NOTE: The last page of this should be printed in landscape orientation.

Registration Forms:
Form S-3 – Large seasoned Shelf Registration S-2 – Seasoned S-1 SB-1&2 Reg S-K Reg S-X Reg C Requirements Large, seasoned co’s that have been reporting for at least 1 year and meet float test – public co’s w/ min $700m float (stock held by non-officers) Requires only transaction-specific disclosure; may incorporate, by reference, registrant-specific info (10K & all other ’34 Act reports). Rule 415 – S-3 companies can file a short RS for all future securities that may be offered w/in 2 years. Rationale: they already have steady stream of info to mkts and this reduces costs. Reporting co’s that have been filing periodic reports for at least 3 years Annual report must accompany the streamlined prospectus May incorporate by reference any info in the annual report & other periodic filings. Most detailed set of instructions Usually used by co’s that don’t qualify for other forms (e.g., IPO) No incorp by reference. Small biz issuers with annual revenues of less than $25m and public float of less than $25m. SB-1 allows annual regis of up to $10m in sec sold for cash; SB-2 has no limit. Details non-financial filings required under 33 and 34 Acts by various Registration Forms. Note: Franchard held that Reg S-K is not exhaustive list of required material disclosures. Details financial filings required under 33 and 34 Acts. Procedural & mechanical rules for # of copies, where filed, etc. for RS.

Materiality:
1. 2. 3. 4. 5. Historical events: material “if substantial likelihood that a reasonable shh would consider it important in deciding how to vote”. (TSC) or if alters total mix of information avail to shh/investor Uncertain contingent/future events: Materiality = Probability x magnitude: probability that it will occur * magnitude of harm if it occurs. (Basic) Truth on the market defense (Wieglos, 7th Cir.) – MS or omission may be immaterial if correcting info was circulating in the marketplace, known by investors, and affecting security’s price; use w/ EMH and “total mix” of info definition of materiality. Rule 408: RS must contain all material info, even that other than that required in the registration forms, to make RS as a whole not misleading. Process for thinking about disclosure: A. Is there a duty to disclose: 1) Line item required disclosure? (Reg S-K) 2) Material under Rule 408 or Franchard concept such that disclosure is required?

Soft info and Forward Looking Statements:
1. 2. 3. Soft info: predictions of future mkt values, projections, opinions, forward looking statements. Duty to disclose soft info: arises from overall obligation that announcements not be generally misleading Management Discussion & Analysis (MD&Z): Reg S-K, Item 303

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Boilerplate cautionary language insufficient. One who purchases from issuer with view to distribute – Investment intent established if hold for more than 3 years C. position. SEC Rules 175 and 3b-6: Covers forward-looking statement by issuer in SEC filings 1) Statement not fraudulent. etc – Rule 405) 2 . Encouraged: optional forward-looking disclosure – anticipating future trends. unless shown to be w/o reasonable basis or in absence of good faith – basically a recklessness standard. other factors that reduce risk. Note: commercial notes w/ maturity under 9 months are NOT securities See special distinctions for bank instruments. Statutory safe harbor (33 Act §27A. Distribution for control persons – Distirubtion (by broker. then must disclose full magnitude. real estate. 2. Family resemblance test: (Reves) Rebuttable presumption that notes are securities unless falls into exempt category. plan of distribution. Investment for profit. Not stock security when investment carries none of normal indicia and characteristics of stock (United Housing Foundation) Notes – A. . §2(11) – Underwriter definition includes these groups which aren’t covered under §4(1) and MUST find additional transaction exemption to resell: A. such as: (see outline) B. Resales of Restricted Securities or Resales by Control Persons 1. Agent for issuer – acts for issuer “in connection” w/ distribution (Chinese Benevolent) B. MD&A) if: 1) Identified as forward-looking AND accompanied by cautionary statement identifying risk factors.. OR a) Materiality standard for MD&A under Item 303: a) reasonably likely to occur (lower threshold han 50% prob) and b) if cannot determine whether reasonably likely. not for commodity or service B. Covers forward-looking statements re: earnings (e. etc. Profits: Primary motivation of investment must be expected returns from earnings. 3) P fails to prove forward-looking statement made w/ actual knowledge B. C. Consider factors such as: motivation of seller/buyer. 34 Act §21E). Howey test factors: A. Efforts of others: Profits must derive predominantly from managerial efforts (Koscot) Alternately: Economic Realities test: A. Purpose: to give meaningful look at short & long-term analysis of biz of corp “through eyes of mgmt” B. A. dealer) for control persons (those who direct mgmt/policies of issuer through ownership. less predictable impact of a known event. others require only vertical (w/ manager) C. 4. allows summary judgment to weed out frivolous cases 1) Statement not material if statement cautions and generally describes possible risk factors a) Requires precise cautionary info.g. etc FORWARD LOOKING STATEMENTS are encouraged and protected by: A. 2) Cts less likely to protect sophisticated investors if statements include words of caution (Kaufman v. 3. Commonality of interest: Horizontal (b/w other investors) required by some cir. (not necessary to ID risk factors) Security definition: 1. Bespeaks caution doctrine: Judicial doctrine covering forward-looking statements by any person (whether or not in SEC filings).4. Required: known trends C.. OR 2) Forward-looking statement is immaterial. not additional contributions D. reasonable expectations of investing public. Trump) C.

