Release No. 33-6715

Release No. 34-24514

Release No. 35-24397

Release No. IC-15753

May 27, 1987

Proxy Rules--Amendments to Conform to Comprehensive Proxy Revisions, Rule Providing for Modified or Superseded Documents

ACTION: Final Rules.

SUMMARY: The Securities and Exchange Commission ("Commission") today announced the adoption of amendments to its proxy rules and certain other rules. The amendments will conform further the proxy disclosure for mergers and similar transactions to that required for registration of securities in certain business combinations and will clarify the timing requirements for such transactions where incorporation by reference is used. The Commission also is adopting a rule concerning modified or superseded statements in documents incorporated by reference into a proxy statement.

DATES: Effective Date: These amendments are effective thirty days after date of publication in the Federal Register for proxy statements filed on or after that date.

Compliance Date: Registrants are permitted, however, to comply with the amendments immediately after publication of this Release in the Federal Register. Such compliance must be with the amended rules as a whole.

FOR FURTHER INFORMATION CONTACT: Prior to the effective date, Caroline W. Dixon or Barbara J. Green, (202) 272-2589, Office of Disclosure Policy, Division of Corporation Finance, Securities and Exchange Commission, 450 5th Street, N.W., Washington, D.C. 20549. After the effective date, contact Cecilia D. Blye, (202) 272-2573, Office of Chief Counsel, Division of Corporation Finance.

SUPPLEMENTARY INFORMATION: The Commission today announced the adoption of revisions to the proxy and information statement rules ¹ under the Securities Exchange Act of 1934 ("Exchange Act"). ² The Commission is adopting revisions to Regulation 14A, ³ including Schedule 14A. ⁴ In addition, the Commission is adopting a new rule, Rule 14a-14, ⁵ which is part of Regulation 14A. Finally, corresponding amendments have been adopted to Forms S-4 ⁶ and F-4 ⁷ and to Item 304 of Regulation S-K. ⁸

Table of Contents

I. Discussion

A. Conforming Certain Disclosure Under Schedule 14A to Form S-4

The Commission is adopting as proposed ⁹ amendments to Item 14 of Schedule 14A, Mergers, Consolidations, Acquisitions and Similar Matters, to conform the company-specific information requirements for Item 14 with those of Form S-4, the registration form for certain business combination transactions. As a result of this amendment, Item 14(b)(3), Information with Respect to Registrants Other than S-2 or S-3 Registrants, subparagraph (i) is amended to require registrants to furnish all the information required by Item 101, Description of Business, ¹⁰ Item 102, Description of Property, ¹¹ and Item 103, Legal Proceedings, ¹² of Regulation S-K.

B. Description of Securities

Other Item 14 requirements for transaction information were conformed to the requirements of Form S-4 in the companion adopting release that accompanied the release proposing the changes now being adopted in this proposal. ¹³ As noted in that release, if the transaction involves the issuance of securities exempt from registration, information concerning the new class or series of securities can be material to the transaction. In the proposing release, the Commission sought comment as to whether there should be a specific requirements to include in a proxy or information statement all of the information that would be required by Item 202 of Regulation S-K ¹⁴ if securities were being registered and, if so, whether such a requirement should apply to all issuances of securities exempt from registration.

The Commission is amending Item 14 specifically to require the information called for by Item 202 for any securities that are exempt from registration if the security holders whose proxies are being solicited will be receiving the new securities. ¹⁵ If, however, a registrant solicits proxies from its security holders to authorize a transaction in which its securities are being issued to others, somewhat less extensive information concerning the new securities would be necessary. Such disclosure is currently required by Item 14(a)(3)(iii). Item 14(a)(3) requires a summary of the material features of the proposed transaction; subparagraph (iii) calls for an "explanation; of any material differences in the rights of security holders of the registrant as a result of this transaction."

C. New Rule 14a-14, Modified or Superseded Documents

The Commission is adopting as proposed a new rule similar to Rule 412 under the Securities Act of 1933. ¹⁶ The rule governs the treatment of a statement in a document incorporated by reference into a proxy statement which is subsequently modified or superseded by a statement in a later document also incorporated by reference.

The rule provides that, for purposes of the proxy statement, a statement in a document incorporated by reference is deemed to be modified or superseded by a statement in the proxy statement or in any other subsequently filed document(s) incorporated by reference. The rule also provides (1) that the making of a modifying or superseding statement is not deemed an admission that the first statement was false or misleading and (2) that the prior form of any statement so modified or superseded is not deemed to constitute a part of the proxy statement.

