Imágenes de páginas
PDF
EPUB

the exchange is an independent sale at a higher price, the security may be stabilized at a price not in excess of such independent sale price.

(3) If a stabilizing bid or purchase is made before the initial public offering price of the security to be distributed is determined, and such offering price is higher than such stabilizing bid or purchase price, then stabilizing may be resumed after determination of such public offering price at the price at which it could then be initiated: Provided, however, That special prices available to any group or class of persons (including employees or holders of warrants or rights) shall not constitute the initial public offering price for purposes of this paragraph.

(4) A stabilizing bid lawful when made may be continuously maintained or reduced irrespective of changes in the independent bid, asked or sale price of such security: Provided, however, That no stabilizing shall be done at a price higher than the price at which stabilizing is being done in the principal market for such security. Except as provided in paragraph (j)(3) of this section, if stabilizing is discontinued for less than three business days it shall not be resumed in connection with the same distribution except at the lower of the two following prices: (i) The last lawful stabilizing price, or (ii) the price at which stabilizing could then be initiated. If no stabilizing purchases have been effected for three consecutive business days then stabilizing may be continued or resumed at the price at which it could then be initiated.

(5) No person shall stabilize a security at a price above the price at which such security is currently being distributed: Provided, however, That special prices available to any group or class of persons (including employees or holders of warrants or rights) shall not limit the stabilizing price.

(6) If a security goes ex-dividend, exrights, or ex-distribution, the price at which such security is being stabilized shall be reduced by an amount equal to the value of the dividend, right, or distribution, computed to the nearest trading differential: Provided, however, That if the dividend, right or distribution has a value of not more than 50

percent of the minimum price differential, the stabilizing price need not be reduced.

(7) When two or more securities are being offered as a unit, the component securities shall not be stabilized at prices the sum of which exceeds the offering price of the unit: Provided, however, The special prices available to any group or class of persons (including employees or holders of warrants or rights) shall not limit the stabilizing price.

(8) If a security is being called or redeemed it shall be unlawful to stabilize such security at a price above such call or redemption price plus accruals, if any: Provided, however, That if such security is immediately convertible into or exchangeable for another security or securities, and if the amount of such other security or securities (into which it is convertible or for which it is exchangeable) multiplied by their highest lawful stabilizing price exceeds the call or redemption price plus accruals, then the security may be stabilized at a price not in excess of such price, to the nearest trading differential.

(k) Disclosure of stabilizing. Any person subject to this rule who sells to, or purchases for the account of, any person, any security or any right or warrant to subscribe to any such security, where the price of such security, right or warrant has been stabilized, shall ! give or send to such person, at or before the completion of each transaction entered into while the distribution is in progress, written notice that stabilizing purchases may be or have been effected. If, however, at or before the completion of the transaction, the purchaser receives a prospectus, offering circular, confirmation or other writing containing a statement similar to that comprising the legend provided for in Item 502(d) of Regulation S-K (§ 229.502(d) of this chapter), then no other written notice with respect to stabilizing need be given to such purchaser.

(1) Recordkeeping requirements. A person subject to this section shall keep the information and make the notification required by §240.17a-2 even though he is not subject to that section as a broker, dealer or member of a national securities exchange.

(m) Limitation of liability. Whenever any act done or omitted by any person subject to this section would involve a violation of such rule only if some other person had previously done or omitted to do some other act, the act or omission of such first-mentioned person shall not involve a violation unless such first-mentioned person knew or had reason to know that such other person had previously done or omitted to do such other act.

(n) Exempted securities. The provision of this section shall not apply to "exempted securities", as defined in section 3(a)(12) of the act, including securities issued, or guaranteed both as to principal and interest, by the International Bank for Reconstruction and Development.

(0) The provisions of this section shall not apply to any distribution of securities of a foreign government or a foreign private issuer, as defined in §240.3b-4, eligible for resale under § 230.144A(d)(3) of this chapter, if such securities are offered or sold in the United States solely to a qualified institutional buyer, as defined in § 230.144A(a)(1) of this chapter, or to an offeree or purchaser that the seller and any person acting on behalf of the seller reasonably believes is a qualified institutional buyer, in transactions exempt from registration under section 4(2) (15 U.S.C. 77d(2)) of the Securities Act of 1933 or § 230.144A or Regulation D (§§ 230.501-230.508) of this chapter.

