Following a series of Compliance and Disclosure Interpretations (“C&DIs”) recently issued on January 23, 2026, which we discussed here, on February 11, the staff of the Securities and Exchange Commission (“SEC”) Division of Corporation Finance issued a new set of C&DIs (including two revised C&DIs) covering resale registrations on Form S-4, going private transactions, and tender offers. Below is a summary of the staff’s latest guidance.
Registration of Certain Securities for Resale on Form S-4
- Revised Section 225.03 confirms that, in a business combination registered on Form S-4, the registrant may register for resale on the Form S-4 securities that were previously offered and sold to officers, directors, or affiliates of the target company in transactions exempt from registration under the Securities Act of 1933, as amended (the “Securities Act”) in connection with the same business combination. Exemplifying this in relation to its January 23 guidance, the revised guidance indicates that those securities would be regarded as having been offered and sold in connection with the same business combination if they were offered and sold pursuant to such exempt transactions in connection with written consents or lock-up agreements (i.e., agreements to vote in support of the business combination) for the same business combination executed by those officers, directors, or affiliates. In its January 23 guidance, the staff had clarified that they would not object to an S-4 registration statement preceded by such written consents or lock-up agreements (including agreements to tender) if the securities registered on the Form S-4 will be offered and sold only to those who did not execute such consents or agreements and those who executed such consents or agreements will be offered and sold securities only in a Securities Act exempt offering.
- The revised guidance is a reversal of the staff’s prior guidance which did not permit shares that had been privately placed to officers and directors of the target company to be registered for resale on the Form S-4 on the basis that they were not issued in connection with the business combination. The revised guidance, therefore, provides a target company’s officers, directors, and affiliates the timing flexibility of having those securities registered for resale on Form S-4, rather than waiting for them to be registered and declared effective on a Form S-1 or, if available, a Form S-3.
- In relation to this new flexibility, the revised guidance provides that, after completion of the business combination, the registrant may maintain an updated resale prospectus via a post-effective amendment on another form for which it is eligible. That is, the resale prospectus may be updated through a post-effective amendment on Form S-1 or, if available, on Form S-3.
Going Private Transactions
Background. Rule 13e-3 under the Securities Exchange Act of 1934, as amended (the “Exchange Act”), which governs going private transactions conducted by an issuer or an affiliate of the issuer, imposes certain filing and disclosure requirements (including the filing of a Schedule 13E-3 with the SEC) on such transactions, while exempting certain transactions from those requirements.
Rule 13e-3(g)(2), which provides for one of such exemptions, exempts a transaction in which securityholders are offered or receive only an equity security that meets specific criteria. To qualify for the Rule 13e-3(g)(2) exemption, the offered or received security must have substantially the same rights as the equity security that is the subject of the transaction and must either be registered under Section 12 of the Exchange Act or the issuer must be required to file reports pursuant to Section 15(d) of the Exchange Act. In addition, if the subject security was listed on a national securities exchange (or authorized to be quoted in an inter-dealer quotation system), the offered or received security must also be so listed or quoted.
- In new Question 112.03, the staff addresses timing around the “listed/quoted” condition in Rule 13e-3(g)(2), indicating that the exception will still be available even if the equity consideration is not listed (or authorized for quotation) at the time the Rule 13e-3 transaction is publicly announced, so long as the Section 12 registration and approval for exchange listing (or quotation authorization) are express conditions to closing of the transaction, those conditions are disclosed, and all other requirements of the exception are satisfied.
- Question 212.01 has been revised to underscore the express closing condition point in the context of an issuer offer to exchange non-interesting convertible debentures for listed interest-bearing convertible debentures where the listing of the new debentures depends on the extent of holder participation. The prior version of Question 212.01 had noted that the Rule 13e-3(g)(2) exemption would be unavailable because the new debentures may not be listed and do not have substantially the same rights as the outstanding debentures. In revised Question 212.01, the staff clarifies that the exemption disqualification due to listing hinges on the absence of listing as an express closing condition stating that such disqualification is because “the new debentures may not be accepted for listing . . . and the listing of the new debentures . . . is not an express condition to the closing . . .”
- New Question 112.04 clarifies that Rule 13e-3 would generally not apply to tender offers where there is an express non-waivable condition that the issuer (or its affiliate) would not purchase an amount of the subject equity securities that is reasonably likely to cause the issuer to cease being a reporting company.
Tender Offers
- New Question 101.22 clarifies that a 100%-owned subsidiary of an issuer is the only issuer affiliate that qualifies for the issuer tender offer exemption from Regulation 14D. Consequently, a parent company’s tender offer for equity securities of its 60%-owned affiliate is subject to Section 14(d) of the Securities Exchange Act, and Regulation 14D, which regulate third-party tender offers, and is not subject to Exchange Act Rule 13e-4, which regulates issuer tender offers.
- New Question 163.02 addresses “mini-tender offers,” which are third-party tender offers that are structured to result in ownership of not more than 5% of an issuer’s securities and are only subject to the requirements of Section 14(e) of the Exchange Act and Regulation 14E. While Regulation 14E requires an issuer to state its position on a third-party tender offer within 10 business days of the offer’s commencement, the regulation does not, however, require the third-party bidder to send its offer document to the issuer or file the document on the SEC’s EDGAR, resulting in a situation where the issuer may be unaware of the mini-tender offer until after the 10 business-day period.
- The new guidance clarifies that the staff will not object to issuer’s failure to comply with the 10 business-day requirement due to the issuer’s unawareness of the tender offer so long as the issuer provides security holders the required statement of its position as soon as possible after it becomes aware of the tender offer.
