SEC Amends Cross-Border Business Combinations Exemptions - Charges, Mortgages, Indemnities

The US Securities and Exchange Commission (the "SEC") has amended the cross-border exemptions for tender and exchange offers and other business combination transactions involving foreign private issuers.¹ The amendments are effective December 8, 2008. As under the current rules, the revised exemptions are available to both US and non-US acquirors, where the company being acquired qualifies as a foreign private issuer.²

The amendments modify the current "look-through" analysis used to determine US beneficial ownership, marginally extend and refine the scope of the cross-border transaction exemptions, and codify existing SEC interpretative positions and exemptive orders. The revised regime, however, continues the SEC's basic approach to regulation in this area, which is to extend certain protections of US securities regulation to US investors that invest in securities issued by non-US companies involved in non-US transactions. In particular, determining eligibility for the crossborder transaction exemptions will continue to require the conduct of a cumbersome "lookthrough" analysis of US beneficial ownership in circumstances involving negotiated or agreed transactions.³

In view of the SEC's recent exploration in other areas, such as broker-dealer regulation, of mutual recognition of "equivalent" regulatory systems of other jurisdictions, one can hope that the SEC will return to this issue in the near future and take a broader view. Since the cross-border transaction exemptions were first adopted, the European Union has adopted a comprehensive system of regulation of takeover bids, and other jurisdictions, such as Hong Kong, Australia and Japan, also have broad investor protections in this context. Moreover, cross-border transactional issues implicating US securities regulation typically arise in contexts where sophisticated US institutions invest in non-US securities. It would seem entirely reasonable that, in so doing, those US investors would expect the same regulatory protections that non-US investors enjoy from the issuer's home market regulators, rather than the superimposition of a US-dictated regime. The continued application of US securities regulation in these circumstances adds, at a minimum, unnecessary cost and complication, and will likely continue to encourage bidders to exclude US investors from participating in these transactions.

THE CURRENT REGIME

The cross-border transaction exemptions are designed to encourage the inclusion of US security holders in cross-border transactions by providing exemptive relief from US tender offer rules and certain registration requirements for transactions involving foreign private issuers with limited US ownership. The exemptions were originally adopted in 1999 to address the common practice of acquirors excluding US holders from business combinations and rights offerings involving securities of foreign private issuers, a practice intended to avoid the need to comply with US tender offer rules and SEC registration requirements and to minimize the risk of US litigation seeking to block transactions or impose liability on bidders, targets or their respective directors. The exemptions as originally adopted only partially achieved their purpose, however, since certain compliance burdens continued and the issues of US liability and litigation risk were not addressed.

Currently and under the revised regime, the cross-border transaction exemptions are structured as a two-tier system based on the level of US ownership.

Tier I. The Tier I exemption provides broad relief for bidders, issuers and targets from (i) the filing, dissemination and procedural requirements of the US tender offer rules, and (ii) from the heightened disclosure requirements applicable to "going private" transactions under Rule 13e-3 adopted under the Securities Exchange Act of 1934, as amended (the "Exchange Act").⁴ Similarly, Rules 801 and 802 under the Securities Act of 1933, as amended (the "Securities Act") generally provide exemptions from the registration requirements of Section 5 of the Securities Act for securities issued in rights offerings and business combination transactions. Tier I bidders remain subject to US anti-fraud and anti-manipulation rules and civil liability provisions and must provide equal treatment to US holders so they can participate on terms at least as favorable as those offered to other holders. Tier I relief is available where US investors hold no more than 10% of the "free float"⁵ of the subject securities of the foreign private issuer. The Tier I exemption applies both to securities of foreign issuers that are registered under the Exchange Act (primarily US exchange-listed, including NASDAQ, securities) and those that are not.

