[Federal Register Volume 59, Number 69 (Monday, April 11, 1994)]
[Unknown Section]
[Page 0]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 94-8516]
[[Page Unknown]]
[Federal Register: April 11, 1994]
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SECURITIES AND EXCHANGE COMMISSION
[Release No. 34-33862; International Series Release No. 645]
Notice of Modification of Class Exemption Letter Regarding
Application of Cooling-Off Periods Under Rule 10b-6 to Distributions of
Foreign Securities
On March 4, 1993, the Division of Market Regulation (``Division''),
acting pursuant to delegated authority, granted an exemption from Rule
10b-6 under the Securities Exchange Act of 1934 (``Exchange Act'') with
respect to the application of the ``cooling-off'' periods contained in
Rule 10b-6 during distributions of foreign securities in the United
States. See Securities Exchange Act Release No. 31943 (March 4, 1993),
58 FR 13288 (``1993 Exemption Letter'').
Based upon its experience with the 1993 Exemption Letter, on April
4, 1994, the Division sent the following letter to Marc E. Lackritz,
President, Securities Industry Association, modifying certain
conditions of the 1993 Exemption Letter. These modifications supersede
the 1993 Exemption Letter and are published to provide notice of the
modifications.
Dated: April 5, 1994.
Margaret H. McFarland,
Deputy Secretary.
April 4, 1994.
Marc E. Lackritz, Esq.
President, Securities Industry Association, 1401 Eye Street, NW.,
Suite 1000, Washington, DC 20005-2225.
Re: Application of Cooling-Off Periods Under Rule 10b-6 to
Distributions of Foreign Securities File No. TP 94-11
Dear Mr. Lackritz: On March 4, 1993, the Commission granted an
exemption from Rule 10b-6 (``Rule 10b-6'' or ``Rule'')\1\ under the
Securities Exchange Act of 1934 (``Exchange Act'') with respect to
the application of the ``cooling-off'' periods contained in Rule
10b-6 during distributions of foreign securities in the United
States.\2\ Based upon its experience with the 1993 Exemption, the
Commission has determined to modify that exemption as set forth
below. The exemption from Rule 10b-6 granted herein supersedes the
1993 Exemption.
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\1\17 CFR 240.10b-6.
\2\Securities Exchange Act Release No. 31943 (March 4, 1993), 58
FR 13288 (``1993 Exemption'').
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To facilitate multinational distributions of foreign securities,
the Commission has determined to grant an exemption from Rule 10b-6
under the Exchange Act that clarifies the application of the Rule's
cooling-off periods to foreign securities.\3\ The exemption permits
participants in a distribution (``distribution participants'') of
foreign securities in the United States and their ``affiliated
purchasers,''\4\ to bid for and purchase such securities, any
securities of the same class and series, or any right to purchase
such securities (collectively, ``related securities'') in solicited
brokerage and principal transactions until two or nine business days
prior to the commencement of offers or sales of the foreign security
being distributed in the United States, subject to certain
conditions as more fully described below.\5\
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\3\For purposes of this exemption, the term ``foreign security''
means a security issued by a ``foreign government'' or a ``foreign
private issuer,'' as those terms are defined under Rule 3b-4 under
the Exchange Act, 17 CFR 240.3b-4. Cf. Proposed Rule 3b-10(d),
Securities Exchange Act Release No. 28733 (January 3, 1991), 56 FR
820, 822 (``Rule 3b-10 Release'').
\4\``Affiliated purchaser'' is defined in 17 CFR 240.10b-
6(c)(6). Generally, an affiliated purchaser includes any person
acting in concert with the issuer or other person making the
distribution; any affiliate who directly or indirectly controls
purchases by the issuer or other person, or whose purchases are
controlled by or under common control with the issuer or other
person; a broker-dealer affiliate; and a non-broker-dealer affiliate
that regularly purchases securities for its own account or for
another's account or recommends or exercises investment discretion
with respect to the purchase or sale of securities.
