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Rule: Securities: Securities offerings reform; registration; communications, and offering processes; modification

Rule: Securities: Securities offerings reform; registration; communications, and offering processes; modification

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Published by Justia.com
Rule: Securities:
Securities offerings reform; registration; communications, and offering processes; modification, 44722-44831 [05-14560] Securities and Exchange Commission
Rule: Securities:
Securities offerings reform; registration; communications, and offering processes; modification, 44722-44831 [05-14560] Securities and Exchange Commission

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10/14/2013

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Wednesday,
August 3, 2005
Part II
Securities and
Exchange
Commission
17 CFR Parts 200, 228, 229, et al.
Securities Offering Reform; Final Rule
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44722
Federal Register/ Vol. 70, No. 148 / Wednesday, August 3, 2005 / Rules and Regulations

117 CFR 200.30\u20131.
217 CFR 228.512.
317 CFR 228.10 et seq.
417 CFR 229.512.
517 CFR 229.10 et seq.
617 CFR 230.134; 17 CFR 230.137; 17 CFR

230.138; 17 CFR 230.139; 17 CFR 230.153; 17 CFR 230.158; 17 CFR 230.174; 17 CFR 230.401; 17 CFR 230.405; 17 CFR 230.408; 17 CFR 230.412; 17 CFR

230.413; 17 CFR 230.415; 17 CFR 230.418; 17 CFR
230.424; 17 CFR 230.426; 17 CFR 230.430A; 17 CFR
230.439; 17 CFR 230.456; 17 CFR 230.457; 17 CFR
230.462; 17 CFR 230.473; 17 CFR 230.497; and 17
CFR 230.902.

717 CFR 230.434.
815 U.S.C. 77a et seq.
917 CFR 239.11; 17 CFR 239.13; 17 CFR 239.25;

17 CFR 239.31; 17 CFR 239.33; 17 CFR 239.34; 17
CFR 239.12; and 17 CFR 239.32.

1017 CFR 243.100.
1117 CFR 243.100 through 243.103.
1217 CFR 240.14a\u20132.
1315 U.S.C. 78a et seq.
1417 CFR 249.210; 17 CFR 249.308a; 17 CFR

249.310; 17 CFR 249.310b; and 17 CFR 249.220f.
1517 CFR 239.14 and 17 CFR 274.11a\u20131.
1615 U.S.C. 80a\u20131 et seq.
SECURITIES AND EXCHANGE
COMMISSION
17 CFR Parts 200, 228, 229, 230, 239,
240, 243, 249, and 274

[Release Nos. 33\u20138591; 34\u201352056; IC\u2013
26993; FR\u201375, International Series Release
No. 1294 and File No. S7\u201338\u201304]

RIN 3235\u2013AI11
Securities Offering Reform
AGENCY: Securities and Exchange
Commission.
ACTION: Final rule.
SUMMARY: The Securities and Exchange

Commission is adopting rules that will
modify and advance significantly the
registration, communications, and
offering processes under the Securities
Act of 1933. Today\u2019s rules will
eliminate unnecessary and outmoded
restrictions on offerings. In addition, the
rules will provide more timely
investment information to investors
without mandating delays in the
offering process that we believe would
be inconsistent with the needs of issuers
for timely access to capital. The rules
also will continue our long-term efforts
toward integrating disclosure and
processes under the Securities Act and
the Securities Exchange Act of 1934.
The rules will further these goals by
addressing communications related to
registered securities offerings, delivery
of information to investors, and
procedural aspects of the offering and
capital formation processes.

EFFECTIVE DATE:December 1, 2005.
FOR FURTHER INFORMATION CONTACT:

Amy M. Starr, Daniel Horwood, or Anne
Nguyen, at (202) 551\u20133200, in the
Division of Corporation Finance, U.S.
Securities and Exchange Commission,
100 F Street, NE., Washington, DC
20549 or, with respect to questions
regarding investment companies, Kieran
Brown in the Division of Investment
Management, at (202) 551\u20136784.

