December 9, 2008

Corp Fin Issues New Written Consent CDI

Recently, Corp Fin issued a new set of “’33 Act Compliance and Disclosure Interpretations.” Question 239.13 addresses the application of the ’33 Act to written consents by a target company’s shareholders approving a merger or other business combination transaction in which the acquiring company intends to register the transaction securities with the SEC.

In the new CDI, the Staff stated that the approval of such a transaction by written consent in lieu of a meeting of the target company’s shareholders involves a private offering of the acquiror’s securities that will preclude the acquiror from later registering an offering of the securities on Form S-4. Here is a memo from our “Written Consents” Practice Area that discusses the Staff’s interpretive position and its application to stock merger transactions.