Precedents codified

Author: | Published: 17 Nov 2008

On September 19 2008, the US Securities and Exchange Commission (SEC) published final amendments to its cross-border tender offer and exchange offer rules. The rule changes are intended to expand and enhance the original cross-border exemptions adopted in 1999 and to codify existing SEC positions developed over the past nine years.

The codification and amendments show that the SEC is focused on addressing conflicts between US and foreign regulations in order to facilitate the inclusion of US investors in cross-border transactions. The amendments to Rule 14e-5 of the Securities Exchange Act of 1934, as described below, should further enhance the utility of the exemptions granted in the 14e-5 exemptive relief letters. However, there will continue to be areas where the US rules conflict with the rules in other jurisdictions, thus requiring conversations with the SEC staff and potentially deal-specific no-action letters or exemptive relief.

The background Under Rule 14e-5, a bidder...