Tier II. The Tier II exemption, by contrast, provides only narrowly-tailored relief designed to avoid conflicts between US securities laws and non-US laws that govern cross-border transactions.⁶ Tier II relief, which like Tier I applies both to Exchange Act registered and non-registered securities, allows bidders to comply with certain mandates of non-US law in lieu of compliance with US securities law, such as the prompt payment rule, extension and notice of extension requirements in Regulation 14E. More recently, Tier II relief has been provided for purchases of target securities during an offer period outside of the offer so long as such purchases are implemented outside of the United States and other conditions of the exemption are satisfied. Unlike Tier I relief, however, Tier II bidders in cross-border transactions remain subject to most of the filing, dissemination and procedural requirements applicable to domestic transactions (including the registration requirements of Section 5 of the Securities Act and the additional disclosure requirements applicable to going private transactions by issuers or affiliates).⁷ Tier II acquirors also remain subject to equal treatment obligations and the US anti-fraud and antimanipulation rules and civil liability provisions if they include US security holders in the crossborder transaction. Tier II relief is available where US investors own more than 10%, but no more than 40%, of the "free float" of the subject securities in a foreign private issuer.

Currently and under the revised rules, if US holders own more than 40% of the subject securities in a foreign private issuer, no exemption is available and the cross-border transaction is subject to the full application of applicable US tender offer rules and registration requirements. In competitive situations, the existing rule under which an exemption available to the first bidder is available to subsequent bidders, even if US ownership or trading volume increases, will continue to apply.

THE AMENDMENTS

Modified Look-Through Analysis

The amendments maintain the current US ownership threshold percentages for cross-border transaction exemptions of 10% for Tier I relief and 40% for Tier II relief, and, in negotiated or agreed transactions, continue to require that, in calculating US ownership, a bidder must "lookthrough" securities held of record or in "street name" by brokers or other nominees to seek to determine whether the securities are beneficially owned by persons resident in the US. The amendments, however, make two significant changes to the calculation of US beneficial ownership.

First, the amendments eliminate the current requirement to exclude securities held by persons (whether US or non-US) that hold more than 10% of the subject securities from the numerator and denominator in making the US ownership calculation. Shares held by the acquiror will continue to be excluded, however, whether or not they account for more than 10% of the subject securities. Since the exclusion of 10% holders' shares exaggerates the percentage of US holders for companies with highly concentrated non-US ownership, such as family holdings, this change should make Tier I more broadly available.

Second, the amendments change the timing of and the reference date for calculating US ownership percentages. Under the revised rules, bidders no longer need to calculate US ownership on the 30th day before the "commencement" date of a tender offer (or before the solicitation for a business combination other than a tender offer). This timing requirement had proven problematic given the timing provisions under non-US takeover and other statutes, difficulties in obtaining data from nominees concerning ownership on a past date, difficulties in predicting the date as of which data would be required, and confidentiality concerns in circumstances where it might be necessary to obtain the data as of a date before an offer had been announced. Under the revised rule, an acquiror is permitted to calculate the percentage of outstanding securities held by US holders as of a date no more than 60 days before or 30 days after the "public announcement"⁸ of a business combination or the record date in a rights offering.⁹ Moreover, if an acquiror in a cross-border transaction is unable to make the calculation within this 90-day period, it may make the calculation as of a date up to 120 days before public announcement. In limited situations, the revised rules also allow US beneficial ownership to be calculated under an alternative average daily volume test (described below) if US beneficial ownership cannot be calculated within this 120-day period.

Despite these improvements, complying with the look-through analysis (even as modified) will remain burdensome and expensive. It will still require bidders to rely on data that is neither widely available nor easily determined. In certain jurisdictions, for example, brokers and other nominees may be subject to confidentiality obligations prohibiting them from releasing data on underlying beneficial ownership, even the nationality of beneficial owners. Additionally, it remains unclear how long a bidder is required to wait to receive information from a particular broker or nominee before it is allowed to assume that the nominee holds for nationals of its jurisdiction.

Alternative Average Daily Trading Volume Test

In partial recognition of the concerns expressed by some commentators regarding the feasibility of performing the look-through analysis under certain circumstances, the amendments allow, in limited situations, issuers and acquirors that are "unable to conduct" the modified look-through analysis to use an alternative test to determine their eligibility for the cross-border transaction exemptions. This alternative test is based on comparing the average daily trading volume ("ADTV") of the foreign private issuer's subject securities in the United States with the trading volume worldwide for such securities. This test is similar to that used historically for nonnegotiated or "hostile" transactions, and will apply to all non-negotiated transactions and also to negotiated transactions where the issuer or acquiror is unable to conduct the look-through analysis.

