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SECURITIES AND EXCHANGE COMMISSION
17 CFR PARTS 202, 228, 229, 230, 232, 239, 240, 270 and 274
RELEASE NO. 33-7168; 34-35705; IC-21061
FILE NO. S7-7-95
RIN 3235-AG40
PROSPECTUS DELIVERY; SECURITIES TRANSACTIONS SETTLEMENT
AGENCY: Securities and Exchange Commission.
ACTION: Final rules.
SUMMARY: The Commission is adopting revisions to its rules and
forms and a new rule in order to implement two solutions to
prospectus delivery issues arising in connection with the change
to T+3 securities transaction settlement. These revisions, among
other things, include changes that highlight the location of the
risk factor disclosure within the prospectus. In addition, the
Commission is eliminating an exemption from T+3 settlement for
purchases and sales of securities pursuant to a firm commitment
offering, providing a T+4 time frame to firm commitment offerings
under certain conditions, and adopting a modified procedure
whereby participants in firm commitment offerings may agree to an
extended settlement time frame.
EFFECTIVE DATE: The new rule and the revisions to rules
and forms are effective June 7, 1995.
FOR FURTHER INFORMATION CONTACT: Anita Klein, Joseph Babits
or Michael Mitchell (202) 942-2900, Division of Corporation
Finance; and, with regard to questions concerning revisions to
the T+3 settlement rule, Jerry W. Carpenter or Christine Sibille,
(202) 942-4187, Division of Market Regulation; and, with regard
to questions concerning Rule 15c2-8 revisions, Alexander Dill,
(202) 942-4892, Division of Market Regulation; and, with regard
to questions concerning the application to investment companies,
Kathleen Clarke, (202) 942-0721, Division of Investment
Management, U.S. Securities and Exchange Commission, Washington,
D.C. 20549.
SUPPLEMENTARY INFORMATION:
I. INTRODUCTION AND BACKGROUND
On October 6, 1993, the Commission adopted Rule 15c6-1 -[1]-
under the Securities Exchange Act of 1934 (the "Exchange Act").
-[2]- That rule is scheduled to become effective on June 7,
1995. -[3]- Rule 15c6-1 requires that the standard settlement
time frame for most broker-dealer trades be three business days
after the trade (hereinafter "T+3"). Rule 15c6-1 provides a
limited exemption from T+3 for the sale of securities for cash
pursuant to a firm commitment offering registered under the
Securities Act of 1933 (the "Securities Act"). -[4]- Resales of
such securities, however, remain within T+3.
-[1]- 17 CFR 240.15c6-1. See Exchange Act Release No. 33023
(Oct. 6, 1993) [58 FR 52891].
-[2]- 15 U.S.C. 78a et seq.
-[3]- See Exchange Act Release No. 34952 (Nov. 9, 1994) [59
FR 59137].
-[4]- 15 U.S.C. 77a et seq.
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Since the adoption of Rule 15c6-1, members of the brokerage
community have suggested that the Commission eliminate this
exemption because, among other reasons, the bifurcated settlement
cycle created for initial sales and resales of new issues -[5]-
would be disruptive to broker-dealer operations and to the
clearance and settlement system. According to the brokerage
community, the primary reason that settlement within T+3 is not
feasible for many new issues is the amount of time it takes to
print and deliver prospectuses. -[6]-
Two proposals to ease prospectus delivery within T+3 were
submitted for Commission consideration. One was submitted by the
Securities Industry Association ("SIA") and one was submitted by
a group of four investment firms: CS First Boston Corporation,
Goldman, Sachs & Co., Lehman Brothers Inc. and Morgan Stanley &
Co. Incorporated (the "Four Firms"). -[7]- These proposals
recommended markedly different solutions to accomplishing
prospectus delivery within T+3.
On February 21, 1995, the Commission proposed new Rule 434
and amendments to existing rules and forms based upon these two
proposals. -[8]- The Commission sought comment regarding which
approach should be implemented, or whether the Commission should
implement both approaches and thereby allow market participants a
choice as to which to use in any given offering. Twenty-nine
-[5]- The term "new issues" as used herein refers to both
initial public offerings and offerings of additional
securities by companies.
-[6]- Some of these timing difficulties can be expected to be
alleviated as markets increasingly rely on non-paper
delivery media. In recognition of that development,
the staff issued an interpretive letter to facilitate
the use of electronic transmission to satisfy
prospectus delivery requirements. Brown & Wood (Feb.
17, 1995). The Division of Corporation Finance staff,
in addition to issuing the Brown & Wood letter, is
considering generally delivery under the Securities Act
of prospectuses through other non-paper media (e.g.,
audiotapes, videotapes, facsimile, directed electronic
mail, and CD ROMs). The staff anticipates submitting
to the Commission in the near future recommendations
intended both to facilitate compliance with the
Securities Act's prospectus delivery requirements and
to encourage continued technological developments of
non-paper delivery media.
-[7]- See letter from Robin Shelby, CS First Boston
Corporation; Goldman Sachs & Co.; Steven Barkenfield,
Lehman Brothers Inc.; and John Ander, Morgan Stanley &
Co. Inc. to Anita Klein, Securities and Exchange
Commission, dated Jan. 24, 1995 and letter from Goldman
Sachs to Anita Klein, Securities and Exchange
Commission, dated Feb. 3, 1995. See also letter from
Joseph McLaughlin, Brown & Wood, on behalf of the
Securities Industry Association, to Anita Klein,
Securities and Exchange Commission, dated Feb. 1, 1995.
Copies of these proposals are available for inspection
and duplication at the Commission's Public Reference
Room, 450 Fifth St. N.W., Washington, D.C. 20549, File
Number S7-7-95.
-[8]- See Securities Act Release No. 7141 (Feb. 21, 1995) [60
FR 10724] (hereinafter, the "Proposing Release").
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comment letters were received in response to the Proposing
Release. -[9]- Most commenters addressing the question of
whether to adopt one or both approaches favored the adoption of
both of the Commission's approaches.
As described in greater detail below, the Commission is
adopting both approaches, largely as proposed, to provide market
participants with the flexibility of selecting between
alternative methods to expedite prospectus delivery under a T+3
clearance and settlement system. -[10]- Because of the concerns
expressed by some commenters with respect to the potential for
investor confusion, however, the Commission intends to monitor
closely disclosure practices that develop under the new rules and
will undertake revisions to the rules if necessary to address
investor problems.
On February 21, 1995, the Commission also proposed
amendments to Rule 15c6-1 to eliminate the current exemption for
firm commitment offerings except offerings of asset-backed
securities and structured securities, to provide for a T+4
standard settlement period for offerings priced after the close
of the markets ("after-market pricings"), and to permit the
managing underwriter to establish T+3, T+4, or T+5 as the
standard settlement period for an entire offering if certain
conditions were met. In general, commenters favored the proposed
amendments to Rule 15c6-1. Many commenters, however, objected to
the requirements and limitations contained in the T+3, T+4, or
T+5 proposal. As described below, the Commission is eliminating
the blanket exemption from Rule 15c6-1 for firm commitment
offerings, is adopting the T+4 standard for after-market
pricings, and is adopting a revised provision authorizing
exceptions from T+3 settlement for certain firm commitment
offerings. -[11]-
II. PROSPECTUS DELIVERY APPROACHES
A. The Four Firms Approach
The Four Firms proposal was premised on the view that the
process of preparing and delivering prospectuses in new issues
could be accelerated sufficiently to comply with T+3 if six steps
were taken by the Commission to facilitate the printing of a
significant portion of the final prospectus prior to pricing.
Those six steps, noted below, are being adopted substantially as
-[9]- These letters of comment and a summary thereof are
available for inspection and duplication at the
Commission's Public Reference Room, 450 Fifth Street
N.W., Washington, D.C. 20549, File No. S7-7-95.
-[10]- As adopted, the approaches will apply specifically to
certain investment companies registered under the
Investment Company Act of 1940 (15 U.S.C. 80a-1 et
seq.) (hereinafter, the "Investment Company Act")
(i.e., closed-end investment companies and unit
investment trusts ("UITs")). See infra Sections
II.A.8. and II.B.3.d.
-[11]- With the help of staff of the Commission's Division of
Corporation Finance and Office of General Counsel, the
Commission's Advisory Committee on the Capital
Formation and Regulatory Processes is examining the
relative costs and benefits of the Securities Act's
transactional registration scheme, including the
prospectus delivery requirements. See Commission File
No. 265-20.
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proposed. -[12]- Except as otherwise noted, these steps are
applicable to any offering.
1. Re-ordering of Prospectuses
As was proposed, the Commission is adopting rule revisions
enabling the contents of prospectuses to be re-ordered to
expedite the printing process. -[13]- All portions likely to be
subject to change at the time of pricing may be placed together
in the beginning of the prospectus after the front cover page in
a "pricing-related information" section, or may be wrapped around
the remainder of the prospectus just inside the front and back
cover pages. -[14]- While summary and risk factors sections must
remain in the forepart of the prospectus, those sections may
immediately follow the "pricing-related information" section
rather than preceding it. To ensure that investors continue to
be able to locate the risk factors section in all offerings with
ease, however, rule revisions also provide that the currently
required cross reference to that section on the cover page of the
-[12]- For a discussion of the application of the Four Firms
approach to investment companies, see infra Section
II.A.8.
-[13]- Certain Commission rules that specify the location of
information in the forepart of the prospectus, or in a
specified order within the prospectus, are being
revised to eliminate certain requirements regarding
location. See revisions to Items 503(b) and 503(c) of
Regulation S-K, 17 CFR 229.503(b) and 229.503(c); Items
503(b) and 503(c) of Regulation S-B, 17 CFR 228.503(b)
and 228.503(c); and Securities Industry Guide 4, 17 CFR
229.801(d). Consistent with the proposal, no revision
has been made to order and location rules that relate
to specific and limited classes of transactions. See
Items 903(a) and 904(a) of Regulation S-K, 17 CFR
229.903(a) and 229.904(a) (summary of a roll-up
transaction, reasonably detailed description of each
material risk and effect of the roll-up transaction);
Securities Act Industry Guide 5, 17 CFR 229.801(e),
(real estate limited partnerships suitability
standards). In addition, issuers of limited
partnership interests and other real estate investment
vehicles must continue to comply with the disclosure
guidance set forth in Securities Act Release No. 6900
(June 17, 1991) [56 FR 28979].
-[14]- Commenters noted that, if prospectuses are printed in a
folio manner, moving pricing-related information to the
front of the prospectus may not result in earlier
printing of the remainder of the prospectus. Thus, the
Commission is providing the flexibility to "wrap" the
"pricing-related information" section. Of course,
whether the price-related information is set forth in
the front or wrapped, the information set forth in the
prospectus must be presented in a clear, concise and
understandable fashion, as required by Rule 421(b)
under the Securities Act, 17 CFR 230.421(b). See also
Rule 421(a) under the Securities Act, 17 CFR
230.421(a), which requires that information in a
prospectus be set forth in a fashion so as not to
obscure any of the required information or any
information necessary to keep the required information
from being incomplete or misleading; and Securities Act
Release No. 6900 (June 17, 1991) [56 FR 28979].
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prospectus now identify with specificity (e.g. by page number)
the location of that section within the prospectus. -[15]- In
addition, rule revisions require that the risk factors section be
captioned within the prospectus as "Risk Factors" and clarify
that the table of contents required on the back cover of the
prospectus must include a reference to the risk factors section
and specify the page number on which it begins. -[16]-
Further, rule revisions provide that specific information
currently required on the prospectus cover pages may be placed
under an appropriate caption elsewhere in the prospectus. -[17]-
Otherwise, the prospectus cover pages must continue to contain
information currently specified by Commission rules. -[18]-
The "pricing-related information" section may include those
portions of a prospectus that may change as a result of pricing,
such as use of proceeds, capitalization, pro forma financial
information, dilution, selling shareholder information and shares
eligible for future sale. -[19]- The pricing information portion
itself may be included in the price-related information section.
These adopted rule revisions which allow re-ordering of
information within a prospectus for convenience in printing do
not alter existing requirements with respect to the filing of
post-effective amendments or supplements with the Commission when
material changes or additions affect information set forth in the
prospectus contained in an effective registration statement.
-[15]- See revisions to Regulation S-K Item 501(c)(4), 17 CFR
229.501(c)(4), and Regulation S-B Item 501(a)(4), 17
CFR 228.501(a)(4). As revised, the rules also require
that the cross reference be printed in bold-face roman
type at least as high as twelve-point modern type and
at least two points leaded.
-[16]- See revisions to Item 503(c)(1), 17 CFR 229.503(c)(1)
and 17 CFR 228.503(c)(1); Item 502(g), 17 CFR
229.502(g); Item 502(f), 17 CFR 228.502(f).
-[17]- See revisions to Item 502(a), (b), (c) and (f) of
Regulation S-K, 17 CFR 229.502(a), 229.502(b),
229.502(c) and 229.502(f); revisions to Item 502(a),
(b) and (c) of Regulation S-B, 17 CFR 228.502(a),
228.502(b) and 228.502(c); and revisions to the
Instruction following Item 502(f) of Regulation S-B, 17
CFR 228.502(f). These revisions relate to disclosure
regarding: the availability of Exchange Act information
about the registrant, the nature of reports to be given
to security holders, undertakings with respect to
information incorporated by reference, and the
enforceability of civil liabilities against certain
foreign persons.
-[18]- See Item 501(c) of Regulation S-K, 17 CFR 229.501(c)
(outside front cover page); Item 502(d), (e) and (g) of
Regulation S-K, 17 CFR 229.502(d), 229.502(e), and
229.502(g) (inside front cover page and outside back
cover page); Item 501 of Regulation S-B, 17 CFR 228.501
(outside front cover page); and Item 502(d), (e) and
(f) of Regulation S-B, 17 CFR 228.502(d), 228.502(e)
and 228.502(f) (inside front cover page and outside
back cover page).
-[19]- See Instruction to Item 503(c) of Regulations S-K and
S-B, 17 CFR 229.503(c) and 228.503(c).
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However, other rule revisions discussed below do alter existing
requirements.
2. Changes in Offering Size and Estimated Price Range
To prevent delays in printing prospectuses that arise when
the size of an offering is changed after the effective date of
the registration statement, or the pricing of the securities
falls outside the estimated range, the Commission under specified
conditions is eliminating or streamlining the filings that
result. Although originally contemplated only for Rule 430A
offerings, the adopted revisions provide the same flexibility for
all registered offerings.
a. Registration of Classes of Securities
In order to minimize the instances in which an increase in
the offering size would result in the need to file a new
registration statement, rule revisions are being adopted to
increase registrants' flexibility with respect to the amount of
securities being registered in an offering. Under the revised
rules, an issuer is permitted to register securities in an
offering by specifying only the title of the class of securities
to be registered and the proposed maximum aggregate offering
price. -[20]- Except in the case of the unallocated shelf
procedure available to Form S-3-eligible companies, the aggregate
dollar amount associated with each class of securities offered
must be disclosed in the "Calculation of Registration Fee" table.
Where issuers register a greater amount of securities than needed
in the offering, such additional securities may be carried
forward to a subsequent registration statement without incurring
an additional registration fee. -[21]-
b. Increases in Offering Size - Registration of
Additional Securities
When the pricing terms of an offering are finalized, it is
not unusual for changes to be made in the offering size through
-[20]- See revisions to Rule 457(o) under the Securities Act,
17 CFR 230.457(o). The amount of securities to be
registered and the proposed maximum offering price per
unit are no longer required to be set forth in the
"Calculation of Registration Fee" table. Of course, an
issuer may continue to specify such information therein
if it so chooses and relies upon Rule 457(a).
Regardless of the method chosen for the "Calculation of
Registration Fee" table, however, the registrant
continues to be required to specify in the prospectus
the amount of securities being offered and, where the
registrant is not a reporting company, a bona fide
estimate of the range of the maximum offering price.
See Rule 501(c)(6) of Regulation S-K, 17 CFR
229.501(c)(6) and Rule 501(6) of Regulation S-B, 17 CFR
228.501(6).
-[21]- See revisions to Rule 429, 17 CFR 230.429. Under Rule
429, in a new registration statement filed in the
future for another offering of that class of
securities, the registrant would indicate in a footnote
to the "Calculation of Registration Fee" table that
part of the registration fee had been paid previously
in connection with an earlier registration statement.
The footnote must specify the exact dollar amount of
the fee being carried over and the related registration
statement file number.
