In January and February 2026, the SEC’s Division of Corporation Finance (Corp Fin) issued, revised, and withdrew several C&DIs addressing corporate transactions and capital markets practices. The full set of January and February releases is linked below:

This article is Part 2 of a three-part series summarizing this C&DI guidance on our Cleary Securities, Disclosure, and Governance Watch blog (see also Part 1 and Part 3). Below we cover the updated guidance on exchange offers, business combinations, redomiciliations, and going private transactions. For any revised or withdrawn questions, you can click through to see the SEC’s redline.

Guidance Addressing Tender Offers

New Question 101.22 re: Tender Offer Rules Generally (2/11/26)Affiliate tender offers are third-party deals. This guidance clarifies which framework applies when a parent launches a tender offer for equity securities of an affiliate it controls but does not wholly own. Such an offer is subject to Section 14(d) and Regulation 14D (third-party tender offer rules) rather than Rule 13e-4 (issuer tender offer rules). The Section 14(d) exemption for “the issuer” extends only to the issuer itself or a 100%-owned subsidiary—not other affiliates or controlling shareholders. A parent holding less than 100% must comply with third-party tender offer requirements when bidding for additional shares.
New Question 163.02 re: Tender Offer Rule 14e-2 – Position of Subject Company With Respect to a Tender Offer (2/11/26)Mini-tender response deadline relief. This guidance addresses Rule 14e-2 obligations (requiring issuers to state their position on a tender offer within 10 business days after it commences) when a third party launches a “mini-tender offer” (for 5% or less of the issuer’s securities) without the issuer’s knowledge. Because mini-tender bidders need not send documents to the issuer or file on EDGAR, an issuer may not learn of the offer until after the deadline. The staff confirms it will not object if the issuer publishes its position statement as soon as possible after becoming aware of the offer.
 
The guidance also reminds bidders that, while they are not required to, they are encouraged to (1) disclose that the issuer must make a recommendation within 10 business days, and (2) send offer documents to the issuer at commencement so the issuer can comply with its Rule 14e-2 obligation.
New Question 166.02 re: Tender Offer Rule 14e-5 – Prohibiting Purchases Outside of a Tender Offer (1/23/26)Tier I timing clarified. This guidance addresses the Rule 14e-5(b)(10) exception for cross-border “Tier I” tender offers. Rule 14e-5 normally prohibits a bidder and its affiliates from buying target shares outside the offer once announced, but Tier I offers can qualify for an exception if certain conditions are met, including that outside purchases are allowed under home country law.
 
The guidance clarifies that the exception applies even if the bidder makes outside purchases after announcement but before distributing offer documents—as long as those documents disclose that purchases have occurred and (if applicable) may continue.
New Question 166.03 re: Tender Offer Rule 14e-5 – Prohibiting Purchases Outside of a Tender Offer (1/23/26)Advisor affiliates acting as agents. This guidance addresses purchases made outside a tender offer by an affiliate of the offeror’s financial advisor when that affiliate is acting as the offeror’s agent. Rule 14e-5(b)(12) permits, subject to specified conditions, purchases outside a tender offer by the offeror, its affiliates, and affiliates of the offeror’s financial advisor. One of those conditions prohibits affiliates of the financial advisor from making purchases to “facilitate the tender offer.”
 
The C&DI clarifies that this facilitation prohibition does not apply when affiliates of a financial advisor are acting in an agency capacity for the offeror. In that circumstance, the purchases are treated as purchases by the offeror (or its affiliates), not as purchases by the financial advisor affiliate in its own capacity. The facilitation restriction applies only when the financial advisor’s affiliate is purchasing for its own account (i.e., not as agent for the offeror). 
 
Even in circumstances when a financial advisor’s affiliate is acting as agent, however, the offeror must still comply with the other conditions of Rule 14e-5(b)(12), including disclosing requirements and the price-matching requirement, which requires the offeror to increase the tender offer price if it (including through its agent) pays more outside the offer than the tender offer price.

Guidance Addressing Exchange Offers, Business Combinations, and Redomiciliations

Revised Question 139.29 re: Securities Act Section 5 – Prohibitions Relating to Interstate Commerce and the Mails (1/23/26)Pre-filing lock-ups now broader. This C&DI provides guidance about when issuers may execute lock-up agreements or agreements to tender with security holders before filing a Form S-4 or Form F-4 registration statement for an exchange offer. It addresses the conditions under which the SEC staff will not object to such pre-filing arrangements and reminds issuers to consider whether soliciting lock-ups might trigger tender offer rules.
 
The C&DI was revised to cover all registered exchange offers (not just debt) and add an alternative registration pathway when conditions are not met.
Revised Question 139.30 re: Securities Act Section 5 – Prohibitions Relating to Interstate Commerce and the Mails (1/23/26)Third-party deal lock-up flexibility. This C&DI provides guidance about when an acquiring company may execute lock-up agreements or agreements to tender with management and principal security holders of a target company before filing a Form S-4 or F-4 in a negotiated third-party exchange offer. It addresses the conditions under which SEC staff will not object to obtaining such commitments from target company insiders and reminds acquiring companies to consider whether soliciting lock-ups might trigger tender offer rules.
 
