Cross-Border Tender Offers (A transnational survey of the rules governing tender offers, and an analysis of the SEC Rule aimed at the increased inclusion of U.S. shareholders in foreign tender offers.)

Sammanfattning: A tender offer is basically a technique to attain corporate control. It could be characterised as an offer to acquire shares of a company, whose shares are not closely held, addressed to the general body of shareholders, usually at a premium, with a view to obtaining at least sufficient shares to give the offeror voting control of the company. In the United States tender offers are governed by the Williams Act, which is a part of the Securities and Exchange Act of 1934. The Securities and Exchange Commission (SEC) is the authority monitoring the U.S. securities market including tender offers. In the United Kingdom and Sweden, tender offers are governed by self-regulatory systems, the London City Code on Takeovers and Mergers (the City Code) and Näringslivets börskommittes rekommendation rörande offentligt erbjudande om aktieförvärv (NBK/OE), and monitored by self-regulatory bodies, the Panel on Takeovers and Mergers (the Takeover Panel) and Näringslivets börskommitte (NBK). All three systems have the overriding purpose of investor protection. However, the differences in areas as ownership reporting, mandatory bids, commencement of the offering, minimum offer periods, withdrawal rights, and purchases outside the bid creates a regulatory tension between the systems. Furthermore, in the cross-border context the different philosophy regarding regulation of tender offers in the United States, as opposed to the philosophy in the United Kingdom and Sweden, lead to a problem with dual jurisdiction of tender offers. For example, when a Swedish company make a tender offer for the shares of a company organized under the laws of the United Kingdom that have a small number of U.S. shareholders through American Depositary Shares (ADS), both U.K. and U.S. regulatory systems will govern the tender offer. Since the regulatory tension makes it very difficult to conduct the bid in compliance with both systems, relief from one set of rules must be sought. Seeking relief from a regulatory system such as the Williams Act is a costly and time-consuming procedure. Instead, a common practice have evolved where U.S. shareholders are excluded from the offer when the bidder determines that it can attain the number of shares needed without the shares held by shareholders residing in the U.S. This procedure is a deviation from the principle of equal bid under both the City Code and NBK/OE that is not objected to by the regulatory authorities. The exclusion of U.S. shareholders creates a situation where they are forced to sell their shares into the open market, without the procedural and disclosure requirements that the home market normally provides, in order to realise a portion of the premium of the tender offer. In order to prevent this situation and increase the inclusion of U.S. shareholders in non-U.S. tender offers the SEC has adopted a rule that, to a certain extent, exempts non-U.S. tender offers from the scope of the Williams Act. Alternatives to the SEC rule, such as the creation of a harmonized intersystem for takeover regulation or a choice of law rule combined with disclosure in English, could be different solutions to the problem with dual jurisdiction of tender offers. Conclusively, it is not certain that the exemptive rule will be as successful as the SEC predicts since the option to exclude U.S. shareholders is open to bidders for non-U.S. targets even with the rule in force.