\5\In Letter regarding Rule 10b-6: Interpretation of ``Business
Day'' (July 29, 1991), [1991] Fed. Sec. L. Rep. (CCH) 79,751
[hereinafter ``Business Day Letter''], the Division of Market
Regulation (``Division'') took the interpretive position that the
exceptions to the Rule contained in paragraphs (a)(4)(v),
(a)(4)(xi), and (a)(4)(xii) were available to ``specified foreign
securities markets,'' as defined in Proposed Rule 3b-10(f), Rule 3b-
10 Release, 56 FR at 822. Business Day Letter at 79,751 n.3. The
exemption granted herein replaces that interpretive position of the
Division.
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I. Rule 10b-6
Rule 10b-6 is an anti-manipulation rule that is intended to
prevent participants in a distribution of securities from
artificially conditioning the market for the securities in order to
facilitate the distribution, and to protect the integrity of the
securities trading market as an independent pricing mechanism. The
Rule prohibits issuers, underwriters, prospective underwriters,
dealers, brokers, and other persons who have agreed to participate
or are participating in the distribution and their affiliated
purchasers from bidding for or purchasing, or inducing others to
purchase, the securities being distributed, or any related security,
until they have completed their participation in the distribution.
Rule 10b-6 contains exceptions to its general prohibitions that
are intended to permit an orderly distribution of securities or to
limit disruptions in the market for the securities being
distributed. The exceptions to the Rule contained in paragraphs
(a)(4)(v), (a)(4)(xi), and (a)(4)(xii) permit distribution
participants to bid for or purchase the distribution securities and
related securities in principal transactions until two or nine
business days\6\ before the commencement of offers or sales of such
securities (e.g., the effective date of the registration statement
in the case of public offerings). Whether the security qualifies for
the use of the two or nine business day cooling-off period contained
in the exceptions depends upon the price and public float of the
subject security. For stock with a minimum share price\7\ of US$5.00
and a public float\8\ of at least 400,000 shares, the cooling-off
period is two business days. For other securities, the cooling-off
period is nine business days.
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\6\The two business day cooling-off period has been interpreted
as a period of not less than 48 hours immediately prior to the
commencement of offers or sales of the securities being distributed
where such period includes two complete trading days (i.e.,
including same day opening and closing) in the principal market for
the security. The nine business day cooling-off period is calculated
in a similar manner. See Business Day Letter.
\7\In general, the share price is the average price over a two-
week period. See 17 CFR 240.10b-6(c)(7).
\8\The public float is calculated by subtracting from the total
number of shares of stock outstanding the number of shares held by
officers, directors, and any persons who, directly or indirectly,
are the owners of 10% or more of the stock in distribution. 17 CFR
240.10b-6(c)(7).
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II. Application of the Rule to Multinational Offerings
Since shortly after the Commission adopted Rule 10b-6 in 1955,
the Commission has taken the position that, with respect to
multinational distributions occurring in whole or in part in the
United States, Rule 10b-6 applies to all distribution participants
and their affiliated purchasers, wherever they are located or effect
transactions.\9\ Thus, when a distribution occurs in the United
States, the restrictions of Rule 10b-6 apply to the activities of
non-U.S. distribution participants conducted outside the United
States.
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\9\See, e.g., Letters regarding Royal Dutch Petroleum Co.
(December 23, 1957); Philips N.V. (May 15, 1962); Standard Oil Co.
(New Jersey) (February 6, 1970); S.S. Kresge & Co. (April 14, 1972).
For purposes of Rule 10b-6, the term ``distribution'' means an
offering of securities, whether or not subject to registration under
the Securities Act of 1933, that is distinguished from ordinary
trading transactions by the magnitude of the offering and the
presence of special selling efforts and selling methods. 17 CFR
240.10b-6(c)(5).