SUPPLEMENTARY INFORMATION: We are

amending Rule 30\u201311of the
Administrative Practice and Procedure,
Item 5122of Regulation S\u2013B,3Item 512 4
of Regulation S\u2013K,5and Rules 134, 137,
138, 139, 153, 158, 174, 401, 405, 408,
412, 413, 415, 418, 424, 426, 430A, 439,
456, 457, 462, 473, 497, and 9026and

eliminating Rule 4347under the
Securities Act.8We are adding Rules
159, 159A, 163, 163A, 164, 168, 169,
172, 173, 430B, 430C, and 433 under the
Securities Act. We are amending Forms
S\u20131, S\u20133, S\u20134, F\u20131, F\u20133, and F\u20134 and
eliminating Forms S\u20132 and F\u201329under
the Securities Act; amending Rule 10010
of Regulation FD11and Rule 14a\u20132 12
under the Securities Exchange Act of
1934;13amending Forms 10, 10\u2013K, 10\u2013
Q, 10\u2013KSB, and 20\u2013F14under the
Exchange Act; and amending Form N\u2013
215under the Securities Act and the
Investment Company Act of 1940.16

Table of Contents

I. Introduction
A. Overview
B. Background
1. Advances in Technology
2. Exchange Act Reporting Standards

II. Well-Known Seasoned Issuers; Other

Categories of Issuers
A. Well-Known Seasoned Issuers
1. Definition of Well-Known Seasoned

Issuer
a. Market Capitalization Threshold
b. Registered Offerings of Non-Convertible

Securities Threshold
2. Timing of Determination of Well-Known
Seasoned Issuer Status
3. Well-Known Seasoned Issuers\u2019
Securities Offerings
4. Comments Regarding the Definition of
Well-Known Seasoned Issuer
B. Other Categories of Issuers
III. Communications Rules
A. Communications Requirements Prior to
Today\u2019s Rules and Amendments
B. Need for Modernization of

Communications Requirements
1. General
2. Definition of Written Communication
a. \u2018\u2018Written Communication\u2019\u2019 and \u2018\u2018Graphic

Communication\u2019\u2019
b. Comments Regarding Proposals
C. Overview of Communications Rules
D. Communications Rules
1. Permitted Continuation of Ongoing

Communications During an Offering
a. Overview

b. Exception for Regularly Released Factual
Business and Forward-Looking
Information\u2014Available to Reporting
Issuers

i. Factual Business Information
(A) Scope of the Safe Harbor
(B) Comments on the Scope of the Safe

Harbor
ii. Forward-Looking Information
(A) Scope of the Safe Harbor
iii. Conditions of Safe Harbor in Rule 168
(A) \u2018\u2018By or on Behalf of\u2019\u2019 the Issuer
(1) Definition
(2) Comments on Definition
(B) Regularly Released Information
(1) Regularly Released Condition
(2) Comments on Regularly Released

Condition
(C) Exclusion for Offering-Related

Information
(1) Scope of Exclusion
(2) Comments on Exclusion
c. Exception for Regularly Released Factual

Business Information\u2014Available to Non-

Reporting Issuers
i. Scope of the Safe Harbor
ii. Comments on the Safe Harbor
2. Other Permitted Communications Prior

To Filing a Registration Statement

a. 30-Day Bright-line Exclusion From the Prohibition on Offers Prior To Filing a Registration Statement\u2014All Issuers

i. Scope of Exclusion
ii. Comments on 30-Day Bright-line
Exclusion
b. Permitted Pre-Filing Offers for Well-

Known Seasoned Issuers
i. Overview
ii. Exemption for Pre-Filing Offers
iii. Comments on Exemption for Pre-Filing

Offers
3. Relaxation of Restrictions on Written

Offering-Related Communications
a. Rule 134
i. Expansion of Permitted Information
ii. Section 10 Prospectus Requirement
iii. Changes to Required Information
b. Permissible Use of Free Writing

Prospectuses
i. Overview
ii. Definition of Free Writing Prospectus
(A) Scope of Definition
(B) Comments on Definition
iii. Permitted Use of a Free Writing

