New and Revised CDIs on Proxy Rules, Exchange Offers and Tender Offers

Liz Walsh, Jennifer Zepralka
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On January 23, 2026, the Securities and Exchange Commission’s Division of Corporation Finance revised a number of Compliance and Disclosure Interpretations (“CDIs”) and issued several new CDIs.  The revised CDIs span different topics, from registered exchange offers to proxy solicitations.  Overall, the CDIs reflect the current Commission’s focus on addressing regulatory requirements that may impose unnecessary burdens on registrants. 

Notable changes include a few CDIs with the potential to impact proxy season, including that the Staff will no longer permit “voluntary” Notices of Exempt Solicitation by holders below the $5 million threshold in Rule 14a-6 and that the Staff will no longer object if a company conducts its broker search fewer than 20 business days before the record date, provided that the registrant reasonably believes proxy materials will still be timely disseminated.  The Staff also issued new interpretations related to exchange offers and tender offers.

CDI Revisions or New Guidance Notable Changes
Securities Act Sections CDI 139.29: Section 5 Lock-up agreements or agreements to tender can be executed prior to filing a Form S-4 in any registered exchange offer; the revisions update the conditions under which this is permitted to apply to both debt and equity exchange offers.

When lock-up agreements or agreements to tender are executed before filing of a registration statement and certain conditions are not satisfied, the subsequent registration of the transaction is generally not permitted; however, the Staff will not object to such registration if:
– the accredited investors or qualified institutional investors who executed lock-up agreements are sold securities in a private offering; and
– registered securities are sold only to those who did not execute lock-up agreements.

 Previous guidance applied only to debt offerings; new guidance includes both debt and equity exchange offers.

In addition, previous guidance relied on the idea that a transaction commenced privately must be completed privately to hold that (i) when lock-up agreements are executed before the filing of a registration statement and certain circumstances are not satisfied, or (ii) shares are tendered prior to such filing, the subsequent registration of the exchange offer may not be appropriate.  The revised guidance now allows for registration on Form S-4 or Form F-4 subsequent to execution of a lock-up.
Securities Act Sections CDI 139.30: Section 5 In a third-party exchange offer, when lock-up agreements or agreements to tender are executed by target company insiders before filing of a registration statement and certain conditions are not satisfied, the subsequent registration of the transaction is generally not permitted; however, the Staff will not object to such registration if:
– the target company insiders who executed the lock-up agreements are sold securities in a private offering; and
– registered securities are sold only to those who did not execute lock-up agreements.		 Changes mirror the changes to CDI 139.29, above.
Securities Act Sections CDI 239.13: Section 5 In a Rule 145(a) transaction, the Staff has not objected to lock-up agreements, provided that certain conditions are met.  In this case, the Staff will not object to the subsequent filing of a registration statement when target company insiders either (1) execute lock-up agreements and the conditions listed are not satisfied or (2) deliver written consents approving the transaction before the registration statement is filed as long as:
– insiders who executed lock-up agreements or delivered written consents are sold securities in a private transaction; and
– registered securities are sold only to those who did not deliver lock-up agreements or written consents.		 Previous guidance provided that, where target company insiders deliver written consents approving the Rule 145(a) transaction before the registration statement is filed, the staff would not object to a subsequent registered offering as long as (i) those who executed consents are sold securities in a private offering, and (ii) registered securities were offered and sold only to those who did not deliver written consents.  The revised CDI expands the guidance to cover both written consents and lock-up agreements.
Proxy Rules and Schedules 14A/14C CDI 126.06: Exchange Act Rule 14a-6 Rule 14a-6(g)(1) requires any person who engages in a solicitation pursuant to Rule 14a-2(b)(1) and beneficially owns over $5 million of the securities subject to the solicitation to furnish a Notice of Exempt Solicitation to the SEC.  Voluntary submission of such Notices by those not subject to Rule 14a-6(g)(1) is no longer permitted. The Staff did not previously object to voluntary Notices; however, it observed that recently, Notices were filed by those holding less than $5 million in the subject securities as a way to generate publicity, rather than for the intended purposes of such Notices, and thus the Staff will now object to voluntary Notices. 
Proxy Rules and Schedules 14A/14C CDI 126.07: Exchange Act Rule 14a-6 Update to clarify that voluntary submissions of Notices of Exempt Solicitations pursuant to Rule 14a-6(g)(1) are no longer permitted. See CDI 126.06, above.
Proxy Rules and Schedules 14A/14C CDI 133.02: Exchange Act Rule 14a-13 (NEW) Rule 14a-13(a) requires registrants to conduct a broker search at least 20 business days prior to the record date of the applicable meeting of security holders.  However, given improvements in technology, the Staff will not object if a registrant conducts its broker search less than 20 business days before the record date, provided that the registrant reasonably believes that its proxy will be timely disseminated to security holders. New guidance.
Proxy Rules and Schedules 14A/14C CDI 182.01: Exchange Act Rule 14c-2 (NEW) Rule 14c-2 requires a registrant to distribute an information statement to its security holders at least 20 calendar days prior to the earliest date of a potential corporate action taken by written consent. However, Rule 14c-2 does not determine when such an action becomes effective, so the failure to comply with the timing requirements in the Rule does not invalidate the action. Therefore, when a dissident security holder solicits consents without the registrant’s knowledge, the Staff will not object to the registrant’s failure to comply with the timing requirement as long as the registrant distributes the information statement as soon as practicable after it becomes aware of the written consents.  
Tender Offer Rules and Schedules CDI: Exchange Act Rule 14e-5 166.02 (NEW) For certain Tier I tender offers, Rule 14e-5(b)(10) provides an exception from Rule 14e-5 if certain conditions are met, including the disclosure of purchases outside of such tender offer. This exemption is also available when purchases outside of such tender offer are made after the public announcement of the offer but before offering documents are disseminated.

This position is consistent with the intent of the Rule 14e-5(b)(10) exception, which is to allow purchases outside of a Tier I tender offer where such outside purchases are permitted by the laws of the subject company’s home jurisdiction and certain other conditions are met.

This disclosure guidance also applies to Rule 14e-5(b)(11)(iv) and Rule 14e-5(b)(12)(i)(D).

 New guidance.
Tender Offer Rules and Schedules CDI 166.03: Exchange Act Rule 14e-5 (NEW)  Rule 14e-5(b)(12)(i) permits an offeror and an affiliate of the offeror’s financial advisor to make purchases outside a tender offer, subject to certain conditions. Rule 14e-5(b)(12)(i)(G)(4) states that the such purchases by an affiliate of the financial advisor may not be made to facilitate the tender offer.

This new CDI clarifies that Rule 14e-5(b)(12)(i)(G)(4) does not apply to outside purchases by affiliates of the offeror’s financial advisor when acting on behalf of the offeror in an agency capacity to effect purchases of subject securities or related securities outside of the tender offer with the purpose of facilitating the tender offer. The purchases would, however, be subject to the other requirements of Rule 14e-5(b)(12), including the requirement that the tender offer price be increased to match any consideration paid outside of the tender offer that is greater than the tender offer price.

 New guidance.

Find the new guidance here.

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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. Attorney Advertising.

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