(p) Exempted transactions. This section shall not prohibit any 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 manipulative or deceptive device or contrivance comprehended within the purpose of this section.

(Secs. 9(a)(6), 10(b), 17(a) and 23(a) of the Act, 15 U.S.C. 781(a)(6), 78j(b), 78q(a) and 78w(a)) [20 FR 5076, July 15, 1955, as amended at 47 FR 11464, Mar. 16, 1982; 48 FR 41377, Sept. 15, 1983; 58 FR 60329, Nov. 15, 1993]

[blocks in formation]

contrivance" as used in section 10(b) of the act for any person participating in a distribution of securities being offered through rights issued on a prorata basis to security holders, directly or indirectly, by the use of any means or instrumentality of interstate commerce, or of the mails, or of any facility of any national securities exchange, to do any act prohibited by this section prior to the expiration of the rights: Provided, however, That a person shall not be subject to this section merely because he receives compensation from the issuer of the rights for obtaining exercises of rights by security holders to whom they were originally issued. The provisions of this section and Rule 10b-6 (a)(3)(ix) under the Act [$240.10b6(a)(3)(ix)] apply to convertible securities called for redemption pursuant to a standby underwriting agreement; the convertible securities are deemed to be rights and the securities issuable upon conversion thereof are deemed to be the securities being distributed.

(b) Except as provided in paragraph (c) of this section no person subject to this section shall offer or sell the securities being distributed, or securities of the same class and series, at a price in excess of the last price set by the person or persons managing the distribution or by a formula prescribed in an agreement with such person or persons. Such price may be set from time to time, but an offering price set in any calendar day may not be increased more than once during such day. If the principal market for such security is a securities exchange, such price shall not, at the time it is so set, exceed the price at which such security last sold on such exchange (plus an amount equal to an exchange commission) or the current asked price on such exchange (plus such commission), whichever is higher. If the principal market for such security is not a securities exchange, such sale price shall not, at the time it is so set, exceed the highest price at which a dealer not participating in the distribution is then offering the security to other dealers (plus an amount equal to a dealer's concession). The amount of any accrued dividends or interest may be added to such prices.

(c) The provisions of paragraph (b) of this section shall not apply to (1) privately negotiated transactions effected otherwise than on a securities exchange, among persons participating in the distribution; or (2) odd-lot transactions and the round-lot transactions that offset odd-lot transactions previously or simultaneously executed or reasonably anticipated in the usual course of business by a person who acts in the capacity of an odd-lot dealer. (3) brokerage transactions not involving solicitation of the customer's order; or (4) offers and sales at the subscription price to holders of rights; or (5) offers and sales to members of any group or class entitled to a special price; or (6) offers and sales of securities owned beneficially on the record date for the rights or acquired through the exercise of rights issued in respect of securities so owned.

(d) The conditions of paragraphs (d)(1) through (7) of this section shall apply to all bids for and purchases of rights on behalf of a sole distributor, or a syndicate or group participating in the distribution, or any member or members of such a syndicate or group, during any period when the price of the security is being stabilized to facilitate the distribution, or such sole distributor, or such syndicate or group, or any member or members thereof, having purchased, as principal, any right not necessary to acquire securities previously sold by such person or such syndicate or group, in connection with the distribution, has not sold the securities which have been or can be acquired through such rights: Provided, however, That the conditions of paragraphs (d)(1) through (7) of this section shall not become applicable because of the purchase of rights in any transaction described in paragraph (d)(8) of this section. As used herein the term "syndicate or group" means (i) all persons who have agreed to purchase from the issuer of rights any of the securities offered through but not purchased upon the exercise of the rights; (ii) all "soliciting dealers" as defined in paragraph (d)(8) (viii) of this section, including a "dealer manager" as therein defined, and (iii) all persons who have agreed with the issuer of rights, or with each other, that they will engage

in the purchase of rights and the sale of the securities which may be acquired through the exercise of rights. In connection with purchases of convertible securities that have been called for redemption, the conditions imposed upon bids for or purchases of rights in paragraphs (d)(1) through (7) of this section shall apply only to market purchases of such securities effected in accordance with a standby underwriting agreement.

