The SEC Staff is expected to provide some guidance through more FAQs confirming that an EGC should be able to rely on certain of the disclosure, communications and confidential submission benefits in the context of an exchange offer or a merger. Of course, it may be difficult to apply by analogy some of the JOBS Act Title I requirements to an exchange offer or merger scenario. For example, the JOBS Act requires an EGC to file publicly at least 21 days prior to the commencement of a traditional roadshow. It may not be intuitively obvious how to apply this principle in the context of a solicitation in an exchange offer, and we hope that the Staff can provide some useful guidance on this point. We also note that even if EGCs are availing themselves of the JOBS Act provisions in the context of an exchange offer or a merger, they will still have to comply with all of the applicable rules for tender offers and proxy solicitations at the same time.
Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.
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