The C&DI was revised to add an alternative registration pathway, replacing the prior approach that generally prohibited subsequent registration.
Revised Question 239.13 re: Securities Act Section 5 – Prohibitions Relating to Interstate Commerce and the Mails (1/23/26)Voting lock-ups get alternative path. This C&DI provides guidance about when an acquiring company may execute lock-up agreements with management and principal security holders of a target company to vote in favor of a Rule 145(a) transaction before filing a Form S-4 or Form F-4 registration statement. It addresses the conditions under which the SEC staff will not object to obtaining such voting commitments from target company insiders and offers alternative approaches if those conditions are not met.
 
The C&DI was revised to expand the alternative pathway to cover situations where target company insiders execute lock-ups approving the transaction before filing without needing additional written consents.
Revised Question 225.03 re: Securities Act Form S-4 (2/11/26)Form S-4 can cover re-sale shares issued in connection with business combination. This guidance addresses whether a registrant may include resale registration on Form S-4 for securities previously issued under an exemption to target officers, directors, and affiliates in connection with the same business combination. The staff confirms such securities may be registered for resale on the Form S-4 if issued in connection with the same transaction (such as shares issued in exchange for the written consents or lock-ups described above). Post-closing, the registrant may file a post-effective amendment to the Form S-4 on an eligible form to maintain an updated resale prospectus.
 
This reverses the prior staff position, which prohibited registering on Form S-4 shares previously issued to target company officers and directors under Section 4(a)(2), on the grounds that they were not issued in connection with the transaction. The updated guidance recognizes that securities issued for transaction-related purposes-such as securing consents or lock-ups-are sufficiently connected to the business combination to qualify for inclusion.
Revised Question 139.03 re: Securities Act Rule 145 — Reclassification of Securities, Mergers, Consolidations and Acquisitions of Assets (2/11/26)Holding company redomiciliation relief. This guidance addresses whether a merger with a newly formed holding company in another state qualifies for the change-in-domicile exception under Rule 145(a)(2), which exempts certain redomiciliation transactions from the registration requirements that otherwise apply to business combinations under Rule 145. The staff confirms it can—if the sole purpose is to change domicile within the U.S. and the transaction does not result in significant changes to organizational structure, business operations, or regulatory regime beyond those stemming from state law differences. Examples where the exception would not apply: conversion from business trust or LP to corporation, C-to-S or public benefit corporation conversion, or bank holding company formation.
 
This reverses prior guidance stating the exception was unavailable when a new holding company was created. The revised position permits interstate redomiciliation using a holding company structure, eliminating the need for registration when the reorganization is form-driven rather than substantive.

Guidance Addressing Going Private Transactions

New Question 112.03 re: Going Private Transactions, Exchange Act Rule 13e-3 and Schedule 13E-3 (2/11/26)Listing condition timing clarified. Rule 13e-3 imposes significant disclosure requirements on going-private transactions by issuers or their affiliates as compared with standard merger or tender offer disclosure-including detailed fairness analyses, board deliberations, and consideration of alternatives.
 
The Rule 13e-3(g)(2) exception allows parties to avoid these heightened disclosure requirements when shareholders receive equivalent equity securities rather than cash.
 
One condition for the exception is that if the original securities are listed, the new securities must also be listed. This guidance confirms that the exception would be available even if the new securities are not yet listed at announcement, so long as registration and listing approval for the new securities at closing are express, disclosed conditions to the transaction.
Revised Question 212.01 re: Going Private Transactions, Exchange Act Rule 13e-3 and Schedule 13E-3 (2/11/26)Revised for conformity with new question 112.03. This guidance addresses an exchange offer where an issuer offers new non-interest bearing convertible debentures for outstanding interest-bearing debentures listed on a national securities exchange, and listing of the new non-interest bearing debentures is not an express condition to closing. The staff confirms that the exception is not available in this scenario for two reasons: (1) listing of the new debentures is not an express condition to closing (see Question 112.03 above), and (2) the new debentures do not contain substantially the same rights as the securities being exchanged. As a practical matter, issuers must satisfy both prongs-express listing condition and substantially equivalent rights-to rely on the exception.
 
This revises the prior guidance, which focused on whether listing was uncertain rather than whether listing was an express condition. The updated formulation is intended to align with and reflect new Question 112.03.
New Question 112.04 re: Going Private Transactions, Exchange Act Rule 13e-3 and Schedule 13E-3 (2/11/26)Capped tender offers can avoid Rule 13e-3. Rule 13e-3 applies to tender offers by issuers or their affiliates that have a reasonable likelihood or purpose of producing certain effects-such as causing a class of equity securities to become eligible for deregistration or suspension of reporting obligations.
 
This guidance confirms Rule 13e-3 generally does not apply if the offer includes an express, non-waivable condition capping purchases below levels that would trigger those effects.
 
As a practical matter, issuers or their affiliates could avoid the heightened disclosure requirements by capping purchases at a level that will not trigger deregistration or reporting suspension eligibility, provided that cap is a disclosed, non-waivable condition.