Q: Web sites accessible in the U.S. must not be used to entice U.S. investors to participate in the offering offshore. Section II.G.2 of the Cross-Border release states that "reliance on Regulation S to allow participation by U.S. persons offshore would not be appropriate with respect to tender or exchange offers posted on an unrestricted web site." The release goes on to say that business combinations present different issues from tender or exchange offers because participation by U.S. holders is not voluntary in business combinations. (Note: "business combinations" as defined in the Cross-Border release and rules refers to mergers and other voting transactions, as distinct from tender or exchange offers.) The release then goes on to say, "[N]o special precautions should be taken to prevent U.S. holders from receiving the merger consideration in a business combination involving a foreign company merely because the proxy statement/prospectus was posted on a web site available in the United States." Since this statement implies that the web site does not have to be restricted in the U.S. in a business combination where U.S. holders are excluded, can the disclosure document then be sent to U.S. shareholders?

A: No. The release merely points out that there should be no precautions taken to prevent the U.S. holders from receiving the merger consideration when they are excluded from the business combination since participation in a business combination that is approved by shareholders is not voluntary for the U.S. holders. The discussion does not contemplate sending the proxy statement/prospectus to those U.S. holders.