Under this alternative test, US holders will be presumed to hold less than 10% (Tier I) or 40% (Tier II) of the outstanding subject securities so long as there is a primary trading market¹⁰ for the subject securities outside the United States and the ADTV for the subject securities in the United States over a twelve-month period ending no more than 60 days before the announcement of the transaction is no more than 10% (Tier I) or 40% (Tier II) of the ADTV on a worldwide basis. The alternative test may not be used, however, (i) if the most recent annual report or annual information filed or submitted, before the public announcement of the offer, by the issuer with any securities regulator indicates that US holders hold more than 10% or 40%, as the case may be, of the outstanding subject securities, or (ii) if the bidder knows or has reason to know, before the public announcement of the offer, that the level of US ownership of the subject securities exceeds 10% or 40%, as the case may be, of such securities.

Where available, the alternative test has the key advantage that ADTV can be determined relatively simply on an objective basis using verifiable information readily available from several quotation systems. Moreover, as calculation of ADTV does not require nominees and other record holders to be queried about underlying US beneficial ownership, the alternative test is also less likely to result in premature disclosure of a possible deal. Unfortunately, as adopted, the likely actual use of the alternative test may be minimal. As a threshold matter, in negotiated transactions, the alternative may only be used where a bidder is "unable to conduct" the modified look-through analysis. Whether an issuer or an acquiror is unable to conduct the modified lookthrough analysis will depend on the "facts and circumstances" of the particular analysis. In this respect, the SEC's adopting release provided, as non-exhaustive examples, the unusual circumstances in which the subject securities are in bearer form (an odd example, since the release adopting the existing rules permitted bidders to assume that bearer shares were held by nationals of the issuer's country of incorporation) or when non-US law prohibits nominees from disclosing information as to the nationality of the beneficial owners. Significantly, the need to dedicate time and resources to conduct the look-through analysis would not, by itself, support a finding that a bidder is unable to conduct the analysis and, similarly, concerns about the completeness and accuracy of the information obtained from third parties would not necessarily justify the use of the alternate test. Moreover, in negotiated and non-negotiated transactions alike, a bidder is prohibited from using the alternative test if it "knows or has reason to know" that US ownership of the subject securities exceeds the limits for the applicable exemption. While the "knows" part of this test is not particularly problematic, the "has reason to know" part has always raised concerns. The SEC has sought to address these concerns by giving examples of when a bidder would have "reason to know" of US ownership in excess of the thresholds, though it is not clear that those examples are helpful.¹¹

Expansion of Tier I Relief from Exchange Act Rule 13e-3

Exchange Act Rule 13e-3 provides enhanced disclosure requirements for "going private" transactions.¹² The amendments expand the set of cross-border business combination transactions that are exempt from the enhanced disclosure requirements of Exchange Act Rule 13e-3. Under the current rules, the cross-border exemptions from Exchange Act Rule 13e-3 apply only to tender or exchange offers or business combinations conducted under Tier I. The amendments extend the exemption to encompass any form of affiliated transaction that otherwise meets the conditions of the Tier I exemption, including, for example, schemes of arrangement, cash mergers and compulsory acquisitions for cash. Similar relief has previously been available on a "no action" exemptive letter basis.

Formal Extension of Tier II Relief to Tender Offers Not Subject to Sections 13(e) or 14(d) of the Exchange Act

Tier II relief has formally been expanded to cover tender offers not subject to Sections 13(e) or 14(d) of the Exchange Act. As amended, Tier II relief will apply equally to cross-border tender offers governed by Regulation 14E only, such as offers for equity securities that are not registered with the SEC (including those that are not listed on a US exchange or have benefited from the Rule 12g3-2(b) exemption from registration) and offers for non-equity securities. This amendment codifies without any substantive change the SEC staff's current interpretative position.

Expansion of Tier II Relief to Eliminate Recurring Conflicts with Non-US Law and Transaction Practice

The amendments expand Tier II relief to address certain recurring problems that often result in requests for specific SEC exemptive or no-action relief:

Multiple Non-US Offers. The amendments codify the current SEC staff practice of permitting multiple offers to be conducted outside the US contemporaneously with a single US offer, so long as the US offer is made on terms at least as favorable as the non-US offers. Under the current rules, the Tier II exemption permitted a holder to conduct only two concurrent tender offers: one made only to US target holders and another open only to non-US target holders. In addition, the amendments will allow all holders of American Depository Receipts (including non-US holders) to participate in any US offer, and allow US holders to participate in non-US offers in certain circumstances.

