SEC Staff Updates Guidance on Proxies, Integration of Offerings, Regulation D Offerings, and Exchange and Tender Offers

On January 23, 2026, the staff of the Division of Corporation Finance of the Securities and Exchange Commission (“SEC”) issued a series of interpretive guidance in the form of Compliance & Disclosure Interpretations (“C&DIs”) covering rules under the Securities Act of 1933 (the “Securities Act”) and the Securities Exchange Act of 1934 (the “Exchange Act”), as applicable, relating to (i) proxies, proxy materials, and information statements, (ii) the integration of securities offerings, (iii) private placements under Regulation D, (iv) historical compensation information for a spun-off company, (v) registered exchange offers, and (vi) tender offers.

We summarize the main points from the staff’s guidance below.

Proxy Rules

Revised Questions 126.06 & 126.07 (Proxy Rules C&DIs)

• The revised guidance reverses the staff’s position on the voluntary submission of Notices of Exempt Solicitation under Exchange Act Rule 14a-6(g). Exchange Act Rule 14a-6(g) requires any person who engages in an exempt solicitation in respect of any security and beneficially owns more than $5 million of the security to file a notice with the SEC attaching all written soliciting materials. Previously, the staff did not object to the voluntary submission of such notices by persons who did not satisfy the beneficial ownership threshold. The revised guidance now states, however, that the staff will object to a voluntary submission of such notice. According to the guidance, the staff is reversing its position because the vast majority of such notices have been voluntary submissions made primarily to generate publicity.

New Question 133.02 (Proxy Rules C&DIs)

• The staff will not object if a registrant conducts its “broker search” less than 20 business days before the record date of the applicable meeting of stockholders, provided that the registrant reasonably believes that its proxy materials will be timely disseminated to beneficial owners and otherwise complies with Exchange Act Rule 14a-13. The staff noted that, because of technological advancements, the “broker search” process can often be completed in less than 20 business days before the record date.

New Question 182.01 (Proxy Rules C&DIs)

• A registrant’s failure to comply with Exchange Act Rule 14c-2’s requirement to distribute an information statement to its stockholders at least 20 calendar days before any corporate action that is approved by its stockholders by written consent or authorization without its solicitation may be taken does not invalidate the corporate action.
• Where the written consents were solicited by a dissident stockholder without the registrant’s knowledge, the staff will not object to the registrant’s failure to comply with the 20-calendar-day requirement as long as the registrant distributes the information statement as soon as practicable after it becomes aware of the written consents.

Integration of Securities Offerings

Withdrawn Guidance

• The staff withdrew 10 of its prior guidance relating to the integration of securities offerings because they have been superseded by the extensive amendments to Securities Act Rule 152 (governing integration), which became effective in March 2021. The withdrawn guidance were issued at various times before 2021—in 2008, 2009, 2016 and 2017.

New Question 148.01 (Securities Act Rules C&DIs)

• An issuer that solicited various individuals through general solicitations in an offering under Rule 506(c) of Regulation D under the Securities Act, may subsequently sell to those individuals through an offering under Rule 506(b) of Regulation D, which does not permit general solicitations, if the issuer established a substantive relationship with those individuals prior to the commencement of the Rule 506(c) offering.
• In analyzing whether a substantive relationship exists, the quality of the relationship between an issuer (or its agent) and a prospective investor is the most important factor.
• In establishing a substantive relationship with a prospective investor, the issuer (or its agent) must have sufficient information to evaluate and must, in fact, evaluate the investor’s sophistication, financial circumstances, and ability to understand the nature and risks of the securities to be offered.
  • Such relationship cannot be established solely by passage of a specific time or a particular short form accreditation questionnaire.
  • In the absence of a prior business relationship or a recognized legal duty to offerees, it is likely more difficult for an issuer to establish a pre-existing, substantive relationship, especially when contemplating or engaged in an offering over the internet.

New Question 148.02 (Securities Act Rules C&DIs)

• The effectiveness of a registration statement, in and of itself, does not raise integration concerns under Rule 152

New Question 148.03 (Securities Act Rules C&DIs)

• An issuer that is unsuccessful in completing a shelf takedown may complete the offering privately under Securities Act Section 4(a)(2) or Rule 506(b) so long as the issuer complies with the general integration principle in Rule 152(a)(1) (i.e., the issuer reasonably believes that it either did not solicit any purchaser in the private offering through general solicitation or established a substantive relationship with the purchaser prior to the commencement of the private offering).

Regulation D

New Question 260.39 (Securities Act Rules C&DIs)

• An issuer may use different verification methods in the same Rule 506(c) offering (including the methods specified in Rule 506(c)(2)(ii) or principles-based methods of verification) to verify the accredited investor status of different investors.

Historical Item 402(a) Executive Compensation Disclosure – Spun-off Companies

Revised 217.01 (Regulation S-K C&DIs)

• The staff made a slight clarification on the analysis required in the context of a spin-off in determining whether historical compensation information under item 402 of Regulation S-K is required for a spun-off registrant. The C&DI states that the analysis must focus on whether, before the spin-off, the spun-off registrant operated as a separate division or standalone business (prior guidance had referred to “separate division” or “reporting company”) and, if so, whether there was continuity of management.
• The revised guidance also clarifies that when historical compensation disclosure is not required, only the compensation awarded to, earned by, or paid to the spun-off registrant’s named executive officers in connection with and following the spin-off needs to be disclosed.

Exchange Offers

Revised Questions 139.29 and 139.30 (Securities Act Sections C&DIs)

• To align with its approach in the context of offers and sale of securities in acquisitions, the revised guidance expands the circumstances under which the staff will not object to registered exchange offers that are preceded by lock-up agreements (or agreements to tender) executed by some of the holders of the securities subject to the exchange offer.
• In general, the revised guidance, which was previously limited to registered debt exchange offers, now extends to all registered exchange offers on Form S-4 (or Form F-4).
• The prior guidance provided for certain conditions (the “default conditions”) under which the staff will not object, including that the agreements are executed only by accredited investors, the exchange offer is made to all holders of the relevant securities, and all security holders eligible to participate in the exchange offer are offered the same amount and form of consideration.
• The revised guidance states that the agreements may be executed by accredited investor or qualified institutional investors.
• More importantly, beyond permitting such exchange offers when the default conditions are satisfied, the staff will also not object to such exchange offers if:
  • the accredited investors or qualified investors who executed the agreements will be offered and sold securities only in a Securities Act exempt offering; and
  • the registered securities will be offered and sold only to the security holders who did not execute the agreements.

Tender Offers

New Question 166.02 (Tender Offer Rules C&DIs)

• The staff clarified that Exchange Act Rule 14e-5(b)(10)—which allows purchases or arrangements to purchase the relevant securities to be made outside of a Tier 1 cross-border tender offer provided, among other conditions, the U.S. offering document prominently discloses the possibility of, or the intent to make, such purchases or arrangements— is available for such purchases or arrangements to purchase outside a Tier 1 tender offer that are made after the announcement of the tender offer but before offering documents are disseminated.
• The offering documents, when disseminated, should disclose that purchases outside the Tier 1 offer have already occurred and, if true, may continue during the tender offer.

New Question 166.03 (Tender Offer Rules C&DIs)

• The condition that purchases of the relevant securities by the affiliate of the offeror’s financial advisor outside a tender offer may not be made to facilitate the tender offer only applies to purchases made by the affiliate when the affiliate is not acting as a purchase agent of the offeror.