SEC Publishes CD&I On Mergers And Acquisitions, Form S-4 And Tender Offers
On March 6, 2025, the SEC published several updates to its compliance and disclosure interpretations (“CD&I”) related to mergers and acquisitions, Form S-4 and tender offers.
Rule 145(a)/Form S-4
Revised CD&Is 239.13 and 225.10 address the circumstances upon which seeking commitments for favorable votes, in advance of a merger/acquisition transaction, would be deemed an “offer or sale” of securities under Section 5, requiring either registration or an exemption from registration by the soliciting party.
Acquiring companies often seek management and principal shareholder commitments to vote in favor of a transaction as part of the negotiations associated with a merger/acquisition prior to soliciting such favorable votes from the shareholders at large such as by filing a Form S-4. The SEC recognizes that by executing these agreements, those management and shareholders have made investment decisions, prior to the transaction being presented to non-affiliate shareholders, in violation of Rule 145(a). However, the SEC also recognizes the legitimate reasons an acquiring company