Termination of Withdrawal Rights While Counting Tendered Securities. The amendments also permit "back-end" withdrawal rights¹³ to be suspended while tendered securities are being counted and before the offer has closed and the securities have been accepted for payment by the bidder. This amendment, which codifies existing SEC staff no-action letters, recognizes the difficulty in determining whether the bidder's minimum acceptance condition has been met in certain non-US jurisdictions where securities are tendered through multiple financial intermediaries rather than through a single agent.

Terminating Withdrawal Rights Immediately After Reducing or Waiving a Minimum Acceptance Condition. The SEC reaffirmed its interpretive position that, subject to several conditions, a bidder in a cross-border tender offer conducted under Tier II may waive or reduce a minimum acceptance condition without providing withdrawal rights. This point is only relevant to offers to which withdrawal rights would otherwise apply, i.e., offers for securities registered under the Exchange Act. In a US domestic context, by contrast, waiving or reducing the minimum acceptance condition is considered a material change in the terms of the offer that triggers a right to withdraw. This amendment is intended to avoid conflicts with the law or practice in certain non-US jurisdictions.

Purchases Allowed Outside of Tender Offer. The amendments codify the current exemptive class relief granted by the SEC that permits an offeror, its affiliates and its financial advisors' affiliates under certain circumstances to purchase target securities outside a Tier II eligible offer, including in open market and privately negotiated purchases, after the offer is announced, so long as the transactions do not take place in the United States.

Other Adopted Rule Amendments

Subsequent Offering Periods. It is common in non-US offers for a tender offer to reopen, after it has become unconditional, to allow holders which did not initially tender into the offer to change their minds and tender, rather than, for example, being forced to retain their shares for an extended period of time while awaiting a "squeeze-out" transaction. Exchange Act Rule 14d-11 (applicable to offers for registered securities) adopted in 1999 allows for a subsequent offering period during which no withdrawal rights would apply, but oddly limited the maximum period to 20 business days (and, more logically, limited the minimum period to 3 business days). The new amendments, however, (i) permit subsequent offering periods in both non-US and US domestic offers to extend beyond 20 business days, (ii) allow securities tendered during the subsequent offering period to be "bundled" and purchased within 20 business days from the date of tender, rather than purchased on a "rolling" basis as soon as they are tendered, (iii) permit bidders to pay interest on securities tendered during a subsequent offering period (but not during the initial offering period), if required under non-US law, and (iv) codify the SEC's current position to facilitate so-called "mix-and-match" cross-border tender offers by allowing separate proration pools for securities tendered during the initial and subsequent offering periods and by permitting a ceiling on one or more alternative forms of consideration.¹⁴ The SEC refused to extend this treatment to US domestic offers on the basis that bidders could achieve the same result through a merger structure.

Early Commencement for Exchange Offers. The amendments expand the ability of a bidder to commence an exchange offer before the effectiveness of the registration statement filed to register the bidder's securities. Under the current rules, the ability to "early commence" an exchange offer was available only when an exchange offer was subject to Exchange Act Rule 13e-4 or Regulation 14D. The revised rules will permit early commencement of all Tier II exchange offers (including those for domestic target companies), including where the exchange offer is subject to the provisions of Regulation 14E only, provided that the offeror voluntarily offers certain protections required in an offer subject to Exchange Act Rule 13e-4 or Regulation 14D.

Interpretive Guidance

In addition to the rule amendments briefly described above, the adopting release clarifies and updates the SEC's position on other areas of previous staff guidance:¹⁵

Exclusion of US Investors from Cross-Border Tender Offers. The SEC supplemented its interpretative guidance issued in 1999 concerning the circumstances in which bidders in cross-border tender offers may avoid triggering US tender offer and registration rules. In this respect, while it encouraged bidders to extend cross-border offers to US holders, the SEC recognized that bidders may have legitimate reasons for excluding US holders, particularly where the percentage target securities they hold is small. When a bidder makes an "exclusionary offer," however, it must take special precautionary measures to avoid the application of US jurisdictional means.¹⁶ Moreover, the SEC will view with skepticism exclusionary offers for securities of foreign private issuers that trade on a US exchange where the participation of US holders is necessary to meet the minimum acceptance condition in the tender offer.

