In this ongoing series, we discuss tender offers for the securities of target companies that are incorporated or listed outside of the United States. There are certain exemptions to the U.S. rules that apply in the case of companies with a limited number of U.S. shareholders.

  • US Implications of Tender Offers: Beyond the Takeover Code explains the U.S. rules that apply to tender offers for equity securities of UK companies that are not eligible for Tier I or Tier II.
  • Cash Tender Offer in Compliance with Regulation 14E outlines the requirements under the U.S. federal securities laws applicable in the following situation: the offer is a cash tender offer for the equity securities of a target company that is a foreign private issuer; the target company’s shares are not listed in the United States, but the target company has U.S. shareholders; and the bidder is not eligible to use, or chooses not to rely on, certain exemptions available under the U.S. cross-border tender offer rules.
  • Tier I Cash Tender Offer outlines the requirements under the U.S. federal securities laws applicable in the following situation: the bidder is a non-U.S. company; the transaction is a cash tender offer for the equity securities of a target company that is a foreign private issuer; the target company’s shares are not listed in the United States, but it has U.S. shareholders; the target company is not an investment company; and fewer than 10% of the target company’s shares are held by U.S. residents.
  • Tier II Cash Tender Offer outlines the requirements under the U.S. federal securities laws applicable in the following situation: the bidder is a non-U.S. company; the offer is a cash tender offer for the equity securities of a target company that is a foreign private issuer; the target company’s shares are not listed in the United States, but it has U.S. shareholders; the target company is not an investment company; more than 10% but fewer than 40% of the target company’s shares are held by U.S. residents.
  • Tier I Exchange Offer outlines the requirements under the U.S. federal securities laws applicable in the following situation: the bidder is a foreign private issuer; the bidder’s shares are not listed in the United States; the bidder is not an investment company; the offer is an exchange offer for the equity securities of a target company that is a foreign private issuer; the target company’s shares are not listed in the United States, but it has U.S. shareholders; the target company is not an investment company; fewer than 10% of the target company’s shares are held by U.S. residents.
  • Tier I exchange offer without using Rule 802 outlines the requirements under the U.S. federal securities laws applicable in the following situation: the bidder is a foreign private issuer; the bidder is not an investment company; the offer is an exchange offer for the shares of a target company that is a foreign private issuer; the target company’s shares are not listed in the United States, but it has U.S. shareholders; the target company is not an investment company, less than 10% of the target company’s shares are held by U.S. shareholders; the bidder cannot or chooses not to offer the target company’s U.S. shareholders cash consideration instead of equity securities; the bidder cannot or chooses not to rely on the exemption under Rule 802 of the U.S. Securities Act of 1933, as amended, to issue securities to the target company’s shareholders.
  • Tender or exchange offer avoiding U.S. jurisdictional means outlines the requirements under the U.S. federal securities laws applicable in the following situation: the bidder is a foreign private issuer; the bidder is conducting a tender offer or exchange offer for the shares of a target company that is also a foreign private issuer; the target company’s shares are not listed in the United States, but it has U.S. shareholders; the bidder cannot or chooses not to extend the offer to the shareholders of the target company in the United States.

On October 17, 2018, the SEC published new and updated compliance and disclosure interpretations on the cross-border exemptions available under the U.S. federal securities laws, which are available here.

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Photo of Peter Castellon Peter Castellon

Peter represents issuers, underwriters and selling shareholders in connection with offerings of securities, including IPOs, follow-on and secondary offerings, block trades, rights offerings and offerings of convertible and exchangeable bonds.

Peter is active in bar association activities and has served as an officer…

Peter represents issuers, underwriters and selling shareholders in connection with offerings of securities, including IPOs, follow-on and secondary offerings, block trades, rights offerings and offerings of convertible and exchangeable bonds.

Peter is active in bar association activities and has served as an officer of several committees, including the IBA Capital Markets Forum, the International Securities Matters Subcommittee of the ABA Committee on the Federal Regulation of Securities and the ABA International Securities & Capital Markets Committee.

Peter has written several articles on securities law topics, including the following:

  • US Private Placements: When Rule 144A is unavailable, PLC, July, 2015.
  • SAS 72 letters: Seeking comfort, PLC, May, 2013.

  • Another way in, IFLR, March, 2012.

Before joining Proskauer, Peter was Deputy General Counsel for Citi and advised the Equity Capital Markets Division and Investment Banking Division. While at Citi, Peter worked on most of Citi’s ECM transactions in Europe, the Middle East and Africa.

Photo of Frank Zarb Frank Zarb

Frank Zarb is a partner in our Corporate Department and a member of the Capital Markets Group, where he concentrates his practice on equity finance and a wide range of regulatory matters under U.S. federal securities laws.

He counsels public and private companies…

Frank Zarb is a partner in our Corporate Department and a member of the Capital Markets Group, where he concentrates his practice on equity finance and a wide range of regulatory matters under U.S. federal securities laws.

He counsels public and private companies, hedge funds and family offices, and market intermediaries and other financial institutions on a wide range of transactional and securities regulatory compliance matters including:

  • Equity investments and dispositions in public and private companies
  • Public company registration, disclosures and preparation of periodic reports
  • Tender offers, equity lines, proxy contests, SPACs, and other highly regulated transactions
  • Regulation M, Regulation SHO, Forms 13F and 13H, insider trading and other trading issues
  • Corporate governance and stock exchange listing standards
  • Federal and state proxy requirements as well as shareholder proposals and communications
  • Regulation of financial intermediaries, including trading of public and private equity, and complex and novel trading structures
  • Advocating with the SEC on behalf of a market intermediary related to back-office processing matters.

Frank’s practice is both domestic and international, beginning with his experience in senior positions with the Securities and Exchange Commission. As a member of the staff of the SEC’s Office of International Corporate Finance, Frank advised U.S. companies seeking to do business in the EU, Asia and the Middle East, as well as companies from those regions doing business in the U.S., or otherwise seeking to comply with the U.S. securities laws.  In the Office of Chief Counsel, he focused on federal proxy rules, and supervised a team of staff members that provided guidance in the course of proxy season.

Prior to joining the Firm, Frank was deputy general counsel/chief securities counsel for Bristol Myers Squibb Co. in a new position required by the SEC. Prior to joining Bristol-Myers, Frank was a corporate partner with Morgan, Lewis & Brockius.

Social Responsibility

Frank is a Trustee of the Gerald R. Ford Presidential Foundation, and he provides significant pro bono assistance to non-profit social service institutions in the Washington, D.C. area.