225.01 A bank holding company formation is not for the sole purpose of forming a bank holding company when the holding company proposes an acquisition of another bank immediately following the formation. Staff Accounting Bulletin No. 50 would not be available and financial statements of both banks must be provided. [Feb. 27, 2009]

225.02 A company registers on Form S-4 shares to be issued in a Rule 145(a) transaction, together with shares to fund a successor employee benefit plan. A post-effective amendment to the Form S-4 is to be filed on Form S-8 containing a complete description of the plan. The registrant is also allowed to file, as part of that amendment, a reoffer prospectus prepared in accordance with Part I of Form S-3 to be used by affiliates making sales of securities acquired under the employee benefit plan. [Feb. 27, 2009]

225.03 A registrant filing a Form S-4 registration statement in connection with an acquisition sought to include shares which had previously been issued pursuant to Section 4(2) to certain officers and directors of the company to be acquired. The purpose was to facilitate resales by such persons. Those shares were not permitted to be registered on Form S-4 because they were not issued in connection with the Rule 145 transaction. [Feb. 27, 2009]

225.04 A real estate limited partnership filing an acquisition shelf registration statement for the purpose of acquiring properties may use Form S-4 even though the acquisition of properties rather than securities is not explicitly provided for in the form. However, the 20.D. undertaking of Industry Guide 5 is inappropriate and the procedure set forth for updating the registration statement to reflect acquisitions may not be used. The undertaking is applicable only to offerings for cash. [Feb. 27, 2009]

225.05 General Instruction G to Form S-4, permitting automatic effectiveness of certain bank holding company formation filings, is limited by the terms of Instruction G.l. to the issuance of common stock of the holding company in exchange for common stock of the bank. Nevertheless, Instruction G will also be available when common and preferred stock are being issued, on a share for share basis, to holders of existing common and preferred stock of the bank. Like Staff Accounting Bulletin No. 50, General Instruction G is intended to be available when the holding company formation does not involve a change to the existing capital structure. [Feb. 27, 2009]

225.06 A Form S-4 registration statement will be filed to convert an existing corporation into a trust that will have the same assets and management as its predecessor. Because of applicable tax law or state law provisions, the new trust will not be created until after the Form S-4 has become effective. Using Rule 414 as a model, the existing corporation may execute and file the original registration statement. At the time the trust is formed, it should file a post-effective amendment adopting the registration statement. [Feb. 27, 2009]

225.07 Two companies propose a joint Form S-4 registration statement for a stock-for-assets acquisition. Although the company to be acquired is not the registrant, it should file as exhibits any contracts or other documents that would be material to the new entity. [July 3, 2008]

225.08 A parent, which is eligible to use Form S-3, and its wholly owned subsidiary both have outstanding debt securities. From time to time and on an individual basis, the parent intends to offer the debt holders newly issued common stock in exchange for their debt securities. Prior to entering into any negotiations, the parent may file a shelf registration statement on Form S-4 for the purpose of registering these individually negotiated transactions and the parent's registration statement would be kept current through forward incorporation by reference. The parent will need to consider the applicability of the tender offer rules. [Feb. 27, 2009]

225.09 Instruction F to Form S-4, which allows a U.S. acquirer to include F-4 type financial disclosure with respect to a target that is a foreign private issuer, is not applicable to the domestication of a non-U.S. entity as a Delaware corporation pursuant to Delaware General Corporation Law Section 388. [Feb. 27, 2009]

225.10 An acquiring company may seek a commitment from management and principal security holders of a target company to vote in favor of a business combination transaction, frequently referred to as a "lock-up agreement." The execution of a lock-up agreement may constitute an investment decision under the Securities Act. If so, the offer and sale of the acquiror's securities would be made to persons who entered into those agreements before the business combination is presented to non-affiliated security holders for their vote.

Recognizing the legitimate business reasons for seeking lock-up agreements in the course of business combination transactions, the staff has not objected to the registration of offers and sales where lock-up agreements have been signed in the following circumstances:

Where, however, the persons entering into the lock-up agreements also deliver written consents approving the business combination transaction, the staff has objected to the subsequent registration of the exchange on Form S-4 for any of the shareholders because offers and sales have already been made and completed privately, and once begun privately, the transaction must end privately. [Nov. 26, 2008]