D. Other Amendments ¹⁷

1. Changes in and Disagreements with Accountants

The Commission also is adopting proposed amendments to clarify a potential ambiguity between Item 304 of Regulation S-K ¹⁸ and Item 14 of Schedule 14A with regard to the required disclosure concerning changes in and disagreements with accountants for non-reporting companies being acquired by the registrant. The potential ambiguity existed because Instruction 3 to Item 304 provided that the information required by Item 304 need not be provided for non-reporting companies being acquired by the registrant, whereas Item 14 specified that Item 304 information was required for such persons. Item 14 controls with respect to disclosure of the financial statement effect of subsequently accounting for similar transactions in a manner different from that preferred by the former accountant as required by paragraph (b) of Item 304. The Commission has specified in the amendments that it is not necessary to provide the information called for by paragraph (a) of Item 304 with respect to such acquired company. ¹⁹

2. Filing Requirements

Rule 14a-6 ²⁰ has been revised to delete language in paragraph (j) stating that a transaction involving an application or declaration under the Public Utility Holding Company Act of 1935 ("PUHCA") ²¹ is exempt from the proxy solicitation filing fee, because the language is redundant. Rule 14a-2 ²² provides that Rules 14a-3 ²³ to 14a-12 ²⁴ do not apply to "any solicitation which is subject to Rule 62 under the Public Utility Holding Company Act." ²⁵ It also should be noted that, as a PUHCA Rule 62 transaction is exempt from the Exchange Act proxy rules, an application or declaration under PUHCA also would be exempt from the filing fee requirements of Rule 14a-6(j). ²⁶

3. Mailing Where Incorporation by Reference is Used

Note D.3 to Schedule 14A requires that proxy material must be sent 20 business days prior to specified dates if documents or portions of documents are incorporated by reference as permitted by Items 13, Financial and Other Information, and 14, Mergers, Consolidations, Acquisitions and Similar Matters. As amended, the note clarifies that, where no meeting is held, the date by which material must be sent is 20 business days prior to the date the votes, consents or authorizations may be used to effect corporate action. The amended language conforms to language used elsewhere in the proxy rules to address similar circumstances. ²⁷

Similar revisions to instructions to Forms S-4 and F-4 have been made. Unlike revised Note D.3, these instructions retain the reference to the date the transaction is consummated because certain transactions involving the registration of securities pursuant to Forms S-4 or F-4 (such as a tender offer or short-form merger) need not involve the use of votes, consents or authorizations to effect corporate action. ²⁸

4. Clarifying Amendments as to Compensation Plans

The Commission has made technical revisions to Item 10 of Schedule 14A to clarify that, with respect to the exercise or realization of options or stock appreciation rights held in tandem with options, information concerning the net value of securities (market value less any exercise price) or cash realized need not be provided for employees as a group. In addition, language has been added to clarify that (1) references to directors who are not executive officers in Item 10(a)(2)(iii), Item 10(a)(3)(iii) and Item 10(b)(2)(ii)(C) refer to those currently in office and that these items also require disclosure with regard to all officers who are not executive officers; (2) Item 10(a) covers both the plan being voted upon and, in the case of Item 10(a)(3), all compensation plans currently in effect or in effect during the last three years; and (3) Item 10(b)(2) (options, warrants or rights submitted for security holders action) applies to both individual grants of options, warrants or rights and to compensation plans that utilize options, warrants or rights.

5. Clarifying Instruction With Regard to Disclosure of Pro Forma Financial Information for Business Combinations

Among the Item 14 requirements for transaction information that were conformed to Form S-4 are items that call for material information required by Item 301 of Regulation S-K, ²⁹ Selected Financial Data, with regard to the registrant or the other person on a pro forma basis, giving effect to the transaction, and pro forma and equivalent pro forma per share data for (1) book value, (2) cash dividends declared, and (3) income (loss) per share from continuing operations. These items and an accompanying instruction have been clarified in accordance with existing staff interpretations of Form S-4. The revisions make clear that, for a business combination accounted for as a purchase, the financial information called for by paragraphs (a)(6) and (a)(7) is to be provided for the most recent fiscal year and interim period. For a business combination accounted for as a pooling, the financial information is to be provided for the three most recent fiscal years and interim period, with the exception of the information with regard to book value which is to be provided for the most recent fiscal year and interim period. ³⁰

II. Cost-Benefit Analysis

To evaluate the benefits and costs associated with the amendments to Item 14 of Schedule 14A, Rule 14a-6, Item 304 of Regulation S-K, and Form S-4 and new Rule 14a-14, the Commission requested commentators to provide views and data as to the costs and benefits associated with these changes. No comments were received. As the Commission noted in the proposing release, however, the amendments will either not have an effect or have a minimal effect on costs.