Inclusion of Non-US Investors in US Offers. The SEC reiterated its previous interpretative guidance that the "all-holders" provisions in Exchange Act Rules 13e-4(f) and 14d-10 apply equally to non-US holders as well as US holders in bids involving a US target. However, in special circumstances the SEC will continue to consider requests to exclude non-US holders from US tender offers on a case-by-case basis. In addition, the SEC stated it is inappropriate for bidders to shift the burden of assuring compliance with the relevant jurisdiction's laws to target security holders by requiring them to certify that tendering their securities complies with local laws or that an exemption applies that allows such tenders without further action by the bidder.

Vendor Placements for Exchange Offers. In a "vendor placement" arrangement, a bidder which is offering securities establishes an arrangement whereby securities that would otherwise be issued to US target holders are sold offshore to third parties. The proceeds (minus expenses) of the sale of those securities are then remitted to the US holders. Where permissible, the vendor placement procedure allows a bidder in a crossborder exchange offer to extend the offer into the US without registering the issuance of the securities under Section 5 of the Securities Act. In adopting the release, the SEC reiterated prior staff guidance intended to clarify the factors that bidders should consider when contemplating the use of vendor placement procedure.¹⁷ This interpretative guidance, however, is not intended to expand the circumstances under which the vendor placement procedure will be available. In particular, unless the market for the bidder's securities to be sold through the vendor placement process is highly liquid and robust and the number of bidder securities to be issued for the benefit of US target holders is relatively small compared to the total number of bidder securities outstanding, the SEC's position is that a vendor placement arrangement in a cross-border exchange offer would be subject to Securities Act registration under Section 5 thereof.

Changes to Schedules and Forms

The amendments require the electronic filing of Form CB and the accompanying Form F-X. In addition, the cover pages of Schedule TO (the disclosure schedule for tender offers for requested securities) and Forms F-4 and S-4 (registration statements for exchange offers and other business combinations) have been revised to require a filing person to indicate its reliance on one or more applicable cross-border transaction exemptions. The amendments do not require, however, that the percentage of US ownership permitting reliance on the cross-border transaction claimed in connection with the transaction be specified on any of these forms.

Footnotes

^{1. See Commission Guidance and Revisions to the
Cross-Border Tender Offer, Exchange Offer, Rights Offerings, and
Business Combination Rules and Beneficial Ownership Reporting Rules
for Certain Foreign Institutions SEC Release No. 34-58597
(September 19, 2008); 73 FR 60050. The same release also extends
the availability of Schedule 13G, in lieu of the more burdensome
Schedule 13D, for reporting by non-US institutional investors
holding securities for investment purposes. We will discuss this
change, and its implications, in a separate client
memorandum.}

^{2. "Foreign private issuer" means any foreign
issuer (other than a foreign government), except for an issuer
meeting the following conditions: (1) more than 50% of the
issuer's outstanding voting securities are directly or
indirectly held of record by residents of the United States and (2)
any of the following: (i) the majority of the executive officers or
directors are United States citizens or residents; (ii) more than
50% of the assets of the issuer are located in the United States;
or (iii) the business of the issuer is administered principally in
the United States.}

^{3. The amendments do not expressly address the issue
whether the "look through" analysis applies to
transactions that are initially announced on a non-agreed or
hostile basis, but are agreed by the time the transaction is
launched. In such circumstances, it would appear to be more
consistent with the spirit of the amendments for the availability
of the cross-border transaction exemptions to be determined as of
the date of the initial announcement of the transaction, although
there is no assurance that the SEC would follow this
view.}

^{4. Tier I relief is codified in Exchange Act Rule 14d-1(c).
The related relief from the "going private" rules is
found in Exchange Act Rule 13e-4(h)(8), and relief from the
prohibition on purchases outside of an offer after the announcement
of an offer is found in Exchange Act Rule 14e-5(b).}

^{5. "Free float" means the number of subject
securities outstanding excluding securities owned by the issuer
itself and, under the current rules, those owned by holders of 10%
or more of such outstanding securities.}

^{6. Tier II relief is codified primarily in Exchange Act
14d-1(d). Exchange Act Rule 13e-4(i) also provides relief from the
issuer tender offer rules in circumstances to which Tier II
applies.}

^{7. The US regulations governing tender offers are
substantially less burdensome if the target's securities are
not registered under the Exchange Act.}

