On June 30, 2026, the Office of Mergers and Acquisitions of the Division of Corporation Finance (the “Division”) of the U.S. Securities and Exchange Commission (the “SEC”) issued an exemptive order (the “2026 Exemptive Order”) granting relief for certain tender and exchange offers for non-convertible debt securities from the requirement that such offers remain open for at least 20 business days.  The 2026 Exemptive Order supersedes all prior relief related to abbreviated offering periods in tender and exchange offers for non-convertible debt securities, including the SEC’s 2015 No-Action Letter, which permitted certain tender and exchange offers for non-convertible debt securities to remain open for only five business days.  We have prepared a table comparing the main features of the 2026 Exemptive Order to those of the 2015 No-Action Letter, available here.

The 2026 Exemptive Order similarly permits a five-day offering period for tender and exchange offers for non-convertible debt securities by their issuers (or by a wholly owned subsidiary or 100% parent of such issuer) that meet certain requirements, including:

  • the offer is made solely for cash consideration and/or consideration consisting of Qualified Debt Securities (as defined in the 2026 Exemptive Order) and, if made for consideration consisting of Qualified Debt Securities, the offer is restricted to QIBs, institutional accredited investors and non-US persons (within the meaning of Regulation S) in an exempt transaction;
  • if the offer is made for less than all outstanding securities of the subject class or series of debt securities and a greater amount of securities are tendered than the offeror is bound or willing to accept, the securities must be taken up and paid for as nearly as may be pro rata according to the amount of securities tendered by each holder during the offering period and the offeror must use commercially reasonable efforts to announce the proration factor by press release or other widely disseminated public announcement by 10:00am ET on the next business day after expiration of the offer (or as soon thereafter as practicable);
  • the offer is not made in connection with a consent solicitation with respect to an amendment that requires more than a simple majority;
  • the offer is not made (i) when a default or event of default exists under any other indenture or material credit agreement to which the issuer is a party; (ii) at a time when the issuer is the subject of bankruptcy or insolvency proceedings or has commenced a consent solicitation for a “pre-packaged” bankruptcy proceeding, or the issuer’s board has authorized discussions with creditors to effect a consensual restructuring; (iii) in anticipation of or in response to another tender offer; or (iv) concurrently with a tender offer for any other class or series of the issuer’s securities made by the issuer or any subsidiary (whether or not wholly owned) or parent company if the effect of such offer would be to add obligors, guarantors or collateral or increase the priority of liens securing such other class or series (for example, the relief granted by the SEC is not available in an “up-tiering” transaction);
  • the offer is not made within ten business days after the first public announcement or the consummation of a change of control or other type of extraordinary transaction involving the issuer or consummated within ten business days after the first public announcement or consummation of the purchase, sale or transfer by the issuer or any of its subsidiaries of a material business or amount of assets that would require the furnishing of pro forma financial information; and
  • the offer provides for withdrawal rights that are exercisable (i) at least until the earlier of (x) the expiration date and (y) in the event the offer is extended, the tenth business day after commencement of the offer; and (ii) at any time after the 60th business day after commencement if, for any reason, the offer has not been consummated within 60 business days after commencement.

The 2026 Exemptive Order requires announcement by way of press release or other manner of wide dissemination:

  • by 10:00am ET on the date the offer is commenced, an announcement of the offer which includes the basic terms of such offer, the proration procedures (if applicable), and an active hyperlink to a website where securities holders may access the tender offer materials, letter of transmittal (if any) and any other documents;
  • by 9:00am ET on the third business day prior to expiration, any (i) increase or decrease in the percentage of the subject non-convertible debt securities sought in the tender offer, other than the acceptance for payment of an additional amount of securities not to exceed two percent of the subject class or series or (ii) change in the consideration offered;
  • by 9:00am ET on the second business day prior to expiration, any other material change in the terms of the offer; and
  • by 10:00am ET on the business day following expiration or as soon as thereafter practicable, as noted above, the proration factors if the offer is made for less than all outstanding securities of the subject class or series of debt securities, and a greater amount of securities are tendered than the offeror is bound or willing to accept.

The Division noted that all tender and exchange offers remain subject to the anti-fraud and anti-manipulation provisions of the federal securities laws, and that offerors must comply with all applicable provisions of the federal securities law when conducting a tender offer.

Read the exemptive order here.  A more detailed alert will follow.