except 1 year after earnings statement released. no later than 3 years after sale §13 5 . commencement of suit “stops loss” of defendants b/c sets market price for dam formula §11(e) w/ negative loss causation defense W/in 1 year of discovery of violation.key: never liable for more than POP * # of shares issued.Reliance? Damages Limitations /Repose 2) D can show P knew alleged MS was false.max dam = public offering price (POP) – mkt share price when suit is brought .actual dam = amt paid for security not exceeding POP – market price . No reliance required. Ps have to prove reliance under §11(a) Measured damages .

g. written confirmations. Rule 137: Nonparticipants– Dealer who is NOT part of UW group may continue to publish & distrib info.. (4). Cannot hyperlink to other written materials.Dealer or UW (participants or not) acting in regular course of biz may publish info. offering price. A. Rule 135: Barebones info: amt & type of securities. info in prospec. or opinions if issuer qualifies to use Form S-3. . must amend RS and wait for SEC to declare effective Research reports by broker/dealers: 1. date.identifying statement allowed under Rule 134 – See E&E p. If prospec. If doesn’t qualify for Form S-3. delivery oblig.. No prospectus (writing) unless it is a statutory prospectus that complies w/ §10(a). delivery of securities Prelim prospectus allowed §10(b) and Rule 430: Contains sae info as final prospectus but omits info on offering price and UW arrangements. such info must later be disclosed later under Rules 424(b)(1). (Chris-Craft). recommend. Prohibited: Identification of prospective UWs.131 Roadshows: so long as no written materials other than prelim prospectus is distributed. SEC Rel..Rule 431 (rarely used) §10(a) prospectus can be: 1) Rule 434 2-step prospectus: prelim prospec & term sheet. No prospectus that does not comply w/ §10 (§5(b)(1)) Prospectus defined in §2(10) as basically any selling effort in writing or radio or TV No 10(a) prospectus avail since RS not yet effective. common stock) 3. 3844) Timely corporate disclosures permitted. §10(a) prospectus must accompany or precede: written offers.§2(10)(b) general info about security. debt.. price . under §4(3) & Rule 174. Conditioning the market prohibited: Any hype/publicity that may contrib to conditioning the public or arousing interest (Carl Loeb. or recommed. §10(a)(3) “Correction of incorrect disclosure”: if material but minor. then allowed under other conditions. manner & purpose of offering. Rule 138: Issuer’s other securities – Participating UW may publish opinion & info relating solely to X if registrant is permitted to use Form S-2 and is registering Not-X. Rule 139: Participants . w/ new info. in its regular course of biz IF: registrant files reports under §13 or §15(d) of ’34 Act AND dealer does not receive any consideration 2. if fundamental. sticker can be used on prospec. used 9 mo after eff. free writing). X = one of (nonconvertible preferred stock. opinions. FN2: Rule 403A allows RS to be declared effective even if contains prospectus that omits info on price. see outline Info releases Modified tombstone Ad permitted – Free writing (sales lit) if accompanied or preceded by statutory prospectus. or 2) Rule 430: prelim prospect that is amended then declared effective Delivery obligations: See outline for prospec. supplementary sales lit (e. by whom order will be executed. or 497 10 . See FN2. can’t be more than 16 mo old. Summary prospectus allowed.Prospectus No prospectus whatsoever. Thus. UW syndicate (required for post-effective prospectus).