Prospectus After the Filing of a

Registration Statement Under Rule 433
(A) Overview
(B) Issuer Eligibility
(1) Comments on Ineligible Issuer

Definition
(C) Conditions to Permitted Use of a Free

Writing Prospectus
(1) Prospectus Delivery or Availability
(a) Prospectus Delivery Conditions for

Non-Reporting Issuers and Unseasoned
Issuers

(b) Prospectus Availability Condition for
Seasoned Issuers and Well-Known
Seasoned Issuers

(c) Comments on Prospectus Delivery or
Availability Condition
(2) Information in a Free Writing

Prospectus
(a) Information Conditions
(b) Amendment to Rule 408
(c) Legend Condition
(i) Discussion
(ii) Cure for Unintentional or Immaterial

Failure to Include a Legend
(iii) Impermissible Legends or Disclaimers
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44723
Federal Register/ Vol. 70, No. 148 / Wednesday, August 3, 2005 / Rules and Regulations

(3) Filing Conditions
(a) General Conditions
(i) Scope of General Conditions
(ii) Conditions Specific to Final Terms of

the Securities or Offering
(iii) Asset-Backed Issuers
(iv) Comments on Filing Condition
(b) Immaterial or Unintentional Failures to

File
(i) Scope of Cure Provision
(ii) Comments on Cure Provision
(4) Record Retention Condition
(a) Discussion
(b) Immaterial or Unintentional Failure To

Retain a Free Writing Prospectus
(D) Road Shows
(1) Definition of Electronic Road Show
(2) Treatment of Electronic Road Shows
(3) Comments on Electronic Road Shows
(E) Treatment of Communications on Web

Sites and Other Electronics Issues
(1) General
(2) Historical Information on an Issuer Web

Site
(3) Comments on Treatment of
Communications on Web Sites and Other

Electronics Issues
(F) Media Publications or Broadcasts
(1) Overview
(2) Application of Rule 164 and Rule 433

to Media Publications
(a) Prospectus Delivery or Availability
(i) Where Media Publications Are Prepared

or Consideration Paid by Issuer or

Offering Participant
(ii) Unaffiliated Media Publications
(b) Filing
(c) Issuers in the Media Business
(3) Responses to Comments on Treatment

of Media Publications
(G) Liability Issues Affecting Free Writing

Prospectuses
(1) General
(2) Filed Free Writing Prospectus Not Part

of Registration Statement
(3) Cross-Liability Issues
c. Interaction of New Communications

Rules with Regulation FD
i. Amendments to Regulation FD
ii. Comments on Amendments to

Regulation FD
4. Use of Research Reports
a. Current Regulatory Treatment of

Research Reports
b. Amendments to Exemptions for

Research
i. Definition of Research Report
(A) Definition
(B) Comments on Definition of Research

Report
ii. Rule 137
iii. Rule 138
(A) Amendments to Rule 138
(B) Comments on Rule 138 Amendments
iv. Rule 139
(A) Issuer-Specific Reports
(1) Amendments Regarding Issuer-Specific

Reports
(2) Comments on Issuer-Specific Reports
(B) Industry-Related Reports
(1) Amendments Regarding Industry-

Related Reports
(2) Comments on Industry-Related Reports
v. Rule 139a
vi. Research Report Amendments in

Connection With Regulation S and Rule
144A Offerings
vii. Research and Proxy Solicitations
IV. Liability Issues

A. Information Conveyed by the Time of
Sale for Purposes of Section 12(a)(2) and
Section 17(a)(2) Liability

1. Interpretation and Rule
2. Comments and Guidance Regarding Our
Interpretation and Rule 159
a. The Section 12(a)(2) and Section 17(a)(2)

Analysis of the Information Conveyed
b. Determination of Time of Sale
c. Termination of Old Contract and

Creation or Reformation of a New

Contract
3. Rule 412 and Rule 430B
4. Relationship of Section 12(a)(2) and

Section 17(a)(2) Interpretation and Rule

159 to Section 11 Liability
B. Issuer as Seller
C. Due Diligence Interpretation

V. Securities Act Registration Rules and

Amendments
A. Overview
B. Procedural Rules
1. Procedural Changes Regarding Shelf

Offerings
a. Overview
b. Information in a Prospectus
i. Mechanics
(A) Rule 430B
(B) Means for Providing Information
(C) Identification of Selling Security