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adjustments to both price and volume. -[22]- Where this process
requires registration of additional securities, the revised rules
and forms permit the filing of an abbreviated registration
statement to register the additional amount of securities to be
offered and sold. -[23]- Such an abbreviated registration is
available to an issuer that is registering additional securities
in an amount and at a price that together represent no more than
a 20% increase in the maximum aggregate offering price set forth
in the "Calculation of Registration Fee" table in the earlier
effective registration statement. -[24]- Such registration would
consist of: the facing page, a statement incorporating by
reference the contents of the earlier registration statement
relating to the offering, all required consents and opinions, and
the signature page. While not required by the rule, the
registrant also may include in the new registration statement,
instead of in a filing under Rule 424, any price-related
information with respect to the offering that was omitted from
the earlier registration statement pursuant to Rule 430A. -[25]-
The abbreviated registration statement must be filed prior to the
time sales are made and confirmations are sent or given, and will
become effective automatically upon filing. -[26]- As adopted,
this abbreviated registration format is available regardless of
whether the earlier registration statement was prepared in
reliance upon Rule 430A.
In addition to providing an abbreviated registration format
for such increases in offering size, rule revisions allow such
registration statements to be filed promptly even when pricing
-[22]- While participants in a registered distribution may
only offer the amount of securities registered to be
offered, it is possible that indications of interest
received in response to such offers may exceed the
amount registered to be offered. Sales of securities
in excess of the volume initially registered will not
result in Section 5 liability if the participants in
the distribution did not solicit indications of
interest in an amount in excess of that registered and
the procedures discussed in this section are followed.
-[23]- See revisions to General Instructions of Forms SB-1,
SB-2, S-1, S-2, S-3, S-11, F-1, F-2 and F-3.
-[24]- In the context of an offering from a shelf registration
statement, the 20% increase would be measured based
upon the amount of securities on the shelf.
-[25]- Consistent with offerings where a new registration
statement is not required to be filed as a result of a
change of no more than 20% in the size of the offering,
information necessary to update disclosure contained in
the earlier registration statement as a result of the
increase may be reflected in a form of prospectus filed
under Rule 424(b), 17 CFR 230.424(b). See infra
Section II.A.2.c.
-[26]- See Rule 462(b), 17 CFR 230.462(b). The registration
statement is deemed to be a part of the earlier
registration statement relating to the offering. See,
e.g., General Instruction V. to Form S-1.
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occurs after the Commission's business hours. -[27]- Such a
registration statement may be filed with the Commission by
persons other than mandated electronic filers by transmitting a
single copy of it via facsimile to the Commission's principal
office from 5:30 p.m. to 10:00 p.m. -[28]- Electronic filers may
file such a registration statement from 5:30 p.m. to 10:00 p.m.
by transmitting it through EDGAR. -[29]- Such filings become
automatically effective upon receipt by the Commission of the
complete facsimile or EDGAR copy and payment of the filing fee.
To accommodate payment of the filing fee after the close of
banking hours, rule revisions provide that payment with respect
to such registration statements may be made by: (i) instructing a
bank or wire transfer service to transmit a wire transfer to the
Commission of the requisite amount as soon as practicable (but in
any event no later than the close of the next business day
following the date the registration statement is faxed to the
Commission); and (ii) providing specific certifications to the
Commission with the abbreviated registration statement. -[30]-
Specifically, the registrant must certify to the Commission that:
the registrant (or its agent) has so instructed its bank or a
wire transfer service to pay the Commission; that it will not
revoke such instructions; and that it has sufficient funds in the
relevant account to cover the amount of the filing fee. These
instructions may be transmitted on the day of filing the
registration statement after the close of business of such bank
or wire transfer service, provided that the registrant undertakes
to confirm receipt of such instructions by the bank or wire
transfer service the following business day.
c. Changes in Offering Size; Deviation from
Price Range
-[27]- See revisions to Rule 110, 17 CFR 230.110; Rule 402, 17
CFR 230.402; Rule 455, 17 CFR 230.455; and Rule 472, 17
CFR 230.472; Rule 13, 17 CFR 232.13 and Rule 3a, 17 CFR
202.3a.
-[28]- Effective June 7, 1995, the telephone number for that
facsimile machine is (202) 942-7333 and the telephone
number for the staff person that can answer questions
regarding such facsimiles between the hours of 5:30
p.m. and 10:00 p.m. (Eastern Standard Time or Eastern
Daylight Savings Time, whichever is currently in
effect) is (202) 942-8900. Filings (other than
electronic filings through EDGAR) between 5:30 p.m. and
10:00 p.m. on Forms SB-1 and SB-2 for this purpose must
be sent via this facsimile system to the Commission's
principal office rather than to the regional or
district offices of the Commission.
-[29]- The new EDGAR form types for purposes of registration
statements under Rule 462 are S-1MEF, S-2MEF, S-3MEF,
F-1MEF, F-2MEF, F-3MEF, SB-1MEF and SB-2MEF. A
post-effective amendment to any of these new form types
should be designated as form type POS462B. With
respect to other aspects of the adopted proposals and
electronic filers, see also infra Section IV.
-[30]- See revisions to Rule 111, 17 CFR 230.111. This
payment certification document accompanying an
abbreviated registration statement should be
transmitted by electronic filers under EDGAR form type
CORRESP.
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Currently, a post-effective amendment is not required to be
filed where there is a decrease in volume of securities offered
or the actual offering price is outside the disclosed estimated
price range, unless such decrease or change would change
materially the disclosure included in the registration statement
at the time of effectiveness. -[31]- Under the revised rules, a
post-effective amendment does not have to be filed in connection
with any registered offering if there is a decrease or increase
in the offering size (if such an increase would not require
additional securities to be registered) and/or the actual price
is outside the estimated price range if, in the aggregate, the
new size and price represent no more than a 20% change in the
maximum aggregate offering price set forth in the "Calculation of
Registration Fee" table in the effective registration statement.
-[32]-
3. Manual Signatures and Incorporation by Reference
of Opinions and Consents
Under the proposals, rule revisions would have provided that
duplicated or facsimile versions of manual signatures could be
included on the signature page in place of the manual signatures
currently required in a registration statement to increase the
size of the offering. In response to comment, the rule revisions
being adopted have been expanded to permit duplicated or
facsimile versions of manual signatures in any registration
statement or post-effective amendment filed under the Securities
Act and any reports filed under the Exchange Act. -[33]- These
revisions will provide the same flexibility to all paper filers
that is accorded EDGAR filers. In addition, under the revised
rules, signatures on required opinions and consents in such
filings also may be duplicated or facsimile versions of manual
signatures. -[34]- In all cases where duplicated or facsimile
-[31]- See Securities Act Release No. 6964 (Oct. 22, 1992) [57
FR 48970] for a discussion of the materiality standard
as it applies to these changes.
-[32]- See revision to Instruction to Paragraph (a) of Rule
430A, 17 CFR 230.430A and revisions to Item
512(a)(1)(ii) of Regulations S-K and S-B, 17 CFR
229.512(a)(1)(ii) and 228.512(a)(1)(ii). This revision
pertains to changes in offering size that occur at
pricing and does not extend to changes made after that
time. While no post-effective amendment is required to
be filed, issuers continue to be responsible for
evaluating the effect of a volume change or price
deviation on the accuracy and completeness of
disclosure made to investors. When there is a change
in offering size or deviation from the price range
beyond the 20% threshold, a post-effective amendment
would continue to be required only if such change or
deviation materially changes the previous disclosure.
Of course, if an increase beyond the 20% threshold
requires registration of additional securities, a new
registration statement updated in all respects must be
filed.
-[33]- See revisions to Rule 402, 17 CFR 230.402; Rule 12b-
11, 17 CFR 240.12b-11; Rule 14d-1, 17 CFR 240.14d-1;
and Rule 16a-3, 17 CFR 240.16a-3.
-[34]- See revisions to Rule 402, 17 CFR 230.402; Rule 439, 17
CFR 230.439; Rule 12b-11, 17 CFR 240.12b-11; Rule 14d-
(continued...)
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versions of manual signatures are used, the registrant must
maintain the manually signed version in its files for five years
after the filing of the related document and provide it to the
Commission or the staff upon request.
Rule revisions also allow opinions and consents required in
abbreviated registration statements registering an additional 20%
to be incorporated by reference to the extent that the opinions
and consents contained in the earlier effective registration
statement were drafted to apply to any subsequent registration
statement filed solely to increase the offering up to a 20%
threshold. -[35]- Where opinions and consents cannot be
incorporated, duplicated or facsimile versions of manual
signatures may be included in the new opinion or consent required
to be filed in the abbreviated registration statement.
4. Rule 430A Pricing Period
As was proposed, the Commission is extending the period
during which a prospectus supplement containing pricing and other
related information omitted from a registration statement may be
filed pursuant to Rule 430A under the Securities Act. -[36]- The
"pricing" period is extended from five to fifteen business days
after the effective date of the registration statement or any
post-effective amendment thereto. Although originally proposed
as an extended ten-business-day period, the adopted
fifteen-business-day period should provide additional flexibility
for purposes of complying with T+3, without defeating the purpose
of that limitation. -[37]-
Where a Rule 430A offering is not priced within the fifteen-
day period, a post-effective amendment updated in all respects
that either restarts the pricing period or contains the Rule 430A
pricing information (i.e. similar to a traditional pricing
amendment) must be filed and effective prior to sales. While no
changes to this requirement are being made, other rule revisions
are being adopted to minimize the delay that could result. Such
a post-effective amendment, which must be filed prior to the time
sales are made and confirmations are sent, will become effective
upon filing if the prospectus contained therein contains no
material changes from, or additions to, the prospectus previously
filed as part of the effective registration statement other than
-[34]-(...continued)
1, 17 CFR 240.14d-1; and Rule 16a-3, 17 CFR 240.16a-3.
-[35]- See Rule 411(c) under the Securities Act, 17 CFR
230.411(c), new Rule 439(b) under the Securities Act,
17 CFR 230.439(b), and changes to General Instructions
of Forms SB-1, SB-2, S-1, S-2, S-3, S-11, F-1, F-2 and
F-3. In addition, Items 601(b)(24) of Regulations S-K
and S-B, 17 CFR 229.601(b)(24) and 17 CFR
228.601(b)(24), are revised so that a power of attorney
included in the earlier registration statement relating
to the offering also may relate to the short-form
registration statement filed to register the additional
securities.
-[36]- See revisions to Rule 430A(a)(3), 17 CFR
230.430A(a)(3).
-[37]- The principal purpose of the original five-day
limitation was to prevent delayed offerings being made
under Rule 430A by persons that do not meet the
criteria for use of shelf registration. See Securities
Act Release No. 6714 (May 27, 1987) [52 FR 21252].
-------------------- BEGINNING OF PAGE #11 -------------------
the price-related information omitted from the registration
statement in reliance on Rule 430A. -[38]- A company filing a
post-effective amendment that reflects other material prospectus
changes or additions (other than the "20% increase in offering
size" changes) would follow current procedures under which the
post-effective amendment is subject to selective review and is
declared effective.
5. Immediate Takedowns from a Shelf Registration
The Four Firms proposal requested that the Commission permit
immediate takedowns after a shelf registration statement becomes
effective. As indicated in the Proposing Release, immediate
offerings from an effective shelf registration statement
currently are permitted. At the time of effectiveness,
information in the shelf registration statement is required to
the extent it is known or reasonably available to the
registrant. -[39]- Accordingly, if an offering of securities is
certain at the time the shelf registration statement becomes
effective, the relevant information (e.g., description of
securities, plan of distribution and use of proceeds) must be
disclosed with respect to the securities subject to the immediate
takedown and the Rule 430A undertakings should be included (if
the issuer wants Rule 430A pricing flexibility).
6. Acceleration of Effectiveness
As was proposed, adopted rule revisions allow requests to
accelerate effectiveness of registration statements to be
transmitted to the Commission by fax transmission. In addition,
rule revisions permit oral requests for acceleration to be made,
-[40]-
provided that the Commission previously receives a letter
indicating that the registrant and the managing underwriter may
make oral requests for acceleration and that they are aware of
their obligations under the Securities Act. -[41]-
In order to facilitate the ability of the Commission staff,
pursuant to delegated authority, to reach a determination to
accelerate effectiveness based on the public availability of
information and other factors set forth in Section 8(a) of the
Securities Act, -[42]- persons making oral acceleration requests
should be prepared to provide orally the prospectus dissemination
information that typically is set forth in a written acceleration
request. Such information generally includes: the date of the
-[38]- See Rule 462(c), 17 CFR 230.462(c).
-[39]- See Rule 409, 17 CFR 230.409.
-[40]- See Securities Act Rule 461(a), 17 CFR 230.461(a).
Both an authorized representative of the registrant and
an authorized representative of the managing
underwriter will be required to make such request
orally. The rule revisions do not adopt a requirement
suggested by some commenters that an oral request be
followed by transmission to the Commission of a written
request, nor are facsimile or duplicate versions
required to be followed by transmission to the
Commission of the manually signed versions.
-[41]- See Securities Act Rule 461(a), 17 CFR 230.461(a). The
liability of persons who sign the registration
statement, the underwriters and others under Section
11(a) of the Securities Act, 15 U.S.C. 77k(a), is
based upon the registration statement at the time it
becomes effective.
-[42]- 15 U.S.C. 77h(a).
-------------------- BEGINNING OF PAGE #12 -------------------
preliminary prospectus distributed, the approximate dates of
distribution, the number of prospective underwriters and dealers
to whom the preliminary prospectus was furnished, the number of
prospectuses so distributed, and the number of prospectuses
distributed to others, identifying them in general terms. -[43]-
In addition, in the case of non-reporting companies, an
affirmative statement from the managing underwriter may be
requested with regard to whether it has been informed by
participating underwriters and dealers that copies of the
preliminary prospectus have been or are being distributed to all
persons to whom it is then expected to mail confirmations not
less than 48 hours prior to the time it is expected to mail such
confirmations. -[44]-
7. T+4 Settlement for Firm Commitment Offerings
Priced After the Close of the Market
As discussed elsewhere in this release, the Commission is
eliminating the current exemption contained in Rule 15c6-1 for
firm commitment offerings, thus bringing those transactions under
a T+3 settlement standard. In response to the Four Firms
proposal, the Commission proposed an amendment to Rule 15c6-1
that would establish four business days after the trade date
("T+4") as the standard settlement cycle for firm commitment
offerings priced after 4:30 p.m. The vast majority of commenters
who addressed this proposal expressed support for settlement on a
T+4 basis. -[45]- Several of these commenters reasoned that it
is difficult to print and deliver the final prospectus within a
T+3 settlement time frame when the securities are priced late in
the day. These commenters also opined that the potential
systemic and market risks associated with the T+4 provision
should be limited because most of the secondary trading in the
subject securities will not begin until the opening of the market
on the next business day and, therefore, the primary issuance of
securities will be available to settle secondary trading in the
security.
The T+4 provision in the Four Firms proposal was intended to
provide time to deliver prospectuses by settlement.
Establishing T+4 as the standard for this category of offerings
also will provide certainty and reduce confusion as to the
appropriate settlement cycle. Accordingly, the Commission is
-[43]- See Rule 418(a)(7), 17 CFR 230.418(a)(7). See also
Rule 460, 17 CFR 230.460.
-[44]- See Rule 418(a)(7)(vi), 17 CFR 230.418(a)(7)(vi) and
Securities Act Release No. 4968 (Apr. 24, 1969) [34 FR
7235]. Of course, this information is not applicable
to delayed shelf offerings.
-[45]- One commenter argued that a T+4 standard was
unnecessary because the override provision in paragraph
of (a) of Rule 15c6-1, if broadly interpreted, would
provide sufficient flexibility to after-market
offerings. See letter from John Brandow, Davis Polk &
Wardwell to Jonathan Katz, Securities and Exchange
Commission, dated April 3, 1995. As discussed
elsewhere in this release, the Commission is instead
adopting a specific override provision for firm
commitment offerings.
