Securities Lawyer's Deskbook                          published by The University of Cincinnati College of Law

Rule 14d-4 -- Dissemination of Tender Offers to Security Holders

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1. Cash tender offers and exempt securities offers. For tender offers in which the consideration consists solely of cash and/or securities exempt from registration under section 3 of the Securities Act of 1933:
   
   
   1. Long-form publication. The bidder makes adequate publication in a newspaper or newspapers of long-form publication of the tender offer.
      
      
   2. Summary publication.
      
      
      1. If the tender offer is not subject to Rule 13e-3, the bidder makes adequate publication in a newspaper or newspapers of a summary advertisement of the tender offer; and
         
         
      2. Mails by first class mail or otherwise furnishes with reasonable promptness the bidder's tender offer materials to any security holder who requests such tender offer materials pursuant to the summary advertisement or otherwise.
         
         
   3. Use of stockholder lists and security position listings. Any bidder using stockholder lists and security position listings under Rule 14d-5 must comply with paragraph (a)(1) or (2) of this section on or before the date of the bidder's request under Rule 14d-5(a).
      
      

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   Instruction to paragraph (a):
   
   Tender offers may be published or sent or given to security holders by other methods, but with respect to summary publication and the use of stockholder lists and security position listings under Rule 14d- 5, paragraphs (a)(2) and (a)(3) of this section are exclusive.

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2. Registered securities offers. 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, including a letter of transmittal, is delivered to security holders. However, for going-private transactions (as defined by Rule 13e-3) and roll-up transactions (as described by Item 901 of Regulation S-K), 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.
   
   

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   Instructions to paragraph (b)
   
   
   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 Rule 430 or Rule 430A of this chapter.
      
      
   3. If a preliminary prospectus is used under this section and the bidder must disseminate material changes, the tender offer must remain open for the period specified in paragraph (d)(2) of this section.
      
      
   4. If a preliminary prospectus is used under this section, tenders may be requested in accordance with Rule 162(a) of this chapter.

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3. Adequate publication. Depending on the facts and circumstances involved, adequate publication of a tender offer pursuant to this section may require publication in a newspaper with a national circulation or may only require publication in a newspaper with metropolitan or regional circulation or may require publication in a combination thereof: Provided, however, that publication in all editions of a daily newspaper with a national circulation shall be deemed to constitute adequate publication.
   
   
4. Publication of changes and extension of the offer.
   
   
   1. If a tender offer has been published or sent or given to security holders by one or more of the methods enumerated in paragraph (a) of this section, a material change in the information published or sent or given to security holders shall be promptly disseminated to security holders in a manner reasonably designed to inform security holders of such change; Provided, however, That if the bidder has elected pursuant to Rule 14d-5 (f)(1) of this section to require the subject company to disseminate amendments disclosing material changes to the tender offer materials pursuant to Rule 14d-5, the bidder shall disseminate material changes in the information published or sent or given to security holders at least pursuant to Rule 14d-5.
      
      
   2. In a registered securities offer where the bidder disseminates the preliminary prospectus as permitted by paragraph (b) 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:
      
      
      1. Five business days for a prospectus supplement containing a material change other than price or share levels;
         
         
      2. 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;
         
         
      3. Ten business days for a prospectus supplement included as part of a post-effective amendment; and
         
         
      4. Twenty business days for a revised prospectus when the initial prospectus was materially deficient.
         
         

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