C.F.R. » Title 17 » CHAPTER II—SECURITIES AND EXCHANGE COMMISSION › PART 240—GENERAL RULES AND REGULATIONS, SECURITIES EXCHANGE ACT OF 1934

17 C.F.R. § 240.13d-5

Acquisition of beneficial ownership

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(a) A person who becomes a beneficial owner of securities shall be deemed to have acquired such beneficial ownership for purposes of section 13(d)(1) of the Act, whether such acquisition was through purchase or otherwise. However, executors or administrators of a decedent's estate generally will be presumed not to have acquired the beneficial ownership held by the decedent's estate until such time as such executors or administrators are qualified under local law to perform their duties.

(b)(1)(i) When two or more persons agree to act together for the purpose of acquiring, holding, voting or disposing of equity securities of an issuer, the group formed thereby shall be deemed to have acquired beneficial ownership, for purposes of sections 13(d) and (g) of the Act, as of the date of such agreement, of all equity securities of that issuer beneficially owned by any such persons.

(ii) A group regulated as a person pursuant to section 13(d)(3) of the Act shall be deemed to have acquired beneficial ownership, as determined under paragraph (a) of this section and for purposes of sections 13(d)(1) and (2) of the Act, if any member of the group becomes the beneficial owner of additional equity securities in the same class beneficially owned by the group after the group's formation. The beneficial ownership so acquired shall be reported as being held by the group through the earlier of {x} the date of the group's dissolution or {y} the date of that member's withdrawal from the group.

(iii) Notwithstanding paragraph (b)(1)(ii) of this section, a group regulated under section 13(d)(3) of the Act shall not be deemed to have acquired beneficial ownership, as determined under paragraph (a) of this section, if, after the group's formation, a member of the group becomes the beneficial owner of additional equity securities in the same class beneficially owned by the group through a sale by or transfer from another member of the group.

(2)(i) A group regulated as a person pursuant to section 13(g)(3) of the Act shall be deemed to have become the beneficial owner, for purposes of sections 13(g)(1) and (2) of the Act, if any member of the group becomes a beneficial owner of additional equity securities in the same class held by the group after the group's formation and through the earlier of {x} the date of the group's dissolution or {y} the date of that member's withdrawal from the group.

(ii) Notwithstanding paragraph (b)(2)(i) of this section, a group regulated under section 13(g)(3) of the Act shall not be deemed to have become the beneficial owner of additional equity securities in the same class beneficially owned by the group if, after the group's formation, a member of the group becomes the beneficial owner of additional equity securities in the same class beneficially owned by the group through a sale by or transfer from another member of the group.

[88 FR 76983, Nov. 7, 2023]
Notes of Decisions
Cited in 4 cases, 1982–2019 · leading case: Former Emeryville Redevelopment Agency v. Swagelok, 364 F. Supp. 3d 1061 (N.D. Cal. 2019).
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Former Emeryville Redevelopment Agency v. Swagelok, 364 F. Supp. 3d 1061 (N.D. Cal. 2019). “See 17 C.F.R. 240.13d-5(b)(1) ("When two or more persons agree to act together for the purpose of acquiring, holding, voting or disposing of equity securities of an issuer, the group formed thereby shall be deemed to have acquired beneficial ownership.”
Hubco, Inc. v. Rappaport, 628 F. Supp. 345 (D.N.J. 1985). “Third, plaintiffs alleged that defendants failed to disclose that they were affiliated with a “group” of investors acquiring shares pursuant to an agreement within the meaning of 17 C.F.R. 240.13d-5(b)(1), and that they failed to disclose the alleged understandings and…”
Citizens First Bancorp, Inc. v. Harreld, 559 F. Supp. 867 (W.D. Ky. 1982). “Such an agreement would bring defendants within the definition of Rule 13d-5(b)(1), 17 C.F.R. Section 240.13d-5, because agreeing to hold or vote the shares together constitutes beneficial ownership for the purposes of Section 13(d) of the 1934 Act.”
Capstar Fin. Holdings, Inc. v. Gaylon M. Lawrence & the Lawrence Grp., 333 F. Supp. 3d 794 (M.D. Tenn. 2018). “" 17 C.F.R. 240.13d-5(b)(1). The beneficial owner must disclose "if the purpose of the purchases or prospective purchases is to acquire control of the business of the issuer of the securities, any plans or proposals which such persons may have to liquidate such issuer, to sell…”
— 17 C.F.R. § 240.13d-5(b)(1) — 3 cases
Former Emeryville Redevelopment Agency v. Swagelok, 364 F. Supp. 3d 1061 (N.D. Cal. 2019). “See 17 C.F.R. 240.13d-5(b)(1) ("When two or more persons agree to act together for the purpose of acquiring, holding, voting or disposing of equity securities of an issuer, the group formed thereby shall be deemed to have acquired beneficial ownership.”
Hubco, Inc. v. Rappaport, 628 F. Supp. 345 (D.N.J. 1985). “Third, plaintiffs alleged that defendants failed to disclose that they were affiliated with a “group” of investors acquiring shares pursuant to an agreement within the meaning of 17 C.F.R. 240.13d-5(b)(1), and that they failed to disclose the alleged understandings and…”
Capstar Fin. Holdings, Inc. v. Gaylon M. Lawrence & the Lawrence Grp., 333 F. Supp. 3d 794 (M.D. Tenn. 2018). “" 17 C.F.R. 240.13d-5(b)(1). The beneficial owner must disclose "if the purpose of the purchases or prospective purchases is to acquire control of the business of the issuer of the securities, any plans or proposals which such persons may have to liquidate such issuer, to sell…”
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