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8000 - Miscellaneous Statutes and Regulations


§ 240.13e--3  Going private transactions by certain issuers or their affiliates.

(a)  Definitions.  Unless indicated otherwise or the context otherwise requires, all terms used in this section and in schedule 13E--3 [§ 240.13e--100] shall have the same meaning as in the Act or elsewhere in the General Rules and Regulations thereunder. In addition, the following definitions apply:

(1)  An "affiliate" of an issuer is a person that directly or indirectly through one or more intermediaries controls, is controlled by, or is under common control with such issuer. For the purposes of this section only, a person who is not an affiliate of an issuer at the commencement of such person's tender offer for a class of equity securities of such issuer will not be deemed an affiliate of such issuer prior to the stated termination of such tender offer and any extensions thereof;

(2)  The term "purchase" means any acquisition for value including, but not limited to, (i) any acquisition pursuant to the dissolution of an issuer subsequent to the sale or other disposition of substantially all the assets of such issuer to its affiliate, (ii) any acquisition pursuant to a merger, (iii) any acquisition of fractional interests in connection with a reverse stock split, and (iv) any acquisition subject to the control of an issuer or an affiliate of such issuer;

(3)  A "rule 13e--3 transaction" is any transaction or series of transactions involving one or more of the transactions described in paragraph (a)(3)(i) of this section which has either a reasonable likelihood or a purpose of producing, either directly or indirectly, any of the effects described in paragraph (a)(3)(ii) of this section;

(i)  The transactions referred to in paragraph (a)(3) of this section are:

(A)  A purchase of any equity security by the issuer of such security or by an affiliate of such issuer;

(B)  A tender offer for or request or invitation for tenders of any equity security made by the issuer of such class of securities or by an affiliate of such issuer; or

(C)  A solicitation subject to regulation 14A (§§ 240.14a--1 to 240.14b--1) of any proxy, consent or authorization of, or a distribution subject to regulation 14C (§§ 240.14c--1 to 14c--101) of information statements to, any equity security holder by the issuer of the class of securities or by an affiliate of such issuer, in connection with: a merger, consolidation, reclassification, recapitalization, reorganization or similar corporate transaction of an issuer

or between an issuer (or its subsidiaries) and its affiliate; a sale of substantially all the assets of an issuer to its affiliate or group of affiliates; or a reverse stock split of any class of equity securities of the issuer involving the purchase of fractional interests.

(ii)  The effects referred to in paragraph (a)(3) of this section are:

(A)  Causing any class of equity securities of the issuer which is subject to section 12(g) or section 15(d) of the Act to become eligible for termination of registration under Rule 12g--4 (§ 240.12g--4) or Rule 12h--6 (§ 240.12h--6), or causing the reporting obligations with respect to such class to become eligible for termination under Rule 12h--6 (§ 240.12h--6); or suspension under Rule 12h--3 (§ 240.12h--3) or section 15(d); or

(B)  Causing any class of equity securities of the issuer which is either listed on a national securities exchange or authorized to be quoted in an inter-dealer quotation system of a registered national securities association to be neither listed on any national securities exchange nor authorized to be quoted on an inter-dealer quotation system of any registered national securities association.

(4)  An "unaffiliated security holder" is any security holder of an equity security subject to a rule 13e-3 transaction who is not an affiliate of the issuer of such security.

(b)  Application of section to an issuer (or an affiliate of such issuer) subject to section 12 of the Act.  (1)  It shall be a fraudulent, deceptive or manipulative act or practice, in connection with a rule 13e-3 transaction, for an issuer which has a class of equity securities registered pursuant to section 12 of the Act or which is a closed-end investment company registered under the Investment Company Act of 1940, or an affiliate of such issuer, directly or indirectly

(i)  To employ any device, scheme or artifice to defraud any person;

(ii)  To make any untrue statement of a material fact or to omit to state a material fact necessary in order to make the statements made, in light of the circumstances under which they were made, not misleading; or

(iii)  To engage in any act, practice or course of business which operates or would operate as a fraud or deceit upon any person.

(2)  As a means reasonably designed to prevent fraudulent, deceptive or manipulative acts or practices in connection with any rule 13e-3 transaction, it shall be unlawful for an issuer which has a class of equity securities registered pursuant to section 12 of the Act, or an affiliate of such issuer, to engage, directly or indirectly, in a rule 13e-3 transaction unless:

(i)  Such issuer or affiliate complies with the requirements of paragraphs (d), (e) and (f) of this section; and

(ii)  The rule 13e-3 transaction is not in violation of paragraph (b)(1) of this section.

(c)  Application of section to an issuer (or an affiliate of such issuer) subject to section 15(d) of the Act.  (1)  It shall be unlawful as a fraudulent, deceptive or manipulative act or practice for an issuer which is required to file periodic reports pursuant to section 15(d) of the Act, or an affiliate of such issuer, to engage, directly or indirectly, in a rule 13e-3 transaction unless such issuer or affiliate complies with the requirements of paragraphs (d), (e) and (f) of this section.

(2)  An issuer or affiliate which is subject to paragraph (c)(1) of this section and which is soliciting proxies or distributing information statements in connection with a transaction described in paragraph (a)(3)(i)(A) of this section may elect to use the timing procedures for conducting a solicitation subject to regulation 14A [§§ 240.14a-1 to 240.14b-1] or a distribution subject to regulation 14C [§§ 240.14c-1 to 14c-101] in complying with paragraphs (d), (e) and (f) of this section; Provided, That if an election is made, such solicitation or distribution is conducted in accordance with the requirements of the respective regulations, including the filing of preliminary copies of soliciting materials or an information statement at the time specified in regulation 14A or 14C, respectively.

(d)  Material required to be filed.  The issuer or affiliate engaging in a rule 13e-3 transaction shall, in accordance with the General Instructions to the rule 13e-3 Transaction Statement on Schedule 13E-3 [§ 240.13e-100]:

(1)  File with the Commission eight copies of such schedule, including all exhibits thereto;

(2)  Report any material change in the information set forth in such schedule by promptly filing with the Commission eight copies of an amendment on such schedule; and

(3)  Report the results of the rule 13e-3 transaction by filing with the Commission promptly but no later than ten days (ten business days if rule 13e-4 [§ 240.13e-4] is applicable) after the termination of such transaction eight copies of a final amendment to such schedule.

(e)  Disclosure of certain information.  

(1)  The issuer or affiliate engaging in the rule 13e-3 transaction, in addition to any other information required to be disclosed pursuant to any other applicable rule or regulation under the federal securities laws, shall disclose to security holders of the class of equity securities which is the subject of the transaction, in the manner prescribed by paragraph (f) of this section, the information required by items 1, 2, 3, 4, 5, 6, 10, 11, 12, 13, 14, 15 and 16 of schedule 13e-3 [§ 240.13e-100], or a fair and adequate summary thereof, and items 7, 8 and 9 and include in the document which contains such information the exhibit required by item 17(e) of such schedule. If the rule 13e-3 transaction involves (i) a transaction subject to regulation 14A [§§ 240.14a-1 to 240.14b-1] or 14C [§§ 240.14c-1 to 240.14c-101] of the Act, (ii) the registration of securities pursuant to the Securities Act of 1933 and the General Rules and Regulations promulgated thereunder, or (iii) a tender offer subject to regulation 14D [§§ 240.14d-1 to 240.14d-101] or rule 13e-4 [§ 240.13e-4], such information shall be included in the proxy statement, the information statement, the registration statement or the tender offer for or request or invitation for tenders of securities published, sent or given to security holders, respectively.

(2)  If any material change occurs in the information previously disclosed to security holders of the class of equity securities which is the subject of the transaction, the issuer or affiliate shall promptly disclose such change to such security holders in the manner prescribed by paragraph (f)(1)(iii) of this section.