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While the fundamental restrictions of the Rule apply to all
distributions in the United States, the availability of the cooling-
off periods contained in paragraphs (a)(4)(v), (a)(4)(xi), and
(a)(4)(xii) of the Rule with respect to foreign securities is not
clear because not all of the terms and the assumptions underlying
Rule 10b-6 made concerning domestic securities appear to be valid
with respect to foreign securities. For example, based on its
experience with the U.S. markets, the Commission determined that it
was appropriate to provide a shorter cooling-off period for
securities trading at US$5.00 or more per share (and having a
minimum public float). This may not be an appropriate price level
for foreign securities because the shares of many substantial
foreign issuers trade at prices below the equivalent of US$5.00 per
share. Foreign securities, moreover, rarely (if ever) trade in U.S.
dollars. Accordingly, the US$5.00 price requirement literally cannot
be satisfied for such securities.\10\ Also, the Rule's method for
determining a security's price incorporates U.S. market features
that do not apply to foreign securities transactions.\11\
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\10\Foreign securities trading in the form of ordinary shares or
depositary shares qualify for the exceptions providing for two
business day cooling-off periods if the foreign ordinary or
depositary shares have a minimum share price of US$5.00 and a public
float of at least 400,000 shares in the United States. If either the
ordinary shares or depositary shares qualify in the United States
for the cooling-off periods contained in the Rule 10b-6 exceptions,
based on the US$5.00/400,000 share criteria, the ordinary and
depositary shares wherever traded also would qualify for the
cooling-off periods under Rule 10b-6. Where foreign ordinary or
depositary shares trading in the United States do not satisfy the
US$5.00/400,000 share criteria, transactions in foreign ordinary or
depositary shares may qualify for the exemption granted herein. If
either the ordinary shares or the depositary shares qualify for this
exemption, distribution participants and their affiliated purchasers
could effect transactions in the foreign ordinary or depositary
shares until the commencement of the applicable cooling-off period
in all jurisdictions, including the United States, subject to the
terms of the exemption.
\11\For example, paragraph (c)(7) of Rule 10b-6 references the
last sale reporting mechanism for securities trading in the U.S.
securities markets.
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Moreover, unlike the case with transactions effected by U.S.
distribution participants,\12\ the Commission does not have a
comparable ability to obtain records of transactions in foreign
securities markets by non-U.S. participants. This can hamper the
Commission's ability to determine whether foreign distribution
participants have observed the restrictions of the Rule, or have
otherwise engaged in manipulative activity during the distribution
period. Particularly in the context of the short time-frames
contained in the cooling-off periods, it is essential that the
Commission be able to obtain prompt access to transaction
information where manipulative activity appears to have been, or to
be, taking place during a distribution to U.S. investors. As a
result of these uncertainties, the Commission has taken the position
that the cooling-off periods contained in paragraphs (a)(4)(v),
(a)(4)(xi), and (a)(4)(xii) are not automatically available with
respect to distributions of foreign securities made in whole or in
part in the United States.\13\
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\12\In particular, Rule 17a-3 under the Exchange Act, 17 CFR
240.17a-3, requires that broker-dealers make records of, inter alia,
each securities transaction effected for customer or proprietary
accounts. Moreover, Rule 17a-4 under the Exchange Act, 17 CFR
240.17a-4, requires that such records be maintained for specified
periods, and that the records be promptly furnished to the
Commission upon request.
\13\See, e.g., Letters regarding Banco de Santander, S.A.
(October 23, 1987), [1987-88] Fed. Sec. L. Rep. (CCH) 78,532;
Societe Nationale Elf Aquitaine (June 7, 1991), [1991] Fed. Sec. L.
Rep. (CCH) 79,734; Distributions of Certain SEAQ and SEAQ
International Securities (July 12, 1993), [1993] Fed. Sec. L. Rep.
(CCH) 76,707; Business Day Letter.
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The Commission has granted exemptions, however, from Rule 10b-6
which provide two or nine business day cooling-off periods for
participants in a distribution of foreign securities in the United
States. The exemptions have been issued in connection with
distributions of foreign securities possessing certain qualities
comparable to those of domestic securities that would qualify for
use of the exceptions. Those qualities have included, inter alia, a
large U.S. dollar value of total market capitalization, a
significant U.S. dollar value of public float, and a significant
trading volume. In general, these exemptions have not turned on
whether the securities traded at the equivalent of US$5.00 per
share.\14\ In addition, the transactions permitted by these
exemptions were subject to, among other things, the commitment of
persons relying on the exemptions to maintain and provide the
Commission with access to trading records upon request.\15\
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\14\See, e.g., LSE Letter; China Steel Corp. (May 15, 1992),
[1992] Fed. Sec. L. Rep. (CCH) 76,274; Telefonos de Mexico, S.A. de
C.V. (May 10, 1991), [1991] Fed. Sec. L. Rep. (CCH) 79,731; Orbital
Engine Corp. Ltd. (November 21, 1991), [1991-92] Fed. Sec. L. Rep.