(1) Not more than one bid to purchase rights shall be maintained in any one market at the same price at the same time: Provided, however, That more than one bid at the same price may be maintained otherwise than on a securities exchange by or for the account of the sole distributor or for the account of the syndicate or group.

(2) No bid for or purchase of rights shall be made until an independent market for such rights has been established: Provided, however, That if (i) trading has not begun on the business day on which trading in such rights could lawfully have begun, and (ii) the theoretical value of such rights can be ascertained by a generally accepted mathematical formula, then such right may be purchased thereafter at a price not in excess of such theoretical value.

(3) The initial bid for or purchase of such rights under the conditions of this paragraph shall not be made at a price higher than the highest current independent bid price in the principal market for such rights in the United States open for trading at the time when such bid or purchase is made: Provided, however, That if the principal market for such rights is a securities exchange in the United States open for trading at such time, such initial bid or purchase may be made in any market at the last independent sale price on such exchange if (i) such right has been traded on such exchange on such day or on the preceding business day and (ii) the current asked price on such exchange is equal to or above such sale price: And provided, further, That if the initial bid or purchase is made after the close of such exchange such initial bid or purchase may be made at the price at which such initial bid or purchase could have been made on such exchange at the close thereof unless the

bidder or purchaser knows, or has reason to know, that other persons have offered or sold such right at a lower price after such close.

(4) Subject to the limitations in paragraph (d)(7) of this section, a bid which is lawful when initiated may be continuously maintained or reduced irrespective of changes in the independent bid, asked or sale price of such right. Except as provided in paragraph (d)(5) of this section, if the bidding for and purchasing of rights is discontinued for any reason, bidding for or purchasing of rights shall not be resumed except at a price not exceeding the lower of the two following prices: (i) The last price at which a lawful bid or purchase was made or (ii) the price which would be applicable if it were the initial bid or purchase.

(5) The price at which a bid for or purchase of rights is made may be increased only if (i) no rights have been purchased, as principal, for a full business day, by the sole distributor, or any syndicate or group, or any member thereof, except in a transaction described in paragraph (d)(8) of this section, or (ii) the independent bid price in the principal market for such rights in the United States has exceeded such price for a full business day: Provided, however, That the increased bid or purchase price in any such case shall meet the requirements which would be applicable if it were the initial bid or purchase. As used herein the term full business day shall mean a period beginning at any time on any business day and extending to the same time on the next succeeding business day.

(6) In the event that the conditions of this paragraph have ceased to be applicable, and then later become applicable again, the first bid for or purchase of rights after such conditions have again become applicable shall be treated as the initial bid for or purchase of rights under the conditions of this paragraph for purposes of paragraphs (d)(3), (4) and (5) of this section.

(7) Purchases of rights shall be limited to those necessary to acquire the securities which the sole distributor, or the members of the syndicate or group, have previously sold and reasonably expect to be able to sell within five busi

ness days after the expiration of the rights.

(8) Except as provided in paragraph (d)(8)(viii) of this section, the provisions of this paragraph shall not apply to the purchase of rights.

(i) By or through the manager of the distributing group in a privately negotiated transaction effected neither on a securities exchange nor from or through a broker or dealer not participating in the distribution; or

(ii) By an underwriter or dealer directly from a retail customer in an unsolicited privately negotiated transaction not effected on a securities exchange; or

(iii) In stabilizing transactions in the rights effected in compliance with § 240.10b-7; or

(iv) In a privately negotiated transaction, otherwise than on a securities exchange, between persons participating in the distribution acting as principal; or

(v) By a person registered as an oddlot dealer in such rights on a national securities exchange who is acting in such capacity in effecting such transactions; or

