Skadden, Arps, Slate, Meagher & Flom LLP and Affiliates

SEC Allows Shortened Tender Offer Periods

Skadden Publication / SEC Reporting & Compliance Alert

Andrew J. Brady Brian V. Breheny Raquel Fox Caroline S. Kim Joshua Shainess Leo W. Chomiak Jeongu Gim Nicholas D. Lamparski Khadija L. Messina Sydney E. Smith Kyle Wiley

Executive Summary

  • What’s new: The SEC’s Division of Corporation Finance issued an exemptive order that allows certain tender offers for equity securities to have minimum offer periods of 10 business days — as opposed to the long-required 20-business-day minimum offer period.
  • Why it matters: Prior to this exemptive relief, tender offers for equity securities were required to remain open for at least 20 business days. The Division noted that it was providing this exemptive relief “[t]o address market inefficiencies, better reflect technological advancements, and reduce exposure to market fluctuations.”

__________

On April 16, 2026, the Division of Corporation Finance of the Securities and Exchange Commission (SEC) issued an exemptive order (Order) permitting certain tender offers for equity securities to close after 10 business days if certain conditions are met. Prior to this exemptive relief, these tender offers were subject to a 20-business-day minimum offer period.1

Reporting Company All-Cash Tender Offers

Under the Order, a fixed-price, all-cash tender offer for equity securities of a reporting company may expire after 10 business days if the following conditions are met:

  • Scope. The tender offer must be subject to either Rule 13e-4 (self-tender offers) or Regulation 14D (third-party tender offers for registered securities).
  • Nonhostile. Third-party tender offers must be made pursuant to a negotiated merger agreement between the offeror and the target company, and the offer must be for all outstanding shares of the subject class of equity securities. The target company must file with the SEC a Schedule 14D-9 disclosing its recommendation no later than 5:30 p.m. ET on the second business day of the tender offer.
  • No going-private transactions. The tender offer must not be subject to Rule 13e-3 under the Exchange Act. For self-tender offers subject to Rule 13e-4, the offer must be for less than all outstanding shares of the subject class of equity securities.
  • No cross-border tender offers. The tender offer must not be made in reliance on the cross-border exemptions set forth in Rule 14d-1(d) or Rule 13e-4(i) under the Exchange Act.
  • No competing offers. The exemptive relief is not available if:
    • at the announcement of the tender offer, the subject securities are subject to a previously announced competing tender offer; or
    • after commencement of the tender offer, a competing tender offer for the subject securities is announced.2
  • Press release and website. No later than 10 a.m. ET on the date of commencement, the tender offer must be announced in a widely disseminated press release that includes the basic terms of the offer and a hyperlink to a website with the tender offer materials.
  • Material changes. Any increase or decrease in the percentage of securities sought (other than acceptance of an additional amount not greater than 2%), or any change in consideration offered, must be communicated by a widely disseminated public announcement no later than 9 a.m. ET on the fifth business day before the tender offer expires. Any other material change in the offer’s terms must be communicated in this manner no later than 9 a.m. ET on the second business day before the tender offer expires.

Nonreporting Company All-Cash Self-Tender Offers

The Order provides similar relief for fixed-price, all-cash self-tender offers by nonreporting companies. Those self-tender offers may expire after 10 business days if the following conditions are met:

  • Nonreporting company. The company must not have a class of securities registered under Section 12 of the Exchange Act and must not be required to file reports pursuant to Section 15(d) of the Exchange Act.
  • Self-tender offer. The tender offer must be made by the company or its wholly owned subsidiary.
  • Material changes. Any increase or decrease in the percentage of securities sought (other than acceptance of an additional amount not greater than 2%), or any change in consideration offered, must be communicated by notice to holders of the subject securities no later than 9 a.m. ET on the fifth business day before the self-tender offer expires. Any other material change in the offer’s terms must be communicated by notice to holders of the subject securities no later than 9 a.m. ET on the second business day before the self-tender offer expires.

By reducing the minimum offer period from 20 to 10 business days, the Order may make fixed-price, all-cash tender offers a more attractive structure for certain negotiated M&A activities. However, the practical impact may be tempered where regulatory review periods, such as Hart-Scott-Rodino Act antitrust clearance, require the offer to remain open beyond this shortened minimum period. The Order also gives greater flexibility and a streamlined path to nonreporting companies seeking to provide employees liquidity through self-tender offers.

_______________

1 See Rule 13e-4(f)(1)(i) and Rule 14e-1(a) of the Securities Exchange Act of 1934, as emended (Exchange Act).

2 If another tender offer for the subject securities is publicly announced following the commencement of the initial tender offer, then the initial tender offer must be extended such that it is open for at least 20 business days from the date it commenced.

This memorandum is provided by Skadden, Arps, Slate, Meagher & Flom LLP and its affiliates for educational and informational purposes only and is not intended and should not be construed as legal advice. This memorandum is considered advertising under applicable state laws.

BACK TO TOP