(CCH) 76,058.
\15\See National Australia Bank Ltd. (July 31, 1989) (available
on LEXIS); C.H. Beazer (Holdings) PLC (May 27, 1987), [1987-88] Fed.
Sec. L. Rep. (CCH) 78,664.
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III. Exemption
To clarify the application of the Rule's cooling-off periods to
foreign securities and thus reduce the burdens and costs to issuers
and underwriters who otherwise must seek exemptions from the
Commission on a case-by-case basis, the Commission hereby grants an
exemption from Rule 10b-6 pursuant to paragraph (j) of the Rule\16\
to permit participants in a distribution of foreign securities in
the United States and their affiliated purchasers to bid for and
purchase the securities being distributed and related securities in
solicited brokerage and principal transactions until two or nine
business days prior to the commencement of offers or sales of the
foreign security being distributed in the United States, subject to:
The condition that the distribution participants and their
affiliated purchasers shall not, from the time each becomes a
distribution participant until the completion of the distribution,
effect any transactions in the security being distributed or related
securities that are made for the purpose of creating actual, or
apparent, active trading in or raising the price of such securities;
and the additional conditions described below.
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\16\See 17 CFR 240.10b-6(j). The staff is currently engaged in a
review of Rule 10b-6 and related provisions under the Exchange Act.
The Commission has determined to proceed by exemption as described
herein because, following the staff's review, the Commission may
determine to modify this exemption or amend the provisions of the
Rule with regard to the application of the Rule's cooling-off
periods to foreign securities.
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A. Notice Requirement
A participant in a distribution of foreign securities relying on
the exemption granted herein is required to provide a written notice
(``Notice'') to the Director of the Division prior to the
commencement of offers or sales of the foreign security being
distributed in the United States.\17\ The Notice must:
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\17\The Notice should be sent to the Division's Office of
Trading Practices.
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(1) State that the distribution participant and its affiliated
purchasers are aware of the terms and conditions of the exemption;
(2) State which cooling-off period (i.e., two or nine business
days) is claimed;
(3) Contain:
(a) The identity of the issuer of the foreign security and,
where applicable, any selling shareholder(s), and the managing and
other underwriter(s);
(b) The identity of the security being distributed;
(c) The identity of all distribution participants on whose
behalf the Notice is filed;\18\
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\18\Information regarding distribution participants may be
provided in two phases, i.e., prior to the commencement of the
applicable cooling-off period the Notice should contain the names of
all distribution participants identified at that time; shortly after
the commencement of offers and sales the Notice must be supplemented
with the names of any additional distribution participants who have
relied on this exemption. The Notice is not required to contain the
names of affiliated purchasers.
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(d) The identity of the Principal Market, as that term is
defined herein; and
(4) Make the applicable representations relating to transaction
recordkeeping and record production, as discussed below.
The Notice may be provided by the person relying on the
exemption directly or through an agent.19
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\1\9For example, the managing underwriter of an underwriting
syndicate may provide notice on behalf of other members of the
syndicate.
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B. Nine Business Day Cooling-Off Period
A nine business day cooling-off period is available for a
security of any foreign issuer, provided that: (a) Transaction
records are kept by distribution participants and their affiliated
purchasers; and (b) the records are available to the Commission upon
request.
1. Record Maintenance
Distribution participants and their affiliated purchasers are
required to make records of transactions in the securities being
distributed or any related securities during the period commencing
on the later of the date one month prior to the commencement of the
offers or sales in the distribution in the United States or the date
on which the person becomes a participant in the distribution, and
ending when the distribution in the United States is either
completed or abandoned (``Covered Period'').20 The records must
be maintained for at least two years from the date thereof. The
required transaction information is that generally recorded by a
broker-dealer in the ordinary course of its business, i.e.: (a) The
name of the security that is the subject of the transaction; (b) the
date of the transaction; (c) the price and size of the transaction;
(d) the securities market where the transaction was effected; (e)
whether the transaction was effected for a customer or a proprietary
account; (f) whether the transaction was a purchase or a sale; and
(g) the identity of the account on whose behalf the transaction was
effected.
