Exchange Act Rule 14e-1 Opinions for Debt Tender Offers

摘要

This report addresses legal opinions regarding the application of Rule 14e-1 under the Securities Exchange Act of 1934 (the "Exchange Act") to tender offers for non-convertible debt securities ("debt tender offers"). Rule 14e-1 was adopted by the U.S. Securities and Exchange Commission (the "SEC") pursuant to its authority in section 14(e) of the Exchange Act by "rules and regulations[, to] define, and prescribe means reasonably designed to prevent, such acts and practices as are fraudulent, deceptive, or manipulative." When debt tender offers are structured to be consistent with the literal requirements of Rule 14e-1, the Rule 14e-1 opinion is straightforward. On the other hand, when debt tender offers are structured in ways that raise questions as to their consistency with those requirements (which is often the case), the Rule 14e-1 opinion raises issues for counsel that typically are not present in other types of opinions. In these circumstances, counsel delivering the opinion may rely on no-action letters, interpretive positions, and other forms of guidance provided by the SEC's Division of Corporation Finance and its staff (the "Staff"), and should consider including appropriate language in the opinion to inform the recipient about counsel's reliance on such guidance. To the extent that relevant Staff guidance is unavailable, counsel delivering the opinion should consider including appropriate language in the opinion to inform the recipient of the absence of relevant guidance.