Question: A registrant included in its Form S-4 registration statement securities to be issued subsequent to the merger, in connection with a dividend reinvestment plan and an employee benefit plan. After the merger, can the registrant amend the registration statement for use by the two plans, providing a separate prospectus for each?

Answer: Yes, the registrant could file a post-effective amendment to the Form S-4 (on Form S-8) for the employee benefit plan, and a second post-effective amendment to the Form S-4 (on Form S-3) to cover the dividend reinvestment plan. [Feb. 27, 2009]

Question: An issuer intends to use Form S-4 to register common stock to be issued in a merger transaction. The merger agreement has a contingency clause, which may require the payment of additional consideration in the form of notes or other securities to the shareholders of the acquired company two years after the merger, if the price of the issuer's stock should decline. Should the contingent notes be registered in the Form S-4?

Answer: Yes. The contingent notes should be included in the Form S-4, inasmuch as they are also being offered at the time of the merger vote. [Feb. 27, 2009]

Question: Where the number of shares to be issued in a merger transaction is based upon a formula that will not be applied until the closing date for the transaction, how should the issuer determine the appropriate number of shares to register?

Answer: The issuer should register sufficient shares to cover the maximum number (or a dollar amount sufficient to cover the maximum dollar amount) that could be issued under the formula. [Feb. 27, 2009]

Question: Is General Instruction J intended to limit the application of Rule 457(o) to Form S-4 only where securities of more than one class are being registered?

Answer: No. Securities Act Rule 457(o) may be used to register securities by aggregate dollar amount on Form S-4 even if the securities registered are all of a single class of securities. [Feb. 27, 2009]

Question: A registration statement on Form S-4 is filed to register stock to be issued in the acquisition of a non-reporting company by a reporting company. Only the non-reporting company will solicit proxies. Can a proxy card be sent with the red herring prospectus?

Answer: No. Although this solicitation is not subject to Regulation 14A, it nevertheless will involve a "sale" under Rule 145, which cannot be consummated without an effective registration statement. Accordingly, a proxy card can be sent only with the Rule 424(b) prospectus, not with the red herring. [Jan. 26, 2009]

Question: A registrant can use its Form S-4 proxy statement/prospectus as a red herring. May a registrant include a proxy card in the red herring?

Answer: No. Registrants may solicit before and after the filing of a registration statement or proxy statement provided that the registrant files all written communications on the date of first use and does not furnish a form of proxy. Because a vote on the transaction would amount to an investment decision with respect to the securities being registered, no proxy card could be sent until after the registration statement became effective and the final prospectus was delivered. [Feb. 27, 2009]

Question: An issuer filed a registration statement on Form S-4 that contained its proxy statement. After the effective date of the registration statement and the delivery of the final prospectus, the issuer decided to mail an additional letter to shareholders in connection with the transaction. How should the issuer file the additional letter?

Answer: The issuer should file the letter as additional soliciting material pursuant to Exchange Act Rule 14a-6(b) upon first use. If the issuer files the letter in connection with a registered offering under Rule 425, the letter will be deemed to be filed under Rule 14a-6(b). [Feb. 27, 2009]

Question: Does the "for cash" requirement contained in General Instruction I.B.1 of Form S-3 preclude the use of that Form for a spin-off because no cash will be paid for the spun-off shares?

Answer: No. Form S-3 may be used for a spin-off if a company is eligible to use the form for a primary offering. It should be noted, however, that absent compliance with Staff Legal Bulletin No. 4, most companies that are spun-off are not reporting companies and, therefore, would not be eligible to use Form S-3. Additionally, while the spin-off of shares of a reporting company does not constitute a business combination, a company may use a combined proxy statement/registration statement on Form S-4 to register the shares being distributed if the spin-off is being voted on. [Feb. 27, 2009]

Question: A company filed a combined proxy statement/prospectus and incorporated by reference information about both the acquired company and the acquiring company. The shareholders of both companies are voting on the transaction. Must the combined proxy statement/prospectus be sent to each company's security holders 20 business days in advance of the vote?