^{8. In the adopting release, the SEC stated that it
considers a "public announcement" to be any oral or
written communication by the acquiror or any party acting on its
behalf, which is reasonably designed to inform or has the effect of
informing the public or security holders in general about the
transaction.}

^{9. By allowing an acquiror to determine its eligibility
after the public announcement of the transaction, the amendments
may reduce the likelihood of a bidder prematurely signaling to the
market the possibility of a future transaction.}

^{10. A "primary trading market" outside the US
means that at least 55% of the trading volume in the subject
securities takes place in a single, or no more than two, non-US
jurisdictions during the relevant twelve-month period. See Exchange
Act Rule 12h-6(f)(5). Where the trading occurs in two non-US
markets, the trading volume in at least one of those markets must
be greater than the volume in the United States for that
period.}

^{11. The amendments provide a non-exclusive list of examples
of when a bidder has such reason to know. For instance, a bidder is
deemed to know information about US ownership of the subject class
of securities that is publicly available and that appears in any
filing with the SEC or any regulatory body in the home jurisdiction
and, if different, the non-US jurisdiction in which the primary
trading market for the subject class of securities is located. In
addition, a bidder is also deemed to know information obtained or
readily available from any other source that is reasonably
reliable, including from persons the bidder has retained to advise
it about the transaction, as well as from third-party information
providers.}

^{12. A going private transaction is, in general, a
transaction involving affiliates of the issuer that has either a
reasonable likelihood or purpose of deregistering the target's
equity securities under the Exchange Act or delisting the
target's equity securities from a US exchange.}

^{13. For issuer tender offers subject to Exchange Act Rule
13e-4, tendering security holders must be able to withdraw tendered
securities after the expiration of 40 business days from the
commencement of the tender offer. For third-party tender offers,
Section 14(d)(5) of the Exchange Act states that withdrawal rights
exist at any time after 60 days from the date of commencement of
the original tender offer.}

^{14. In "mix and match" offers, the holder
accepting the offer can choose between different alternatives,
usually involving cash and securities, subject to caps. As a result
of the caps, one or more alternatives may not be available at all
or to the same extent in the subsequent offer period.}

^{15. This interpretative guidance is effective
immediately.}

^{16. An "exclusionary offer" is a tender offer
(including an exchange offer) that excludes US holders of the
subject class of securities for which the offer is made. According
to the SEC, when the bidder makes an exclusionary offer it must
take appropriate measures to avoid the application of US
jurisdictional means. Such precautionary measures may include (i)
ensuring that the offer materials (and the website where they are
posted, if any) clearly state that the offer is not available to US
holders, (ii) obtaining representations from tendering holders, or
persons tendering on others' behalf, that the investor(s)
tendering the securities are not US holders, and (iii) in
disseminating the cash or securities consideration to tendering
holders, taking special care to avoid mailing into the United
States. The SEC considers that merely including a legend or
disclaimer stating that the offer is not being made into the United
States, or that the offer materials may not be distributed in the
United States, however, is not likely to be sufficient, in itself,
to avoid US jurisdictional means, because if the bidder wants to
support a claim that the offer has no jurisdictional connection to
the United States, the SEC requires that it also take special
precautions to prevent sales to or tenders from US target holders.
Moreover, the SEC considers that where a foreign
"all-holders" requirement does not permit a bidder to
reject tenders from US holders and does not permit statements that
the offer may not be accepted by US holders (as is the case, for
example, in Germany), it may not be possible for the bidder to take
adequate precautionary measures to avoid US jurisdictional
means.}

^{17. These factors include: (i) the level of US ownership in
the target company; (ii) the number of bidder securities to be
issued in the business combination transaction as a whole as
compared to the amount of bidder securities outstanding before the
offer; (iii) the amount of bidder securities to be issued to
tendering US holders and subject to the vendor placement, as
compared to the amount of bidder securities outstanding before the
offer; (iv) the liquidity and general trading market for the
bidder's securities; (v) the likelihood that the vendor
placement can be effected within a very short period of time after
the termination of the offer and the bidder's acceptance of
shares tendered in the offer; (vi) the likelihood that the bidder
plans to disclose material information around the time of the
vendor placement sales; and (vii) the process used to effect the
vendor placement sales.}

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.