III. Final Regulatory Flexibility Analysis

This final regulatory flexibility analysis, which relates to amendments to the proxy rules and certain conforming amendments to other rules, has been prepared in accordance with 5 U.S.C. 604. The corresponding Initial Regulatory Flexibility Analysis is contained in the proposing release.

The Need for, and Objectives of New Rule 14a-14 and Amendments to the Proxy and Other Rules

The current revisions result from comprehensive revisions to the proxy and other rules undertaken to clarify, to provide certainty by codifying staff interpretation, and to simplify the proxy and other rules. The principal purpose of the proxy rules, to ensure that information is made available to security holders being asked to vote on or consent to corporate action, is furthered by such clarification, codification and simplification. Certain of these amendments clarify existing rules and eliminate potential ambiguities in required disclosure. The amendments also include Rule 14a-14 which facilitates a registrants ability to update information included in a document that is incorporated by reference in a proxy statement without requiring any additional action by the registrant and without imposing any additional reporting, recordkeeping or compliance requirements.

Public Comment

No commentators responded to the Commissions request for comments on the Initial Regulatory Flexibility Analysis.

Significant Alternatives

Pursuant to section 604 of the Regulatory Flexibility Act, the following types of alternatives were considered:

(1) The establishment of differing compliance or reporting requirements or timetables that take into account the resources available to small entities;

(2) The clarification, consolidation or simplification of compliance and reporting requirements under the rules for such small entities;

(3) The use of performance rather than design standards; and

(4) An exemption from coverage of the rules, or any part thereof, for small entities.

The Commission does not believe, however, that it would be consistent with the Commissions statutory mandate to protect investors, to establish different compliance or reporting requirements with respect to the amendments to Item 14 of Schedule 14A and to Item 304 of Regulation S-K that would take into account the resources available to small entities. The disclosure called for by the amendments would be useful to security holders of small entities as well as to security holders of large entities.

The clarifying amendments to Items 10 and 14 and to Note D.3 of Schedule 14A will provide needed clarification which will be beneficial to small entities as well as large entities; the Commission does not believe that further simplification for small entities is consistent with the Commissions statutory mandate. Nor does the Commission believe that use of performance rather than design standards is appropriate in the context of the revised rules given the Commissions statutory mandate. With regard to the amendments to Item 14 other than clarifying amendments, an alternative would have been to exempt small entities from these requirements. The Commission does not believe, however, that extending an exemption to or providing different compliance or reporting requirements for small entities for transactions requiring compliance with Item 14 of Schedule 14A that would not otherwise involve registration on Form S-4 would be warranted in light of the Commissions statutory mandate. The Commission also believes that it is appropriate to conform the requirements of Item 14 and Form S-4 as they involve substantially the same decision by security holders. Further, if a small entity files preliminary proxy material meeting the requirements of Item 14 and the filing of a Form S-4 is contemplated for the transaction, the requirements of Form S-4 must be satisfied. In addition, the information called for by Item 202 of Regulation S-K, Description of Registrants Securities, should be provided in a transaction involving a business combination, notwithstanding that the issuance is exempt from registration, if security holders whose proxies are being solicited will be receiving the securities. Rule 14a-14 provides relief with regard to the updating of information that any other approach is unlikely to provide for small as well as large entities.

IV. Statutory Basis

The amendments to the proxy and information statement rules and to Items 304 and 512 of Regulation S-K, Form S-4, and Form F-4 are being adopted by the Commission pursuant to Sections 6, 7, 10 and 19(a) of the Securities Act of 1933 and Sections 14 and 23(a) of the Securities Exchange Act of 1934.

List of Subjects in 17 CFR Parts 229, 230 and 240

Reporting and recordkeeping requirements, Securities.

V. Text of Amendments

In accordance with the foregoing, Title 17, Chapter II of the Code of Federal Regulations is amended as follows:

PART 240--GENERAL RULES AND REGULATIONS, SECURITIES EXCHANGE ACT OF 1934

1. The authority citation for Part 240 continues to read, in part as follows:

Authority: Sec. 23, 48 Stat. 901, as amended, 15 U.S.C. 78w. * * *

2. The section heading, introductory text and paragraph (a) introductory text and (b) introductory text of §240.14a-2 are amended by removing the references to "14a-13" and replacing them with references to "14a-14."

3. The introductory text of paragraph (j) of §240.14a-6 is revised as follows:

§240.14a-6 Filing requirements.