(3)  Any document transmitted to such security holders which contains the information required by paragraph (e)(1) of this section shall:

(i)  Set forth prominently the information required by items 7, 8 and 9 of the rule 13e-3 Transaction Statement on schedule 13E-3 [§ 240.13e-100] in a Special Factors section to be included in the forepart of such document; and

(ii)  Set forth on the outside front cover page, in capital letters printed in bold face roman type at least as large as ten point modern type and at least two points leaded, the statement in paragraph (e)(3)(ii)(A) of this section, if the rule 13e-3 transaction does not involve a prospectus, or the statement in paragraph (e)(3)(ii)(B) of this section, if the rule 13e-3 transaction involves a prospectus, and in the latter case such statement shall be used in lieu of that required by item 501(c)(5) of regulation S-K (§ 229.501 of this chapter).

(A)  THIS TRANSACTION HAS NOT BEEN APPROVED OR DISAPPROVED BY THE SECURITIES AND EXCHANGE COMMISSION NOR HAS THE COMMISSION PASSED UPON THE FAIRNESS OR MERITS OF SUCH TRANSACTION NOR UPON THE ACCURACY OR ADEQUACY OF THE INFORMATION CONTAINED IN THIS DOCUMENT. ANY REPRESENTATION TO THE CONTRARY IS UNLAWFUL.

(B)  NEITHER THIS TRANSACTION NOR THESE SECURITIES HAVE BEEN APPROVED OR DISAPPROVED BY THE SECURITIES AND EXCHANGE COMMISSION. THE COMMISSION HAS NOT PASSED UPON THE FAIRNESS OR MERITS OF THIS TRANSACTION NOR UPON THE ACCURACY OR ADEQUACY OF THE INFORMATION CONTAINED IN THIS PROSPECTUS. ANY REPRESENTATION TO THE CONTRARY IS UNLAWFUL.

Instructions to paragraph (e)(3).  1.  Negative responses to any item of schedule 13E-3 [§ 240.13e-100] need not be included in the information disseminated to security holders unless otherwise indicated.

2.  Although the financial information necessary to present a fair and adequate summary of item 14 of schedule 13E-3 [§ 240.13e-100] may vary depending on the facts and circumstances involved, the following historical and depending on the facts pro forma summary financial information normally will be sufficient for purposes of paragraph (e) of this section:

(a)  The following summary financial information for (i) the two most recent fiscal years and (ii) the latest year-to-date interim period and corresponding interim period of the preceding year:

Income Statement:

Net sales and operating revenues and other revenues

Income before extradordinary items

Net Income

Balance Sheet (at end of period);

Working capital

Total assets

Total assets less deferred research and development charges and excess of cost of assets acquired over book value.

Shareholder's equity

Per Share:1

Income per common share before extraordinary items

Extraordinary items

Net income per common share (and common share equivalents, if applicable)

(b)  Ratio of earnings to fixed charges for the same periods required by 2(a) above;

(c)  Book value per share as of the most recent fiscal year end and as of the date of the latest interim balance sheet; and

(d)  If material, pro forma data for the summarized financial information described in 2(a), (b), and (c) above, disclosing the effect of the transaction, should be provided for the most recent fiscal year and latest year-to-date interim period.

If the information required by item 14 is summarized, appropriate instructions should be included stating how more complete financial information can be obtained.

3.  If the information delivered to security holders is distributed through an electronic medium and the legend required by paragraph (e)(3)(ii) is included, issuers may satisfy the legibility requirement relating to type size and font by presenting the legend in any manner reasonably calculated to draw security holder attention to it.

(f)  Dissemination of disclosure.  (1)  If the rule 13e-3 transaction involves a purchase as described in paragraph (a)(4)(i)(A) of this section or a vote, consent, authorization, or distribution of information statements as described in paragraph (a)(4)(i)(C) of this section, the issuer or affiliate engaging in the rule 13e-3 transaction shall:

(i)  Provide the information required by paragraph (e) of this section: (A) In accordance with the provisions of any applicable Federal or State law, but in no event later than 20 days prior to: any such purchase; any such vote, consent or authorization; or with respect to the distribution of information statements, the meeting date, or if corporate action is to be taken by means of the written authorization or consent of security holders, the earliest date on which corporate action may be taken: Provided, however, That if the purchase subject to this section is pursuant to a tender offer excepted from rule 13e-4 by paragraph (g)(5) of rule 13e-4, the information required by paragraph (e) of this section shall be disseminated in accordance with paragraph (e) of rule 13e-4 no later than 10 business days prior to any purchase pursuant to such tender offer, (B) to each person who is a record holder of a class of equity securities subject to the rule 13e-3 transaction as of a date not more than 20 days prior to the date of dissemination of such information.

(ii)  If the issuer or affiliate knows that securities of the class of securities subject to the rule 13e-3 transaction are held of record by a broker, dealer, bank or voting trustee or their nominees such issuer or affiliate shall (unless rule 14a-13(a) [§ 240.14a-13(a)] or 14c-7 [§ 240.14c-7] is applicable) furnish the number of copies of the information required by paragraph (e) of this section that are requested by such persons (pursuant to inquiries by or on behalf of the issuer or affiliate), instruct such persons to forward such information to the beneficial owners of such securities in a timely manner and undertake to pay the reasonable expenses incurred by such persons in forwarding such information; and

(iii)  Promptly disseminate disclosure of material changes to the information required by paragraph (d) of this section in a manner reasonably calculated to inform security holders.

(2)  If the rule 13e-3 transaction is a tender offer or a request or invitation for tenders of equity securities which is subject to regulation 14D [§§ 240.14d-1 to 240.14d-101] or rule 13e-4 [§ 240.13e-4], the tender offer containing the information required by paragraph (e) of this section, and any material change with respect thereto, shall be published, sent or given in accordance with regulation 14D or rule 13e-4, respectively, to security holders of the class of securities being sought by the issuer or affiliate.

(g)  Exceptions.  This section shall not apply to:

(1)  Any rule 13e-3 transaction by or on behalf of a person which occurs within one year of the date of termination of a tender offer in which such person was the bidder and became an affiliate of the issuer as a result of such tender offer: Provided, That the consideration offered to unaffiliated security holders in such rule 13e-3 transaction is at least equal to the highest consideration offered during such tender offer and, Provided further, That:

(i)  If such tender offer was made for any or all securities of a class of the issuer;

(A)  Such tender offer fully disclosed such person's intention to engage in a rule 13e-3 transaction, the form and effect of such transaction and, to the extent known, the proposed terms thereof; and

(B)  Such rule 13e-3 transaction is substantially similar to that described in such tender offer; or

(ii)  If such tender offer was made for less than all the securities of a class of the issuer;

(A)  Such tender offer fully disclosed a plan of merger, a plan of liquidation or a similar binding agreement between such person and the issuer with respect to a rule 13e-3 transaction; and

(B)  Such rule 13e-3 transaction occurs pursuant to the plan of merger, plan of liquidation or similar binding agreement disclosed in the bidder's tender offer.

(2)  Any rule 13e-3 transaction in which the security holders are offered or receive only an equity security, Provided, That:

(i)  Such equity security has substantially the same rights as the equity security which is the subject of the rule 13e-3 transaction including, but not limited to, voting, dividends, redemption and liquidation rights except that this requirement shall be deemed to be satisfied if unaffiliated security holders are offered common stock;

(ii)  Such equity security is registered pursuant to section 12 of the Act or reports are required to be filed by the issuer thereof pursuant to section 15(d) of the Act; and

(iii)  If the security which is the subject of the rule 13e-3 transaction was either listed on a national securities exchange or authorized to be quoted in an inter-dealer quotation system of a registered national securities association, such equity security is either listed on a national securities exchange or authorized to be quoted in an inter-dealer quotation system of a registered national securities association.

