the Commission may grant an exemption from the provisions of 
    this section, either unconditionally or on specified terms or 
    conditions, to any transaction or class of transactions or any security 
    or class of security, or any person or class of persons.
        50. By adding Sec. 240.14e-8 to read as follows:
    
    
    Sec. 240.14e-8  Prohibited conduct in connection with pre-commencement 
    communications.
    
        It is a fraudulent, deceptive or manipulative act or practice 
    within the meaning of section 14(e) of the Act (15 U.S.C. 78n) for any 
    person to publicly announce that the person (or a party on whose behalf 
    the person is acting) plans to make a tender offer that has not yet 
    been commenced, if the person:
        (a) Is making the announcement of a potential tender offer without 
    the intention to commence the offer within a reasonable time and 
    complete the offer;
        (b) Intends, directly or indirectly, for the announcement to 
    manipulate the market price of the stock of the bidder or subject 
    company; or
        (c) Does not have the reasonable belief that the person will have 
    the means to purchase securities to complete the offer.
    
        By the Commission.
    
        Dated: October 22, 1999.
    Margaret H. McFarland,
    Deputy Secretary.
    [FR Doc. 99-28355 Filed 11-9-99; 8:45 am]
    BILLING CODE 8010-01-P
    
    
    

Document Information

Effective Date:
1/24/2000
Published:
11/10/1999
Department:
Securities and Exchange Commission
Entry Type:
Rule
Action:
Final Rules.
Document Number:
99-28355
Dates:
The rules and amendments will become effective January 24, 2000.
Pages:
61408-61466 (59 pages)
Docket Numbers:
Release No. 33-7760, 34-42055, IC-24107, File No. S7-28-98
RINs:
3235-AG84: Regulation of Extraordinary Corporate Transactions
RIN Links:
https://www.federalregister.gov/regulations/3235-AG84/regulation-of-extraordinary-corporate-transactions
PDF File:
99-28355.pdf
CFR: (73)
17 CFR 229.1015)
17 CFR 229.1011(a)(1))
17 CFR 229.1006(a)
17 CFR 240.14a-12''
17 CFR 240.14a-3(a)
More ...