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\2\0The one month period will enable the Commission to obtain
information regarding trading during the distribution period taking
place prior to the cooling-off period. This information is relevant
to the condition to the exemption that manipulative transactions
undertaken prior to the cooling-off period would make the exemption
unavailable.
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If local law does not require the creation and maintenance of
such records, however, then the Notice provided to the Commission by
the distribution participant must include a commitment to maintain
such records and a statement that the distribution participant has
advised its affiliated purchasers of the requirement to maintain
transaction records and that they have agreed to maintain such
records.
2. Record Production
Distribution participants are required to make the transaction
information available to the Commission or its staff, upon request,
through either: (a) A comprehensive information sharing and
enforcement assistance agreement or understanding with a foreign
securities authority (``FSA'')21 or a foreign financial
regulatory authority (``FFRA'')22 that provides the Commission
with the ability to obtain such transaction information when
securities prices appear to have been manipulated during a U.S.
distribution (``Information Sharing Agreement'');23 or (b) a
specific written commitment by the distribution participants to be
included in the Notice. This commitment would contain the following:
(1) A statement that the required information will be provided to
the Commission or its staff upon request;24 (2) the name(s) of
the person(s) on whose behalf such notice is being provided; and (3)
a statement that the distribution participants have examined the
laws of the countries in which the relevant information is
maintained and persons with knowledge of that information are
located, and have determined that they are in a position to provide
the relevant information to the Commission upon the Commission's
request, provided that, with respect to customer information,
distribution participants and their affiliated purchasers may commit
to use their best efforts to provide such information to the
Commission to the extent permitted by applicable law (and where the
ability to supply such customer information under applicable law is
unclear or uncertain, requesting the appropriate governmental body
for guidance).
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\2\1FSA is defined in section 3(a)(50) of the Exchange Act as
``any foreign government, or any governmental body or regulatory
organization empowered by a foreign government to administer or
enforce its laws as they relate to securities matters.'' 15 U.S.C.
78c(a)(50).
\2\2FFRA is defined in section 3(a)(51) of the Exchange Act to
include any: (a) FSA; (b) other governmental body or foreign
equivalent of a self-regulatory organization empowered by a foreign
government to administer or enforce its laws relating to the
regulation of fiduciaries, trusts, commercial lending, insurance,
trading in contracts of sale of a commodity for future delivery, or
other instruments traded on or subject to the rules of a contract
market, board of trade, or foreign equivalent, or other financial
activities, or (c) membership organization a function of which is to
regulate participation of its members in activities listed above. 5
U.S.C. 78(c)(51).
\2\3Currently, the following Information Sharing Agreements with
the following jurisdictions qualify under this standard: Argentina,
International Series Release No. 354 (December 18, 1991), 50 SEC
Docket 878; Australia, International Series Release No. 599 (October
20, 1993), 55 SEC Docket 841; Brazil, International Series Release
No. 7 (July 1, 1988), 43 SEC Docket 206; Ontario, Quebec, and
British Columbia, International Series Release No. 6 (January 7,
1988), 43 SEC Docket 186; Chile, International Series Release No.
548 (June 3, 1993), 54 SEC Docket 737; France, International Series
Release No. 117 (January 12, 1990), 45 SEC Docket 726; Italy,
International Series Release No. 547 (May 18, 1993), 54 SEC Docket
347; Japan, International Series Release No. 5 (May 23, 1986), 43
SEC Docket 184; Mexico, International Series Release No. 181
(October 22, 1990), 47 SEC Docket 1128; the Netherlands,
International Series Release No. 115 (January 12, 1990), 45 SEC
Docket 715; Norway, International Series Release No. 321 (September
30, 1991), 49 SEC Docket 1747; Spain, International Series Release
No. 429 (July 30, 1992), 51 SEC Docket 2838; and the United Kingdom,
International Series Release No. 323 (September 30, 1991), 49 SEC
Docket 1767.