-------------------- BEGINNING OF PAGE #13 -------------------
adopting the amendment for settlement of specific offerings on a
T+4 basis with only minor technical corrections. -[46]-
8. Investment Companies
The Commission requested comment on whether the Four Firms
proposal should apply to investment companies. Commenters did
not believe that open-end investment companies would require any
special provisions to facilitate T+3 settlement because they are
engaged in the continuous offerings of securities with pre-
printed prospectuses, but endorsed the application of the Four
Firms proposal to closed-end investment companies and unit
investment trusts ("UITs"). The revisions to Rule 430A (the
extension of the pricing period and changes to offering size and
price range), to Rule 461(a) (facsimile or oral accelerations of
effective dates), and to Rule 15c6-1 (T+4 settlement for firm
commitment offerings priced after 4:30 p.m.) by their terms apply
to the registration statements of closed-end investment companies
and UITs. -[47]- The Investment Company Act permits UITs, but
not closed-end investment companies, to increase the size of an
offering by post-effective amendment. -[48]- Therefore, the
Commission is adopting rule and form revisions that will permit
closed-end investment companies to take advantage of the
short-form registration statement that permits an increase in
offering size. -[49]- Under the rule and form amendments, as
-[46]- See Rule 15c6-1(c), 17 CFR 15c6-1(c). As proposed,
this paragraph provided an exemption for securities
sold pursuant to a firm commitment offering. This
language has been amended to clarify that the exemption
applies to contracts for the sale of such securities
and that the exemption only applies to sales from the
issuer to the underwriter and initial sales by broker-
dealers participating in the offering.
-[47]- As noted previously, the revised rules permit
duplicated or facsimile versions of manual signatures
in all reports filed under the Exchange Act, as well as
registration statements filed under the Securities Act.
The Commission is adopting similar revisions for
investment companies. See revisions to Rule 8b-11, 17
CFR 270.8b-11.
-[48]- See Section 24(e)(1) of the Investment Company Act, 15
U.S.C 80a-24(e)(1); see also Rule 485(b)(1)(i), 17 CFR
270.485(b)(1)(i), which provides for the immediate
effectiveness of a post-effective amendment filed by a
UIT for the purpose of increasing the amount of
securities proposed to be offered under Section
24(e)(1).
-[49]- Modifications to the registration statement form for
closed-end investment companies, Form N-2 (17 CFR
274.11a), provide for the registration of additional
securities pursuant to new Rule 462(b). Revisions to
(i) paragraph (b) of Rule 483, which sets forth the
exhibit requirements for investment company
registration statement forms, provide that a power of
attorney filed for a registration statement form also
relates to a related registration statement form filed
pursuant to Rule 462(b), and (ii) paragraph (c) of Rule
483 provide that a consent may be incorporated by
reference into a registration statement form filed
pursuant to Rule 462(b) from a related registration
statement form.
-------------------- BEGINNING OF PAGE #14 -------------------
adopted, the Commission is not making any changes to re-order
investment company prospectuses because the current prospectus
requirements appear to provide sufficient flexibility to
accommodate expedited printing of prospectuses.
-------------------- BEGINNING OF PAGE #15 -------------------
B. The SIA Approach
The second part of the Commission's proposal was based on
the proposal submitted by the SIA. The SIA proposal was
predicated on the premise that prospectus delivery could be
accomplished much more quickly if issuers could convey the
Section 10(a) prospectus information in multiple documents
delivered to investors at different times, rather than in a
traditional, integrated final prospectus prepared through last-
minute mass printing, shipping and mailing.
Rule 434 under the Securities Act, -[50]- which is based
upon the SIA approach, is being adopted largely as proposed.
Rule 434 permits participants in registered firm commitment
underwritten offerings of securities for cash and specified
registered offerings for cash made on an agency basis
(hereinafter, "eligible offerings") to convey prospectus
information in more than one document and allows such documents
to be delivered to investors at separate intervals and in varying
manners. Rule 434 does not require that a final, integrated
prospectus be delivered to investors. In the aggregate, however,
all required information will still be disclosed to investors
prior to or at the same time as a confirmation is sent, either
through physical delivery or, in the case of short-form
registered offerings, -[51]- through physical delivery and
delivery by publication.
-[50]- 17 CFR 230.434.
-[51]- "Short-form" registration is used herein to refer to
registration on Commission Forms S-3 or F-3. To be
eligible to use short-form registration for a primary
offering, an issuer must have a public float of $75
million and must have been reporting with the
Commission for one year. See General Instructions
I.A.3. and I.B.1. to Form S-3 and General Instructions
I.A.1. and I.B.1. to Form F-3.
-------------------- BEGINNING OF PAGE #16 -------------------
1. Non-Short-Form Registered Offerings
As adopted, in eligible offerings not using short-form
registration, persons may comply with their prospectus delivery
obligations by delivering a preliminary prospectus, -[52]- a term
sheet, if necessary, -[53]- and a confirmation. -[54]- The term
sheet is required to include all information material to
investors with respect to the offering that is not disclosed in
the delivered preliminary prospectus or the confirmation. -[55]-
Neither the process of filing registration statements and
amendments thereto, nor the Commission's registration statement
review process, is intended to be altered in connection with the
adoption of Rule 434. -[56]- Rule 434 requires that the
preliminary prospectus and the term sheet, taken together, not
materially differ from the disclosure included in the effective
-[52]- "Preliminary prospectus" is used herein to refer to
either a preliminary prospectus used in reliance on
Rule 430, 17 CFR 230.430, or a prospectus omitting
information in reliance on Rule 430A(a), 17 CFR
230.430A(a).
-[53]- In order to reflect industry nomenclature, "term sheet"
is used in this release to refer to the document called
a "supplementing memorandum" in the Proposing Release.
In addition, "abbreviated term sheet" is now used in
place of "abbreviated supplementing memorandum."
Regardless of the nomenclature used, these documents
constitute supplements to prospectuses subject to
completion.
-[54]- The preliminary prospectus, the term sheet and the
confirmation may be delivered together or separately
under Rule 434, provided that the former two are sent
or given prior to or with the confirmation. See Rule
434(b)(1), 17 CFR 230.434(b)(1). See also Rule
434(c)(1), 17 CFR 230.434(c)(1) with respect to the
preliminary or base prospectus, the abbreviated term
sheet and the confirmation. Note that the prospectus
delivery obligations pursuant to Rule 15c2-8 under the
Exchange Act are independent of those discussed in this
section. A term sheet or abbreviated term sheet
generally may not be sent or given prior to the
preliminary or base prospectus given the limitations
set by Section 5(b)(1) of the Securities Act and the
definition of "prospectus" set forth in Section 2(10)
of the Securities Act. The Commission will raise no
objection where a preliminary or base prospectus being
delivered separately is sent or given in a manner
reasonably calculated to arrive prior to or at the same
time with the term sheet or abbreviated term sheet but
the term sheet or abbreviated term sheet nevertheless
precedes the preliminary or base prospectus.
-[55]- See Rule 434(b)(3), 17 CFR 230.434(b)(3).
-[56]- As under current practice, the staff will continue to
consider whether recirculation of a prospectus is
needed when there are material changes in disclosure
arising after the prospectus subject to completion has
been given to investors. See Rules 460 and 461(b), 17
CFR 230.460 and 230.461(b).
-------------------- BEGINNING OF PAGE #17 -------------------
registration statement. -[57]- The term sheet must be filed with
the Commission within two business days after the earlier of
pricing or first use. -[58]- Thus, term sheets generally will
not be reviewed prior to use. Except in the case of delayed
shelf offerings, the term sheet is deemed to be a part of the
registration statement as of the time such registration statement
was declared effective. -[59]- In the case of such delayed
offerings, the term sheet is deemed to be a part of the
registration statement as of the time the term sheet is filed
with the Commission. -[60]-
Several commenters on the Proposing Release suggested that
the Commission require that a second preliminary prospectus
(either an updated version or another copy of the version
previously circulated) be circulated to investors either with the
term sheet or shortly before the term sheet is delivered. -[61]-
Circulation of a second preliminary prospectus is not required by
Rule 434 as adopted, but nothing in the Rule precludes offering
participants from doing so.
As adopted, Rule 434 is not limited with respect to the
amount of time that could elapse between delivery of the
preliminary prospectus and the term sheet. Further, the Rule
does not contain any limitation on the magnitude of changes from
the disclosure set forth in the circulated preliminary prospectus
that the term sheet may contain. As noted above, however, the
Rule is not available for non-short-form registered offerings if
the disclosure in the preliminary prospectus and term sheet
materially differ from the disclosure contained in the prospectus
filed as a part of the effective registration statement.
2. Short-Form Registered Offerings
In Rule 434 eligible offerings using short-form
registration, persons may comply with their prospectus delivery
-[57]- See Rule 434(b)(2), 17 CFR 230.434(b)(2). The
disclosure in the preliminary prospectus and term sheet
would be measured against the disclosure set forth in
the registration statement as of its effective date,
including omitted Rule 430A price-related information
deemed a part thereof by virtue of Rule 430A(b), 17 CFR
230.430A(b).
-[58]- See Rule 424(b)(7), 17 CFR 230.424(b)(7). Each filed
copy of a term sheet or abbreviated terms sheet, like
other filings under Rule 424, must contain in the upper
right corner of its cover page a reference to the part
of Rule 424 under which the filing is made (i.e. Rule
424(b)(7)) and the file number of the registration
statement to which the prospectus relates. See Rule
424(e), 17 CFR 230.424(e).
-[59]- See Rule 434(d), 17 CFR 230.434(d).
-[60]- Id.
-[61]- See, e.g., letter from John Olson et al., American Bar
Association to Jonathan Katz, Securities and Exchange
Commission, dated April 14, 1995; letter from Edward
Adams, Fredrikson & Byron to Jonathan Katz, Securities
and Exchange Commission, dated March 31, 1995; and
letter from Steven Machov, Merrill Corporation to
Jonathan Katz, Securities and Exchange Commission,
dated April 3, 1995.
-------------------- BEGINNING OF PAGE #18 -------------------
obligations by delivering a preliminary or base
prospectus, -[62]- an abbreviated term sheet -[63]- and a
confirmation. An abbreviated term sheet must contain, unless
previously disclosed in the circulated preliminary or base
prospectus or in the registrant's Exchange Act filings
incorporated by reference into the prospectus: (i) the
description of securities required by Item 202 of Regulation S-
K, or a fair and accurate summary thereof; -[64]- and (ii)
information regarding material changes required by Item 11 of
Form S-3 or Form F-3. -[65]- Under new Rule 434, certain
offering-specific disclosure included in a traditional final
prospectus -[66]- will be required only in the prospectus
supplement filed with the Commission. -[67]- This information
could include, for example, use of proceeds and syndicate and
specific plan of distribution information.
Registrants will be required to indicate on the cover page
of their registration statement, by checking a box, that reliance
on Rule 434 for prospectus delivery is intended. Persons
checking the box, however, would not be required to rely on Rule
434 if they later determined to deliver prospectus information
otherwise in connection with the offering.
Any term sheet or abbreviated term sheet sent or given in
reliance upon Rule 434 must state on the top center of the front
cover page that it is a supplement to a prospectus and identify
that prospectus by issuer name and date. The term sheet or
-[62]- "Base prospectus" is used herein to refer to a
prospectus contained in a registration statement at the
time of effectiveness (or as subsequently revised) that
omits information that is not yet known concerning an
offering pursuant to Rule 415, 17 CFR 230.415.
-[63]- The abbreviated term sheet is filed with the Commission
in accordance with Rule 424(b)(7), 17 CFR
230.424(b)(7). See Rule 434(d), 17 CFR 230.434(d),
with respect to abbreviated term sheets being deemed a
part of the registration statement.
-[64]- 17 CFR 229.202.
-[65]- See Rule 434(c)(3), 17 CFR 230.434(c)(3).
-[66]- Offering-specific information required to be filed but
permitted not to be delivered physically under Rule 434
short-form registered offerings is set forth in Items
501-510 of Regulation S-K, 17 CFR 229.502-229.510. In
addition, a summarized version of the description of
securities set forth in Item 202 of Regulation S-K, 17
CFR 229.202, may be delivered physically rather than
the full description filed with the Commission.
-[67]- See Rule 434(c)(2), 17 CFR 230.434(c)(2). For example,
the final prospectus traditionally delivered to
investors in shelf offerings has included information
set forth in both the base prospectus and a prospectus
supplement. In shelf offerings relying on Rule 434,
information in the prospectus supplement will not be
delivered physically to investors, except to the extent
it is disclosed pursuant to the abbreviated term sheet.
The prospectus supplement in such offerings, however,
must be filed with the Commission by the time any
confirmation is sent or given to investors. See Rule
434(c)(2)(ii), 17 CFR 230.434(c)(2)(ii).
-------------------- BEGINNING OF PAGE #19 -------------------
abbreviated term sheet also, in that location, must clearly
identify that it is a term sheet or abbreviated term sheet used
in reliance on Rule 434, must clearly identify the documents
that, when taken together, constitute the Section 10(a)
prospectus, and must be dated as of the approximate date of its
first use. -[68]-
3. Scope of the Proposed Rule
a. Underwritten Offerings for Cash
Rule 434, as adopted, extends only to offerings where the
sole consideration given in exchange for securities is cash.
Offerings such as exchange offers and business combinations are
not included. As noted in the Proposing Release, in those
offerings, the final prospectus is traditionally used to begin
the process of soliciting votes or consents to a transaction.
Thus, the logistical difficulties of prospectus delivery are not
associated with those offerings.
The adopted Rule also does not extend to offerings that are
made other than on a firm commitment basis with underwriters,
except for offerings of investment grade debt made in connection
with a medium-term note ("MTN") program registered with the
Commission on either a continuous or delayed shelf basis. -[69]-
Concern has been expressed that exclusion of these MTN securities
from the Rule would unnecessarily push such transactions out of
the T+3 settlement cycle. -[70]- Further, while these MTN
securities typically are sold through an underwriter on an agency
rather than a firm commitment basis, assurance has been given
that, once an agreement has been reached between the investor and
the MTN program agent, the preparation and delivery of a
prospectus occurs in a manner identical to that in a principal
transaction. -[71]-
b. Offerings of Asset-Backed Securities
As adopted, Rule 434 excludes offerings of asset-backed
securities ("ABS"). -[72]- Settlement in connection with ABS
offerings currently takes place outside of the T+3 time frame, on
approximately a T+10 cycle, and is likely to continue to do so.
As noted in the Proposing Release, the existing settlement
schedule is the result primarily of factors unique to these
offerings, which are the same factors that result in such
offerings not lending themselves to use of incremental
disclosure. Those factors include: (i) the distinctive
-[68]- See Rule 434(e), 17 CFR 230.434(e).
-[69]- See Rule 434(a), 17 CFR 230.434(a). These MTN
offerings rely on Rule 415(a)(1)(ix) or (x),
respectively.
-[70]- See letter from Kevin Moynihan, Merrill Lynch to
Jonathan Katz, Securities and Exchange Commission,
dated April 7, 1995.
-[71]- Id.
-[72]- "Asset-backed security" is defined for purposes of Rule
434 the same way it is defined in General Instruction
I.B.5. of Form S-3: a security that is primarily
serviced by the cashflows of a discrete pool of
receivables or other financial assets, either fixed or
revolving, that by their terms convert into cash within
a finite time period plus any rights or other assets
designed to assure the servicing or timely distribution
of proceeds to the securityholders. See Rule 434(f),
17 CFR 230.434(f).
-------------------- BEGINNING OF PAGE #20 -------------------
structuring process for most ABS offerings, which typically
extends almost to the time when the security is priced, whereby a
variety of structures may be considered as the sponsor attempts
to meet investors' needs; (ii) the time needed for identification
of the specific pool of collateral which will support the ABS;
and (iii) the necessity of creating shortly before sale of the
ABS a prospectus supplement of significant length and complexity
that details the characteristics of specific pool assets and the
transaction's structure, the summarization of which would not
serve as an adequate substitute for the complete description in
the prospectus supplement.
c. Offerings of Structured Securities
As adopted, Rule 434 also excludes offerings of structured
securities. -[73]- "Structured securities," for purposes of Rule
434, are defined to mean securities whose cash flow
characteristics depend upon one or more indices or that have
imbedded forwards or options or securities where an investor's
investment return and the issuer's payment obligations are
contingent on, or highly sensitive to, changes in the value of
underlying assets, indices, interest rates or cash flows. -[74]-
This definition was proposed to be included in Rule 15c6-1 but is
set forth in Rule 434 instead since Rule 15c6-1 as adopted makes
no reference to such securities. As noted in the Proposing
Release, these securities usually have terms that are highly
complex, with many employing one or more indices as a basis for
determining the issuer's payment obligations (e.g., coupon,
principal, redemption payments). A structured security's value
is derived not only from the creditworthiness of its issuer, but
also from any underlying assets, indices, interest rates or cash
flow upon which the security is predicated. Because of the
complexities associated with these securities, investors may not
fully understand the investment risks when purchasing structured
securities, especially those with complicated structures. A
complete description of offering-specific information therefore
is of particular importance to investors in making an investment
decision, given the market risks resulting from the structure of
these securities. Otherwise, as noted in the Proposing Release,
the incremental distribution of information under the Rule, when
combined with the complex nature of these securities, could
result in material disclosure not being readily accessible to
investors. d. Investment Companies
As proposed, Rule 434 would have provided that it would not
apply to the offering of any security of any company registered
under the Investment Company Act. The Commission requested
comment on whether the prospectus delivery modifications in the
SIA proposal also should apply to closed-end investment companies
and UITs. Commenters endorsed the proposed prospectus delivery
method for closed-end investment companies and UITs, and the
Commission is adopting revisions that apply new Rule 434 to these
investment companies. -[75]-
4. Conforming Amendments to Rule 15c2-8
-[73]- See Rule 434(a), 17 CFR 230.434(a).
