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

Rule 14d-9 -- Recommendation or Solicitation by the Subject Company and Others

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1. Pre-commencement communications. A communication by a person described in paragraph (e) of this section with respect to a tender offer will not be deemed to constitute a recommendation or solicitation under this section if:
   
   
   1. The tender offer has not commenced under Rule 14d-2; and
      
      
   2. The communication is filed under cover of Schedule 14D-9 with the Commission no later than the date of the communication.
      
      

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   Instructions to paragraph (a)(2):
   
   
   1. The box on the front of Schedule 14D-9 indicating that the filing contains pre-commencement communications must be checked.
      
      
   2. Any communications made in connection with an exchange offer registered under the Securities Act of 1933 need only be filed under Rule 425 and will be deemed filed under this section.
      
      
   3. Each pre-commencement written communication must include a prominent legend in clear, plain language advising security holders to read the company's solicitation/recommendation statement when it is available because it contains important information. The legend also must advise investors that they can get the recommendation and other filed documents for free at the Commission's web site and explain which documents are free from the filer.
      
      
   4. See Rule 135, Rule 165 and Rule 166 of this chapter for pre-commencement communications made in connection with registered exchange offers.

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2. Post-commencement communications. After commencement by a bidder under Rule 14d-2, no solicitation or recommendation to security holders may be made by any person described in paragraph (e) of this section with respect to a tender offer for such securities unless as soon as practicable on the date such solicitation or recommendation is first published or sent or given to security holders such person complies with the following:
   
   
   1. Such person shall file with the Commission a Tender Offer Solicitation/Recommendation Statement on Schedule 14D-9, including all exhibits thereto; and
      
      
   2. If such person is either the subject company or an affiliate of the subject company,
      
      
      
      1. Such person shall hand deliver a copy of the Schedule 14D-9 to the bidder at its principal office or at the address of the person authorized to receive notices and communications (which is set forth on the cover sheet of the bidder's Schedule TO filed with the Commission; and
         
         
      2. Such person shall give telephonic notice (which notice to the extent possible shall be given prior to the opening of the market) of the information required by Items 1003(d) and 1012(a) of Regulation M-A and shall mail a copy of the Schedule to each national securities exchange where the class of securities is registered and listed for trading and, if the class is authorized for quotation in the NASDAQ interdealer quotation system, to the National Association of Securities Dealers, Inc. ("NASD").
         
         
   3. If such person is neither the subject company nor an affiliate of the subject company,
      
      
      
      1. Such person shall mail a copy of the schedule to the bidder at its principal office or at the address of the person authorized to receive notices and communications (which is set forth on the cover sheet of the bidder's Schedule TO; and
         
         
      2. Such person shall mail a copy of the Schedule to the subject company at its principal office.
         
         
3. Amendments. If any material change occurs in the informaion set forth in the Schedule 14D-9 required by this section, the person who filed such Schedule 14D-9 shall:
   
   
   1. File with the Commission an amendment on Schedule 14D-9 disclosing such change promptly, but not later than the date such material is first published, sent or given to security holders; and
      
      
   2. Promptly deliver copies and give notice of the amendment in the same manner as that specified in paragraph (b)(2) or (3) of this section, whichever is applicable; and
      
      
   3. Promptly disclose and disseminate such change in a manner reasonably designed to inform security holders of such change.
      
      
4. Information required in solicitation or recommendation. Any solicitation or recommendation to holders of a class of securities referred to in section 14(d)(1) of the Act with respect to a tender offer for such securities shall include the name of the person making such solicitation or recommendation and the information required by Items 1 through 8 of Schedule 14D-9 or a fair and adequate summary thereof: Provided, however, That such solicitation or recommendation may omit any of such information previously furnished to security holders of such class of securities by such person with respect to such tender offer.
   
   
5. Applicability.
   
   
   1. Except as is provided in paragraphs (e)(2) and (f) of this section, this section shall only apply to the following persons:
      
      
      1. The subject company, any director, officer, employee, affiliate or subsidiary of the subject company;
         
         
      2. Any record holder or beneficial owner of any security issued by the subject company, by the bidder, or by any affiliate of either the subject company or the bidder; and
         
         
      3. Any person who makes a solicitation or recommendation to security holders on behalf of any of the foregoing or on behalf of the bidder other than by means of a solicitation or recommendation to security holders which has been filed with the Commission pursuant to this section or Rule 14d-3.
         
         
   2. Notwithstanding paragraph (e)(1) of this section, this section shall not apply to the following persons:
      
      
      
      1. A bidder who has filed a Schedule TO pursuant to Rule 14d-3 ;
         
         
      2. Attorneys, banks, brokers, fiduciaries or investment advisers who are not participating in a tender offer in more than a ministerial capacity and who furnish information and/or advice regarding such tender offer to their customers or clients on the unsolicited request of such customers or clients or solely pursuant to a contract or a relationship providing for advice to the customer or client to whom the information and/or advice is given.
         
         
      3. Any person specified in paragraph (e)(1) of this section if:
         
         
         1. The subject company is the subject of a tender offer conducted under Rule 14d-1(c);
            
            
         2. Any person specified in paragraph (e)(1) of this section furnishes to the Commission on Form CB the entire informational document it publishes or otherwise disseminates to holders of the class of securities in connection with the tender offer no later than the next business day after publication or dissemination;
            
            
         3. Any person specified in paragraph (e)(1) of this section disseminates any informational document to U.S. holders, including any amendments thereto, in English, on a comparable basis to that provided to security holders in the issuer's home jurisdiction; and
            
            
         4. Any person specified in paragraph (e)(1) of this section disseminates by publication in its home jurisdiction, such person must publish the information in the United States in a manner reasonably calculated to inform U.S. security holders of the offer.
            
            
6. Stop-look-and-listen communication. This section shall not apply to the subject company with respect to a communication by the subject company to its security holders which only:
   
   
   1. Identifies the tender offer by the bidder;
      
      
   2. States that such tender offer is under consideration by the subject company's board of directors and/or management;
      
      
   3. States that on or before a specified date (which shall be no later than 10 business days from the date of commencement of such tender offer) the subject company will advise such security holders of
      
      
      1. whether the subject company recommends acceptance or rejection of such tender offer; expresses no opinion and remains neutral toward such tender offer; or is unable to take a position with respect to such tender offer and
      2. the reason(s) for the position taken by the subject company with respect to the tender offer (including the inability to take a position); and
         
         
   4. Requests such security holders to defer making a determination whether to accept or reject such tender offer until they have been advised of the subject company's position with respect thereto pursuant to paragraph (f)(3) of this section.
      
      
7. Statement of management's position. A statement by the subject company's of its position with respect to a tender offer which is required to be published or sent or given to security holders pursuant to Rule 14e-2 shall be deemed to constitute a solicitation or recommendation within the meaning of this section and section 14(d)(1) of the Act.

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