* * * * *

(j) Fees. At the time of filing the preliminary proxy solicitation material, the persons upon whose behalf the solicitation is made, other than companies registered under the Investment Company Act of 1940, shall pay to the Commission the following applicable fee; * * *

* * * * *

4. Section 14a-8 is amended by removing the word "issuers" and replacing it with the word "registrants" in paragraph (c)(1).

5. Section 240.14a-11 is amended by removing the word "issuer" and replacing it with the word "registrant" in paragraph (b)(5).

6. By adding §240.14a-14 to read as follows:

§240.14a-14 Modified or superseded documents.

(a) Any statement contained in a document incorporated or deemed to be incorporated by reference shall be deemed to be modified or superseded, for purposes of the proxy statement, to the extent that a statement contained in the proxy statement or in any other subsequently filed document that also is or is deemed to be incorporated by reference modifies or replaces such statement.

(b) The modifying or superseding statement may, but need not, state it has modified or superseded a prior statement or include any other information set forth in the document that is not so modified or superseded. The making of a modifying or superseding statement shall not be deemed an admission that the modified or superseded statement, when made, constituted an untrue statement of a material fact, an omission to state a material fact necessary to make a statement not misleading, or the employment of a manipulative, deceptive, or fraudulent device, contrivance, scheme, transaction, act, practice, course of business or artifice to defraud, as those terms are used in the Securities Act of 1933, the Securities Exchange Act of 1934 ("the Act"), the Public Utility Holding Company Act of 1935, the Investment Company Act of 1940, or the rules and regulations thereunder.

(c) Any statement so modified shall not be deemed in its unmodified form to constitute part of the proxy statement for purposes of the Act. Any statement so superseded shall not be deemed to constitute a part of the proxy statement for purposes of the Act.

7. Section 240.14a-101 is amended by removing the word "issuer" and replacing it with the word "registrant" in two places in Item 15(c) and by revising Note D.3, Item 10 introductory text, Item 10(a)(1) first phrase, (a)(2), (a)(3), (b)(2) introductory text, and (b)(2)(ii)(C). Item 14 is amended by revising the introductory text to Item 14(b)(1)(iii), Item 14(b)(3)(i)(A), (B), and (C), and (ii)(C), by adding Item 14(a)(3)(vi), Item 14(b)(1)(iii)(C) and Item 14(b)(3)(ii)(D) and (E) and by revising Instructions 3 and 4. Also, in Item 14, paragraph (a)(5) is divided into paragraphs (a)(5) and (a)(6) and subsequent paragraphs are renumbered sequentially. The "instructions to paragraph (a)(6)" is revised and retitled "instructions to paragraphs (a)(6) and (a)(7)." These instructions follow new paragraph (a)(7). The "instructions to paragraph (a)(7)" is retitled "instructions to paragraph (a)(8)." Instruction 6 to Item 14 is revised by adding a reference to paragraph (a)(6) following the reference to paragraph (a)(5).

§240.14a-101 Schedule 14A. Information required in proxy statement.

Notes: A. * * *

B. * * *

C. * * *

D. * * *

3. If a document or portion of a document other than an annual report sent to security holders pursuant to the requirements of Rule 14a-3 (§240.14a-3 of this chapter) with respect to the same meeting or solicitation of consents or authorizations as that to which the proxy statement relates is incorporated by reference in the manner permitted by Item 13(b) or 14(b) of this schedule, the proxy statement must be sent to security holders no later than 20 business days prior to the date on which the meeting of such security holders is held or, if no meeting is held, at least 20 business days prior to the date the votes, consents or authorizations may be used to effect the corporate action.

* * * * *

Item 10. Compensation Plans. If action is to be taken with respect to any plan pursuant to which cash or non-cash compensation may be paid, furnish the following information:

(a) All Plans.

(1) Describe briefly the material features of the plan being acted upon, identify each class of persons * * *

(2) State the benefits or amounts which will be received by or allocated to each of the following under the plan being acted upon, if such benefits or amounts are determinable: (i) Each person (stating name and position) specified in paragraph (a)(1)(i) of Item 402 of Regulation S-K (§229.402 of this chapter); (ii) all current executive officers as a group; (iii) all other current officers and directors who are not executive officers as a group; and (iv) all employees as a group. If such benefits or amounts are not determinable, state the benefits or amounts which would have been received by or allocated to each of the following for the last fiscal year if the plan had been in effect, if such benefits or amounts may be determined: (i) Each person (stating name and position) specified in paragraph (a)(1)(i) of Item 402 of Regulation S-K (§229.402 of this chapter); (ii) all current executive officers as a group; (iii) all other current officers and directors who are not executive officers as a group; and (iv) all employees as a group. If such benefits or amounts are not determinable, state the benefits or amounts which would have been received by or allocated to each of the following for the last fiscal year if the plan had been in effect, if such benefits or amounts may be determined: (i) Each person (stating name and position) specified in paragraph (a)(1)(i) of Item 402 of Regulation S-K (§229.402 of this chapter); (ii) all current executive officers as an group; (iii) all other current officers and directors who are not executive officers as a group; and (iv) all employees as a group.

