Tender Offer Considerations for Cash Repurchases and Exchange Offers


A key consideration in developing any liability management strategy is the extent to which the SEC’s tender offer rules apply to contemplated transactions, given that these rules can substantially affect the manner in which a transaction is conducted, the timing of the transaction, as well as the issuer’s ability to conduct other transactions in its securities around the time of the tender offer. The tender offer rules can apply when a company is offering securities and/or cash for its outstanding securities, and the level of regulation of the offer (in terms of timing and mandated procedural protections) varies depending on the type of security that is the subject of the offer. In the case of exchange offers, the tender offer rules may apply in addition to the requirement that the issuer must either register the transaction or meet the conditions for an exemption under the Securities Act of 1933, as amended (the “Securities Act”). We discuss other federal securities law and tax considerations for liability management transactions in our News Bulletin titled “Liability Management: Is Now the Time to Rebalance Your Balance Sheet.” In this news bulletin, we focus on the applicability of tender offer rules to potential liability management alternatives, including cash tender offers and exchange offers for outstanding securities.1

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DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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