(3)  Transactions by a holding company registered under the Public Utility Holding Company Act of 1935 in compliance with the provisions of that Act;

(4)  Redemptions, calls or similar purchases of an equity security by an issuer pursuant to specific provisions set forth in the instrument(s) creating or governing that class of equity securities; or

(5)  Any solicitation by an issuer with respect to a plan of reorganization under Chapter X of the Bankruptcy Act, as amended, if made after the entry of an order approving such plan pursuant to section 174 of that Act and after, or concurrently with, the transmittal of information concerning such plan as required by section 175 of the Act.

(6)  Any tender offer or business combination made in compliance with § 230.802 of this chapter, § 240.13e--4(h)(8) or § 240.14d--1(c).

[Codified to 17 C.F.R. § 240.13e-3]

[Section 240.13e-3 added at 44 Fed. Reg. 46741, August 8, 1979; amended at 47 Fed. Reg. 11466, March 16, 1982; 48 Fed. Reg. 19877, May 3, 1983; 48 Fed. Reg. 34253, July 28, 1983; 51 Fed. Reg. 42059, November 20, 1986, effective January 20, 1986 for proxy statements filed on or after that date; 61 Fed. Reg. 24656, May 15, 1996, effective June 14, 1996; 64 Fed. Reg. 61403, November 10, 1999, effective January 24, 2000; 73 Fed. Reg. 58323, October 6, 2008, effective December 5, 2008]

§ 240.13e-4 Tender offers by issuers.

(a)  Definitions. Unless the context otherwise requires, all terms used in this section and in Schedule TO (§ 240.14d--100) shall have the same meaning as in the Act or elsewhere in the General Rules and Regulations thereunder. In addition, the following definitions shall apply:

(1)  The term "issuer" means any issuer which has a class of equity security registered pursuant to section 12 of the Act, or which is required to file periodic reports pursuant to section 15(d) of the Act, or which is a closed-end investment company registered under the Investment Company Act of 1940.

(2)  The term "issuer tender offer" refers to a tender offer for, or a request or invitation for tenders of, any class of equity security, made by the issuer of such class of equity security or by an affiliate of such issuer.

(3)  As used in this section and in Schedule TO (§ 240.14d--100), the term "business day" means any day, other than Saturday, Sunday, or a federal holiday, and shall consist of the time period from 12:01 a.m. through 12:00 midnight Eastern Time. In computing any time period under this Rule or Schedule 13E--4, the date of the event that begins the running of such time period shall be included except that if such event occurs on other than a business day such period shall begin to run on and shall include the first business day thereafter.

(4)  The term "commencement" means 12:01 a.m. on the date that the issuer or affiliate has first published, sent or given the means to tender to security holders. For purposes of this section, the means to tender includes the transmittal form or a statement regarding how the transmittal form may be obtained.

(5)  The term "termination" means the date after which securities may not be tendered pursuant to an issuer tender offer.

(6)  The term "security holders" means holders of record and beneficial owners of securities of the class of equity security which is the subject of an issuer tender offer.

(7)  The term "security position listing" means, with respect to the securities of any issuer held by a registered clearing agency in the name of the clearing agency or its nominee, a list of those participants in the clearing agency on whose behalf the clearing agency holds the issuer's securities and of the participants' respective positions in such securities as of a specified date.

(b)  Filing, disclosure and dissemination. As soon as practicable on the date of commencement of the issuer tender offer, the issuer or affiliate making the issuer tender offer must comply with:

(1)  The filing requirements of paragraph (c)(2) of this section;

(2)  The disclosure requirements of paragraph (d)(1) of this section; and

(3)  The dissemination requirements of paragraph (e) of this section.

(c)  Material required to be filed. The issuer or affiliate making the issuer tender offer must file with the Commission:

(1)  All written communications made by the issuer or affiliate relating to the issuer tender offer, from and including the first public announcement, as soon as practicable on the date of the communication;

(2)  A Schedule TO (§ 240.14d--100), including all exhibits;

(3)  An amendment to Schedule TO (§ 240.14d--100) reporting promptly any material changes in the information set forth in the schedule previously filed; and

(4)  A final amendment to Schedule TO (§ 240.14d--100) reporting promptly the results of the issuer tender offer.

Instructions to § 240.13e--4(c):

1.  Pre-commencement communications must be filed under cover of Schedule TO (§ 240.14d--100) and the box on the cover page of the schedule must be marked.

2.  Any communications made in connection with an exchange offer registered under the Securities Act of 1933 need only be filed under § 230.425 of this chapter and will be deemed filed under this section.

3.  Each pre-commencement written communication must include a prominent legend in clear, plain language advising security holders to read the tender offer statement when it is available because it contains important information. The legend also must advise investors that they can get the tender offer statement and other filed documents for free at the Commission's web site and explain which documents are free from the issuer.

4.  See §§ 230.135, 230.165 and 230.166 of this chapter for pre-commencement communications made in connection with registered exchange offers.

5.  "Public announcement" is any oral or written communication by the issuer, affiliate or any person authorized to act on their behalf that is reasonably designed to, or has the effect of, informing the 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 (§ 240.14d--100) (summary term sheet); and

(ii)  The information required by the remaining items of Schedule TO for issuer tender offers, except for Item 12 (exhibits), or a fair and adequate summary of the information.

(2)  If there are any material changes in the information previously disclosed to security holders, the issuer or affiliate must disclose the changes promptly to security holders in a manner specified in paragraph (e)(3) of this section.

(3)  If the issuer or affiliate disseminates the issuer tender offer by means of summary publication as described in paragraph (e)(1)(iii) of this section, the summary advertisement must not include a transmittal letter that would permit security holders to tender securities sought in the offer and must disclose at least the following information:

(i)  The identity of the issuer or affiliate making the issuer tender offer;

(ii)  The information required by § 229.1004(a)(1) and § 229.1006(a) of this chapter;

(iii)  Instructions on how security holders can obtain promptly a copy of the statement required by paragraph (d)(1) of this section, at the issuer or affiliate's expense; and

(iv)  A statement that the information contained in the statement required by paragraph (d)(1) of this section is incorporated by reference.

(e)  Dissemination of tender offers to security holders. An issuer tender offer will be deemed to be published, sent or given to security holders if the issuer or affiliate making the issuer tender offer complies fully with one or more of the methods described in this section.

(1)  For issuer tender offers in which the consideration offered consists solely of cash and/or securities exempt from registration under section 3 of the Securities Act of 1933 (15 U.S.C. 77c):

(i)  Dissemination of cash issuer tender offers by long-form publication: By making adequate publication of the information required by paragraph (d)(1) of this section in a newspaper or newspapers, on the date of commencement of the issuer tender offer.

(ii)  Dissemination of any issuer tender offer by use of stockholder and other lists: (A) By mailing or otherwise furnishing promptly a statement containing the information required by paragraph (d)(1) of this section to each security holder whose name appears on the most recent stockholder list of the issuer;

(B)  By contacting each participant on the most recent security position listing of any clearing agency within the possession or access of the issuer or affiliate making the issuer tender offer, and making inquiry of each participant as to the approximate number of beneficial owners of the securities sought in the offer that are held by the participant;

(C)  By furnishing to each participant a sufficient number of copies of the statement required by paragraph (d)(1) of this section for transmittal to the beneficial owners, and

(D)  By agreeing to reimburse each participant promptly for its reasonable expenses incurred in forwarding the statement to beneficial owners.

(iii)  Dissemination of certain cash issuer tender offers by summary publication: (A) If the issuer tender offer is not subject to § 240.13e-3, by making adequate publication of a summary advertisement containing the information required by paragraph (d)(3) of this section in a newspaper or newspapers, on the date of commencement of the issuer tender offer; and

(B)  By mailing or otherwise furnishing promptly the statement required by paragraph (d)(1) of this section and a transmittal letter to the security holder who requests a copy of the statement or transmittal letter.