(3) Furnish the information called for by Item 402(b) of Regulation S-K (§229.402 of this chapter) with respect to all compensation plans now in effect or in effect during the last three years except that information called for in paragraphs (b)(1)(vi) and (vii) and (b)(4) of Item 402(b) of Regulation S-K (§229.402 of this chapter) should be furnished with respect to the last three fiscal years for the following: (i) Each person (stating name and position) specified in Item 402(a)(1)(i) of Regulation S-K (§229.402 of this chapter); (ii) all current executive officers as a group; (iii) all other current officers and directors who are not executive officers as a group, if such persons may participate in the plan; and (iv) all employees as a group, if such persons may participate in the plan. The information called for by paragraph (b)(4)(ii) of Item 402 of Regulation S-K (§229.402 of this chapter) need not be provided for all employees as a group. The information required by this paragraph (a)(3) is in lieu of the information otherwise called for by Item 402(b) of Regulation S-K (§229.402 of this chapter) in connection with the disclosure required by Item 8 of this schedule.

* * * * *

(b) * * *

(2) With respect to any specific grant of or any plan containing options, warrants or rights submitted for security holder action, * * * (ii) state separately the amount of such options received or to be received by the following persons if such benefits or amounts are determinable: * * * (C) all other current officers and directors who are not executive officers group; * * *

* * * * *

Item 14. Mergers, Consolidations, Acquisitions and Similar Matters.

* * * * *

(a) Information about the transaction.

* * * * *

(3) * * *

(vi) The information required by Item 202 of Regulation S-K (§229.202 of this chapter), description of registrants securities, for any securities that are exempt from registration and are being issued in connection with the transaction if the security holders entitled to vote or give an authorization or consent with regard to the transaction will receive such securities, unless: (i) the issuer of the securities would meet the requirements for use of Form S-3 and elects to furnish information in accordance with the provisions of paragraph (b)(1), (ii) capital stock is to be issued and (iii) securities of the same class are registered under Section 12 of the Exchange Act and either (a) are listed for trading or admitted to unlisted trading privileges on a national securities exchange; or (b) are securities for which bid and offer quotations are reported in an automated quotations system operated by a national securities association;

* * * * *

(5) The information required by Item 301 of Regulation S-K (§229.301 of this chapter), selected financial data, for the registrant and the other person.

(6) If material, the information required by Item 301 of Regulation S-K for the registrant or the other person on a pro forma basis, giving effect to the transaction.

* * * * *

Instruction to paragraphs (a)(6) and (a)(7)

For a business combination accounted for as a purchase, the financial information required by paragraphs (a)(6) and (a)(7) shall be presented only for the most recent fiscal year and interim period. For a business combination accounted for as a pooling, the financial information required by paragraphs (a)(6) and (a)(7) (except for information with regard to book value) shall be presented for the most recent three fiscal years and interim period. For a business combination accounted for as a pooling, information with regard to book value shall be presented as of the end of the most recent fiscal year and interim period. * * *

* * * * *

(b) Information about the registrant and the other person.

* * * * *

(1) Information with respect to S-3 registrants.

* * * * *

(iii) Incorporate by reference into the proxy statement the documents listed in paragraphs (A), (B) and, if applicable, (C) below:

(A) * * *

(B) * * *

(C) If capital stock is to be issued to security holders entitled to vote or give an authorization or consent and securities of the same class are registered under Section 12 of the Exchange Act and: (i) are listed for trading or admitted to unlisted trading privileges on a national securities exchange; or (ii) are securities for which bid and offer quotations are reported on an automated quotations system operated by a national securities association, the description of such class of securities which is contained in a registration statement filed under the Exchange Act, including any amendment or reports filed for the purpose of updating such description.

* * * * *

(3) Information with respect to registrants other than S-2 or S-3 registrants.

(i) * * *

(A) Information required by Item 101 of Regulation S-K (§229.101 of this chapter), description of business.

(B) Information required by Item 102 of Regulation S-K (§229.102 of this chapter), description of property.

(C) Information required by Item 103 of Regulation S-K (§229.103 of this chapter), legal proceedings.

* * * * *

(ii) * * *

(A) * * *

(B) * * *

(C) A brief description of the business done by the company which indicates the general nature and scope of the business;

(D) The information required by paragraphs (b)(3)(i)(D) and (F)-(H) of this Item and the information required by Item 304(b) of Regulation S-K (§229.304 of this chapter).

