Rule 145
 
Reclassification of Securities, Mergers,
Consolidations
and Acquisitions of Assets
Preliminary Note to
Rule 145
Rule 145 is designed to make available the protection provided by registration
under the Securities Act of 1933, as amended (Act), to persons who are
offered securities in a business combination of the type described in
paragraphs (a)(1), (2),
and (3) of the rule. The thrust of
the rule is that an offer, offer to sell,
offer for sale,
or sale occurs when there is submitted to security holders a plan
or agreement pursuant to which such holders are required to elect, on
the basis of what is in substance a new investment decision, whether to
accept a new or different security in exchange for their existing security.
Rule 145 embodies the Commission's determination that such transactions
are subject to the registration requirements of the Act, and that the
previously existing no-sale theory of Rule 133 is no longer consistent
with the statutory purposes of the Act. See
Release No. 33-5316
(October 6, 1972) [37 FR 23631]. Securities issued in transactions described
in paragraph (a) of Rule 145 may be registered on Form S-4 or F-4 or Form
N-14 under the Act.
Transactions for which statutory exemptions under the Act, including those
contained in sections
3(a)(9),
(10),
(11),
and
4(2), are
otherwise available are not affected by Rule 145.
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Note 1: Reference is made to
Rule
153a describing the prospectus delivery required in a transaction
of the type referred to in Rule 145.
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Note 2: A reclassification of securities covered by Rule 145 would
be exempt from registration pursuant to section
3(a)(9) or
(11)
of the Act if the conditions of either of these sections are satisfied.
a.
Transactions within
the section. An offer, offer to sell, offer
for sale or sale shall be deemed to be involved, within the
meaning of
Section
2(a)(3) of the Act, so far as the security holders of a corporation
or other person are concerned where, pursuant to statutory provisions
of the jurisdiction under which such corporation or other person is organized,
or pursuant to provisions contained in its certificate of incorporation
or similar controlling instruments, or otherwise, there is submitted for
the vote or consent of such security holders a plan or agreement for:
1. Reclassifications.
A reclassification of securities of such corporation or other person,
other than a stock split, reverse stock split, or change in par value,
which involves the substitution of a security for another security;
2. Mergers
of Consolidations. A statutory merger or consolidation, or similar
plan or acquisition in which securities of such corporation or other person
held by such security holders will become or be exchanged for securities
of any person, unless the sole purpose of the transaction is to change
an issuer's domicile solely within the United States; or
3.
Transfers of
assets. A transfer of assets of such corporation or other person,
to another person in consideration of the issuance of securities of such
other person or any of its affiliates, if:
i.
such plan or agreement provides for dissolution of the corporation or
other person whose security holders are voting or consenting; or
ii.
such plan or agreement provides for a pro rata or similar distribution
of such securities to the security holders voting or consenting; or
iii.
the board of directors or similar representatives of such corporation
or other person, adopts resolutions relative to paragraph (a)(3) (i) or
(ii) of this section within 1 year after the taking of such vote or consent;
or
iv.
the transfer of assets is a part of a pre-existing plan for distribution
of such securities, notwithstanding paragraph (a)(3) (i), (ii) or (iii)
of this section.
b. Communications
before a Registration Statement is filed. Communications made in connection
with or relating to a transaction described in paragraph (a) of this section
that will be registered under the Act may be made under
Rule
135, Rule 165 or
Rule
166.
c. Persons
and Parties Deemed to be underwriters. For purposes of this section,
any party to any transaction specified in paragraph (a) of this section,
other than the issuer, or any person who is an affiliate of such party
at the time any such transaction is submitted for vote or consent, who
publicly offers or sells securities of the issuer acquired in connection
with any such transaction, shall be deemed to be engaged in a distribution
and therefore to be an underwriter thereof within the meaning of
Section
2(a)(11) of the Act. The term party as used in this paragraph
(c) shall mean the corporations, business entities, or other persons,
other than the issuer, whose assets or capital structure are affected
by the transactions specified in paragraph (a) of this section.
d.
Resale provisions
for persons and parties deemed underwriters. Notwithstanding the provisions
of paragraph (c), a person or party specified therein shall not be deemed
to be engaged in a distribution and therefore not to be an underwriter
of registered securities acquired in a transaction specified in
paragraph
(a) of this section if:
1. such
securities are sold by such person or party in accordance with the provisions
of paragraphs (c),
(e),
(f) and
(g)
of Rule 144;
2. such
person or party is not an affiliate of the issuer and a period of at least
one year, as determined in accordance with
paragraph
(d) of Rule 144, has elapsed since the date the securities were acquired
from the issuer in such transaction, and the issuer meets the requirements
of paragraph (c) of Rule 144; or
3. such
person or party is not, and has not been for at least three months, an
affiliate of the issuer, and a period of at least two years, as determined
in accordance with paragraph (d) of Rule 144, has elapsed since the date
the securities were acquired from the issuer in such transaction.
e. Definition
of person. The term person as used in paragraphs
(c) and
(d)
of this section, when used with reference to a person for whose account
securities are to be sold, shall have the same meaning as the definition
of that term in paragraph (a)(2) of
Rule 144.
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