Instruction to paragraph (e)(1): For purposes of paragraphs (e)(1)(i) and (e)(1)(iii) of this section, adequate publication of the issuer tender offer may require publication in a newspaper with a national circulation, a newspaper with metropolitan or regional circulation, or a combination of the two, depending upon the facts and circumstances involved.

(2)  For tender offers in which the consideration consists solely or partially of securities registered under the Securities Act of 1933, a registration statement containing all of the required information, including pricing information, has been filed and a preliminary prospectus or a prospectus that meets the requirements of Section 10(a) of the Securities Act (15 U.S.C. (15 U.S.C. 77j(a)), including a letter of transmittal, is delivered to security holders. However, for going-private transactions (as defined by § 240.13e-3) and roll-up transactions (as described by Item 901 of Regulation S-K (§ 229.901 of this chapter)), a registration statement registering the securities to be offered must have become effective and only a prospectus that meets the requirements of Section 10(a) of the Securities Act may be delivered to security holders on the date of commencement.

Instructions to paragraph (e)(2):

1.  If the prospectus is being delivered by mail, mailing on the date of commencement is sufficient.

2.  A preliminary prospectus used under this section may not omit information under § 230.430 or § 230.430A of this chapter.

3.  If a preliminary prospectus is used under this section and the issuer must disseminate material changes, the tender offer must remain open for the period specified in paragraph (e)(3) of this section.

4.  If a preliminary prospectus is used under this section, tenders may be requested in accordance with § 230.162(a) of this chapter.

(3)  If a material change occurs in the information published, sent or given to security holders, the issuer or affiliate must disseminate promptly disclosure of the change in a manner reasonably calculated to inform security holders of the change. In a registered securities offer where the issuer or affiliate disseminates the preliminary prospectus as permitted by paragraph (e)(2) of this section, the offer must remain open from the date that material changes to the tender offer materials are disseminated to security holders, as follows:

(i)  Five business days for a prospectus supplement containing a material change other than price or share levels;

(ii)  Ten business days for a prospectus supplement containing a change in price, the amount of securities sought, the dealer's soliciting fee, or other similarly significant change;

(iii)  Ten business days for a prospectus supplement included as part of a post-effective amendment; and

(iv)  Twenty business days for a revised prospectus when the initial prospectus was materially deficient.

(f)  Manner of making tender offer. (1) The issuer tender offer, unless withdrawn, shall remain open until the expiration of:

(i)  at least twenty business days from its commencement; and

(ii)  At least ten business days from the date that notice of an increase or decrease in the percentage of the class of securities being sought or the consideration offered or the dealer's soliciting fee to be given is first published, sent or given to security holders. Provided, however, that, for purposes of this paragraph, the acceptance for payment by the issuer or affiliate of an additional amount of securities not to exceed two percent of the class of securities that is the subject of the tender offer shall not be deemed to be an increase. For purposes of this paragraph, the percentage of a class of securities shall be calculated in accordance with section 14(d)(3) of the Act.

(2)  The issuer or affiliate making the issuer tender offer shall permit securities tendered pursuant to the issuer tender offer to be withdrawn:

(i)  At any time during the period such issuer tender offer remains open; and

(ii)  If not yet accepted for payment, after the expiration of forty business days from the commencement of the issuer tender offer.

(3)  If the issuer or affiliate makes a tender offer for less than all of the outstanding equity securities of a class, and if a greater number of securities is tendered pursuant thereto than the issuer or affiliate is bound or willing to take up and pay for, the securities taken up and paid for shall be taken up and paid for as nearly as may be pro rata, disregarding fractions, according to the number of securities tendered by each security holder during the period such offer remains open; Provided, however, that this provision shall not prohibit the issuer or affiliate making the issuer tender offer from:

(i)  Accepting all securities tendered by persons who own, beneficially or of record, an aggregate of not more than a specified number which is less than one hundred shares of such security and who tender all their securities, before prorating securities tendered by others; or

(ii)  Accepting by lot securities tendered by security holders who tender all securities held by them and who, when tendering their securities, elect to have either all or none or at least a minimum amount or none accepted, if the issuer or affiliate first accepts all securities tendered by security holders who do not so elect;

(4)  In the event the issuer or affiliate making the issuer tender increases the consideration offered after the issuer tender offer has commenced, such issuer or affiliate shall pay such increased consideration to all security holders whose tendered securities are accepted for payment by such issuer or affiliate.

(5)  The issuer or affiliate making the tender offer shall either pay the consideration offered, or return the tendered securities, promptly after the termination or withdrawal of the tender offer.

(6)  Until the expiration of at least ten business days after the date of termination of the issuer tender offer, neither the issuer nor any affiliate shall make any purchases, otherwise than pursuant to the tender offer, of:

(i)  Any security which is the subject of the issuer tender offer, or any security of the same class and series, or any right to purchase any such securities; and

(ii)  In the case of an issuer tender offer which is an exchange offer, any security being offered pursuant to such exchange offer, or any security of the same class and series, or any right to purchase any such security.

(7)  The time periods for the minimum offering periods pursuant to this section shall be computed on a concurrent as opposed to a consecutive basis.

(8)  No issuer or affiliate shall make a tender offer unless:

(i)  The tender offer is open to all security holders of the class of securities subject to the tender offer; and

(ii)  The consideration paid to any security holder for securities tendered in the tender offer is the highest consideration paid to any other security holder for securities tendered in the tender offer.

(9)  Paragraph (f)(8)(i) of this section shall not:

(i)  Affect dissemination under paragraph (e) of this section; or

(ii)  Prohibit an issuer or affiliate from making a tender offer excluding all security holders in a state where the issuer or affiliate is prohibited from making the tender offer by administrative or judicial action pursuant to a state statute after a good faith effort by the issuer or affiliate to comply with such statute.

(10)  Paragraph (f)(8)(ii) of this section shall not prohibit the offer of more than one type of consideration in a tender offer, provided that:

(i)  Security holders are afforded equal right to elect among each of the types of consideration offered; and

(ii)  The highest consideration of each type paid to any security holder is paid to any other security holder receiving that type of consideration.

(11)  If the offer and sale of securities constituting consideration offered in an issuer tender offer is prohibited by the appropriate authority of a state after a good faith effort by the issuer or affiliate to register or qualify the offer and sale of such securities in such state:

(i)  The issuer or affiliate may offer security holders in such state an alternative form of consideration; and

(ii)  Paragraph (f)(10) of this section shall not operate to require the issuer or affiliate to offer or pay the alternative form of consideration to security holders in any other state.

(12)(i)  Paragraph (f)(8)(ii) of this section shall not prohibit the negotiation, execution or amendment of an employment compensation, severance or other employee benefit arrangement, or payments made or to be made or benefits granted or to be granted according to such an arrangement, with respect to any security holder of the issuer, where the amount payable under the arrangement:

(A)  Is being paid or granted as compensation for past services performed, future services to be performed, or future services to be refrained from performing, by the security holder (and matters incidental thereto); and

(B)  Is not calculated based on the number of securities tendered or to be tendered in the tender offer by the security holder.

(ii)  The provisions of paragraph (f)(12)(i) of this section shall be satisfied and, therefore, pursuant to this nonexclusive safe harbor, the negotiation, execution or amendment of an arrangement and any payments made or to be made or benefits granted or to be granted according to that arrangement shall not be prohibited by paragraph (f)(8)(ii) of this section, if the arrangement is approved as an employment compensation, severance or other employee benefit arrangement solely by independent directors as follows:

(A)  The compensation committee or a committee of the board of directors that performs functions similar to a compensation committee of the issuer approves the arrangement, regardless of whether the issuer is a party to the arrangement, or, if an affiliate is a party to the arrangement, the compensation committee or a committee of the board of directors that performs functions similar to a compensation committee of the affiliate approves the arrangement; or

(B)  If the issuer's or affiliate's board of directors, as applicable, does not have a compensation committee or a commitee of the board of directors that performs functions similar to a compensation committee or if none of the members of the issuer's or affiliate's compensation committee or committee that performs functions similar to a compensation committee is independent, a special committee of the board of directors formed to consider and approve the arrangement approves the arrangement; or

(C)  If the issuer or affiliate, as applicable, is a foreign private issuer, any or all members of the board of directors or any committee of the board of directors authorized to approve employment compensation, severance or other employee benefit arrangements under the laws or regulations of the home country approves the arrangement.