-[74]- See Rule 434(h), 17 CFR 230.434(h).
-[75]- See revisions to Rule 497, 17 CFR 230.497, which sets
forth fund prospectus filing requirements with the
Commission, that require, parallel to the changes to
the general prospectus filing requirements in Rule 424,
17 CFR 230.424(b), the filing of prospectuses allowed
under Rule 434 on or prior to the date a confirmation
is sent or given to an investor.
-------------------- BEGINNING OF PAGE #21 -------------------
a. Rule 15c2-8 Amendments
The Commission is adopting the amendments to Rule 15c2-8
-[76]- as proposed. The amendments expand the use of the terms
"preliminary prospectus" and "final prospectus," as currently
used in the Rule, to include the terms "prospectus subject to
completion" and "Section 10(a) prospectus," respectively, to
reflect the terminology of Rule 434. Additionally, the term
"sending" is substituted for the term "mailing" to accommodate
prospectus delivery by means other than traditional mailing.
Six commenters addressed Rule 15c2-8. None of these
commenters objected to the proposed changes, although several of
them raised other issues regarding Rule 15c2-8, which are
discussed below. The Commission may propose further amendments
to Rule 15c2-8 based on its experience with Rule 434, or more
generally, to reflect market developments and staff
interpretations that have occurred since the Rule was last
amended. -[77]-
-[76]- 17 CFR 240.15c2-8.
-[77]- Rule 15c2-8(d) was last amended in Exchange Act Release
No. 25546 (Apr. 4, 1988) [53 FR 11841].
-------------------- BEGINNING OF PAGE #22 -------------------
b. Rule 15c2-8 Issues Raised by Commenters
In the case of an offering of securities of an issuer that
previously has not been required to file reports under Section
13(a) and 15(d) of the Exchange Act, Rule 15c2-8(b) -[78]-
requires that a preliminary prospectus be delivered to any person
who is expected to receive a confirmation of sale at least 48
hours prior to sending such confirmation. -[79]- Two commenters
noted that because preliminary prospectuses generally are not
used in offerings of asset-backed securities, some broker-dealers
have adopted the practice of delivering the final prospectus to
purchasers at least 48 hours prior to mailing the confirmation of
an asset-backed security. These commenters urged the Commission
either to modify Rule 15c2-8 to acknowledge this industry
practice or to except asset-backed securities from Rule 15c2-
8(b). In the Commission's view, delivery of the final prospectus
at least 48 hours prior to sending the confirmation will satisfy
the requirement of Rule 15c2-8(b) in the case of offerings of
asset-backed securities where no preliminary prospectus is used.
-[80]-
With respect to the obligations of a managing underwriter to
provide copies of the prospectus to participating broker-dealers,
two commenters sought interpretive guidance with respect to the
terms "sufficient copies" and "reasonable quantities," as used in
Rule 15c2-8(g) and (h), -[81]- respectively, in light of the
recently issued Brown & Wood letter, -[82]- which permits
electronic delivery of prospectuses in certain
circumstances. -[83]- The Brown & Wood letter was not intended
-[78]- 17 CFR 240.15c2-8(b).
-[79]- This requirement is satisfied by delivering a
preliminary prospectus that is current at the time of
its delivery.
-[80]- This interpretation of paragraph (b) is consistent with
the longstanding staff position that delivery of a
final prospectus at least 48 hours prior to sending the
confirmation is required in cases where no preliminary
prospectus is circulated and the offering is sold
solely on the basis of a final prospectus.
-[81]- 17 CFR 240.15c2-8(g) and (h). Paragraph (g) requires a
managing underwriter to take reasonable steps to ensure
that all broker-dealers participating in an offering
are promptly furnished with "sufficient copies, as
requested by them" of each preliminary, amended, or
final prospectus to enable such participating brokers-
dealers to comply with their obligations under Rule
15c2-8(b), (c), (d), and (e). Similarly, paragraph (h)
requires a managing underwriter to take reasonable
steps to ensure that any broker-dealer participating in
an offering or trading in the registered security is
furnished "reasonable quantities of the final
prospectus . . . as requested by him" in order to
enable the broker-dealer to comply with Sections
5(b)(1) and (2) of the Securities Act.
-[82]- See supra footnote 6.
-[83]- These commenters inquired whether Rule 15c2-8(g) and
(h) would permit a managing underwriter to deliver the
pre-printed portion of the prospectus by traditional
(continued...)
-------------------- BEGINNING OF PAGE #23 -------------------
to modify any obligation that a managing underwriter currently
has pursuant to paragraphs (g) or (h) of Rule 15c2-8 to produce,
reproduce, or deliver, in such quantities as requested, a
preliminary, amended, or final prospectus to broker-dealers
participating in the offering. Accordingly, a managing
underwriter may discharge its obligations pursuant to Rule 15c2-
8 (g) or (h) by delivering a prospectus (or any portion thereof)
electronically to a participating broker-dealer, if the recipient
broker-dealer expressly consents to delivery in such form.
One commenter suggested revising Rule 15c2-8(b) to require
delivery of the preliminary prospectus at least 48 hours, but not
more than 60 days, prior to sending the confirmation. Another
commenter suggested that the Commission require the managing
underwriter to deliver the final prospectus to offering
participants by the close of business on T+2, so that such
participants may send the prospectus to investors no later than
T+3. Consistent with the adoption of both the SIA proposal and
the Four Firms proposal, the Commission believes that offering
participants should have as much flexibility as possible to
determine how to comply with their prospectus delivery
obligations within T+3, without the burden of additional
restrictions, and therefore has determined not to amend the Rule
as suggested at this time. As noted, however, the Commission may
propose additional amendments to Rule 15c2-8 based on its
experience with Rule 434.
III. REVISION OF THE RULE 15c6-1 EXEMPTION
In the Proposing Release, the Commission proposed to
establish T+3 as the presumptive settlement date for firm
commitment offerings by eliminating the exemption from T+3
settlement for sales for cash in connection with firm commitment
offerings. -[84]- However, the Commission proposed to allow
managing underwriters flexibility to choose T+3, T+4, or T+5
settlement under specific conditions, including written notice to
prospective purchasers and the exchanges prior to pricing. -[85]-
The Commission also proposed exemptions from T+3 settlement for
firm commitment offerings of asset-backed and structured
securities. These amendments were proposed to reduce the
confusion caused by different settlement cycles for new issue and
secondary market trades, while also providing flexibility to
settle certain firm commitment offerings beyond T+3 when the
standard settlement cycle cannot be met.
-[83]-(...continued)
methods, followed by the remainder (or "wrap" portion),
containing only the pricing and other "last minute"
disclosure, by electronic transmission. These
commenters advised that the recipient broker-dealers
would be expected to duplicate the remainder (or "wrap"
portion) and assemble the two parts for delivery to
investors.
-[84]- See 17 CFR 240.15c6-1(b)(2).
-[85]- Rule 15c6-1(a) contains a general override provision
that permits the parties to a contract to specify an
alternate settlement cycle if the agreement is made at
the time of the trade. Complying with this provision
in the context of a firm commitment offering may be
difficult because of the need to obtain the express
agreement of all parties participating in the offering.
-------------------- BEGINNING OF PAGE #24 -------------------
Most commenters supported elimination of the general
exclusion for firm commitment offerings. As one commenter noted,
establishing a T+3 settlement standard for these transactions
will reduce risk, provide certainty in the form of a written
standard, and avoid bifurcation of the settlement cycle. -[86]-
Several commenters cited specific categories of securities
requiring settlement cycles longer than T+3. -[87]- Most
commenters, however, preferred to resolve difficulties in
settling offerings through a general override provision rather
than specific exemptions of classes of securities.
The majority of commenters that addressed the merits of the
proposed override provision expressed support for a specific
override provision for firm commitment offerings but objected to
the terms of Rule 15c6-1(e) as proposed. Several commenters
asserted that the T+5 maximum settlement period did not provide
adequate flexibility for settlement of certain firm commitment
offerings. Furthermore, many of the commenters argued that the
requirement of written notice to all prospective purchasers on or
before pricing was burdensome and should be eliminated. -[88]-
Commenters disagreed over the manner in which an alternate
settlement date should be established, though most commenters
concurred that such authority should not be granted solely to the
managing underwriter.
To address the various issues raised by the commenters in
connection with the proposed modifications of the exemption for
firm commitment offerings, the Commission is amending Rule 15c6-
1 to eliminate the exemption for firm commitment offerings and to
include a specific override provision -[89]- which will permit
the establishment of an alternate settlement date for the sale of
all securities subject to a firm commitment offering upon
agreement by the managing underwriter and the issuer of the
securities. This override provision does not contain the notice
requirements in the proposed override provision and does not
limit the settlement period to a maximum of T+5. The Commission
has decided not to adopt a provision exempting offerings of
particular classes of securities. Instead, the Commission
-[86]- See letter from Brent Taylor, J.P. Morgan Securities,
Inc. to Jonathan Katz, Securities and Exchange
Commission, dated March 30, 1995.
-[87]- In addition to asset-backed securities and structured
securities, commenters raised settlement concerns in
connection with medium term note programs registered
under short-form shelf registration, capital market
debt transactions, securities exempt from registration
under Section 3(a)(4) or 3(a)(11) of the Securities
Act, and certain transactions involving swaps.
-[88]- Specifically, several commenters asserted that the
settlement period may not be known sufficiently in
advance of pricing to provide written notice and that
such notice is duplicative of the information provided
orally and in the confirmation.
-[89]- See Rule 15c6-1(d), 17 CFR 15c6-1(d). This specific
override provision would not extend to offerings of
investment grade debt made in connection with a
medium-term note program sold through an underwriter on
an agency basis. Such transactions may, however, be
accomplished in accordance with the general override
provision set forth in Rule 15c6-1(a), 17 CFR
240.15c6-1(a).
-------------------- BEGINNING OF PAGE #25 -------------------
believes that an alternate settlement cycle can be established
for these offerings through the override provision for firm
commitment offerings.
In adopting the proposed amendments to Rule 15c6-1, the
Commission seeks to provide flexibility for settlement beyond T+3
for certain firm commitment offerings that require such treatment
in light of the special characteristics of the subject
securities. The Commission is mindful of the concern that lack
of certainty in settlement standards may create confusion in the
marketplace. Accordingly, the Commission stresses that the
override provision is not intended to dilute the presumption in
favor of application of the T+3 settlement cycle in connection
with firm commitment offerings. Instead, the override provision
is intended to be used only in those circumstances when T+3
settlement is not feasible.
Furthermore, the Commission recognizes that it is important
that the registered clearing agencies, through which settlement
of firm commitment offerings and secondary market trades will
occur, receive notice of non-standard settlement dates. The
Commission encourages issuers and underwriters to notify promptly
the registered clearing agencies of the settlement period of an
offering. It may be appropriate for the clearing agencies as
self-regulatory organizations under the Exchange Act to modify
their rules to require such notice at such times and in such
manners as the clearing agencies need to make provision for non-
standard settlement cycles. The Commission will monitor the use
of the override provision on an ongoing basis.
-------------------- BEGINNING OF PAGE #26 -------------------
IV. EDGAR USAGE
After the effective date of these proposals and until the
necessary form types are available through the EDGAR system,
registrants that are mandated electronic filers should file in
paper format those documents relating to the proposals being
adopted other than the abbreviated registration form filed
pursuant to Rule 462(b). -[90]- All other documents unrelated to
the proposals being adopted must continue to be filed
electronically by mandated electronic filers. The necessary form
types are expected to be available with the release of a new
version of the EDGARLink software in Autumn 1995. Notice will be
provided in the SEC Digest, the Federal Register and on the EDGAR
Bulletin Board when the new EDGAR form types are available.
V. COST-BENEFIT ANALYSIS
Five commenters responded to the Commission's request for
comments regarding the costs and benefits of the proposed rules.
Four of the five commenters expected the cost of printing and
shipping of prospectuses to decline as a result of the proposed
rules. -[91]- The other commenter stated that the increased
administrative burdens and costs that may be imposed on dealers
as a result of multiple or duplicate mailings of various
documents could negate the intended benefit of the SIA
approach. -[92]- One commenter, a financial printer, provided
empirical data on the proposals. The printer concluded that, in
three basic scenarios regarding the printing and delivery of a
Form S-1, a reduction in costs ranging from 8% to 88% would be
obtainable as a result of the new delivery alternatives available
under the proposed rules. -[93]- The Commission believes the new
rule and amendments provide market participants with additional
flexibility that should result in lower transaction costs, while
not diminishing investor protection.
VI. SUMMARY OF FINAL REGULATORY FLEXIBILITY ANALYSIS
The Commission has prepared a Final Regulatory Flexibility
Analysis ("FRFA"), pursuant to the requirements of the Regulatory
Flexibility Act, -[94]- regarding the rule and amendments to
-[90]- Only those documents that are filed pursuant to Rule
424(b)(7), Rule 462(c) and Rule 497(h)(2) may be filed
in paper format. See supra footnotes 29 and 30 and
accompanying text.
-[91]- See letter from Karl Barnickol, American Society of
Corporate Secretaries to Jonathan Katz, Securities and
Exchange Commission, dated April 10, 1995; Joel
Brenner, Storch & Brenner (on behalf of R.R. Donnelley
Financial), to Jonathan G. Katz, Secretary, Securities
and Exchange Commission, dated March 31, 1995; W. Scott
Jardine, Nik‚ Securities L.P., to Jonathan Katz,
Securities and Exchange Commission, dated March 31,
1995; Larry W. Martin, John Nuveen & Co. Incorporated,
to Jonathan Katz, Securities and Exchange Commission,
dated March 30, 1995.
-[92]- See Letter from George Miller, Public Securities
Association to Jonathan Katz, Securities and Exchange
Commission, dated April 10, 1995.
-[93]- See letter from Joel Brenner, Storch & Brenner (on
behalf of R.R. Donnelley Financial), to Jonathan G.
Katz, Secretary, Securities and Exchange Commission,
dated March 31, 1995.
-[94]- 5 U.S.C. 604 (1988).
-------------------- BEGINNING OF PAGE #27 -------------------
existing regulations being adopted. The FRFA notes that the new
rule and amendments will provide entities with greater
flexibility and efficiency with respect to the timing of printing
and delivery of prospectus information, thereby facilitating
compliance with Rule 15c6-1 under the Exchange Act and access to
the public securities markets. As discussed more fully in the
analysis, the new rule and amendments to Securities Act
regulations should decrease costs associated with fulfilling
entities' prospectus delivery obligations under the Securities
Act. The amendments to Exchange Act rules and forms are not
anticipated to have any significant economic impact on entities.
The new rule may impose minimal additional reporting,
recordkeeping or compliance requirements, while the amendments do
not impose any new reporting, recordkeeping or compliance
requirements on any entities. No alternatives to the new rule
and amendments consistent with their objectives and the
Commission's statutory mandate were found.
The overall effect of the new rule and amendments is to
provide entities increased efficiency in raising capital from the
public securities markets. The aspects that provide for the
incremental delivery of prospectus information will apply to any
entity engaged in a public distribution with respect to an
eligible offering. The amendments to Securities Act regulations
should streamline the registration process and thereby facilitate
compliance with prospectus delivery within T+3. The new rule and
amendments to Securities Act regulations also will apply to
certain investment companies registered under the Investment
Company Act, i.e. closed-end investment companies and unit
investment trusts. The amendments to regulations under Section
15(c) of the Exchange Act will reflect the availability of
expedited delivery of prospectus information provided by the new
rule and amendments to the Securities Act regulations.