(E) Schedules required by Rules 12-15, 28 and 29 of Regulation S-X.

(c) Additional method of incorporation by reference. * * *

* * * * *

Instructions to Item 14

* * * * *

3. If the registrant or any of its securities or assets is to be acquired by the other person, the information regarding the other person that is required by this Item, other than information required by paragraphs (a)(1)-(3) and (a)(9)-(11) of this Item, need be provided only to the extent that: * * *

4. If the plan being voted on involves only the registrant and one or more of its totally held subsidiaries and does not involve a liquidation of the registrant or a spin-off, the information required by this Item, other than information required by paragraphs (a)(1)-(4) and (a)(9)-(12) of this Item, may be omitted.

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PART 239--FORMS PRESCRIBED UNDER THE SECURITIES ACT OF 1933

8. The authority citation for Part 239 continues to read, in part, as follows:

Authority: The Securities Act of 1933, 15 U.S.C. 77a, et seq., * * *

9. Form S-4 (Section 239.25) is amended by revising the language of Instruction A.2. In Item 3, paragraph (d) is divided into paragraphs (d) and (e) and subsequent paragraphs are relettered sequentially; the "instruction to paragraph (e)" is revised and retitled "instruction to paragraphs (e) and (f)." This instruction follows paragraph (f). Item 4(a)(3)(i) is revised. In Item 13(a)(3)(vi) and Item 14(i), references to Item 304 of Regulation S-K are changed from "disagreements with accountants on accounting and financial disclosure" to "changes in and disagreements with accountants on accounting and financial disclosure." Form S-4 also is amended by revising Item 17(b)(6), by, in Item 18(b), removing the reference to paragraph "(a)(4)(ii)" and replacing it with a reference to paragraph "(a)(5)(ii)." The Section also is amended by, in Item 19(b), removing the reference to paragraph "(a)(6)," removing the reference to paragraph "(a)(8)" and replacing it with a reference to paragraph "(a)(7);" and, in Item 19(c), removing the reference to paragraph "(a)(18)" and replacing it with a reference to paragraph "(a)(7)" note that the text of Form S-4 does not appear in Code of Federal Regulations:

§239.25 Form S-4, for the registration of securities issued in business combination transactions.

* * * * *

Form S-4

* * * * *

General Instructions

A. Rule as to Use of Form S-4.

1. * * *

2. If the registrant meets the requirements of and elects to comply with the provisions in any item of this Form or Form F-4 (§239.34 of this chapter) that provides for incorporation by reference of information about the registrant or the company being acquired, the prospectus must be sent to the security holders no later than 20 business days prior to the date on which the meeting of such security holders is held or, if no meeting is held, at least 20 business days prior to either (1) the date the votes, consents or authorizations may be used to effect the corporate action or, (2) if votes, consents or authorizations are not used, the date the transaction is consummated. * * *

* * * * *

Item 3. Risk Factors, Ratio of Earnings to Fixed Charges and Other Information. * * *

* * * * *

(d) The information required by Item 301 of Regulation S-K (§229.301 of this chapter) (selected financial data) for the registrant and the company being acquired. To the extent the information is required to be presented in the prospectus pursuant to Items 12, 14, 16 or 17, it need not be repeated pursuant to this Item.

(e) If material, the information required by Item 301 of Regulation S-K for the registrant on a pro forma basis, giving effect to the transaction. To the extent the information is required to be presented in the prospectus pursuant to Items 12 or 14, it need not be repeated pursuant to this Item.

* * * * *

Instruction to paragraphs (e) and (f)

For a business combination accounted for as a purchase, the financial information required by paragraphs (e) and (f) shall be presented only for the most recent fiscal year and interim period. For a business combination accounted for as a pooling, the financial information required by paragraphs (e) and (f) (except for information with regard to book value) shall be presented for the most recent three fiscal years and interim period. For a business combination accounted for as a pooling, information with regard to book value shall be presented as of the end of the most recent fiscal year and interim period. * * *

* * * * *

Item 4. Terms of the Transaction.

(a) * * *

(2) * * *

(3) The information required by Item 202 of Regulation S-K (§229.202 of this chapter), description of registrants securities, unless: (i) the registrant would meet the requirements for use of Form S-3 and elects to furnish information pursuant to Item 10, * * *

* * * * *

Item 17. Information With Respect to Companies Other than S-2 or S-3 Companies.

* * * * *

(b) * * *

(6) Item 304(b) of Regulation S-K (§229.304 of this chapter), changes in and disagreements with accountants on accounting and financial disclosure.

