Sec. 801.31--Acquisitions of voting securities by offerees in tender offers.

Whenever an offeree in a noncash tender offer is required to, and does, file notification with respect to an acquisition described in Sec. 801.2(e):

(a) The waiting period with respect to such acquisition shall begin upon filing of notification by the offeree, pursuant to Sec. 801.30 and 803.10(a)(1);

(b) The person within which the issuer of the shares to be acquired by the offeree is included shall file notification as required by Sec. 801.30(b);

(c) Any request for additional information or documentary material pursuant to section 7A(e) and Sec. 803.20 shall extend the waiting period in accordance with Sec. 803.20(c); and

(d) The voting securities to be acquired by the offeree may be placed into escrow, for the benefit of the offeree, pending expiration or termination of the waiting period with respect to the acquisition of such securities; Provided however, That no person may vote any voting securities placed into escrow pursuant to this paragraph.

Example:

Assume that 'A,' which has annual net sales exceeding $100 million, makes a tender offer for voting securities of corporation X. The consideration for the tender offer is to be voting securities of A. 'S,' a shareholder of X with total assets exceeding $10 million, wishes to tender its holdings of X and in exchange would receive shares of A valued at $16 million. Under this section, 'S's' acquisition of the shares of A would be an acquisition separately subject to the requirements of the act.

 

Before 'S' may acquire the voting securities of A, 'S' must first file notification and observe a waiting period - which is separate from any waiting period that may apply with respect to 'A' and 'X.'

 

Since Sec. 801.30 applies, the waiting period applicable to 'A' and 'S' begins upon filing by 'S,' and 'A' must file with respect to 'S's' acquisition within 15 days pursuant to Sec. 801.30(b). Should the waiting period with respect to 'A' and 'X' expire or be terminated prior to the waiting period with respect to 'S' and 'A,' 'S' may wish to tender its X-shares and place the A-shares into a nonvoting escrow until the expiration or termination of the latter waiting period.

96/09/26