A copy of the FRFA may be obtained from Michael Mitchell,
Division of Corporation Finance, Securities and Exchange
Commission, 450 Fifth Street, N.W., Mail Stop 3-3, Washington,
D.C. 20549, (202) 942-2900.
-------------------- BEGINNING OF PAGE #28 -------------------
VII. EFFECTIVE DATE
The new rule and the revisions to rules and forms are
effective June 7, 1995, in accordance with the Administrative
Procedures Act, which allows for effectiveness in less than 30
days after publication, inter alia, for "a substantive rule which
grants or recognizes an exemption or relieves a restriction" and
"as provided by the agency for good cause found and published
with the rule." 5 U.S.C. 553(d)(1) and (d)(3). The adopted rule
and revisions primarily lessen restrictions of existing rules in
that they either provide a more efficient way for offering
participants to accomplish prospectus delivery or they streamline
the registration and prospectus preparation and printing
processes. In addition, the Commission finds there is good cause
for the adopted rule and revisions to become effective on June 7,
1995 since they are designed to allow market participants to
accomplish prospectus delivery in eligible offerings in a T+3
settlement cycle. Since the T+3 settlement cycle will become
effective on June 7, 1995, the adoption of the rule and revisions
on that date will ensure that potential market disruption
relating to prospectus delivery prior to settlement of such
offerings would be avoided. The exemption from Rule 15c6-1 for
certain firm commitment offerings also is being eliminated in
this time frame because of its potential for market disruption if
allowed to go into effect. Any possible negative effect of
eliminating that exemption is offset by the adoption of an
expanded provision allowing such offerings to settle outside of
the Rule 15c6-1 mandated time frame if the participants in the
offering so elect.
-------------------- BEGINNING OF PAGE #29 -------------------
VIII. STATUTORY BASES
The new rule and the amendments to the Commission's rules
and forms under the Securities Act and amendments to the
Commission's rules under the Exchange Act are being adopted
pursuant to sections 6, 7, 8, 10 and 19(a) of the Securities Act
and sections 3, 4, 10, 12, 13, 14, 15, 16 and 23 of the Exchange
Act. The revisions to the Commission's rules and forms under the
Investment Company Act are being adopted pursuant to sections
8(b) and 38(a) under the Investment Company Act, as amended.
List of Subjects
17 CFR Parts 202, 228, 229, 230, 232, 239, 240, 270 and 274
Administrative practice and procedure, Brokers, Investment
companies, Reporting and recordkeeping requirements, Securities,
Small businesses.
TEXT OF AMENDMENTS
In accordance with the foregoing, Title 17, chapter II of
the Code of Federal Regulations is amended as follows:
1. The authority citation for Part 202 continues to read
in part as follows:
Authority: 15 U.S.C 77s, 77t, 78d-1, 78u, 78w, 78ll(d), 79r,
79t, 77sss, 77uuu, 80a-37, 80a-41, 80b-9, and 80b-11, unless
otherwise noted.
* * * * *
2. By revising the seventh sentence of 202.3a to read
as
follows:
-------------------- BEGINNING OF PAGE #30 -------------------
202.3a Instructions for filing fees.
* * * Filing fees paid pursuant to Section 6(b) of the
Securities Act of 1933 or pursuant to Section 307(b) of the Trust
Indenture Act of 1939 should be designated as "restricted,"
except that filing fees paid with respect to registration
statements filed pursuant to Rule 462(b) ( 230.462(b) of this
chapter) should be designated as "unrestricted." * * *
PART 228 - INTEGRATED DISCLOSURE SYSTEM FOR SMALL BUSINESS
ISSUERS
3. The authority citation for Part 228 continues to read
as follows:
Authority: 15 U.S.C. 77e, 77f, 77g, 77h, 77j, 77k, 77s,
77aa(25), 77aa(26), 77ddd, 77eee, 77ggg, 77hhh, 77jjj, 77nnn,
77sss, 78l, 78m, 78n, 78o, 78w, 78ll, 80a-8, 80a-29, 80a-30, 80a-
37, 80b-11, unless otherwise noted.
4. By revising paragraph (a)(4) of 228.501 to read as
follows:
228.501 (Item 501) Front of Registration Statement and
Outside
Front Cover of Prospectus.
* * * * *
(a) * * *
(4) Cross reference to, and identify the location within
the prospectus of (e.g., by page number or other specific
location), the risk factors section of the prospectus, printed in
bold-face roman type at least as high as twelve-point modern type
and at least two points leaded;
* * * * *
5. By amending 228.502 by revising the introductory
text, removing the heading from paragraph (a)(1) and replacing
the "." at the end of paragraph (a)(1) with a ";", adding a
heading and introductory text to paragraph (a), adding a sentence
at the end of paragraph (b), adding a sentence at the end of
paragraph (c), revising paragraph (f) and revising the
Introduction following paragraph (f) to read as follows:
228.502 (Item 502) Inside Front and Outside Back Cover Pages
of Prospectus.
On the inside front cover page of the prospectus, except as
otherwise specified and except that the outside back cover page
may be used for paragraphs (e) and (f), disclose the following:
(a) Available information. On the inside front cover page
of the prospectus or under an appropriate caption elsewhere in
the prospectus:
* * * * *
(b) * * * Such disclosure need not be included on the
inside front cover page of the prospectus if it is included under
an appropriate caption elsewhere in the prospectus.
(c) * * * Such disclosure need not be included on the
inside front cover page of the prospectus if it is included under
an appropriate caption elsewhere in the prospectus.
* * * * *
(f) Table of contents. Include a detailed table of
contents showing the various sections or subdivisions of the
prospectus, including any risk factors section set forth in the
prospectus pursuant to Item 503(c) ( 228.503(c)), and the page
number on which each such section or subdivision begins.
-------------------- BEGINNING OF PAGE #31 -------------------
Instruction to Item 502
Canadian issuers should, in addition to the disclosure
required by this Item, provide the information required by Item
502(f) of Regulation S-K. Such disclosure need not be included
on the inside front cover page of the prospectus if it is
included under an appropriate caption elsewhere in the
prospectus.
6. By revising paragraph (b) and paragraph (c) of
228.503
to read as follows:
228.503 (Item 503) Summary Information and Risk Factors.
* * * * *
(b) Address and telephone number. Include in the
prospectus the complete mailing address and telephone number of
the small business issuer's principal executive offices.
(c) Risk factors.
(1) Discuss under the caption "Risk Factors" any factors
that make the offering speculative or risky. These factors may
include no operating history, no recent profit from operations,
poor financial position, the kind of business in which the small
business issuer is engaged or proposes to engage, or no market
for the small business issuer's securities.
(2) The risk factor discussion should immediately follow the
summary section. If no summary section is necessary, the risk
factor discussion should immediately follow the cover page of the
prospectus or, if included, a pricing information section that
immediately follows the cover page.
Instruction to Item 503(c). "Pricing information" as used
in paragraph (c) of this section shall mean price and
price-related information of the type that may be omitted from
the prospectus in an effective registration statement in reliance
on Rule 430A(a) ( 230.430A(a) of this chapter) and information
disclosed in a prospectus but subject to change as a result of
pricing.
7. By adding one sentence to the end of paragraph
(a)(1)(ii) of 228.512 to read as follows:
228.512 (Item 512) Undertakings.
* * * * *
(a) * * *
(1) * * *
(ii) * * * Notwithstanding the foregoing, any increase or
decrease in volume of securities offered (if the total dollar
value of securities offered would not exceed that which was
registered) and any deviation from the low or high end of the
estimated maximum offering range may be reflected in the form of
prospectus filed with the Commission pursuant to Rule 424(b) (
230.424(b) of this chapter) if, in the aggregate, the changes in
volume and price represent no more than a 20% change in the
maximum aggregate offering price set forth in the "Calculation of
Registration Fee" table in the effective registration statement.
* * * * *
8. By amending 228.601 to revise the third sentence of
paragraph (b)(24) to read as follows:
228.601 (Item 601) Exhibits.
* * * * *
(b) * * *
(24) Power of attorney. * * * A power of attorney that is
filed with the Commission must relate to a specific filing or an
amendment, provided, however, that a power of attorney relating
to a registration statement under the Securities Act or an
amendment thereto also may relate to any registration statement
for the same offering that is to be effective upon filing
pursuant to Rule 462(b) under the Securities Act ( 230.462(b)
of
this chapter). * * *
* * * * *
-------------------- BEGINNING OF PAGE #32 -------------------
PART 229 - STANDARD INSTRUCTIONS FOR FILING FORMS UNDER
SECURITIES ACT OF 1933, SECURITIES EXCHANGE ACT OF 1934 AND
ENERGY POLICY AND CONSERVATION ACT OF 1975 - REGULATION S-K
9. The authority citation for Part 229 continues to read
in part as follows:
Authority: 15 U.S.C. 77e, 77f, 77g, 77h, 77j, 77k, 77s,
77aa(25), 77aa(26), 77ddd, 77eee, 77ggg, 77hhh, 77iii, 77jjj,
77nnn, 77sss, 78c, 78i, 78j, 78l, 78m, 78n, 78o, 78w, 78ll(d),
79e, 79n, 79t, 80a-8, 80a-29, 80a-30, 80a-37, 80b-11, unless
otherwise noted.
* * * * *
10. The authority citation following 229.503 is removed.
11. By revising paragraph (c)(4) of 229.501 to read as
follows:
229.501 (Item 501) Forepart of registration statement and
outside front cover page of prospectus.
* * * * *
(c) * * *
(4) Cross reference to and identify the location within the
prospectus of (e.g., by page number or other specific location),
where applicable, the discussion in the prospectus prescribed by
Item 503 of Regulation S-K ( 229.503) of material risks in
connection with the purchase of the securities, printed in bold-
face roman type at least as high as twelve-point modern type and
at least two points leaded;
* * * * *
12. By amending 229.502 by revising the introductory
text, revising the introductory text of paragraph (a), adding a
sentence at the end of paragraph (b), adding a sentence at the
end of paragraph (c), revising the last sentence of the
introductory text of paragraph (f), and revising paragraph (g) to
read as follows:
229.502 (Item 502) Inside front and outside back cover pages
of prospectus.
The following information, to the extent applicable, shall
appear on the inside front cover page of the prospectus, except
as otherwise specified and except that the information required
by paragraphs (e) and (g) of this Item may be set forth on the
outside back cover page.
(a) Available information. Registrants subject to the
reporting requirements of section 13(a) or 15(d) of the Exchange
Act immediately prior to the filing of the registration statement
shall, on the inside front cover page of the prospectus or under
an appropriate caption elsewhere in the prospectus:
* * * * *
(b) * * * Such disclosure need not be included on the
inside front cover page of the prospectus if it is included under
an appropriate caption elsewhere in the prospectus.
(c) * * * Such disclosure need not be included on the
inside front cover page of the prospectus if it is included under
an appropriate caption elsewhere in the prospectus.
* * * * *
(f) * * * Such disclosure need not be included on the
inside front cover page of the prospectus if it is included under
an appropriate caption elsewhere in the prospectus.
* * * * *
(g) Table of contents. Include a reasonably detailed table
of contents showing the subject matter of the various sections or
subdivisions of the prospectus, including any risk factors
section set forth in the prospectus pursuant to Item 503(c) (
229.503(c)), and the page number on which each such section or
subdivision begins.
13. By revising paragraph (b) and paragraph (c) of
229.503 to read as follows:
-------------------- BEGINNING OF PAGE #33 -------------------
229.503 (Item 503) Summary information, risk factors and
ratio
of earnings to fixed charges.
* * * * *
(b) Address and telephone number. Registrants shall
include in the prospectus the complete mailing address, including
zip code, and the telephone number, including area code, of their
principal executive offices.
(c) Risk factors.
(1) Registrants, where appropriate, shall set forth under
the caption "Risk Factors" a discussion of the principal factors
that make the offering speculative or one of high risk; these
factors may be due, among other things, to such matters as an
absence of an operating history of the registrant, an absence of
profitable operations in recent periods, the financial position
of the registrant, the nature of the business in which the
registrant is engaged or proposes to engage, or, if common equity
or securities convertible into or exercisable for common equity
are being offered, the absence of a previous market for the
registrant's common equity.
(2) The risk factor discussion should immediately follow the
summary section. If no summary section is necessary, the risk
factor discussion should immediately follow the cover page of the
prospectus or, if included, a pricing information section that
immediately follows the cover page.
Instruction to Item 503(c). "Pricing information" as used
in paragraph (c) of this section shall mean price and
price-related information of the type that may be omitted from
the prospectus in an effective registration statement in reliance
on Rule 430A(a) ( 230.430A(a) of this chapter) and information
disclosed in a prospectus but subject to change as a result of
pricing.
* * * * *
14. By revising paragraph (a)(1)(ii) of 229.512 to read
as follows:
229.512 (Item 512) Undertakings.
* * * * *
(a) * * *
(1) * * *
(ii) To reflect in the prospectus any facts or events
arising after the effective date of the registration statement
(or the most recent post-effective amendment thereof) which,
individually or in the aggregate, represent a fundamental change
in the information set forth in the registration statement.
Notwithstanding the foregoing, any increase or decrease in volume
of securities offered (if the total dollar value of securities
offered would not exceed that which was registered) and any
deviation from the low or high end of the estimated maximum
offering range may be reflected in the form of prospectus filed
with the Commission pursuant to Rule 424(b) ( 230.424(b) of
this
chapter) if, in the aggregate, the changes in volume and price
represent no more than a 20% change in the maximum aggregate
offering price set forth in the "Calculation of Registration Fee"
table in the effective registration statement.
* * * * *
15. By amending 229.601 to revise the fourth sentence of
paragraph (b)(24) to read as follows:
229.601 (Item 601) Exhibits.
* * * * *
(b) * * *
(24) Power of attorney. * * * A power of attorney that is
filed with the Commission shall relate to a specific filing or an
amendment thereto, provided, however, that a power of attorney
relating to a registration statement under the Securities Act or
an amendment thereto also may relate to any registration
-------------------- BEGINNING OF PAGE #34 -------------------
statement for the same offering that is to be effective upon
filing pursuant to Rule 462(b) under the Securities Act
( 230.462(b) of this chapter). * * *
* * * * *
16. Guide 4 (referenced in 229.801(d)) is amended by
removing the first sentence of the Guide.
Note: The text of Guide 4 does not and the amendments
will not appear in the Code of Federal
Regulations.
-------------------- BEGINNING OF PAGE #35 -------------------
PART 230 - GENERAL RULES AND REGULATIONS, SECURITIES ACT OF
1933
17. The authority citation for Part 230 is revised to read
in part as follows:
AUTHORITY: 15 U.S.C. 77b, 77f, 77g, 77h, 77j, 77s, 77sss,
78c, 78d, 78l, 78m, 78n, 78o, 78w, 78ll(d), 79t, 80a-8, 80a-29,
80a-30, and 80a-37, unless otherwise noted.
* * * * *
18. The authority citations following 230.429, 230.439
and 230.461 are removed.
19. By amending paragraph (a) of 230.110 by revising the
phrase "paragraphs (b) and (c)" to read "paragraphs (b), (c) and
(d)" and adding paragraph (d) to read as follows:
230.110 Business hours of the Commission.
* * * * *
(d) Filings by facsimile. Registration statements and
post-effective amendments thereto filed by facsimile transmission
pursuant to Rule 462(b) ( 230.462(b)) and Rule 455 ( 230.455)
may be filed with the Commission each day, except Saturdays,
Sundays and federal holidays, from 5:30 p.m. to 10:00 p.m.,
Eastern Standard Time or Eastern Daylight Savings Time, whichever
is currently in effect.
20. By amending 230.111 by designating the existing text
as paragraph (a) and adding paragraph (b) to read as follows:
-------------------- BEGINNING OF PAGE #36 -------------------
230.111 Payment of fees.
* * * * *
(b) Notwithstanding paragraph (a) of this section, for
registration statements filed pursuant to Rule 462(b)
( 230.462(b)) and Rule 110(d) ( 230.110(d)), payment of
filing
fees for the purposes of this section may be made by:
(1) The registrant or its agent instructing its bank or a
wire transfer service to transmit to the Commission the
applicable filing fee by a wire transfer of such amount from the
issuer's account or its agent's account to the Commission's
account at Mellon Bank as soon as practicable but no later than
the close of the next business day following the filing of the
registration statement; and
(2) The registrant submitting with the registration
statement at the time of filing a certification that:
(i) The registrant or its agent has so instructed its bank
or a wire transfer service;
(ii) The registrant or its agent will not revoke such
instructions; and
(iii) The registrant or its agent has sufficient funds in
such account to cover the amount of such filing fee.