* * * * *

10. Form F-4 (Section 239.34) is amended by, revising General Instruction A.2, in Item 3, dividing paragraph (d) into paragraphs (d) and (e) and relettering subsequent paragraphs sequentially. The "instructions" to paragraph (e) is retitled "instructions to paragraphs (e) and (f)." These instructions follow paragraph (f). Form F-4 also is amended by revising Item 4 paragraph (a)(3)(i), in Item 18, removing paragraph (a)(6), renumbering subsequent paragraphs and adding new paragraph (a)(7); in Item 18(b), removing the reference to paragraph (a)(4)(ii) and replacing it with a reference to (a)(5)(ii); in Item 19, removing paragraph (a)(6) and renumbering subsequent paragraphs; in Item 19(b), removing the reference to paragraph (a)(6) and removing the reference to paragraph (a)(8) and replacing it with a reference to paragraph (a)(7); and, in Item 19(c), removing a reference to paragraph (a)(8) and replacing it with a reference to paragraph (a)(7). note that the text of Form F-4 does not appear in the Code of Federal Regulations:

§239.34 Form F-4, for registration of securities of certain foreign private issuers issued in certain business combination transactions.

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Form F-4

General Instructions

A. Rule as to Use of Form F-4.

1. * * *

2. If the registrant meets the requirements of and elects to comply with the provisions in any item of this Form or Form S-4 (§239.25) that provides for incorporation by reference of information about the registrant or the company being acquired, the registrant or the company being acquired, the prospectus must be sent to the security holders no later than 20 business days prior to the date on which the meeting of such security holders is held or, if no meeting is held, the earlier of 20 business days prior to either (1) the date the votes, consents or authorizations may be used to effect the corporate action or (2) if votes, consents or authorizations are not used, the date the transaction is consummated. * * *

* * * * *

Item 3. Risk Factors, Ratio of Earnings to Fixed Charges and Other Information.

* * * * *

(d) The information required by Item 8 of Form 20-F (selected financial data) for the registrant and the company being acquired. If the information is required to be presented in the prospectus pursuant to Items 12, 14, 16 or 17, it need not be presented pursuant to this Item.

(e) If material, the information required by Item 8 of Form 20-F for the registrant on a pro forma basis, giving effect to the transaction. If the information is required to be presented in the prospectus pursuant to Items 12 or 14, it need not be presented pursuant to this Item.

* * * * *

Instructions to paragraphs (e) and (f)

1. For a business combination accounted for as a purchase, the financial information required by paragraphs (e) and (f) shall be presented only for the most recent fiscal year and interim period. For a business combination accounted for as a pooling, the financial information required by paragraphs (e) and (f) (except for information with regard to book value) shall be presented for the most recent three fiscal years and interim period. For a business combination accounted for as a pooling, information with regard to book value shall be presented as of the end of the most recent fiscal year and interim period. * * *

2. * * *

* * * * *

Item 4. Terms of the Transaction.

(a) * * *

(3) The information required by Item 202 of Regulation S-K (§229.202 of this chapter), description of registrants securities, unless: (i) the registrant would meet the requirements for use of Form F-3 and elects to furnish information pursuant to Item 10, (ii) * * *

* * * * *

Item 18. Information if Proxies, Consents or Authorizations Are To Be Solicited.

(a) * * *

Instruction * * *

(6) The information required by Item 21 of Schedule 14A, vote required for approval;

(7) With respect to each person who will serve as a director or an executive officer of the surviving or acquiring company, the information required by:

(i) Item 10 of Form 20-F, directors and officers of registrant;

(ii) Items 11 and 12 of Form 20-F, remuneration and options; and

(iii) Item 13 of Form 20-F, interest of management in certain transactions.

* * * * *

PART 229--STANDARD INSTRUCTIONS FOR FILING FORMS UNDER THE SECURITIES ACT OF 1933 AND SECURITIES EXCHANGE ACT OF 1934 AND ENERGY POLICY CONSERVATION ACT OF 1975--REGULATION S-K

11. The authority citation for Part 229 continues to read, in part, as follows:

Authority: Secs. 6, 7, 8, 10, 19(a), 48 Stat. 78, 79, 81, 85; secs. 12, 13, 14, 15(d), 23(a), 48 Stat. 892, 894, 901; secs. 205, 209, 48 Stat. 906, 908; sec. 203(a), 49 Stat. 704; secs. 1, 3, 8, 49 Stat. 1375, 1377, 1379; sec. 301, 54 Stat. 857; secs. 8, 202, 68 Stat. 685, 686; secs. 3, 4, 5, 6, 78 Stat. 565-568, 569, 570-574; sec. 1, 79 Stat. 1051; secs. 1, 2, 3, 82 Stat. 454, 455; secs. 1, 2, 3-5, 28(c), 84 Stat. 1435, 1497; sec. 105(b), 68 Stat. 1503; secs. 8, 9, 10, 11, 18, 69 Stat. 117, 118, 119, 155; 15 U.S.C. 77f, 77g, 77h, 77j, 77s(a), 78I, 78m, 78n, 781(d), 78w(a). * * *

