On April 16, 2026, the Office of Mergers and Acquisitions within the Division of Corporation Finance of the U.S. Securities and Exchange Commission (the “SEC”) issued an exemptive order (the “Order”) permitting certain tender offers for equity securities to remain open for a minimum of 10 business days, rather than the standard 20 business days required under Rules 13e-4(f)(1)(i) and 14e-1(a) of the Securities Exchange Act of 1934 (the “Exchange Act”). The Order represents a significant development for issuers, acquirors and M&A practitioners, as it establishes a standing framework for a shortened minimum tender offer period.
Below we summarize the key provisions of the Order, identify who may benefit from the relief, and offer practical guidance for companies and their advisors considering tender offers under the new framework.
The Order permits tender offers for equity securities of reporting companies to remain open for a minimum of 10 business days, provided all of the following conditions are met:
- Offer type and structure. The tender offer must be subject to Regulation 14D (governing third-party tender offers) or Rule 13e-4 (governing issuer tender offers) under the Exchange Act. For third-party tender offers, the offer must be made pursuant to a negotiated merger agreement or similar business combination agreement for all outstanding securities of the subject class, and a Schedule 14D-9 must be filed and disseminated by the subject company no later than 5:30 p.m., Eastern Time, on the first business day following commencement of the tender offer. For issuer tender offers, the offer must be for less than all outstanding securities of the subject class.
- Cash-only consideration at a fixed price. The consideration offered must consist solely of cash at a fixed price. Offers involving stock, mixed consideration, or other non-cash components, such as contingent value rights, do not qualify for the shortened offering period.
- No going-private transactions. The tender offer must not be subject to Rule 13e-3 under the Exchange Act, which governs controlling stockholder going-private transactions.
- 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. At the time of public announcement, the subject securities must not be the subject of a previously announced or pending tender offer by another offeror. If a competing tender offer is publicly announced after commencement of an initial offer made in reliance on the relief provided in the Order, the initial offer must be extended so that it is open for at least 20 business days from the date it commenced.
- Press release and website access requirements. The tender offer must be announced in a press release issued through a widely disseminated news or wire service by 10:00 a.m., Eastern Time, on the date the offer commences. The press release must include the basic terms of the offer, such as the identity of the offeror, the class of equity security sought, the amount of consideration offered, and the expiration date, and must contain an active hyperlink to a website where security holders may access the tender offer materials, the letter of transmittal (if any), and any other documents relating to the offer.
- Timely communication of material changes. Any increase or decrease in the percentage of securities sought (other than acceptance of an additional amount not to exceed two percent of the subject securities), or any change in consideration offered, must be communicated by press release or other widely disseminated public announcement no later than 9:00 a.m., Eastern Time, on the fifth business day before expiration. Any other material change in the terms of the offer must be communicated in such manner no later than 9:00 a.m., Eastern Time, on the second business day before expiration.
The Order also provides parallel relief permitting tender offers for equity securities of non-reporting companies to remain open for a minimum of 10 business days, subject to a distinct set of conditions.
The subject company must be an issuer that does not have a class of securities registered under Section 12 of the Exchange Act and is not required to file reports under Section 15(d) of the Exchange Act. The tender offer must be made by the issuer itself, or by the issuer’s wholly owned subsidiary, for the securities of the issuer. The consideration must consist only of cash at a fixed price.
The communication requirements for material changes mirror those applicable to reporting company offers, though notice may be made to holders other than by press release. Specifically, any increase or decrease in the percentage of securities sought (other than acceptance of an additional amount not to exceed two percent of the subject securities) or any change in consideration must be communicated no later than 9:00 a.m., Eastern Time, on the fifth business day before expiration, and any other material change must be communicated no later than 9:00 a.m., Eastern Time, on the second business day before expiration.
For acquirors and target companies pursuing friendly acquisitions structured as first-step tender offers followed by back-end mergers, the shortened timeline may reduce deal risk by limiting the period during which market conditions, competing bids, or other developments could disrupt a transaction, although parties should anticipate the possibility of mandatory reversion to a 20-business day timeline if an interloper emerges. Conversely, potential interlopers who wish to make a topping offer will have a significantly shorter time period to do so, and target boards recommending a tender offer will need to consider in light of their fiduciary duties whether the transaction process provides a reasonable opportunity for competing bids to emerge.
Issuers conducting partial self-tender offers for their own equity securities—commonly used in capital return programs—will also benefit from the reduced holding period, which limits exposure to price volatility and market risk during the offer window. And private companies considering issuer or subsidiary tender offers now have explicit relief available.
- Assess eligibility early. Companies and their advisors should evaluate early whether a contemplated tender offer can satisfy all of the Order’s conditions. The all-cash, fixed-price requirement and the exclusion of going-private transactions, cross-border offers, and contested situations will mean that many, but by no means all, tender offers can take advantage of the shortened minimum offering period. For “plain vanilla” third-party or issuer tender offers, structuring the transaction from the outset to take advantage of the shortened minimum offering period may provide meaningful strategic benefits.
- Consider the interplay with regulatory approval timing. For acquisitions in which a lengthy regulatory review process is not expected and there are no other considerations that would warrant selection of a one-step merger structure, the shortened minimum offering period for a two-step tender offer and merger offers a further timing advantage over a one-step merger structure. Parties may be able to complete a two-step tender offer and merger in less than a month from signing to closing, but will need to consider how quickly they will be able to make any required filing under the Hart-Scott-Rodino Antitrust Improvements Act of 1976 (“HSR”) or other applicable laws or regulations after signing, and may need to begin preparing such filings earlier in advance of signing. Tender offers are typically structured to expire shortly after the end of the HSR waiting period (assuming the period is not early terminated) or any applicable regulatory approvals are obtained.
- Build tighter execution timelines. A 10-business day minimum offering period compresses every aspect of deal execution, including any required regulatory filings as noted above. The Order requires that a press release be issued by 10:00 a.m. Eastern Time on the commencement date with an active hyperlink to tender offer materials, meaning that all documentation must be finalized and posted online in advance of 10:00 a.m. Eastern Time (rather than after market close, for example). For third-party offers, the subject company’s Schedule 14D-9 must be filed and disseminated by 5:30 p.m. Eastern Time on the business day after commencement. Expediting the timeline for completion of a tender offer also means that closing of any back-end merger will likely occur earlier, which will require advance preparation and coordination among deal parties to finalize pre-closing matters.
- Closely monitor deadlines to communicate changes. The compressed timeline makes the change-communication windows especially tight. In a 10-business day tender offer, a change in consideration would need to be announced by the morning of the fifth business day of the offer. Parties should plan offer terms with this constraint in mind as significant changes later in the offer period would require an extension.
- Monitor for competing offers. The Order’s competing-offer extension provision is a critical contingency to track. If a competing tender offer is announced after commencement, the initial offer must be extended to at least 20 business days from the original commencement date.
- Other requirements still applicable. In qualifying tender offers, the Order only shortens the minimum offering period. All other applicable provisions of the federal securities laws, including anti-fraud and anti-manipulation rules, continue to apply in full.
The Order provides a clear, standing framework for shortened offering periods that eliminates the need for individual exemptive relief in qualifying circumstances. We expect this Order to accelerate deal timelines meaningfully for cash tender offers in negotiated M&A transactions and issuer self-tenders alike.
If you have any questions concerning the material discussed in this client alert, please contact the following members of our Mergers and Acquisitions and Securities and Capital Markets practices.
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