Note to paragraph (b): Such instructions may be sent on the
date of filing the registration statement after the close of
business of such bank or wire transfer service, provided that the
registrant undertakes in the certification sent to the Commission
with the registration statement that it will confirm receipt of
such instructions by the bank or wire transfer service during
regular business hours on the following business day.
21. By amending 230.402 to add paragraphs (d) and (e) to
read as follows:
230.402 Number of copies; binding; signatures.
* * * * *
(d) Notwithstanding any other provision of this section, if
a registration statement is filed pursuant to Rule 462(b)
( 230.462(b)) and Rule 110(d) ( 230.110(d)), one copy of the
complete registration statement, including exhibits and all other
papers and documents filed as a part thereof shall be filed with
the Commission. Such copy should not be bound and may contain
facsimile versions of manual signatures in accordance with
paragraph (e) of this section.
(e) Duplicated or facsimile versions of manual signatures
of persons required to sign any document filed or submitted to
the Commission under the Act, shall be considered manual
signatures for purposes of the Act and rules and regulations
thereunder, provided that, the original manually signed document
is retained by the filer for a period of five years and upon
request the filer furnishes to the Commission or the staff the
original manually signed document.
22. By amending 230.424 by adding paragraph (b)(7) before
the Instruction, by revising the heading "Instruction:" to read
"Instruction 1:", and adding Instruction 2 to read as follows:
230.424 Filing of prospectuses; number of copies.
* * * * *
(b)(7) Ten copies of a term sheet or abbreviated term sheet
sent or given in reliance upon Rule 434 under the Act (
230.434)
shall be filed with the Commission pursuant to this paragraph no
later than the second business day following the earlier of the
date of determination of the offering price, or the date it is
first used after effectiveness in connection with a public
offering or sales, or transmitted by a means reasonably
calculated to result in filing with the Commission by that date.
In addition to the information required by paragraph (e) of this
section, each copy of such term sheet or abbreviated term sheet
-------------------- BEGINNING OF PAGE #37 -------------------
shall include the information required by Rule 434(e)
(230.434(e)).
Instruction 1: * * *
Instruction 2: Notwithstanding paragraphs (b)(1), (b)(2), (b)(4)
and (b)(5) of this section, a form of prospectus sent or given in
reliance on Rule 434(c) ( 230.434(c)) with respect to
securities
registered on Form S-3 or Form F-3 ( 239.13 or 239.33 of
this
chapter), other than an abbreviated term sheet filed pursuant to
paragraph (b)(7) of this section, shall be filed with the
Commission on or prior to the date on which a confirmation is
sent or given.
* * * * *
23. By adding a sentence at the end of paragraph (b) to
230.429 to read as follows:
230.429 Prospectus relating to several registration
statements
* * * * *
(b) * * * Where a combined prospectus is being used
pursuant to paragraph (a) of this section, a note should be added
to the "Calculation of Registration Fee" table in the latest
registration statement or any amendment thereto, stating the
number or amount of securities being carried forward and the
amount of the filing fee associated with such securities that was
previously paid with the earlier registration statement(s).
24. By amending 230.430A by removing the word "five" and
adding, in each place it appears, the word "fifteen" in paragraph
(a)(3) and by adding a sentence at the end of Instruction to
paragraph (a) to read as follows:
230.430A Prospectus in a registration statement at
the
time of effectiveness.
* * * * *
Instruction to paragraph (a): * * * Notwithstanding the
foregoing, any increase or decrease in volume (if the total
dollar value of securities offered would not exceed that which
was registered) and any deviation from the low or high end of the
range may be reflected in the form of prospectus filed with the
Commission pursuant to Rule 424(b)(1) ( 230.424(b)(1)) or Rule
497(h) ( 230.497(h)) if, in the aggregate, the changes in
volume
and price represent no more than a 20% change in the maximum
aggregate offering price set forth in the "Calculation of
Registration Fee" table in the effective registration statement.
* * * * *
25. By adding 230.434 to read as follows:
230.434 Prospectus delivery requirements in firm
commitment underwritten offerings of securities
for cash.
(a) Where securities are offered for cash in a firm
commitment underwritten offering or investment grade debt
securities are offered for cash on an agency basis under a medium
term note program, and such securities are neither asset-backed
securities nor structured securities, and the conditions
described in paragraph (b) or paragraph (c) of this section are
satisfied, then:
(1) The prospectus subject to completion and the term sheet
described in paragraph (b) of this section, taken together, and
the prospectus subject to completion and the abbreviated term
sheet described in paragraph (c) of this section, taken together,
shall constitute prospectuses that meet the requirements of
Section 10(a) of the Act (15 U.S.C. 77j(a)) for purposes of
Section 5(b)(2) of the Act (15 U.S.C. 77e(b)(2)) and Section
2(10)(a) of the Act (15 U.S.C. 77b(10)(a)); and
(2) The Section 10(a) prospectus described in paragraph
(a)(1) of this section shall have:
-------------------- BEGINNING OF PAGE #38 -------------------
(i) Been sent or given prior to or at the same time that a
confirmation is sent or given for purposes of Section 2(10)(a) of
the Act; and
(ii) Accompanied or preceded the transmission of the
securities for purposes of sale ale * * * * *
(b)(7) Ten copies of a term sheet or abbreviated term sheet
sent or given in reliance upon Rule 434 under the Act (
230.434)
shall be filed with the Commission pursuant to this paragraph no
later than the second business day following the earlier of the
date of determination of the offering price, or the date it is
first used after effectiveness in connection with a public
offering or sales, or tr 239.16 of this chapter), the following
conditions are satisfied:
(1) A prospectus subject to completion and any term sheet
described in paragraph (b)(3) of this section, together or
separately, are sent or given prior to or at the same time with
the confirmation;
(2) Such prospectus subject to completion and term sheet,
together, are not materially different from the prospectus in the
registration statement at the time of its effectiveness or an
effective post-effective amendment thereto (including, in both,
instances, information deemed to be a part of the registration
statement at the time of effectiveness pursuant to Rule 430A(b)
( 230.430A(b)); and
(3) A term sheet under this paragraph (b) shall set forth
all information material to investors with respect to the
offering that is not disclosed in the prospectus subject to
completion or the confirmation.
(c) With respect to offerings of securities registered on
Form S-3 or Form F-3 ( 239.13 or 239.33 of this chapter),
the
following conditions are satisfied:
(1) A prospectus subject to completion and the abbreviated
term sheet described in paragraph (c)(3) of this section,
together or separately, are sent or given prior to or at the same
time with the confirmation;
(2) A form of prospectus that:
(i) Discloses information previously omitted from the
prospectus filed as part of an effective registration statement
in reliance upon Rule 430A ( 230.430A), to the extent not set
forth in the abbreviated term sheet (as described in paragraph
(c)(3) of this section), shall be filed pursuant to Rule 424(b)
( 230.424(b)) on or prior to the date on which a confirmation
is
sent or given; or
(ii) Discloses the public offering price, description of
securities, to the extent not set forth in the abbreviated term
sheet (as described in paragraph (c)(3) of this section), and
specific method of distribution or similar matters shall be filed
pursuant to Rule 424(b) ( 230.424(b)) on or prior to the date
on
which a confirmation is sent or given; and
(3) The abbreviated term sheet under this paragraph (c)
shall set forth, if not previously disclosed in the prospectus
subject to completion or the registrant's Exchange Act filings
incorporated by reference into the prospectus:
(i) The description of securities required by Item 202 of
Regulation S-K ( 229.202 of this chapter), or a fair and
accurate summary thereof; and
(ii) All material changes to the registrant's affairs
required to be disclosed pursuant to Item 11 of Form S-3 or Form
F-3 ( 239.13 or 239.33 of this chapter), as applicable.
(d) Except in the case of offerings pursuant to Rule
415(a)(1)(x), ( 230.415(a)(1)(x), the information contained in
any term sheet or abbreviated term sheet described under this
section shall be deemed to be a part of the registration
-------------------- BEGINNING OF PAGE #39 -------------------
statement as of the time such registration statement was declared
effective. In the case of offerings pursuant to Rule
415(a)(1)(x) ( 230.415(a)(1)(x)), the information contained in
any term sheet or abbreviated term sheet described under this
section shall be deemed to be a part of the registration
statement as of the time such information is filed with the
Commission.
Instruction: With respect to the obligation to file any form of
prospectus, term sheet, or abbreviated term sheet used in
reliance on this section, see Rule 424(b) ( 230.424(b)) or Rule
497(h) ( 230.497(h)).
(e) Any term sheet or abbreviated term sheet described
under this section shall, in the top center of the cover page
thereof, state that such document is a supplement to a prospectus
and identify that prospectus by issuer name and date; clearly
identify that such document is a term sheet or abbreviated term
sheet used in reliance on Rule 434; set forth the approximate
date of first use of such document; and clearly identify the
documents that, when taken together, constitute the Section 10(a)
prospectus.
(f) For purposes of this section, asset-backed securities
shall mean asset-backed securities as defined in General
Instruction I.B.5. of Form S-3 ( 239.13 of this chapter).
(g) For purposes of this section, prospectus subject to
completion shall mean any prospectus that is either a preliminary
prospectus used in reliance on Rule 430 ( 230.430), a
prospectus
omitting information in reliance upon Rule 430A ( 230.430A), or
a prospectus omitting information that is not yet known
concerning a delayed offering pursuant to Rule 415(a)(i)(x)
( 230.415(a)(1)(x)) that is contained in a registration
statement at the time of effectiveness or as subsequently
revised.
(h) For purposes of this section, structured securities
shall mean securities whose cash flow characteristics depend upon
one or more indices or that have imbedded forwards or options or
securities where an investor's investment return and the issuer's
payment obligations are contingent on, or highly sensitive to,
changes in the value of underlying assets, indices, interest
rates or cash flows.
(i) For purposes of this section, investment grade
securities shall mean investment grade securities as defined in
General Instruction I.B.2. of Form S-3 or Form F-3 ( 239.13 or
239.33 of this chapter).
(j) For the purposes of this section, a firm commitment
underwritten offering shall include a firm commitment
underwritten offering of securities by a closed-end company or by
a unit investment trust registered under the Investment Company
Act of 1940.
26. By designating the existing text as paragraph (a) and
adding paragraph (b) to 230.439 to read as follows:
230.439 Consent to use of material incorporated by
reference.
(a) * * *
(b) Notwithstanding paragraph (a) of this section, any
required consent may be incorporated by reference into a
registration statement filed pursuant to Rule 462(b) under the
Act ( 230.462(b)) from a previously filed registration
statement
relating to that offering, provided that, the consent contained
in the previously filed registration statement expressly provides
for such incorporation.
27. By revising the second and third sentences of
230.455
to read as follows:
230.455 Place of filing.
-------------------- BEGINNING OF PAGE #40 -------------------
* * * Registration statements on Form SB-1 or SB-2 may
be filed with the Commission either at its principal office or at
the Commission's regional or district offices as specified in
General Instruction A to each of those forms, except that
registration statements and post-effective amendments thereto on
such forms that are filed pursuant to Rule 462(b) ( 230.462(b))
and Rule 110(d) ( 230.110(d)) shall be filed at the
Commission's
principal office. Such material may be filed by delivery to the
Commission through the mails or otherwise; provided, however,
that only registration statements and post-effective amendments
thereto filed pursuant to Rule 462(b) ( 230.462(b)) and Rule
110(d) ( 230.110(d)) may be filed by means of facsimile
transmission.
28. By amending 230.457 to revise paragraph (o) to read
as follows:
230.457 Computation of fee.
* * * * *
(o) Where an issuer is offering securities, the registration
fee may be calculated on the basis of the maximum aggregate
offering price of all the securities listed in the "Calculation
of Registration Fee" Table. The number of shares or units of
securities need not be included in the "Calculation of
Registration Fee" Table. If the maximum aggregate offering price
increases prior to the effective date of the registration
statement, a pre-effective amendment must be filed to increase
the maximum dollar value being registered and the additional
filing fee shall be paid.
29. By revising the first sentence of paragraph (a) and
adding two new sentences immediately after the first sentence of
paragraph (a) to 230.461 to read as follows:
230.461 Acceleration of effective date.
(a) Requests for acceleration of the effective date of a
registration statement shall be made by the registrant and the
managing underwriters of the proposed issue, or, if there are no
managing underwriters, by the principal underwriters of the
proposed issue, and shall state the date upon which it is desired
that the registration statement shall become effective. Such
requests may be made in writing or orally, provided that, if an
oral request is to be made, a letter indicating that fact and
stating that the registrant and the managing or principal
underwriters are aware of their obligations under the Act must
accompany the registration statement (or a pre-effective
amendment thereto) at the time of filing with the Commission.
Written requests may be sent to the Commission by facsimile
transmission. * * *
* * * * *
30. By revising the section heading, designating the
existing text as paragraph (a), and adding paragraphs (b) and (c)
to 230.462 to read as follows:
230.462 Immediate effectiveness of certain registration
statements and post-effective amendments.
(a) * * *
(b) A registration statement and any post-effective
amendment thereto shall become effective upon filing with the
Commission if:
(1) The registration statement is for registering
additional securities of the same class(es) as were included in
an earlier registration statement for the same offering and
declared effective by the Commission;
(2) The new registration statement is filed prior to the
time confirmations are sent or given; and
(3) The new registration statement registers additional
securities in an amount and at a price that together represent no
more than 20% of the maximum aggregate offering price set forth
-------------------- BEGINNING OF PAGE #41 -------------------
for each class of securities in the "Calculation of Registration
Fee" table contained in such earlier registration statement.
(c) If the prospectus contained in a post-effective
amendment filed prior to the time confirmations are sent or given
contains no substantive changes from or additions to the
prospectus previously filed as part of the effective registration
statement, other than price-related information omitted from the
registration statement in reliance on Rule 430A of the Act
( 230.430A), such post-effective amendment shall become
effective upon filing with the Commission.
31. By amending 230.472 to add paragraph (e) to read as
follows:
230.472 Filing of amendments; number of copies.
* * * * *
(e) Notwithstanding any other provision of this section, if
a post-effective amendment is filed pursuant to Rule 462(b) (
230.462(b)) and Rule 110(d) ( 230.110(d)), one copy of the
complete post-effective amendment, including exhibits and all
other papers and documents filed as a part thereof shall be filed
with the Commission. Such copy should not be bound and may
contain facsimile versions of manual signatures in accordance
with Rule 402(e) ( 230.402(e)).
32. By amending 230.483 to add a sentence at the end of
paragraph (b) and to designate the existing text of paragraph (c)
as paragraph (c)(1) and adding paragraph (c)(2) to read as
follows:
-------------------- BEGINNING OF PAGE #42 -------------------
230.483 Exhibits for certain registration statements,
financial
data
schedule.
* * * * *
(b) * * * A power of attorney that is filed with the
Commission shall relate to a specific filing, an amendment
thereto, or a related registration statement that is to be
effective upon filing pursuant to Rule 462(b) ( 230.462(b))
under the Act.
(c)(1) * * *
(2) In a registration statement filed pursuant to Rule
462(b) ( 230.462(b)) by a closed-end company , any required
consent may be incorporated by reference into the registration
statement from a previously filed registration statement related
to the offering, provided that the consent contained in the
previously filed registration statement expressly provides for
such incorporation. Any consent filed in a Rule 462(b)
( 230.462(b)) registration statement may contain duplicated or
facsimile versions of required signatures, and such signatures
shall be considered manually filed for the purposes of the Act
and the rules thereunder.
33. By amending 230.497 to designate the existing text
of
paragraph (h) as paragraph (h)(1) and adding paragraph (h)(2) to
read as follows:
230.497 Filing of investment company prospectuses--number of
copies.
* * * * *
(h)(2) Ten copies of each term sheet or abbreviated term
sheet sent or given in reliance upon Rule 434 ( 230.434) shall
be filed with the Commission no later than the second business
day following the earlier of the date of determination of the
offering price, or the date it is first used after effectiveness
in connection with a public offering or sales, or transmitted by
a means reasonably calculated to result in filing with the
Commission by that date.