12. Instruction 3 of §229.304 is revised as follows.

§229.304 (Item 304) Changes in and disagreements with accountants on accounting and financial disclosure.

* * * * *

Instructions to Item 304:

1. * * *

2. * * *

3. The information required by Item 304(a) need not be provided for a company being acquired by the registrant that is not subject to the reporting requirements of either section 13(a) or 15(d) of the Exchange Act, or, because of section 12(i) of the Exchange Act, has not furnished an annual report to security holders pursuant to Rule 14a-3 or Rule 14c-3 for its latest fiscal year.

13. Paragraph (h), heading and introductory text, of Section 229.512 is amended by removing the references to "S-14."

By the Commission.

¹ 17 CFR 240.14a-1 through 240.14c-101.

² 15 U.S.C. 78a-78kk (1982).

³ 17 CFR 240.14a-1 through 240.14b-1.

⁴ 17 CFR 240.14a-101.

⁵ 17 CFR 240.14a-14.

⁶ 17 CFR 239.25.

⁷ 17 CFR 239.34.

⁸ 17 CFR 229.304. In addition, a reference to an obsolete form is being deleted from Item 512 of Regulation S-K (17 CFR 229.512).

⁹ Release No. 33-6675 (November 20, 1986) 51 FR 42073. The two comment letters that were received are available for public inspection and copying at the Commissions Public Reference Room (File No. S7-29-86).

¹⁰ 17 CFR 229.101.

¹¹ 17 CFR 229.102.

¹² 17 CFR 229.103.

¹³ Release No. 33-6676 (November 20, 1986) 51 FR 42048.

¹⁴ 17 CFR 229.202, Description of Registrants Securities.

¹⁵ This information may be incorporated by reference if the issuer of the securities is eligible to use Form S-3 and information about the issuer is incorporated by reference into the proxy or information statement pursuant to the specific provisions for Form S-3 companies. Related technical changes are being made to Forms S-4 and F-4.

¹⁶ 17 CFR 230.412.

¹⁷ In addition to the amendments discussed below, minor technical revisions necessitated by the comprehensive proxy revisions or by technical clarifications also have been made. Specifically, references have been corrected in Instructions 3, 4 and 6 to Item 14, and in Items 13, 14, 18 and 19 of Form S-4. Finally, a reference to an obsolete form, Form S-14, has been removed from Item 512 of Regulation S-K (17 CFR 229.512).

¹⁸ Changes in and Disagreements with Accountants.

¹⁹ A parallel amendment has been made to Item 17 of Form S-4 to require only the Item 304(b) information in the same circumstances. In addition, Items 18 and 19 of Form F-4 have been amended to delete the requirement to provide the information called for by Item 9 of Schedule 14A, making Form F-4 consistent with Forms F-1-2-3. Corresponding changes have been made to reflect the necessary redesignations.

²⁰ 17 CFR 240.14a-6.

²¹ 15 U.S.C. 79-79z-6.

²² 17 CFR 240.14a-2.

²³ 17 CFR 240.14a-3.

²⁴ 17 CFR 240.14a-12.

²⁵ 17 CFR 250.62. PUHCA Rule 62(a) covers reorganizations subject to Commission approval and transactions that are the subject of an application or declaration filed with the Commission. Other public utility holding company solicitations are governed by PUHCA Rule 61, which provides that such solicitations are subject to Exchange Act Section 14(a) (15 U.S.C. 78n(a)).

²⁶ 17 CFR 240.14a-6(j).

²⁷ The changes conform the language to that used in Rules 14a-3(b)(13) (17 CFR 240.14a-3(b)(13)), 14a-13(a)(2) (17 CFR 240.14a-13(a)(2)) and 14c-2(b) (17 CFR 240.14c-2(b)).

²⁸ Questions have been raised as to the meaning of "the date the transaction is consummated" in the context of an exchange offer filing using incorporation by reference. The prospectus should be furnished at least 20 business days before the scheduled termination of the exchange offer.

²⁹ 17 CFR 229.301.

³⁰ Parallel amendments have been made to Forms S-4 and F-4.