Answer: Yes. The requirement that the combined proxy statement/prospectus be sent to security holders 20 business days in advance of the vote if incorporation by reference is used applies both to the acquired company and the acquiring company. [Feb. 27, 2009]

Question: An issuer intends to use Form S-4 to register common stock to be issued in a merger transaction. The target company, although not a public company, satisfies the definition of a "smaller reporting company" under Item 10(f)(1) of Regulation S-K. May the issuer present information regarding the target company in accordance with the scaled disclosure provisions in Regulations S-X and S-K that are available to smaller reporting companies?

Answer: Yes. However, the financial statements of the target company included in a subsequent Form 8-K reporting the consummation of the business acquisition must comply with the Regulation S-X provisions applicable to the combined company. Additionally, a smaller reporting company filing a Form S-4 to acquire a target that would

not

qualify as a smaller reporting company would

not

be able to present the target's information using the scaled disclosure provisions available to smaller reporting companies. [Feb. 27, 2009]

Question: If a registrant “meets the requirements for use of Form S-3,” as set forth in General Instruction B of Form S-4, and incorporates by reference registrant information into the Form S-4 pursuant to General Instruction B and either Item 11 or 13 of Form S-4, may the registrant incorporate the risk factors from its latest Form 10-K in response to Item 3 of Form S-4?

Answer: Yes. Although Item 3 does not expressly contemplate incorporation by reference, a registrant may incorporate by reference into the Form S-4 the risk factors that it disclosed in its most recent Form 10-K. The offering-specific risks, however, would be required to be disclosed in the Form S-4 itself. [May 16, 2013]

Question: As a condition to not objecting to a registration statement for a so-called “Exxon Capital” exchange offer, the staff will ask the issuer to make representations about the absence of a distribution of the securities received in the exchange. Is there a particular form that these representations must take?

Answer: In a series of letters beginning with Exxon Capital Holdings Corporation (April 13, 1988), the staff expressed its view that when an issuer that has privately sold non-convertible debt or certain other securities to large, sophisticated investors, the issuer may subsequently register the exchange of those securities for substantially similar securities (an “Exchange Offer”), and the new securities (the “Exchange Securities”) may then be resold by most holders without further registration and without the delivery of a prospectus. A premise upon which this so-called “Exxon Capital” or “A/B” exchange is based is that the participants will not be engaged in a distribution of the registered securities, lest they be underwriters. As a condition to it not objecting to the registration of these offerings, the staff has requested that issuers make certain representations. See Morgan Stanley & Co., Inc. (June 5, 1991) and Shearman & Sterling (July 2, 1993). Over time, the staff has observed some variation in representations that are being provided. These representations need not follow any particular form so long as they address the following essential matters:

The issuer has not entered into any arrangement or understanding with any person who will receive Exchange securities in the Exchange Offer to distribute those securities following completion of the Offer. The issuer is not aware of any person that will participate in the Exchange Offer with a view to distribute the Exchange Securities.

In the Shearman & Sterling letter, the staff’s views were conditioned on the issuer making each person participating in the Exchange Offer aware that any broker-dealer acquiring Exchange Securities in exchange for securities it acquired for its own account as a result of market-making activities or other trading activities may be a statutory underwriter. If the representations clearly state the essential matters outlined above, the staff does not believe that this additional disclosure is necessary. Any person acquiring Exchange Securities with a view to distributing them must be identified as an underwriter in the prospectus and must comply with all applicable requirements. In addition, a broker-dealer acquiring Exchange Securities may be required to deliver a prospectus in connection with resales if it is relying on the exemption in Section 4(a)(3) of the Securities Act.

The staff believes that the representations may be provided either in the prospectus or in correspondence submitted in connection with the filing. [July 11, 2016]