SEC Order Allows 10-Business-Day Minimum Offer Periods

In brief

On April 16, 2026, the US Securities and Exchange Commission’s (SEC) Division of Corporation Finance, Office of Mergers and Acquisitions issued an exemptive order that establishes a new framework for certain qualifying equity tender offers to remain open for a minimum of 10 business days, instead of the 20-business-day minimum generally required under Exchange Act Rules 13e-4(f)(1)(i) and 14e-1(a). The relief is designed to address market inefficiencies, reflect technological developments and reduce exposure to market fluctuations, while remaining consistent with investor protection goals. The order applies to (i) certain negotiated, all-cash third‑party tender offers for US reporting companies, (ii) certain issuer self-tender offers by reporting companies, and (iii) certain issuer (or wholly owned subsidiary) tender offers by nonreporting companies (i.e., private companies which are not required to file reports under Exchange Act Section 15(d)).

For public company M&A practitioners and parties, the primary impact will be on so‑called two-step mergers in which the first step is a tender offer that otherwise qualifies under the order for the abbreviated initial minimum offer period and immediately precedes a second-step, back-end merger, allowing such mergers the opportunity to close faster than existing SEC rules permit.

Key takeaways for qualifying tender offers

• Minimum tender offer period can be cut in half (20 → 10 business days) for certain fixed-price, all-cash equity tender offers meeting the order’s conditions.
• The order concurrently shortens the mandated minimums for material offer amendment notice periods for qualifying tender offers, with the notice period for any change sought to price/percentage generally reduced from 10 business days to five and the notice period for other material changes reduced from five business days to two.
• For negotiated M&A tender offers under Regulation 14D, the relief is limited to friendly transactions: the offer must be made pursuant to a negotiated merger (or similar) agreement, for all outstanding securities of the subject class, with the target’s Schedule 14D-9 filed and disseminated no later than 5:30 pm (ET) on the first business day after commencement.
• For issuer self-tenders by reporting companies under Rule 13e-4, the offer must be for less than all outstanding securities of the subject class.
• The abbreviated offer period is only available for cash-only consideration at a fixed price; offers with stock, mixed consideration, contingent value rights or other non-cash components do not qualify.
• Relief is unavailable for (i) going-private transactions under Rule 13e-3, which typically involve controlling shareholders, (ii) cross-border tender offers relying on “Tier II” exemptions under Rules 14d-1(d) or 13e-4(i),or (iii) offers where a competing tender offer is already announced or pending at the time of announcement.
• Specific communications rules apply, requiring a press release with an active hyperlink to tender offer materials by 10 am (ET) on the commencement date for reporting company offers.
• If a competing tender offer is publicly announced after commencement, the offer relying on the relief must be extended so it remains open for at least 20 business days from the original commencement date.

In depth

Background

Exchange Act Rules 13e‑4(f)(1)(i) (covering issuer tender offers) and 14e‑1(a) (applicable to most tender offers) generally require tender offers to remain open for at least 20 business days. The SEC has historically provided limited exemptive or no‑action relief to permit abbreviated offering periods in certain contexts (most commonly for debt tender offers). The April 16, 2026 exemptive order extends that concept to specified categories of equity tender offers, subject to defined eligibility criteria and procedural safeguards.

At a glance: when is the shorter 10 business day minimum available?

1. Tender offers for equity securities of reporting companies

For tender offers of a reporting company’s equity securities, the exemptive order provides relief from Rules 13e 4(f)(1) and 14e 1(a) and (b) to allow a minimum offering period of 10 business days, provided the offer meets each of the order’s conditions. In addition to the core eligibility criteria (cash-only; fixed price; not Rule 13e 3; no reliance on cross-border exemption; no competing offer at announcement), the order imposes several timing and disclosure mechanics that will be important for deal planning and execution.

Key conditions for reporting company offers include:

• Offer must be subject to Regulation 14D (third party offers) or Rule 13e 4 (issuer offers).
• Regulation 14D offers must be made pursuant to a negotiated merger agreement (or similar business combination agreement) and must be for all outstanding securities of the subject class.
• Regulation 13e-4 offers must be for less than all outstanding securities of the subject class.
• In negotiated Regulation 14D transactions, the target’s Schedule 14D 9 must be filed and disseminated no later than 5:30 pm (ET) on the first business day after commencement.
• A press release must be issued through a widely disseminated news or wire service by 10 am (ET) on the commencement date, stating the basic terms of the offer and including an active hyperlink to a website where securityholders can access the tender offer materials and related documents.
• Changes sought to price or the percentage generally must be publicly announced by 9 am (ET) on the fifth business day before expiration (subject to the 2% additional acceptance exception).
• Material changes sought (other than changes to price or the percentage) must be publicly announced by 9 am (ET) on the second business day before expiration.
• If a competing tender offer is publicly announced after commencement, the initial offer must be extended so it remains open for at least 20 business days from commencement.