Instructions to paragraph (f)(12)(ii): For purposes of determining whether the members of the committee approving an arrangement in accordance with the provisions of paragraph (f)(12)(ii) of this section are independent, the following provisions shall apply:

1. If the issuer or affiliate, as applicable, is a listed issuer (as defined in § 240.10A--3 of this chapter) whose securities are listed either on a national securities exchange registered pursuant to section 6(a) of the Exchange Act (15 U.S.C. 78f(a)) or in an inter-dealer quotation system of a national securities association registered pursuant to section 15A(a) of the Exchange Act (15 U.S.C. 78o--3(a)) that has independence requirements for compensation committee members that have been approved by the Commission (as those requirements may be modified or supplemented), apply the issuer's or affiliate's definition of independence that it uses for determining that the members of the compensation committee are independent in compliance with the listing standards applicable to compensation committee members of the listed issuer.

2.  If the issuer or affiliate, as applicable, is not a listed issuer (as defined in § 240.10A--3 of this chapter), apply the independence requirements for compensation committee members of a national securities exchange registered pursuant to section 6(a) of the Exchange Act (15 U.S.C. 78f(a)) or an inter-dealer quotation system of a national securities association registered pursuant to section 15A(a) of the Exchange Act (15 U.S.C. 78o--3(a)) that have been approved by the Commission (as those requirements may be modified or supplemented). Whatever definition the issuer or affiliate, as applicable, chooses, it must apply that definition consistently to all members of the committee approving the arrangement.

3.  Notwithstanding Instructions 1 and 2 to paragraph (f)(12)(ii), if the issuer or affiliate, as applicable, is a closed-end investment company registered under the Investment Company Act of 1940, a director is considered to be independent if the director is not, other than in his or her capacity as a member of the board of directors or any board committee, an "interested person" of the investment company, as defined in section 2(a)(19) of the Investment Company Act of 1940 (15 U.S.C. 80a--2(a)(19)).

4.  If the issuer or affiliate, as applicable, is a foreign private issuer, apply either the independence standards set forth in Instructions 1 and 2 to paragraph (f)(12)(ii) or the independence requirements of the laws, regulations, codes or standards of the home country of the issuer or affiliate, as applicable, for members of the board of directors or the committee of the board of directors approving the arrangement.

5.  A determination by the issuer's or affiliate's board of directors, as applicable, that the members of the board of directors or the committee of the board of directors, as applicable, approving an arrangement in accordance with the provisions of paragraph (f)(12)(ii) are independent in accordance with the provisions of this instruction to paragraph (f)(12)(ii) shall satisfy the independence requirements of paragraph (f)(12)(ii).

Instruction to paragraph (f)(12): The fact that the provisions of paragraph (f)(12) of this section extend only to employment compensation, severance and other employee benefit arrangements and not to other arrangements, such as commercial arrangements, does not raise any inference that a payment under any such other arrangement constitutes consideration paid for securities in a tender offer.

(13)  Electronic filings. If the issuer or affiliate is an electronic filer, the minimum offering periods set forth in paragraph (f)(1) of this section shall be tolled for any period during which it fails to file in electronic format, absent a hardship exemption (§§ 232.201 and 232.202 of this chapter), the Schedule TO (§ 240.14d--100), the tender offer material specified in Item 1016(a)(1) of Regulation M-A (§ 229.1016(a)(1) of this chapter), and any amendments thereto. If such documents were filed in paper pursuant to a hardship exemption (see § 232.201 and § 232.202 of this chapter), the minimum offering periods shall be tolled for any period during which a required confirming electronic copy of such Schedule and tender offer material is delinquent.

(g)  The requirements of section 13(e)(1) of the Act and Rule 13e-4 and Schedule TO (§ 240.14d-100) thereunder shall be deemed satisfied with respect to any issuer tender offer, including any exchange offer, where the issuer is incorporated or organized under the laws of Canada or any Canadian province or territory, is a foreign private issuer, and is not an investment company registered or required to be registered under the Investment Company Act of 1940, if less than 40 percent of the class of securities that is the subject of the tender offer is held by U.S. holders, an the tender offer is subject to, and the issuer complies with, the laws, regulations and policies of Canada and/or any of its provinces or territories governing the conduct of the offer (unless the issuer has received an exemption(s) from, and the issuer tender offer does not comply with, requirements that otherwise would be prescribed by this section), provided that:

(1)  Where the consideration for an issuer tender offer subject to this paragraph consists solely of cash, the entire disclosure document or documents required to be furnished to holders of the class of securities to be acquired shall be filed with the Commission on Schedule 13E--4F (§ 240.13e-102) and disseminated to shareholders residing in the United States in accordance with such Canadian laws, regulations and policies; or

(2)  Where the consideration for an issuer tender offer subject to this paragraph includes securities to be issued pursuant to the offer, any registration statement and/or prospectus relating thereto shall be filed with the Commission along with the Schedule 13E--4F referred to in paragraph (g)(1) of this section, and shall be disseminated, together with the home jurisdiction document(s) accompanying such Schedule, to shareholders of the issuer residing in the United States in accordance with such Canadian laws, regulations and policies.

Note: Notwithstanding the grant of an exemption from one or more of the applicable Canadian regulatory provisions imposing requirements that otherwise would be prescribed by this section, the issuer tender offer will be eligible to proceed in accordance with the requirements of this section if the Commission by order determines that the applicable Canadian regulatory provisions are adequate to protect the interest of investors.

(h)  This section shall not apply to: (1) Calls or redemptions of any security in accordance with the terms and conditions of its governing instruments;

(2)  Offers to purchase securities evidenced by a scrip certificate, order form or similar document which represents a fractional interest in a share of stock or similar security;

(3)  Offers to purchase securities pursuant to a statutory procedure for the purchase of dissenting security holders' securities;

(4)  Any tender offer which is subject to section 14(d) of the Act;

(5)  Offers to purchase from security holders who own an aggregate of not more than a specified number of shares that is less than one hundred: Provided, however, That:

(i)  The offer complies with paragraph (f)(8)(i) of this section with respect to security holders who own a number of shares equal to or less than the specified number of shares, except that an issuer can elect to exclude participants in a plan as that term is defined in § 242.100 of this chapter, or to exclude security holders who do not own their shares as of a specified date determined by the issuer; and

(ii)  The offer complies with paragraph (f)(8)(ii) of this section or the consideration paid pursuant to the offer is determined on the basis of a uniformly applied formula based on the market price of the subject security;

(6)  An issuer tender offer made solely to effect a rescission offer: Provided, however, That the offer is registered under the Securities Act of 1933 (15 U.S.C. 77a et seq.), and the consideration is equal to the price paid by each security holder, plus legal interest if the issuer elects to or is required to pay legal interest;

(7)  Offers by closed-end management investment companies to repurchase equity securities pursuant to § 270.23c-3 of this chapter;

(8)  Cross-border tender offers (Tier I). Any issuer tender offer (including any exchange offer) where the issuer is a foreign private issuer as defined in § 240.3b-4 if the following conditions are satisfied.