* * * * *
PART 232 - REGULATION S-T - GENERAL RULES AND REGULATIONS FOR
ELECTRONIC FILERS
34. The authority citation for Part 232 continues to read
as follows:
Authority: 15 U.S.C 77f, 77g, 77h, 77j, 77s(a), 77sss(a),
78c(b), 78l, 78m, 78n, 78o(d), 78w(a), 78ll(d), 79t(a), 80a-8,
80a-29, 80a-30 and 80a-37.
35. By adding paragraph (a)(3) before the Note to 232.13
to read as follows:
232.13 Date of filing; adjustment of filing date.
(a) * * *
(3) Notwithstanding paragraph (a)(2) of this section, any
registration statement or any post-effective amendment thereto
filed pursuant to Rule 462(b) ( 230.462(b) of this chapter) by
direct transmission commencing on or before 10:00 p.m. Eastern
Standard Time or Eastern Daylight Savings Time, whichever is
currently in effect, shall be deemed filed on the same business
day.
* * * * *
PART 239 - FORMS PRESCRIBED UNDER THE SECURITIES ACT OF 1933
36. The authority citation for Part 239 continues to read
in part as follows:
Authority: 15 U.S.C. 77f, 77g, 77h, 77j, 77s, 77sss, 78c,
78l, 78m, 78n, 78o(d), 78w(a), 78ll(d), 79e, 79f, 79g, 79j, 79l,
79m, 79n, 79q, 79t, 80a-8, 80a-29, 80a-30 and 80a-37, unless
otherwise noted.
* * * * *
-------------------- BEGINNING OF PAGE #43 -------------------
37. By amending Form SB-1 (referenced in 239.9) by
adding
three check boxes to the cover page immediately before
"Calculation of Registration Fee," by adding a Note to appear
immediately after the Calculation of Registration Fee table, and
by adding paragraph H to General Instructions to read as follows:
Note: The text of Form SB-1 does not and the
amendments will not appear in the Code of
Federal Regulations.
FORM SB-1
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
* * * * *
If this Form is filed to register additional securities for an
offering pursuant to Rule 462(b) under the Securities Act, check
the following box and list the Securities Act registration
statement number of the earlier effective registration statement
for the same offering. [ ] _____________
If this Form is a post-effective amendment filed pursuant to Rule
462(c) under the Securities Act, check the following box and list
the Securities Act registration statement number of the earlier
effective registration statement for the same offering. [ ]
_____________
If delivery of the prospectus is expected to be made pursuant to
Rule 434, please check the following box. [ ]
* * * * *
CALCULATION OF REGISTRATION FEE
* * * * *
Note: If the filing fee is calculated pursuant to Rule 457(o)
under the Securities Act, only the title of the class of
securities to be registered, the proposed maximum aggregate
offering price for that class of securities and the amount of
registration fee need to appear in the Calculation of
Registration Fee table. Any difference between the dollar amount
of securities registered for such offerings and the dollar amount
of securities sold may be carried forward on a future
registration statement pursuant to Rule 429 under the Securities
Act.
* * * * *
GENERAL INSTRUCTIONS
* * * * *
H. Registration of Additional Securities
With respect to the registration of additional securities
for an offering pursuant to Rule 462(b) under the Securities Act,
the registrant may file a registration statement consisting only
of the following: the facing page; a statement that the contents
of the earlier registration statement, identified by file number,
are incorporated by reference; required opinions and consents;
the signature page; and any price-related information omitted
from the earlier registration statement in reliance on Rule 430A
that the registrant chooses to include in the new registration
statement. The information contained in such a Rule 462(b)
registration statement shall be deemed to be a part of the
earlier registration statement as of the date of effectiveness of
the Rule 462(b) registration statement. Any opinion or consent
required in the Rule 462(b) registration statement may be
incorporated by reference from the earlier registration statement
with respect to the offering, if: (i) such opinion or consent
expressly provides for such incorporation; and (ii) such opinion
relates to the securities registered pursuant to Rule 462(b).
See Rule 411(c) and Rule 439(b) under the Securities Act.
* * * * *
38. By amending Form SB-2 (referenced in 239.10) by
adding three check boxes to the cover page immediately before
-------------------- BEGINNING OF PAGE #44 -------------------
"Calculation of Registration Fee," by adding two sentences to the
end of the Note following the Calculation of Registration Fee
table, and by adding paragraph C to General Instructions to read
as follows:
Note: The text of Form SB-2 does not and the
amendments will not appear in the Code of
Federal Regulations.
FORM SB-2
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
* * * * *
If this Form is filed to register additional securities for an
offering pursuant to Rule 462(b) under the Securities Act, please
check the following box and list the Securities Act registration
statement number of the earlier effective registration statement
for the same offering. [ ] _____________
If this Form is a post-effective amendment filed pursuant to Rule
462(c) under the Securities Act, check the following box and list
the Securities Act registration statement number of the earlier
effective registration statement for the same offering. [ ]
_____________
If delivery of the prospectus is expected to be made pursuant to
Rule 434, please check the following box. [ ]
* * * * *
CALCULATION OF REGISTRATION FEE
* * * * *
Note: * * * If the filing fee is calculated pursuant to Rule
457(o) under the Securities Act, only the title of the class of
securities to be registered, the proposed maximum aggregate
offering price for that class of securities and the amount of
registration fee need to appear in the Calculation of
Registration Fee table. Any difference between the dollar amount
of securities registered for such offerings and the dollar amount
of securities sold may be carried forward on a future
registration statement pursuant to Rule 429 under the Securities
Act.
* * * * *
GENERAL INSTRUCTIONS
* * * * *
C. Registration of Additional Securities
With respect to the registration of additional securities
for an offering pursuant to Rule 462(b) under the Securities Act,
the registrant may file a registration statement consisting only
of the following: the facing page; a statement that the contents
of the earlier registration statement, identified by file number,
are incorporated by reference; required opinions and consents;
the signature page; and any price-related information omitted
from the earlier registration statement in reliance on Rule 430A
that the registrant chooses to include in the new registration
statement. The information contained in such a Rule 462(b)
registration statement shall be deemed to be a part of the
earlier registration statement as of the date of effectiveness of
the Rule 462(b) registration statement. Any opinion or consent
required in the Rule 462(b) registration statement may be
incorporated by reference from the earlier registration statement
with respect to the offering, if: (i) such opinion or consent
expressly provides for such incorporation; and (ii) such opinion
relates to the securities registered pursuant to Rule 462(b).
See Rule 411(c) and Rule 439(b) under the Securities Act.
* * * * *
39. By amending Form S-1 (referenced in 239.11) by
adding
three check boxes to the cover page immediately before
"Calculation of Registration Fee," and by adding two sentences to
-------------------- BEGINNING OF PAGE #45 -------------------
the end of the Note following the Calculation of Registration Fee
table, and by adding paragraph V. to General Instructions to read
as follows:
Note: The text of Form S-1 does not and the
amendments will not appear in the Code of
Federal Regulations.
FORM S-1
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
* * * * *
If this Form is filed to register additional securities for an
offering pursuant to Rule 462(b) under the Securities Act, please
check the following box and list the Securities Act registration
statement number of the earlier effective registration statement
for the same offering. [ ] _____________
If this Form is a post-effective amendment filed pursuant to Rule
462(c) under the Securities Act, check the following box and list
the Securities Act registration statement number of the earlier
effective registration statement for the same offering. [ ]
_____________
If delivery of the prospectus is expected to be made pursuant to
Rule 434, please check the following box. [ ]
* * * * *
CALCULATION OF REGISTRATION FEE
* * * * *
Note: * * * If the filing fee is calculated pursuant to Rule
457(o) under the Securities Act, only the title of the class of
securities to be registered, the proposed maximum aggregate
offering price for that class of securities and the amount of
registration fee need to appear in the Calculation of
Registration Fee table. Any difference between the dollar amount
of securities registered for such offerings and the dollar amount
of securities sold may be carried forward on a future
registration statement pursuant to Rule 429 under the Securities
Act.
GENERAL INSTRUCTIONS
* * * * *
V. Registration of Additional Securities
With respect to the registration of additional securities
for an offering pursuant to Rule 462(b) under the Securities Act,
the registrant may file a registration statement consisting only
of the following: the facing page; a statement that the contents
of the earlier registration statement, identified by file number,
are incorporated by reference; required opinions and consents;
the signature page; and any price-related information omitted
from the earlier registration statement in reliance on Rule 430A
that the registrant chooses to include in the new registration
statement. The information contained in such a Rule 462(b)
registration statement shall be deemed to be a part of the
earlier registration statement as of the date of effectiveness of
the Rule 462(b) registration statement. Any opinion or consent
required in the Rule 462(b) registration statement may be
incorporated by reference from the earlier registration statement
with respect to the offering, if: (i) such opinion or consent
expressly provides for such incorporation; and (ii) such opinion
relates to the securities registered pursuant to Rule 462(b).
See Rule 411(c) and Rule 439(b) under the Securities Act.
* * * * *
40. By amending Form S-2 (referenced in 239.12) by
adding
three check boxes to the cover page immediately before
"Calculation of Registration Fee," by adding two sentences to the
end of the Note following the Calculation of Registration Fee
-------------------- BEGINNING OF PAGE #46 -------------------
table, and by adding paragraph III. to General Instructions to
read as follows:
Note: The text of Form S-2 does not and the
amendments will not appear in the Code of
Federal Regulations.
FORM S-2
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
* * * * *
If this Form is filed to register additional securities for an
offering pursuant to Rule 462(b) under the Securities Act, please
check the following box and list the Securities Act registration
statement number of the earlier effective registration statement
for the same offering. [ ] _____________
If this Form is a post-effective amendment filed pursuant to Rule
462(c) under the Securities Act, check the following box and list
the Securities Act registration statement number of the earlier
effective registration statement for the same offering. [ ]
_____________
If delivery of the prospectus is expected to be made pursuant to
Rule 434, please check the following box. [ ]
* * * * *
CALCULATION OF REGISTRATION FEE
* * * * *
Note: * * * If the filing fee is calculated pursuant to Rule
457(o) under the Securities Act, only the title of the class of
securities to be registered, the proposed maximum aggregate
offering price for that class of securities and the amount of
registration fee need to appear in the Calculation of
Registration Fee table. Any difference between the dollar amount
of securities registered for such offering and the dollar amount
of securities sold may be carried forward on a future
registration statement pursuant to Rule 429 under the Securities
Act.
GENERAL INSTRUCTIONS
* * * * *
III. Registration of Additional Securities
With respect to the registration of additional securities
for an offering pursuant to Rule 462(b) under the Securities Act,
the registrant may file a registration statement consisting only
of the following: the facing page; a statement that the contents
of the earlier registration statement, identified by file number,
are incorporated by reference; required opinions and consents;
the signature page; and any price-related information omitted
from the earlier registration statement in reliance on Rule 430A
that the registrant chooses to include in the new registration
statement. The information contained in such a Rule 462(b)
registration statement shall be deemed to be a part of the
earlier registration statement as of the date of effectiveness of
the Rule 462(b) registration statement. Any opinion or consent
required in the Rule 462(b) registration statement may be
incorporated by reference from the earlier registration statement
with respect to the offering, if: (i) such opinion or consent
expressly provides for such incorporation; and (ii) such opinion
relates to the securities registered pursuant to Rule 462(b).
See Rule 411(c) and Rule 439(b) under the Securities Act.
* * * * *
41. By amending Form S-3 (referenced in 239.13) by
adding
three check boxes to the cover page immediately before
"Calculation of Registration Fee," by adding three sentences to
the end of the Note following the Calculation of Registration Fee
table, and by adding paragraph IV. to General Instructions to
read as follows:
-------------------- BEGINNING OF PAGE #47 -------------------
Note: The text of Form S-3 does not and the
amendments will not appear in the Code of
Federal Regulations.
-------------------- BEGINNING OF PAGE #48 -------------------
FORM S-3
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
* * * * *
If this Form is filed to register additional securities for an
offering pursuant to Rule 462(b) under the Securities Act, please
check the following box and list the Securities Act registration
statement number of the earlier effective registration statement
for the same offering. [ ] _____________
If this Form is a post-effective amendment filed pursuant to Rule
462(c) under the Securities Act, check the following box and list
the Securities Act registration statement number of the earlier
effective registration statement for the same offering. [ ]
_____________
If delivery of the prospectus is expected to be made pursuant to
Rule 434, please check the following box. [ ]
* * * * *
CALCULATION OF REGISTRATION FEE
* * * * *
Note: * * * If the filing fee is calculated pursuant to Rule
457(o) under the Securities Act, only the title of the class of
securities to be registered, the proposed maximum aggregate
offering price for that class of securities and the amount of
registration fee need to appear in the "Calculation of
Registration Fee" Table ("Fee Table"). Where two or more classes
of securities are being registered pursuant to General
Instruction II.D, however, the Fee Table need only specify the
maximum aggregate offering price for all classes; the Fee Table
need not specify by each class the proposed maximum aggregate
offering price (See General Instruction II.D). Any difference
between the dollar amount of securities registered for such
offerings and the dollar amount of securities sold may be carried
forward on a future registration statement pursuant to Rule 429
under the Securities Act.
GENERAL INSTRUCTIONS
* * * * *
IV. Registration of Additional Securities
With respect to the registration of additional securities
for an offering pursuant to Rule 462(b) under the Securities Act,
the registrant may file a registration statement consisting only
of the following: the facing page; a statement that the contents
of the earlier registration statement, identified by file number,
are incorporated by reference; required opinions and consents;
the signature page; and any price-related information omitted
from the earlier registration statement in reliance on Rule 430A
that the registrant chooses to include in the new registration
statement. The information contained in such a Rule 462(b)
registration statement shall be deemed to be a part of the
earlier registration statement as of the date of effectiveness of
the Rule 462(b) registration statement. Any opinion or consent
required in the Rule 462(b) registration statement may be
incorporated by reference from the earlier registration statement
with respect to the offering, if: (i) such opinion or consent
expressly provides for such incorporation; and (ii) such opinion
relates to the securities registered pursuant to Rule 462(b).
See Rule 411(c) and Rule 439(b) under the Securities Act.
* * * * *
42. By amending Form S-11 (referenced in 239.18) by
adding paragraph G. to General Instructions, by adding three
check boxes to the cover page immediately before "Calculation of
Registration Fee" and by adding two sentences to the end of the
Note following the Calculation of Registration Fee table to read
as follows:
-------------------- BEGINNING OF PAGE #49 -------------------
Note: The text of Form S-11 does not and the
amendments will not appear in the Code of
Federal Regulations.
FORM S-11
FOR REGISTRATION UNDER THE SECURITIES ACT OF 1933 OF
SECURITIES OF CERTAIN REAL ESTATE COMPANIES
General Instructions
* * * * *
G. Registration of Additional Securities
With respect to the registration of additional securities
for an offering pursuant to Rule 462(b) under the Securities Act,
the registrant may file a registration statement consisting only
of the following: the facing page; a statement that the contents
of the earlier registration statement, identified by file number,
are incorporated by reference; required opinions and consents;
the signature page; and any price-related information omitted
from the earlier registration statement in reliance on Rule 430A
that the registrant chooses to include in the new registration
statement. The information contained in such a Rule 462(b)
registration statement shall be deemed to be a part of the
earlier registration statement as of the date of effectiveness of
the Rule 462(b) registration statement. Any opinion or consent
required in the Rule 462(b) registration statement may be
incorporated by reference from the earlier registration statement
with respect to the offering, if: (i) such opinion or consent
expressly provides for such incorporation; and (ii) such opinion
relates to the securities registered pursuant to Rule 462(b).
See Rule 411(c) and Rule 439(b) under the Securities Act.
* * * * *
FORM S-11
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
* * * * *
If this Form is filed to register additional securities for an
offering pursuant to Rule 462(b) under the Securities Act, please
check the following box and list the Securities Act registration
statement number of the earlier effective registration statement
for the same offering. [ ] _____________
If this Form is a post-effective amendment filed pursuant to Rule
462(c) under the Securities Act, check the following box and list
the Securities Act registration statement number of the earlier
effective registration statement for the same offering. [ ]
_____________
If delivery of the prospectus is expected to be made pursuant to
Rule 434, please check the following box. [ ]
* * * * *
CALCULATION OF REGISTRATION FEE
* * * * *
Note: * * * If the filing fee is calculated pursuant to Rule
457(o) under the Securities Act, only the title of the class of
securities to be registered, the proposed maximum aggregate
offering price for that class of securities and the amount of
registration fee need to appear in the Calculation of
Registration Fee table. Any difference between the dollar amount
of securities registered for such offerings and the dollar amount
of securities sold may be carried forward on a future
registration statement pursuant to Rule 429 under the Securities
Act.
