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Question 139.01

Question: Can an issuer that plans to register a Rule 145 transaction, and whose proxy statement will necessarily contain unrelated items such as election of directors, avoid Securities Act liability for the unrelated items by filing a Form S-1 registration statement dealing solely with the Rule 145 transaction, and incorporating the S-1 prospectus by reference into its proxy statement?
Answer: Yes. [Jan. 26, 2009]

Question 139.02

Question: Must a person subject to Rule 145(c) who is selling both Rule 145 shares and shares not subject to Rule 144(e) take into account the sales of the shares not subject to Rule 144(e) in determining whether the volume limitation of Rule 145(d) has been exceeded?
Answer: No. [Jan. 26, 2009]

Question 139.03

Question: Would a merger by Company A with a new holding company formed by Company A in another state qualify for the change in domicile exception in Rule 145(a)(2)?
Answer: No. The exception from Rule 145 provided by Rule 145(a)(2) for a change in domicile is not available when, in addition to a change in domicile, a new organizational structure is created, such as a new holding company. [Jan. 26, 2009]

Question 139.04

Question: If a corporation determines to sell its assets for a promissory note issued by another corporation, but will not distribute interests in the note to its shareholders, is the transaction a “transfer of assets” within the meaning of Rule 145(a)(3)?
Answer: No. [Jan. 26, 2009]

Question 139.05

Question: Can sales be made in reliance on Rule 145(d) before the one-year period in Rule 144(i)(2) is met?
Answer: No. [Jan. 26, 2009]

Question 139.06

Question: In determining the Rule 145(d)(2) holding period, can the holding period for restricted securities surrendered in the Rule 145 transaction be tacked to the holding period for the shares received?
Answer: No. See Rule 144(d)(3)(viii). [Jan. 26, 2009]

Question 139.07

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]

This is a work of the U.S. Government

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