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
SEC Adopts Final Rules On SPACS, Shell Companies And The Use Of Projections – Part 5
On January 24, 2024, the SEC adopted final rules enhancing disclosure obligations for SPAC IPOs and subsequent de-SPAC business combination transactions. The rules are designed to more closely align the required disclosures and legal liabilities that may be incurred in de-SPAC transactions with those in traditional IPOs. The new rules spread beyond SPACs to shell companies and blank check companies in general. The compliance date for the new rules is July 1, 2025.
In the first blog in this series, I provided background on and a summary of the new rules – see HERE. Last week’s blog began a granular discussion of the 581-page rule release starting with partial coverage of new Subpart 1600 to Regulation S-K related to disclosures in SPAC IPO’s and de-SPAC transactions – see HERE. The third blog in the series continued the summary of Subpart 1600 and in particular the new dilution disclosure requirements – see HERE. Part 4 continued a
SEC Issues New C&DI On Abbreviated Debt Tender And Debt Exchange Offers
The SEC has been issuing a slew of new Compliance and Disclosure Interpretations (“C&DI”) on numerous topics in the past few months. On November 18, 2016, the SEC issued seven new C&DI providing guidance on tender offers in general as well as on abbreviated debt tender and debt exchange offers, known as the Five-Day Tender Offer. The guidance related to the Five-Day Tender Offer clarifies a previously issued January 2015 no-action letter on the subject. As I have not written on the subject of tender offers previously, I include a very high-level summary of tender offers in general and together with specific discussion on the new C&DI.
What Is a Tender Offer?
A tender offer is not statutorily defined, but from a high level is a broad solicitation made by a company or a third party to purchase a substantial portion of the outstanding debt or equity of a company. A tender offer is set for a specific period
