In April 2026, the Division of Corporation Finance of the U.S. Securities and Exchange Commission shortened the minimum offering period for certain types of equity tender offers from 20 business days to 10 business days. Since then, Wilson Sonsini has played a lead role—representing both buyers and sellers—in several tender offers that used shortened offering periods. Several lessons and best practices are beginning to emerge.

• Advance preparation is critical and should begin before the merger agreement is signed. The shortened offering period provides for the possibility of a meaningfully shorter period between signing and closing. However, to take full advantage of the benefits, work to prepare for the tender offer should begin before the merger agreement is signed. For example, the parties can, in advance of signing, complete much of the work necessary to make the filings under the Hart-Scott-Rodino Antitrust Improvements Act (HSR Act) so that those filings can be made within one or two business days of the announcement. Similarly, the parties can prepare the tender offer documents in parallel with the negotiation of the merger agreement so that the tender offer can commence within a few days of signing. Although advance work of this nature is not mandatory, it is useful for commencing the tender offer (and thus the offering period) as quickly as possible.
• Other regulators may have different timing expectations. Although the HSR Act provides for a 15-day waiting period for tender offers, it is possible that, after accounting for time to resolve jurisdictional questions, the agency reviewing the transaction (either the Antitrust Division of the Department of Justice or the Federal Trade Commission) may not start its review until well into this 15-day period. As a result, the agency may determine that it has not had sufficient time to complete its review before the initial waiting period expires. This may necessitate a “pull and refile” of the filings under the HSR Act, which is likely to impact the ability to close the tender offer within the shortened offering period. To prepare for this possibility, and to resolve any questions from the reviewing agency as quickly as possible, the parties can develop advocacy materials in advance of the first call from the agency, with the goal of sending these materials to the agency within hours of receiving an agency inquiry. Depending on the nature of the parties’ business activities, it may be advisable to have advocacy prepared in advance of the submission under the HSR Act so that these materials can accompany the submission and resolve any questions that would trigger an initial inquiry and the corresponding jurisdictional procedure in the first place. Parties should consult antitrust counsel prior to signing to determine whether the deal could benefit from this approach.
• Consider how to handle topping bids. A 10-business-day offering period, especially if coupled with a quick filing under the HSR Act and commencement of the tender offer within a few days of signing, leaves a target with less than the traditional amount of time to consider unsolicited acquisition proposals from third parties. Targets may wish to negotiate for the right to force the buyer to extend the tender offer if, when the offer is otherwise scheduled to expire, the target is considering an unsolicited proposal, including because it is in the “match period” under the merger agreement. An interloper should evaluate available legal and public relations strategies to obligate a target to give full consideration to a topping bid. For example, an interloper that is attempting to provide shareholders with a more valuable transaction than the initial deal could seek an injunction to prevent the tender offer from closing before the target’s board completes its analysis of the unsolicited proposal.
• Technical matters.
  • Review precedent tender documents carefully to ensure that they work properly with a shortened offering period. Two examples are notable: (1) adjustments to the summary of appraisal rights may be required, especially for Delaware companies where the statute contemplates an appraisal period that extends beyond a 10-business-day offering period; and (2) summaries of extension mechanics may need to be revised to contemplate the shorter initial offering period.
  • A tombstone advertisement is not required if the bidder issues a press release that meets the requirements of Rule 14d-6(d)(2).¹ This development simplifies commencing the offer by avoiding the need to coordinate inclusion of the tombstone advertisement in a newspaper on the date of commencement. The press release should be included in the tender offer filings in lieu of the tombstone advertisement.

For more information, please contact any member of the firm’s Mergers and Acquisitions or Antitrust and Competition practice.

---

[1] See Question 131.04, available at https://www.sec.gov/rules-regulations/staff-guidance/corporation-finance-interpretations/tender-offer-rules-schedules.