Holders Following Effectiveness
(1) Scope of Provision
(2) Comments on Identification of Selling

Security Holders
ii. Information Deemed Part of Registration
Statement

iii. Date of Inclusion of Prospectus
Supplements in Registration Statements
and New Effective Dates of Registration
Statements

(A) Scope of Provisions
(B) New Effective Dates for Section 11
Purposes
(C) Comments on Prospectus Supplements

and New Effective Dates
iv. Amendments to Rule 415
(A) Elimination of Limitation on Amount

of Securities Registered
(1) Revised Provisions
(2) Comments on Elimination of Limitation

on Amount of Securities Registered

(B) Immediate Takedowns From a Shelf
Registration Statement Filed Under Rule
415(a)(1)(x)

(C) Eliminating\u2018\u2018At-the-Market\u2019\u2019 Offering

Restrictions for Seasoned Issuers
v. Rule 424 Amendments
vi. Elimination of Rule 434
vii. Issuer Undertakings
(A) Treatment of Information in Prospectus

Supplements

(B) Prospectus Supplements Deemed Part
of a Registration Statement and New
Effective Dates

c. Changes to Form S\u20133 and Form F\u20133
2. Automatic Shelf Registration for Well-

Known Seasoned Issuers
a. Overview
i. Rule Changes
ii. Comments on Automatic Shelf

Registration
b. Automatic Shelf Registration Mechanics
i. Eligibility
ii. Information in a Registration Statement

(A) Information That May be Omitted From

the Base Prospectus
(B) Mechanics for Including Information
(C) Registration of Securities to be Offered
(D) Pay-as-You-Go Registration Fees
(1) Pay-as-You-Go Fee Rules
(2) Comments on Pay-as-You-Go Fees
(E) Registration Under Securities Act

Sections 5 and 6
(F) Immediate Effectiveness
(G) Duration
3. Unseasoned Issuers and Non-Reporting

Issuers
a. Overview
b. Amendments to Form S\u20131 and Form F\u2013

1\u2014Expanded Use of Incorporation by

Reference
i. Eligibility
ii. Procedural Requirements
iii. Comments on Form S\u20131 and Form F\u2013

1 Amendments
c. Elimination of Form S\u20132 and Form F\u2013
2
VI. Prospectus Delivery Reforms
A. Current Prospectus Delivery

Requirements
B. Prospectus Delivery Revisions
1. Access Equals Delivery
a. Rule 172
(i) Scope of Rule
(ii) Comments on Rule 172
b. Exceptions to the Rule
c. Notification
(i) Rule 173
(ii) Comments on Rule 173
2. Written Confirmations and Notices of

Allocations

3. Transactions Taking Place on an
Exchange or Through a Registered
Trading Facility\u2014Rule 153

4. Aftermarket Prospectus Delivery\u2014Rule
174
VII. Additional Exchange Act Disclosure

Provisions
A. Risk Factor Disclosure
1. Scope of Requirement
2. Comments on Risk Factor Disclosure

Requirement
B. Disclosure of Unresolved Staff

Comments
1. Disclosure Requirement
2. Comments on Disclosure of Outstanding

Comments
C. Disclosure of Status as Voluntary Filer
Under the Exchange Act

VIII. Paperwork Reduction Act
A. Background
B. Summary of Information Collections
C. Summary of Comment Letters on the

PRA Analysis
D. Paperwork Reduction Act Burden
Estimates
1. Exchange Act Periodic Reports and
Registration Statements
2. Communications and Prospectus
Delivery
3. Securities Act Registration Statements

IX. Cost Benefit Analysis
A. Background
B. Summary of Rules
1. Communications
2. Securities Act Registration Rules
3. Prospectus Delivery
4. Exchange Act Reports
C. Comments on the Proposals
D. Benefits

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