§ 230.162Submission of tenders in registered exchange offers.
(a) Notwithstanding section 5(a) of the
Act (15 U.S.C. 77e(a)), 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:
(2) The offeror provides withdrawal rights to the same extent as would be
required if the exchange offer were subject to the requirements of § 240.13e-4 or §§ 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
§ 240.13e-4(e)(3) or § 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.
(b) Notwithstanding Section 5(b)(2) of the
Act (15 U.S.C. 77e(b)(2)), a prospectus that meets the requirements of Section 10(a) of the Act (15 U.S.C. 77j(a)) 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 § 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 §
240.13e-4(e)(2) or § 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 § 230.162(a)(2)
of this section.
Instruction to § 230.162 of this
section: Notwithstanding the provisions of §
230.162 of this section above, for going-private transactions (as
defined by § 240.13e-3) and roll-up transactions (as described by Item 901 of Regulation
S-K (§ 229.901 of this chapter)), 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.