* * * * *
43. By amending Form F-1 (referenced in 239.31) by
adding
three check boxes to the cover page immediately before
"Calculation of Registration Fee," by adding two sentences to the
end of the Note following the Calculation of Registration Fee
-------------------- BEGINNING OF PAGE #50 -------------------
table, and by adding paragraph V. to General Instructions to read
as follows:
Note: The text of Form F-1 does not and the
amendments will not appear in the Code of
Federal Regulations.
FORM F-1
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
* * * * *
If this Form is filed to register additional securities for an
offering pursuant to Rule 462(b) under the Securities Act, please
check the following box and list the Securities Act registration
statement number of the earlier effective registration statement
for the same offering. [ ] _____________
If this Form is a post-effective amendment filed pursuant to Rule
462(c) under the Securities Act, check the following box and list
the Securities Act registration statement number of the earlier
effective registration statement for the same offering. [ ]
_____________
If delivery of the prospectus is expected to be made pursuant to
Rule 434, please check the following box. [ ]
* * * * *
CALCULATION OF REGISTRATION FEE
* * * * *
Note: * * * If the filing fee is calculated pursuant to Rule
457(o) under the Securities Act, only the title of the class of
securities to be registered, the proposed maximum aggregate
offering price for that class of securities and the amount of
registration fee need to appear in the Calculation of
Registration Fee table. Any difference between the dollar amount
of securities registered for such offerings and the dollar amount
of securities sold may be carried forward on a future
registration statement pursuant to Rule 429 under the Securities
Act.
GENERAL INSTRUCTIONS
* * * * *
V. Registration of Additional Securities
With respect to the registration of additional securities
for an offering pursuant to Rule 462(b) under the Securities Act,
the registrant may file a registration statement consisting only
of the following: the facing page; a statement that the contents
of the earlier registration statement, identified by file number,
are incorporated by reference; required opinions and consents;
the signature page; and any price-related information omitted
from the earlier registration statement in reliance on Rule 430A
that the registrant chooses to include in the new registration
statement. The information contained in such a Rule 462(b)
registration statement shall be deemed to be a part of the
earlier registration statement as of the date of effectiveness of
the Rule 462(b) registration statement. Any opinion or consent
required in the Rule 462(b) registration statement may be
incorporated by reference from the earlier registration statement
with respect to the offering, if: (i) such opinion or consent
expressly provides for such incorporation; and (ii) such opinion
relates to the securities registered pursuant to Rule 462(b).
See Rule 411(c) and Rule 439(b) under the Securities Act.
* * * * *
44. By amending Form F-2 (referenced in 239.32) by
adding
three check boxes to the cover page immediately before
"Calculation of Registration Fee," by adding two sentences to the
end of the Note following the Calculation of Registration Fee
table, and by adding paragraph IV. to General Instructions to
read as follows:
-------------------- BEGINNING OF PAGE #51 -------------------
Note: The text of Form F-2 does not and the
amendments will not appear in the Code of
Federal Regulations.
FORM F-2
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
* * * * *
If this Form is filed to register additional securities for an
offering pursuant to Rule 462(b) under the Securities Act, please
check the following box and list the Securities Act registration
statement number of the earlier effective registration statement
for the same offering. [ ] _____________
If this Form is a post-effective amendment filed pursuant to Rule
462(c) under the Securities Act, check the following box and list
the Securities Act registration statement number of the earlier
effective registration statement for the same offering. [ ]
_____________
If delivery of the prospectus is expected to be made pursuant to
Rule 434, please check the following box. [ ]
* * * * *
CALCULATION OF REGISTRATION FEE
* * * * *
Note: * * * If the filing fee is calculated pursuant to Rule
457(o) under the Securities Act, only the title of the class of
securities to be registered, the proposed maximum aggregate
offering price for that class of securities and the amount of
registration fee need to appear in the Calculation of
Registration Fee table. Any difference between the dollar amount
of securities registered for such offerings and the dollar amount
of securities sold may be carried forward on a future
registration statement pursuant to Rule 429 under the Securities
Act.
GENERAL INSTRUCTIONS
* * * * *
IV. Registration of Additional Securities
With respect to the registration of additional securities
for an offering pursuant to Rule 462(b) under the Securities Act,
the registrant may file a registration statement consisting only
of the following: the facing page; a statement that the contents
of the earlier registration statement, identified by file number,
are incorporated by reference; required opinions and consents;
the signature page; and any price-related information omitted
from the earlier registration statement in reliance on Rule 430A
that the registrant chooses to include in the new registration
statement. The information contained in such a Rule 462(b)
registration statement shall be deemed to be a part of the
earlier registration statement as of the date of effectiveness of
the Rule 462(b) registration statement. Any opinion or consent
required in the Rule 462(b) registration statement may be
incorporated by reference from the earlier registration statement
with respect to the offering, if: (i) such opinion or consent
expressly provides for such incorporation; and (ii) such opinion
relates to the securities registered pursuant to Rule 462(b).
See Rule 411(c) and Rule 439(b) under the Securities Act.
* * * * *
45. By amending Form F-3 (referenced in 239.33) by
adding
three check boxes to the cover page immediately before
"Calculation of Registration Fee," by adding three sentences to
the end of the Note following the Calculation of Registration Fee
table, and by adding paragraph IV. to General Instructions to
read as follows:
-------------------- BEGINNING OF PAGE #52 -------------------
Note: The text of Form F-3 does not and the
amendments will not appear in the Code of
Federal Regulations.
FORM F-3
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
* * * * *
If this Form is filed to register additional securities for an
offering pursuant to Rule 462(b) under the Securities Act, please
check the following box and list the Securities Act registration
statement number of the earlier effective registration statement
for the same offering. [ ] _____________
If this Form is a post-effective amendment filed pursuant to Rule
462(c) under the Securities Act, check the following box and list
the Securities Act registration statement number of the earlier
effective registration statement for the same offering. [ ]
_____________
If delivery of the prospectus is expected to be made pursuant to
Rule 434, please check the following box. [ ]
* * * * *
CALCULATION OF REGISTRATION FEE
* * * * *
Note: * * * If the filing fee is calculated pursuant to Rule
457(o) under the Securities Act, only the title of the class of
securities to be registered, the proposed maximum aggregate
offering price for that class of securities and the amount of
registration fee need to appear in the "Calculation of
Registration Fee" table ("Fee Table"). Where two or more classes
of securities are being registered pursuant to General
Instruction II.C, however, the Fee Table need only specify the
maximum aggregate offering price for all classes; the Fee Table
need not specify by each class the proposed maximum aggregate
offering price (See General Instruction II.C). Any difference
between the dollar amount of securities registered for such
offerings and the dollar amount of securities sold may be carried
forward on a future registration statement pursuant to Rule 429
under the Securities Act.
GENERAL INSTRUCTIONS
* * * * *
-------------------- BEGINNING OF PAGE #53 -------------------
IV. Registration of Additional Securities
With respect to the registration of additional securities
for an offering pursuant to Rule 462(b) under the Securities Act,
the registrant may file a registration statement consisting only
of the following: the facing page; a statement that the contents
of the earlier registration statement, identified by file number,
are incorporated by reference; required opinions and consents;
the signature page; and any price-related information omitted
from the earlier registration statement in reliance on Rule 430A
that the registrant chooses to include in the new registration
statement. The information contained in such a Rule 462(b)
registration statement shall be deemed to be a part of the
earlier registration statement as of the date of effectiveness of
the Rule 462(b) registration statement. Any opinion or consent
required in the Rule 462(b) registration statement may be
incorporated by reference from the earlier registration statement
with respect to the offering, if: (i) such opinion or consent
expressly provides for such incorporation; and (ii) such opinion
relates to the securities registered pursuant to Rule 462(b).
See Rule 411(c) and Rule 439(b) under the Securities Act.
PART 240 - GENERAL RULES AND REGULATIONS, SECURITIES
EXCHANGE ACT OF 1934
46. The authority citation for Part 240 continues to read
in part as follows:
Authority: 15 U.S.C. 77c, 77d, 77g, 77j, 77s, 77eee, 77ggg,
77nnn, 77sss, 77ttt, 78c, 78d, 78i, 78j, 78l, 78m, 78n, 78o, 78p,
78q, 78s, 78w, 78x, 78ll(d), 79q, 79t, 80a-20, 80a-23, 80a-29,
80a-37, 80b-3, 80b-4 and 80b-11, unless otherwise noted.
* * * * *
47. The authority citation following 15c2-8 is removed.
48. By amending 240.12b-11 to add paragraph (d) to read
as follows:
240.12b-11 Number of copies; signatures; binding.
* * * * *
(d) Duplicated or facsimile versions of manual signatures
of persons required to sign any registration statement pursuant
to Sections 12(b) and 12(g) of the Act (15 U.S.C. 78l(b) and
78l(g)), any report or schedule filed pursuant to Sections 13 and
15(d) of the Act (15 U.S.C. 78m and 78o(d)), or any
amendment
or exhibit to such registration statement, report or schedule,
that are filed or submitted to the Commission under the Act,
shall be considered manual signatures for purposes of the Act and
rules and regulations thereunder; provided that, the original
signed document is retained by the filer for a period of five
years and, upon request, the filer furnishes to the Commission or
the staff the original manually signed document.
49. By amending 240.14d-1 to add paragraph (d) to read
as
follows:
240.14d-1 Scope of and definitions applicable to Regulations
14D and
14E.
* * * * *
(d) Duplicated or facsimile versions of manual signatures
of persons required to sign any document pursuant to Regulation
14D and Regulation 14E that is filed or submitted to the
Commission under the Act shall be considered manual signatures
for purposes of the Act and rules and regulations thereunder;
provided that, the original signed document is retained by the
filer for a period of five years and, upon request, the filer
furnishes to the Commission or the staff the original manually
signed document.
50. Section 240.15c2-8(b) is amended by revising the word
"mailing" to read "sending".
-------------------- BEGINNING OF PAGE #54 -------------------
51. Section 240.15c2-8(c) is amended by revising the word
"mail" to read "send".
52. Section 240.15c2-8(d) is amended by revising the word
"mail" to read "send".
53. Section 240.15c2-8 is amended by adding paragraph (j)
to read as follows:
240.15c2-8 Delivery of Prospectus
* * * * *
(j) For purposes of this section, the term preliminary
prospectus shall include the term prospectus subject to
completion as used in 17 CFR 230.434(a), and the term final
prospectus shall include the term Section 10(a) prospectus as
used in 17 CFR 230.434(a).
54. Amend 240.15c6-1 by revising the phrase "paragraph
(b)" contained in paragraph (a) to read "paragraphs (b), (c), and
(d)"; by revising the phrase "Paragraph (a)" contained in
paragraph (b) to read "Paragraphs (a) and (c)"; by removing
paragraph (b)(2); by redesignating paragraph (b)(3) as paragraph
(b)(2); and by adding paragraphs (c) and (d) to read as follows:
-------------------- BEGINNING OF PAGE #55 -------------------
240.15c6-1 Settlement cycle.
* * * * *
(c) Paragraph (a) of this section shall not apply to
contracts for the sale for cash of securities that are priced
after 4:30 p.m. Eastern time on the date such securities are
priced and that are sold by an issuer to an underwriter pursuant
to a firm commitment underwritten offering registered under the
Securities Act of 1933 or sold to an initial purchaser by a
broker-dealer participating in such offering provided that a
broker or dealer shall not effect or enter into a contract for
the purchase or sale of such securities that provides for payment
of funds and delivery of securities later than the fourth
business day after the date of the contract unless otherwise
expressly agreed to by the parties at the time of the
transaction.
(d) For purposes of paragraphs (a) and (c) of this section,
the parties to a contract shall be deemed to have expressly
agreed to an alternate date for payment of funds and delivery of
securities at the time of the transaction for a contract for the
sale for cash of securities pursuant to a firm commitment
offering if the managing underwriter and the issuer have agreed
to such date for all securities sold pursuant to such offering
and the parties to the contract have not expressly agreed to
another date for payment of funds and delivery of securities at
the time of the transaction.
55. By amending 240.16a-3 to add paragraph (i) to read
as
follows:
240.16a-3 Reporting transactions and holdings.
* * * * *
(i) Duplicated or facsimile versions of manual signatures
of persons required to sign any document pursuant to Section 16
of the Act (15 U.S.C. 78p) that is filed or submitted to the
Commission under the Act shall be considered manual signatures
for purposes of the Act and rules and regulations thereunder;
provided that, the original signed document is retained by the
filer for a period of five years and, upon request, the filer
furnishes to the Commission or the staff the original manually
signed document.
PART 270--GENERAL RULES AND REGULATIONS, INVESTMENT COMPANY
ACT
OF 1940
56. The authority citation for Part 270 continues to read,
in part as follows:
Authority: 15 U.S.C. 80a-1 et seq., 80a-37, 80a-39 unless
otherwise noted;
* * * * *
57. By amending 270.8b-11 to add paragraph (e) to read
as
follows:
270.8b-11 Number of copies; signatures; binding.
* * * * *
(e) Duplicated or facsimile versions of manual signatures
of persons required to sign any registration statement or report,
including all amendments and exhibits to such statements or
reports, that are filed or submitted to the Commission under the
Act, shall be considered manual signatures for the purposes of
the Act and the rules and regulations thereunder; provided that,
the original signed document is retained by the filer for a
period of five years and, upon request, the filer furnishes to
the Commission or the staff the original manually signed
document.
-------------------- BEGINNING OF PAGE #56 -------------------
PART 239 - FORMS PRESCRIBED UNDER THE SECURITIES ACT OF 1933
PART 274--FORMS PRESCRIBED UNDER THE INVESTMENT COMPANY
ACT OF 1940
58. The authority citation for Part 274 continues to read
as follows:
Authority: 15 U.S.C. 77f, 77g, 77h, 77j, 77s, 78c(b), 78l,
78m, 78n, 78o(d), 80a-8, 80a-24, and 80a-29, unless otherwise
noted.
59. By amending Form N-2 (referenced in 239.14
and
274.11a-1) by adding one check box to the cover page immediately
before "Calculation of Registration Fee Under the Securities Act
of 1933," and by adding two sentences to the end of the first
Instruction following the Calculation of Registration Fee Under
the Securities Act of 1933 table and by adding paragraph J. to
the General Instructions to read as follows:
Note: The text of Form N-2 does not and these amendments
will not appear in the Code of Federal Regulations.
Form N-2
Registration Statement Under the Securities Act of 1933
* * * * *
[ ] This Form is filed to register additional securities
for an offering pursuant to Rule 462(b) under the Securities Act
and the Securities Act registration statement number of the
earlier effective registration statement for the same offering is
_________.
Calculation of Registration Fee Under the Securities Act of 1933
* * * * *
Instructions
* * * For offerings made pursuant to Rule 430A under the
Securities Act, only the title of the class of securities to be
registered, the proposed maximum aggregate offering price for
that class of securities and the amount of registration fee need
to appear in the Calculation of Registration Fee table. Any
difference between the dollar amount of securities registered for
such offerings and the dollar amount of securities sold may be
carried forward on a future registration statement pursuant to
Rule 429 under the Securities Act.
GENERAL INSTRUCTIONS
* * * * *
J. Registration of Additional Securities
With respect to the registration of additional securities
for an offering pursuant to Rule 462(b) under the Securities Act,
the registrant may file a registration statement consisting only
of the following: the facing page; a statement that the contents
of the earlier registration statement, identified by file number,
are incorporated by reference; required opinions and consents;
the signature page; and any price-related information omitted
from the earlier registration statement in reliance on Rule 430A
that the registrant chooses to include in the new registration
statement. Any opinion or consent required in such a
registration statement may be incorporated by reference from the
earlier registration statement with respect to the offering, if:
(i) such opinion or consent expressly provides for such
incorporation; and (ii) such opinion relates to the securities
registered
-------------------- BEGINNING OF PAGE #57 -------------------
pursuant to Rule 462(b). See Rule 411(c) and Rule 483(c) under
the Securities Act.
* * * * *
By the Commission.
Jonathan G. Katz
Secretary
May 11, 1995