(i)  Except in the case of an issuer tender offer which is commenced during the pendency of a tender offer made by a third party in reliance on § 240.14d-1(c), U.S. holders do not hold more than 10 percent of the class of securities sought in the offer (as determined under Instruction 2 to paragraph (h)(8) and paragraph (i) of this section); and

(ii)  The issuer or affiliate must permit U.S. holders to participate in the offer on terms at least as favorable as those offered any other holder of the same class of securities that is the subject of the offer; however:

(A)  Registered exchange offers. If the issuer or affiliate offers securities registered under the Securities Act of 1933 (15 U.S.C. 77a et seq.), the issuer or affiliate need not extend the offer to security holders in those states or jurisdictions that prohibit the offer or sale of the securities after the issuer or affiliate has made a good faith effort to register or qualify the offer and sale of securities in that state or jurisdiction, except that the issuer or affiliate must offer the same cash alternative to security holders in any such state or jurisdiction that it has offered to security holders in any other state or jurisdiction.

(B)  Exempt exchange offers. If the issuer or affiliate offers securities exempt from registration under § 230.802 of this chapter, the issuer or affiliate need not extend the offer to security holders in those states or jurisdictions that require registration or qualification, except that the issuer or affiliate must offer the same cash alternative to security holders in any such state or jurisdiction that it has offered to security holders in any other state or jurisdiction.

(C)  Cash only consideration. The issuer or affiliate may offer U.S. holders cash only consideration for the tender of the subject securities, notwithstanding the fact that the issuer or affiliate is offering security holders outside the United States a consideration that consists in whole or in part of securities of the issuer or affiliate, if the issuer or affiliate has a reasonable basis for believing that the amount of cash is substantially equivalent to the value of the consideration offered to non-U.S. holders, and either of the following conditions are satisfied:

(1)  The offered security is a "margin security" within the meaning of Regulation T (12 CFR 220.2) and the issuer or affiliate undertakes to provide, upon the request of any U.S. holder or the Commission staff, the closing price and daily trading volume of the security on the principal trading market for the security as of the last trading day of each of the six months preceding the announcement of the offer and each of the trading days thereafter; or

(2)  If the offered security is not a "margin security" within the meaning of Regulation T (12 CFR 220.2) the issuer or affiliate undertakes to provide, upon the request of any U.S. holder or the Commission staff, an opinion of an independent expert stating that the cash consideration offered to U.S. holders is substantially equivalent to the value of the consideration offered security holders outside the United States.

(D)  Disparate tax treatment. If the issuer or affiliate offers "loan notes" solely to offer sellers tax advantages not available in the United States and these notes are neither listed on any organized securities market nor registered under the Securities Act of 1933 (15 U.S.C. 77a et seq.), the loan notes need not be offered to U.S. holders.

(iii)  Informational documents.

(A)  If the issuer or affiliate publishes or otherwise disseminates an informational document to the holders of the securities in connection with the issuer tender offer (including any exchange offer), the issuer or affiliate must furnish that informational document, including any amendments thereto, in English, to the Commission on Form CB (§ 249.480 of this chapter) by the first business day after publication or dissemination. If the issuer or affiliate is a foreign company, it must also file a Form F-X (§ 239.42 of this chapter) with the Commission at the same time as the submission of Form CB to appoint an agent for service in the Untied States.

(B)  The issuer or affiliate must disseminate any informational document to U.S. holders, including any amendments thereto, in English, on a comparable basis to that provided to security holders in the home jurisdiction.

(C)  If the issuer or affiliate disseminates by publication in its home jurisdiction, the issuer or affiliate must publish the information in the United States in a manner reasonably calculated to inform U.S. holders of the offer.

(iv)  An investment company registered or required to be registered under the Investment Company Act of 1940 (15 U.S.C. 80a-1 et seq.), other than a registered closed-end investment company, may not use this paragraph (h)(8); or

(9)  Any other transaction or transactions, if the Commission, upon written request or upon its own motion, exempts such transaction or transactions, either unconditionally, or on specified terms and conditions, as not constituting a fraudulent, deceptive or manipulative act or practice comprehended within the purpose of this section.

(i)  Cross-border tender offers (Tier II). Any issuer tender offer (including any exchange offer) that meets the conditions in paragraph (i)(1) of this section shall be entitled to the exemptive relief specified in paragraph (i)(2) of this section provided that such issuer tender offer complies with all the requirements of this section other than those for which an exemption has been specifically provided in paragraph (i)(2) of this section:

(1)  Conditions. (i) The issuer is a foreign private issuer as defined in § 240.3b-4 and is not an investment company registered or required to be registered under the Investment Company Act of 1940 (15 U.S.C. 80a-1 et seq.), other than a registered closed-end investment company; and

(ii)  Except in the case of an issuer tender offer which is commenced during the pendency of a tender offer made by a third party in reliance on § 240.14d-1(d), U.S. holders do not hold more than 40 percent of the class of securities sought in the offer (as determined under Instruction 2 to paragraphs (h)(8) and (i) of this section).

(2)  Exemptions. The issuer tender offer shall comply with all requirements of this section other than the following:

(i)  Equal treatment--loan notes. If the issuer or affiliate offers loan notes solely to offer sellers tax advantages not available in the United States and these notes are neither listed on any organized securities market nor registered under the Securities Act (15 U.S.C. 77a et seq.), the loan notes need not be offered to U.S. holders, notwithstanding paragraph (f)(8) and (h)(9) of this section.

(ii)  Equal treatment--separate U.S. and foreign offers. Notwithstanding the provisions of paragraph (f)(8) of this section, an issuer or affiliate conducting an issuer tender offer meeting the conditions of paragraph (i)(1) of this section may separate the offer into two offers: One offer made only to U.S. holders and another offer made only to non-U.S. holders. The offer to U.S. holders must be made on terms at least as favorable as those offered any other holder of the same class of securities that is the subject of the tender offer.

(iii)  Notice of extension. Notice of extensions made in accordance with the requirements of the home jurisdiction law or practice will satisfy the requirements of § 240.14e-1(d).

(iv)  Prompt payment. Payment made in accordance with the requirements of the home jurisdiction law or practice will satisfy the requirements of § 240.14c-1(c).

Instructions to paragraph (h)(8) and (i) of this section:

1.  Home jurisdiction means both the jurisdiction of the issuer's incorporation, organization or chartering and the principal foreign market where the issuer's securities are listed or quoted.

2.  U.S. holder means any security holder resident in the United States. To determine the percentage of outstanding securities held by U.S. holders:

i.  Calculate the U.S. ownership as of 30 days before the commencement of the issuer tender offer;

ii.  Include securities underlying American Depositary Shares convertible or exchangeable into the securities that are the subject of the tender offer when calculating the number of subject securities outstanding, as well as the number held by U.S. holders. Exclude from the calculations other types of securities that are convertible or exchangeable into the securities that are the subject of the tender offer, such as warrants, options and convertible securities. Exclude from those calculations securities held by persons who hold more than 10 percent of the subject securities;

iii.  Use the method of calculating record ownership in § 240.12g3-2(a), except that your inquiry as to the amount of securities represented by accounts of customers resident in the United States may be limited to brokers, dealers, banks and other nominees located in the United States, your jurisdiction of incorporation, and the jurisdiction that is the primary trading market for the subject securities, if different than your jurisdiction of incorporation;

iv.  If, after reasonable inquiry, you are unable to obtain information about the amount of securities represented by accounts of customers resident in the United States, you may assume, for purposes of this definition, that the customers are residents of the jurisdiction in which the nominee has its principal place of business; and

v.  Count securities as beneficially owned by residents of the United States as reported on reports of beneficial ownership that are provided to you or publicly filed and based on information otherwise provided to you.

3.  United States. United States means the United States of America, its territories and possessions, any State of the United States, and the District of Columbia.

4.  The exemptions provided by paragraphs (h)(8) and (i) of this section are not available for any securities transaction or series of transactions that technically complies with paragraph (h)(8) or (i) of this section but are part of a plan or scheme to evade the provisions of this section.

