Rule 145 ( § 230.145 of this chapter) is designed to make available the protection provided by registration under the of 1933, as amended (Act), to persons who are offered securities in a 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 holders a 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 in exchange for their existing . Rule 145 embodies the 's determination that such transactions are subject to the registration requirements of the , and that the previously existing no-sale theory of Rule 133 is no longer consistent with the statutory purposes of the . 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 (§ 239.25 or § 239.34 of this chapter) or Form N-14 ( § 239.23 of this chapter) under the .
Transactions for which statutory exemptions under the , including those contained in sections 3(a)(9), (10), (11) and 4(2), are otherwise available are not affected by Rule 145. Reference is made to Rule 153a ( § 230.153a of this chapter) describing the delivery required in a transaction of the type referred to in Rule 145. A reclassification of securities covered by Rule 145 would be exempt from registration pursuant to section 3(a)(9) or (11) of the if the of either of these sections are satisfied.
(a)Transactions within this section. An offer, offer to sell, offer for sale, or sale shall be deemed to be involved, within the meaning of section 2(3) of the , so far as the 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 holders a 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 for another ;
(2)Mergers of consolidations. A statutory merger or consolidation or similar or acquisition in which securities of such corporation or other person held by such holders will become or be for securities of any person, unless the sole purpose of the transaction is to change an 's domicile solely within the ; 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 or agreement provides for dissolution of the corporation or other person whose holders are voting or consenting; or
(ii) Such or agreement provides for a pro rata or similar of such securities to the holders voting or consenting; or
(iii) The board of 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 preexisting for 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 may be made under § 230.135, § 230.165 or § 230.166.
(c)Persons and parties deemed to be underwriters. For purposes of this section, if any party to a transaction specified in paragraph (a) of this section is a , other than a , as those terms are defined in § 230.405, any party to that transaction, other than the , or any person who is an of such party at the time such transaction is submitted for vote or consent, who publicly offers or sells securities of the acquired in connection with any such transaction, shall be deemed to be engaged in a and therefore to be an thereof within the meaning of Section 2(a)(11) of the .
(d)Resale provisions for persons and parties deemed underwriters. Notwithstanding the provisions of paragraph (c), a person or party specified in that paragraph shall not be deemed to be engaged in a and therefore not to be an of securities acquired in a transaction specified in paragraph (a) that was registered under the if:
(1) The has met the requirements applicable to an of securities in paragraph (i)(2) of § 230.144; and
(2) One of the following three is met:
(i) Such securities are sold by such person or party in accordance with the provisions of paragraphs (c), (e), (f), and (g) of § 230.144 and at least 90 days have elapsed since the date the securities were acquired from the in such transaction; or
(ii) Such person or party is not, and has not been for at least three months, an of the , and at least six months, as determined in accordance with paragraph (d) of § 230.144, have elapsed since the date the securities were acquired from the in such transaction, and the meets the requirements of paragraph (c) of § 230.144; or
(iii) Such person or party is not, and has not been for at least three months, an of the , and at least one year, as determined in accordance with paragraph (d) of § 230.144, has elapsed since the date the securities were acquired from the in such transaction.
Paragraph (d) is not available with respect to any transaction or series of transactions that, although in technical compliance with the rule, is part of a or scheme to evade the registration requirements of the .
(e)Definitions.
(1) The term affiliate as used in paragraphs (c) and (d) of this section shall have the same meaning as the definition of that term in § 230.144.
(2) The term party as used in paragraphs (c) and (d) of this section shall mean the corporations, business entities, or other persons, other than the , whose assets or capital structure are affected by the transactions specified in paragraph (a) of this section.
(3) The term person as used in paragraphs (c) and (d) of this section, when used in 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 § 230.144.