(vi) To complete a sale of rights to a retail customer made under circumstances indicating the purchaser intends to exercise such rights; or

(vii) By the issuer of the rights from the security holder to whom they were originally issued if (a) such rights are not resold, (b) the securities which can be acquired with such rights are not sold by such issuer during the rights period, and (c) such issuer has no agreement to sell the unsubscribed shares or to compensate, directly or indirectly, any person for obtaining exercises of rights except by a security holder to whom they were originally issued; or

(viii) By a dealer-manager, provided that (a) such dealer-manager has no arrangement with the issuer of the rights to purchase any part of the securities remaining unsubscribed after the rights expire, (b) such dealer-manager purchases such rights for the purpose of supplying the rights, or the security which can be acquired with such rights, to soliciting dealers: Provided, however, That such dealer-manager shall not purchase more rights than are necessary to acquire the securities or

rights which he reasonably expects to be able to sell to soliciting dealers within five business days after the expiration of the rights, and (c) such dealer-manager purchases such rights in accordance with the conditions set out in paragraphs (d)(2), (3), (4), (5) and (6) of this section. As used in this section, the term soliciting dealer shall mean a person entitled to receive, directly or indirectly, from an issuer of rights, compensation for obtaining exercises of such rights; and the term dealer-manager shall mean a person who manages a distribution involving soliciting dealers except that the issuer of such rights shall not be deemed to be a dealer-manager.

(e) Whenever any act done or omitted by any person subject to this section would involve a violation of such section only if some other person had previously done or omitted to do some other act, the act or omission of such first-mentioned person shall not involve a violation unless such first-mentioned person knew or had reason to know that such other person had previously done or omitted to do such other act.

(f) The provisions of this section shall not apply to any distribution of securities of a foreign government or a foreign private issuer, as defined in § 240.3b-4, eligible for resale under §230.144A(d)(3) of this chapter, if such securities are offered or sold in the United States solely to a qualified institutional buyer, as defined in § 230.144A(a)(1) of this chapter, or to an offeree or purchaser that the seller and any person acting on behalf of the seller reasonably believes is a qualified institutional buyer, in transactions exempt from registration under Section 4(2) (15 U.S.C. 77d(2)) of the Securities Act of 1933 or § 230.144A or Regulation D (§§ 230.501-230.508) of this chapter.

(g) This section shall not prohibit any 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 manipulative or deceptive device or con

trivance comprehended within the purpose of this section.

(Secs. 3, 9, 10, 48 Stat. 882, as amended, 889, 891; 15 U.S.C. 78c, 781, 78j)

[20 FR 5077, July 15, 1955, as amended at 48 FR 10642, Mar. 14, 1983; 58 FR 60329, Nov. 15, 1993]

$240.10b-9 Prohibited representations in connection with certain offerings.

(a) It shall constitute a manipulative or deception device or contrivance, as used in section 10(b) of the Act, for any person, directly or indirectly, in connection with the offer or sale of any security, to make any representation:

(1) To the effect that the security is being offered or sold on an "all-ornone" basis, unless the security is part of an offering or distribution being made on the condition that all or a specified amount of the consideration paid for such security will be promptly refunded to the purchaser unless (i) all of the securities being offered are sold at a specified price within a specified time, and (ii) the total amount due to the seller is received by him by a specified date; or

(2) To the effect that the security is being offered or sold on any other basis whereby all or part of the consideration paid for any such security will be refunded to the purchaser if all or some of the securities are not sold, unless the security is part of an offering or distribution being made on the condition that all or a specified part of the consideration paid for such security will be promptly refunded to the purchaser unless (i) a specified number of units of the security are sold at a specified price within a specified time, and (ii) the total amount due to the seller is received by him by a specified date.

(b) This rule shall not apply to any offer or sale of securities as to which the seller has a firm commitment from underwriters or others (subject only to customary conditions precedent, including "market outs") for the purchase of all the securities being offered.

(Sec. 10, 48 Stat. 891, as amended; 15 U.S.C. 781)

[27 FR 9943, Oct. 10, 1962]

« AnteriorContinuar »