(j)(1)  It shall be a fraudulent, deceptive or manipulative act or practice, in connection with an issuer tender offer, for an issuer or an affiliate of such issuer, in connection with an issuer tender offer:

(i)  To employ any device, scheme or artifice to defraud any person;

(ii)  To make any untrue statement of a material fact or to omit to state a material fact necessary in order to make the statements made, in the light of the circumstances under which they were made, not misleading; or

(iii)  To engage in any act, practice or course of business which operates or would operate as a fraud or deceit upon any person.

(2)  As a means reasonably designed to prevent fraudulent, deceptive or manipulative acts or practices in connection with any issuer tender offer, it shall be unlawful for an issuer or an affiliate of such issuer to make an issuer tender offer unless:

(i)  Such issuer or affiliate complies with the requirements of paragraphs (b), (c), (d), (e) and (f) of this section; and

(ii)  The issuer tender offer is not in violation of paragraph (j)(1) of this section.

[Codified to 17 C.F.R. § 240.13e--4]

[Section 240.13e--4 added at 44 Fed. Reg. 49410, August 22, 1979; amended at 47 Fed. Reg. 54780, December 6, 1982, effective December 4, 1982; 48 Fed. Reg. 34253, July 28, 1983; 51 Fed. Reg. 3034, January 23, 1986, effective March 1, 1986; 51 Fed. Reg. 5515, February 14, 1986, effective March 1, 1986; 51 Fed. Reg. 25882, July 17, 1986, rule 240.13e--4(f)(8)(i) effective July 17, 1986, other provisions effective August 18, 1986, except that a tender offer commenced after August 18, 1986 in competition with an offer that commenced prior to that date would be permitted to rely on the rules in effect prior to such date; 51 Fed. Reg. 32630, September 15, 1986; 56 Fed. Reg. 30067 and 30069, July 1, 1991; 58 Fed. Reg. 14683, March 18, 1993, effective April 26, 1993; 58 Fed. Reg. 19343, April 14, 1993; 61 Fed. Reg. 24656, May 15, 1996, effective June 14, 1996; 61 Fed. Reg. 68589, December 30, 1996; 62 Fed. Reg. 544, January 3, 1997; 62 Fed. Reg. 11323, March 12, 1997; 62 Fed. Reg. 36459, July 8, 1997; 64 Fed. Reg. 61403, and 61453, November 10, 1999, effective January 24, 2000; 71 Fed. Reg. 65407, November 8, 2006, effective December 8, 2006]

§ 240.13e--100  Schedule 13E--3, Transaction statement under section 13(e) of the Securities Exchange Act of 1934 and Rule 13e--3 (§ 240.13e--3) thereunder.

Securities and Echange Commission, Washington, D.C. 20549

Rule 13e--3 Transaction Statement under Section 13(e) of the Securities Exchange Act of 1934 (Amendment No. ____________________________________________ )

_______ (Name of the Issuer)

_______ (Names of Persons Filing Statement)

_______ (Title of Class of Securities)

_______ (CUSIP Number of Class of Securities)

_______ (Name, Address, and Telephone Numbers of Person Authorized to Receive Notices and Communications on Behalf of the Persons Filing Statement)

This statement is filed in connection with (check the appropriate box):

a.  [  ] The filing of solicitation materials or an information statement subject to Regulation 14A (§§ 240.14a--1 through 240.14b--2), Regulation 14C (§§ 240.14c--1 through 240.14c--101) or Rule 13e--3(c) (§ 240.13e--3(c)) under the Securities Exchange Act of 1934 ("the Act").

b.  [  ] The filing of a registration statement under the Securities Act of 1933.

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
Transactionvaluation* Amount of filing fee
   

*Set forth the amount on which the filing fee is calculated and state how it was determined.

[  ]  Check the box if any part of the fee is offset as provided by § 240.0--11(a)(2) and identify the filing with which the offsetting fee was previously paid. Identify the previous filing by registration statement number, or the Form or Schedule and the date of its filing.

Amount Previously Paid: _______

Form or Registration No. _______

Filing Party: _______

Date Filed: _______

General Instructions:

A.  File eight copies of the statement, including all exhibits, with the Commission if paper filing is permitted.

B.  This filing must be accompanied by a fee payable to the Commission as required by § 240.0--11(b),

C.  If the statement if filed by a general or limited partnership, syndicate or other group, the information called for by Items 3, 5, 6, 10 and 11 must be given with respect to: (i) Each partner of the general partnership; (ii) each partner who is, or functions as, a general partner of the limited partnership; (iii) each member of the syndicate or group; and (iv) each person controlling the partner or member. If the statement is filed by a corporation or if a person referred to in (i), (ii), (iii) or (iv) of this Instruction is a corporation, the information called for by the items specified above must be given with respect to: (a) Each executive officer and director of the corporation; (b) each person controlling the corporation; and (c) each executive officer and director of any corporation or other person ultimately in control of the corporation.

D.  Depending on the type of Rule 13e--3 transaction (§ 240.13e--3(a)(3)), this statement must be filed with the Commission:

1.  At the same time as filing preliminary or definitive soliciting materials or an information statement under Regulations 14A or 14C of the Act;

2.  At the same time as filing a registration statement under the Securities Act of 1933;

3.  As soon as practicable on the date a tender offer is first published, sent or given to security holders; or

4.  At least 30 days before any purchase of securities of the class of securities subject to the Rule 13e--3 transaction, if the transaction does not involve a solicitation, an information statement, the registration of securities or a tender offer, as described in paragraphs 1, 2 or 3 of this Instruction; and

5.  If the Rule 13e--3 transaction involves a series of transactions, the issuer or affiliate must file this statement at the time indicated in paragraphs 1 through 4 of this Instruction for the first transaction and must amend the schedule promptly with respect to each subsequent transaction.

E.  If an item is inapplicable or the answer is in the negative, so state. The statement published, sent or given to security holders may omit negative and not applicable responses, except that responses to Items 7, 8 and 9 of this schedule must be provided in full. If the schedule includes any information that is not published, sent or given to security holders, provide that information or specifically incorporate it by reference under the appropriate item number and heading in the schedule. Do not recite the text of disclosure requirements in the schedule or any document published, sent or given to security holders. Indicate clearly the coverage of the requirements without referring to the text of the items.

F.  Information contained in exhibits to the statement may be incorporated by reference in answer or partial answer to any item unless it would render the answer misleading, incomplete, unclear or confusing. A copy of any information that is incorporated by reference or a copy of the pertinent pages of a document containing the information must be submitted with this statement as an exhibit, unless it was previously filed with the Commission electronically on EDGAR. If an exhibit contains information responding to more than one item in the schedule, all information in that exhibit may be incorporated by reference once in response to the several items in the schedule for which it provides an answer. Information incorporated by reference is deemed filed with the Commission for all purposes of the Act.

G.  If the Rule 13e--3 transaction also involves a transaction subject to Regulation 14A (§§ 240.14a--1 through 240.14b--2) or 14C (§§ 240.14c--1 through 240.14c--101) of the Act, the registration of securities under the Securities Act of 1933 and the General Rules and Regulations of that Act, or a tender offer subject to Regulation 14D (§§ 240.14d--1 through 240.14d--101) or § 240.13e--4, this statement must incorporate by reference the information contained in the proxy, information, registration or tender offer statement in answer to the items of this statement.

H.  The information required by the items of this statement is intended to be in addition to any disclosure requirements of any other form or schedule that may be filed with the Commission in connection with the Rule 13e--3 transaction. If those forms or schedules require less information on any topic than this statement, the requirements of this statement control.

I.  If the Rule 13e--3 transaction involves a tender offer, then a combined statement on Schedules 13E--3 and TO may be filed with the Commission under cover of Schedule TO (§ 240.14d--100). See Instruction J of Schedule TO (§ 240.14d--100).

