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

Rule 162 -- Submission of Tenders in Registered Exchange Offers

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1. Notwithstanding section 5(a) of the Act, an offeror may solicit tenders of securities in an exchange offer before a registration statement is effective as to the security offered, so long as no securities are purchased until the registration statement is effective and the tender offer has expired in accordance with the tender offer rules, and either:
   
   
   1. The exchange offer is subject to Rule 240.13e-4 or Rules 240.14d-1 through 14d-11 of this chapter; or
      
      
   2. The offeror provides withdrawal rights to the same extent as would be required if the exchange offer were subject to the requirements of Rule 240.13e-4 or Rules 240.14d-1 through 14d-11 of this chapter; and if a material change occurs in the information published, sent or given to security holders, the offeror complies with the provisions of Rule 240.13e-4(e)(3) or Rule 240.14d-4(b) and (d) of this chapter in disseminating information about the material change to security holders, and including the minimum periods during which the offer must remain open (with withdrawal rights) after notice of the change is provided to security holders.
      
      
2. Notwithstanding Section 5(b)(2) of the Act, a prospectus that meets the requirements of Section 10(a) of the Act need not be delivered to security holders in an exchange offer that commences before the effectiveness of a registration statement in accordance with the provisions of Rule 230.162(a) of this section, so long as a preliminary prospectus, prospectus supplements and revised prospectuses are delivered to security holders in accordance with Rule 240.13e-4(e)(2) or Rule 240.14d-4(b) of this chapter. This applies not only to exchange offers subject to those provisions, but also to exchange offers not subject to those provisions that meet the conditions in Rule 230.162(a)(2) of this section.
   
   

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   Instruction to Rule 230.162 of this section:
   Notwithstanding the provisions of Rule 230.162 of this section above, for going-private transactions (as defined by Rule 240.13e-3) and roll-up transactions (as described by Item 901 of Regulation S-K ), a registration statement registering the securities to be offered must have become effective and only a prospectus that meets the requirements of Section 10(a) of the Securities Act may be delivered to security holders on the date of commencement.

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