\2\4The transaction information would be made available at the
principal office of such distribution participant for inspection and
copying by an authorized representative of the Commission. If it is
not feasible for the Commission to examine such records at such
principal office and if the expense of doing so is not unreasonable,
a copy of the records must be furnished to the Commission at its
office in Washington, D.C., and representatives of such distribution
participant would be made available (in person or by telephone) to
respond to inquiries of the Division prompted by such records.
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A distribution participant would be required to produce, upon
request, transaction records of its affiliated purchasers if such
records are in the possession or control of the distribution
participant or if the distribution participant otherwise has access
to the records. Affiliated purchasers would be expected to provide
the required information to their affiliated distribution
participants and would be expected not to take any actions that
would impede Commission access. Any person who fails to comply with
the conditions of the exemption, including a failure to provide
requested information, would not be permitted to rely on the
exemption in future distributions.25
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\2\5Upon a showing of good cause, however, the Commission or the
Division may determine that it is not necessary under the
circumstances that the exemption be denied.
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C. Two Business Day Cooling-off Period
A two business day cooling-off period is available for equity
securities of any foreign issuer where: (a) The conditions described
above in paragraphs B.1. and B.2. relating to recordkeeping and
production are satisfied; (b) the aggregate world-wide published
average daily trading volume in the offered security26 during
any 20 consecutive business day period within 60 consecutive
calendar days prior to the Covered Period (``Reference Period'')
equals or exceeds the equivalent of US$250,000 as calculated from
transactions published by an FFRA or a registered U.S. national
securities exchange or association;27 and (c) the offered
security's Principal Market28 requires, at a minimum,
contemporaneous trade reporting29 to an FFRA.30
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\2\6The published trading volume for the offered security also
would include the aggregate published volume of depositary shares,
including American Depositary Shares, adjusted for the ratio between
depositary shares and ordinary shares.
\2\7In order to calculate the U.S. dollar value, distribution
participants would either: (a) obtain the average of the trading
value in U.S. dollars during the Reference Period; or, (b) obtain an
average trading value in local currency for the Reference Period and
apply a current exchange rate to obtain the dollar value of the
average trading volume. The exchange rate would be the current rate
of exchange between the currency in which the security trades and
the U.S. dollar, as obtained from at least one bank that regularly
conducts currency exchange operations. See, e.g., Proposed Rule 3b-
10(a), Rule 3b-10 Release, 56 FR at 822.
\2\8``Principal Market'' is the single securities market with
the largest published aggregate trading volume for that class of the
foreign issuer's securities during the Reference Period. Cf.
Proposed Rule 3b-10(e), Rule 3b-10 Release, 56 FR at 822.
\2\9Contemporaneous trade reporting for these purposes would be
deemed to exist where trades effected on a market are reported to an
FFRA within a twenty-four hour period.
\3\0If the Principal Market is a foreign securities exchange
that satisfies this contemporaneous trade reporting criterion, then
any other transaction, wherever effected, would qualify for the same
cooling-off period for purposes of this exemption.
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The foregoing exemption from Rule 10b-6 is strictly limited to
the application of the Rule to the class of transactions described
herein, and is subject to compliance with the conditions set forth
above and the Commission's continuing ability to obtain
investigatory information regarding trading in the relevant foreign
market with respect to the exemption set forth herein. In addition,
distribution participants and affiliated purchasers relying on this
exemption are directed to the anti-fraud and anti-manipulation
provisions of the Exchange Act, particularly sections 9(a)(2) and
10(b) and Rule 10b-5 thereunder. This exemption is subject to
modification or revocation if the Commission determines that such
action is necessary or appropriate.
Responsibility for compliance with these and any other
applicable provisions of the federal securities laws must rest with
each individual distribution participant and its affiliated
purchasers. The Division expresses no view with respect to any other
questions the class of transactions covered by the exemption might
raise, including but not limited to, the applicability of any other
federal or state laws to, such transactions.
For the Commission, by the Division of Market Regulation,
pursuant to delegated authority.
Brandon Becker,
Director.
[FR Doc. 94-8516 Filed 4-8-94; 8:45 am]
BILLING CODE 8010-01-P
