Securities Lawyer's Deskbook                          published by The University of Cincinnati College of Law

Rule 145 -- Reclassification of Securities, Mergers, Consolidations and Acquisitions of Assets

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Preliminary Note to Rule 145

Rule 145 is designed to make available the protection provided by registration under the Securities Act of 1933, as amended (Act), to persons who are offered securities in a business combination of the type described in paragraphs (a)(1), (2), and (3) of the rule. The thrust of the rule is that an offer, offer to sell, offer for sale, or sale occurs when there is submitted to security holders a plan or agreement pursuant to which such holders are required to elect, on the basis of what is in substance a new investment decision, whether to accept a new or different security in exchange for their existing security. Rule 145 embodies the Commission's determination that such transactions are subject to the registration requirements of the Act, and that the previously existing no-sale theory of Rule 133 is no longer consistent with the statutory purposes of the Act. See Release No. 33-5316 (October 6, 1972) [37 FR 23631]. Securities issued in transactions described in paragraph (a) of Rule 145 may be registered on Form S-4 or F-4 or Form N-14 under the Act.

Transactions for which statutory exemptions under the Act, including those contained in sections 3(a)(9), (10), (11), and 4(2), are otherwise available are not affected by Rule 145.

Note 1: Reference is made to Rule 153a describing the prospectus delivery required in a transaction of the type referred to in Rule 145.

Note 2: A reclassification of securities covered by Rule 145 would be exempt from registration pursuant to section 3(a)(9) or (11) of the Act if the conditions of either of these sections are satisfied.

1. Transactions within the section. An offer, offer to sell, offer for sale or sale shall be deemed to be involved, within the meaning of Section 2(a)(3) of the Act, so far as the security holders of a corporation or other person are concerned where, pursuant to statutory provisions of the jurisdiction under which such corporation or other person is organized, or pursuant to provisions contained in its certificate of incorporation or similar controlling instruments, or otherwise, there is submitted for the vote or consent of such security holders a plan or agreement for:
   1. Reclassifications. A reclassification of securities of such corporation or other person, other than a stock split, reverse stock split, or change in par value, which involves the substitution of a security for another security;

   2. Mergers of Consolidations. A statutory merger or consolidation, or similar plan or acquisition in which securities of such corporation or other person held by such security holders will become or be exchanged for securities of any person, unless the sole purpose of the transaction is to change an issuer's domicile solely within the United States; or

   3. Transfers of assets. A transfer of assets of such corporation or other person, to another person in consideration of the issuance of securities of such other person or any of its affiliates, if:

      1. such plan or agreement provides for dissolution of the corporation or other person whose security holders are voting or consenting; or

      2. such plan or agreement provides for a pro rata or similar distribution of such securities to the security holders voting or consenting; or

      3. the board of directors or similar representatives of such corporation or other person, adopts resolutions relative to paragraph (a)(3) (i) or (ii) of this section within 1 year after the taking of such vote or consent; or

      4. the transfer of assets is a part of a pre-existing plan for distribution of such securities, notwithstanding paragraph (a)(3) (i), (ii) or (iii) of this section.
         
         
2. Communications before a Registration Statement is filed. Communications made in connection with or relating to a transaction described in paragraph (a) of this section that will be registered under the Act may be made under Rule 135, Rule 165 or Rule 166.
   
   
3. Persons and parties deemed to be underwriters. For purposes of this section, if any party to a transaction specified in paragraph (a) of this section is a shell company, other than a business combination related shell company, as those terms are defined in Rule 230.405, any party to that transaction, other than the issuer, or any person who is an affiliate of such party at the time such transaction is submitted for vote or consent, who publicly offers or sells securities of the issuer acquired in connection with any such transaction, shall be deemed to be engaged in a distribution and therefore to be an underwriter thereof within the meaning of Section 2(a)(11) of the Act.
   
   
4. Resale provisions for persons and parties deemed underwriters. Notwithstanding the provisions of paragraph (c), a person or party specified in that paragraph shall not be deemed to be engaged in a distribution and therefore not to be an underwriter of securities acquired in a transaction specified in paragraph (a) that was registered under the Act if:
   
   
   1. The issuer has met the requirements applicable to an issuer of securities in paragraph (i)(2) of Rule 230.144; and
      
      
   2. One of the following three conditions is met:
      
      
      1. Such securities are sold by such person or party in accordance with the provisions of paragraphs (c), (e), (f), and (g) of Rule 230.144 and at least 90 days have elapsed since the date the securities were acquired from the issuer in such transaction; or
         
         
      2. Such person or party is not, and has not been for at least three months, an affiliate of the issuer, and at least six months, as determined in accordance with paragraph (d) of Rule 230.144, have elapsed since the date the securities were acquired from the issuer in such transaction, and the issuer meets the requirements of paragraph (c) of Rule 230.144; or
         
         
      3. Such person or party is not, and has not been for at least three months, an affiliate of the issuer, and at least one year, as determined in accordance with paragraph (d) of Rule 230.144, has elapsed since the date the securities were acquired from the issuer in such transaction.
         
         

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         Note to Rule 230.145(c) and (d): Paragraph (d) is not available with respect to any transaction or series of transactions that, although in technical compliance with the rule, is part of a plan or scheme to evade the registration requirements of the Act.
         

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5. Definitions.
   
   
   1. The term affiliate as used in paragraphs (c) and (d) of this section shall have the same meaning as the definition of that term in Rule 230.144.
      
      
   2. The term party as used in paragraphs (c) and (d) of this section shall mean the corporations, business entities, or other persons, other than the issuer, whose assets or capital structure are affected by the transactions specified in paragraph (a) of this section.
      
      
   3. The term person as used in paragraphs (c) and (d) of this section, when used in reference to a person for whose account securities are to be sold, shall have the same meaning as the definition of that term in paragraph (a)(2) of Rule 230.144.
      
      

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