2. Tender offers for equity securities of non-reporting companies

For non-reporting companies, the order grants relief from Rule 14e 1(a) and (b) to allow a 10 business day minimum offering period, but eligibility is narrower: only issuer tender offers (or offers by a wholly owned subsidiary for the issuer’s securities) are covered. As with reporting company offers, consideration must be all cash at a fixed price. Similar to the notice provisions applicable to tender offers for equity securities of a reporting company, notice of price/size changes and other material changes must be delivered to holders by 9 am (ET) on the fifth business day and second business day, respectively, before expiration.

Why the order matters

For friendly, all cash two step acquisitions of US public companies (tender offer followed by a back end merger), the ability to shorten the minimum tender period can compress signing to closing timelines and reduce exposure to market volatility and deal disruption. Issuer self tender offers (often used in capital return programs) may also benefit from reduced exposure to price volatility during the offer window. At the same time, the relief increases the importance of advance preparation: drafting, board processes, disclosure and regulatory considerations will need to be frontloaded to meet the accelerated timing requirements of the order.

Practical considerations for deal teams with respect to the order

• Assess eligibility early and risk of eligibility loss. Confirm the transaction can satisfy all conditions at commencement to the extent practicable while adapting matters such as financing and end-dates for potential offer extensions; the order is notably silent with respect to ineligibility due to changes in consideration form and whether, for example, the introduction of stock consideration or contingent value rights alone would revert the minimum period to 20 business days. As a practical matter, most such changes would likely be prompted by a competing public tender offer, resulting in the loss of eligibility in any event.
• Plan for early preparation of filings and materials. Because the commencement day press release must include an active hyperlink to a live website with tender offer materials by 10 am (ET), the Offer to Purchase and related documents should be substantially final (and posted) before markets open on the commencement day. The target company will similarly need to ensure its Schedule 14D-9 can be timely filed and available by 5:30 pm (ET) on the business day following commencement, which generally tracks the typical timing for friendly two-step mergers in which the Schedule 14D-9 closely follows the dissemination of an offeror’s offer documents.
• Align the tender offer schedule with regulatory timing. Where antitrust, foreign investment or other regulatory approvals are required, parties may still structure the offer to expire shortly after clearance; however, a shorter minimum offer period can make early drafting of regulatory filings and coordination with the tender agent more important. In particular, parties in tender offers requiring HSR approval will want to align HSR filing and the minimum HSR waiting period for all-cash tender offers of 15 calendar days with the new minimum offer period of 10 business days.
• Model the interloper contingency. For the interloper in a public company acquisition to force the incumbent bidder’s offer to be extended to the longer 20-business day period, the interloper’s bid must be structured as a publicly announced tender offer to comply with the order; to avoid that potential constraint, an interloper would be incentivized to act quickly following the announcement of the incumbent offer but prior to commencement. Similarly, the interloper would be incentivized to act quickly to avoid the timing constraints of any target board process and match rights the incumbent may have under its merger agreement during offer period, which initial match rights can often run for four or five business days without considering the target board process required to trigger them. The target companies in tender offers may consequently seek more limited match right periods in two-step mergers initially qualifying under the order.
• Be cautious about late changes. The change notice deadlines are tight in a 10 business day offer period, which may constrain the ability to adjust price or size without extending the offer.
• Be prepared for accelerated litigation dynamics. A shortened minimum offer period will also require two-step merger deal teams to manage stockholder litigation claims within a more compressed timeline, requiring deal teams to, for example, more quickly determine whether to issue pre-closing mooting disclosures with respect to stockholder disclosure claims.
• Review the offer period boilerplate. For friendly two-step mergers, practitioners should refresh the offer period provisions in their merger agreements to confirm alignment with obtaining relief under the order if the parties agree on obtaining the fastest offer closing permitted under SEC rules.