Q: If a foreign private issuer conducts a tender offer that excludes U.S. security holders, may it furnish the tender offer materials under cover of Form 6-K without becoming subject to the U.S. tender offer rules? Similarly, may a foreign private issuer that is exempt from Section 12 pursuant to Rule 12g3-2(b) furnish the materials to the Commission? The concern is that making the offer public in the United States by furnishing it to the Commission could be viewed as a public announcement in the U.S. and an inducement to U.S. security holders to tender.

A: The materials may be furnished to the Commission without triggering the applicability of the U.S. tender offer rules so long as the issuer takes steps to assure that the information is not used as a means to induce indirect participation by U.S. holders of the securities. Accordingly, the materials must not include a transmittal letter or other means of tendering the securities. The materials also must prominently disclose that the offer is not available to U.S. persons or is being made only in countries other than the U.S. Further, the issuer must take precautionary measures that are reasonably designed to ensure that the offer is not targeted to persons in the United States or to U.S. persons. For a description of precautionary measures that could be taken, see Part II.G of Release No. 33-7759 (Oct. 22, 1999). Alternatively, the issuer may choose not to submit these materials to the Commission. [Superseded]