J.  Amendments disclosing a material change in the information set forth in this statement may omit any information previously disclosed in this statement.

Item 1. Summary Term Sheet

Furnish the information required by Item 1001 of Regulation M--A (§ 229.1001 of this chapter) unless information is disclosed to security holders in a prospectus that meets the requirements of § 230.421(d) of this chapter.

Item 2. Subject Company Information

Furnish the information required by Item 1002 of Regulation M--A (§ 229.1002 of this chapter).

Item 3. Identity and Background of Filing Person

Furnish the information required by Item 1003(a) through (c) of Regulation M--A (§ 229.1003 of this chapter).

Item 4. Terms of the Transaction

Furnish the information required by Item 1004(a) and (c) through (f) of Regulation M--A (§ 229.1004 of this chapter).

Item 5. Past Contacts, Transactions, Negotiations and Agreements

Furnish the information required by Item 1005(a) through (c) and (e) of Regulation M--A (§ 229.1005 of this chapter).

Item 6. Purposes of the Transaction and Plans or Proposals

Furnish the information required by Item 1006(b) and (c)(1) through (8) of Regulation M--A (§ 229.1006 of this chapter).

Instruction to Item 6: In providing the information specified in Item 1006(c) for this item, discuss any activities or transactions that would occur after the Rule 13e--3 transaction.

Item 7. Purposes, Alternatives, Reasons and Effects

Furnish the information required by Item 1013 of Regulation M--A (§ 229.1013 of this chapter).

Item 8. Fairness of the Transaction

Furnish the information required by Item 1014 of Regulation M--A (§ 229.1014 of this chapter).

Item 9. Reports, Opinions, Appraisals and Negotiations

Furnish the information required by Item 1015 of Regulation M--A (§ 229.1015 of this chapter).

Item 10. Source and Amounts of Funds or Other Consideration

Furnish the information required by Item 1007 of Regulation M--A (§ 229.1007 of this chapter).

Item 11. Interest in Securities of the Subject Company

Furnish the information required by Item 1008 of Regulation M--A (§ 229.1008 of this chapter).

Item 12. The Solicitation or Recommendation

Furnish the information required by Item 1012(d) and (e) of Regulation M--A (§ 229.1012 of this chapter).

Item 13. Financial Statements

Furnish the information required by Item 1010(a) through (b) of Regulation M--A (§ 229.1010 of this chapter) for the issuer of the subject class of securities.

Instructions to Item 13:

1.  The disclosure materials disseminated to security holders may contain the summarized financial information required by Item 1010(c) of Regulation M--A (§ 229.1010 of this chapter) instead of the financial information required by Item 1010(a) and (b). In that case, the financial information required by Item 1010(a) and (b) of Regulation M--A must be disclosed directly or incorporated by reference in the statement. If summarized financial information is disseminated to security holders, include appropriate instructions on how more complete financial information can be obtained. If the summarized financial information is prepared on the basis of a comprehensive body of accounting principles other than U.S. GAAP, the summarized financial information must be accompanied by a reconciliation as described in Instruction 2.

2.  If the financial statements required by this Item are prepared on the basis of a comprehensive body of accounting principles other than U.S. GAAP, provide a reconciliation to U.S. GAAP in accordance with Item 17 of Form 20--F (§ 249.220f of this chapter).

3.  The filing person may incorporate by reference financial statements contained in any document filed with the Commission, solely for the purposes of this schedule, if: (a) The financial statements substantially met the requirements of this Item; (b) an express statement is made that the financial statements are incorporated by reference; (c) the matter incorporated by reference is clearly identified by page, paragraph, caption or otherwise; and (d) if the matter incorporated by reference is not filed with this Schedule, an indication is made where the information may be inspected and copies obtained. Financial statements that are required to be presented in comparative form for two or more fiscal years or periods may not be incorporated by reference unless the material incorporated by reference includes the entire period for which the comparative data is required to be given. See General Instruction F to this Schedule.

Item 14. Persons/Assets, Retained, Employed, Compensated or Used

Furnish the information required by Item 1009 of Regulation M--A (§ 229.1009 of this chapter).

Item 15. Additional Information

Furnish the information required by Item 1011(b) of Regulation M--A (§ 229.1011 of this chapter).

Item 16. Exhibits

File as an exhibit to the Schedule all documents specified in Item 1016(a) through (d), (f) and (g) of Regulation M--A (§ 229.1016 of this chapter).

Signature. After due inquiry and to the best of my knowledge and belief, I certify that the information set forth in this statement is true, complete and correct.

_______ (Signature)  

_______ (Name and title)  

_______ (Date)

Instruction to Signature: The statement must be signed by the filing person or that person's authorized representative. If the statement is signed on behalf of a person by an authorized representative (other than an executive officer of a corporation or general partner of a partnership), evidence of the representative's authority to sign on behalf of the person must be filed with the statement. The name and any title of each person who signs the statement must be typed or printed beneath the signature. See § 240.12b--11 with respect to signature requirements.

[Codified to 17 C.F.R. § 240.13e-100]

[Section 240.13e-100 added at 44 Fed. Reg. 46743, August 8, 1979; amended at 51 Fed. Reg. 2477, January 17, 1986, effective February 18, 1986; 51 Fed. Reg. 42059, November 20, 1986, effective January 20, 1987 for proxy statements filed on or after that date; 64 Fed. Reg. 61454, November 10, 1999, effective January 24, 2000]

§ 240.13f--1  Reporting by institutional investment managers of information with respect to accounts over which they exercise investment discretion.

(a)  (1) Every institutional investment manager which exercises investment discretion with respect to accounts holding section 13(f) securities, as defined in paragraph (c) of this section, having an aggregate fair market value on the last trading day of any month of any calendar year of at least $100,000,000 shall file a report on Form 13F [§ 249.325 of this Chapter] with the Commission within 45 days after the last day of such calendar year and within 45 days after the last day of each of the first three calendar quarters of the subsequent calendar year.

(2)  An amendment to a Form 13F (§ 249.325 of this chapter) report, other than one reporting only holdings that were not previously reported in a public filing for the same period, must set forth the complete text of the Form 13F. Amendments must be numbered sequentially.

(b)  For the purposes of this rule, "investment discretion" has the meaning set forth in section 3(a)(35) of the Act [15 U.S.C. 78c(a)(35)]. An institutional investment manager shall also be deemed to exercise "investment discretion" with respect to all accounts over which any person under its control exercises investment discretion.

(c)  For purposes of this rule "section 13(f) securities" shall mean equity securities of a class described in section 13(d)(1) of the Act that are admitted to trading on a national securities exchange or quoted on the automated quotation system of a registered securities association. In determining what classes of securities are section 13(f) securities, an institutional investment manager may rely on the most recent list of such securities published by the Commission pursuant to section 13(f)(3) of the Act [15 U.S.C. 78m(f)(3)]. Only securities of a class on such list shall be counted in determining whether an institutional investment manager must file a report under this rule [240.13f--1(a)] and only those securities shall be reported in such report. Where a person controls the issuer of a class of equity securities which are "section 13(f) securities" as defined in this rule, those securities shall not be deemed to be "section 13(f) securities" with respect to the controlling person, provided that such person does not otherwise exercise investment discretion with respect to accounts with a fair market value of at least $100,000,000 within the meaning of paragraph (a) of this section.

[Codified to 17 C.F.R. § 240.13f--1]

[Section 240.13f--1 added at 43 Fed. Reg. 26705, June 22, 1978, effective July 31, 1978; amended at 44 Fed. Reg. 3034 and 3035, January 15, 1979, effective February 5, 1979; 64 Fed. Reg. 2849, January 19, 1999, effective, February 18, 1999]

1 Average number of shares of common stock outstanding during each period was--(as adjusted to give effect to stock dividends or stock splits). Go back to Text


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