[Federal Register Volume 60, Number 95 (Wednesday, May 17, 1995)]
[Rules and Regulations]
[Pages 26604-26623]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-12007]
[[Page 26603]]
_______________________________________________________________________
Part VII
Securities and Exchange Commission
_______________________________________________________________________
17 CFR Part 202 et al.
Prospectus Delivery; Securities Transactions Settlement; Final Rule
Federal Register / Vol. 60, No. 95 / Wednesday, May 17, 1995 / Rules
and Regulations
[[Page 26604]]
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.
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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 Mangement, U.S.
Securities and Exchange Commission, Washington, DC. 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 or
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.
\5\The term ``new issues'' as used herein refers to both initial
public offerings and offerings of additional securities by
companies.
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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\
\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.
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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.
\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. NW., Washington,
DC 20549, File Number S7-7-95.
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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 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.
\8\See Securities Act Release No. 7141 (Feb. 21, 1995) (60 FR
10724) (hereinafter, the ``Proposing Release'').
\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 NW., Washington, DC 20549, File No. S7-7-95.
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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.
\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.
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 [[Page 26605]] 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\
\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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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 proposed.\12\ Except as otherwise
noted, these steps are applicable to any offering.
\12\For a discussion of the application of the Four Firms
approach to investment companies, see infra Section II.A.8.
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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 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\
\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).
\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).
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\
\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), 229.502(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).
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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. However, other rule revisions discussed below do alter
existing requirements.
\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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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 [[Page 26606]] 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\
\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.
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 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.
\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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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 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 p.m.\28\ Electronic
filers may file such a registration statement from 5:30 p.m. to 10 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.
\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 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 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.
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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 of wire transfer service the following
business day.
\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.
c. Changes in Offering Size; Deviation From Price Range
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
[[Page 26607]] Registration Fee'' table in the effective registration
statement.\32\
\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 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.
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3. Manual Signatures and Incorporation by Reference of Opinions and
Consents
Under the proposal, 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 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.
\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-1, 17 CFR 240.14d-
1; and Rule 16a-3, 17 CFR 2401.6a-3.
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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.
\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.
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\
\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).
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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 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.
\38\See Rule 462(c), 17 CFR 230.462(c).
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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).
\39\See Rule 409, 17 CFR 230.409.
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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\
\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.
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
[[Page 26608]] 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 preliminary prospectus
distributed, the approximate dates of distribution, the number of
prospectus 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\
\42\15 U.S.C. 77h(a).
\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.
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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.
\45\One commenter argued that a T+4 standard was unnecessary
because the override provision in paragraph (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 overridge provision for
firm commitment offerings.
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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 adopting the amendment for settlement of
specific offerings on a T+4 basis with only minor technical
corrections.\46\
\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.
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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
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.
\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.
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. [[Page 26609]]
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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\
\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 prospect 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).
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 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 party 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\
\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).
\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.
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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.
\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.
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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 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-3or 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.
\62\``Base propectus'' 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).
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 [[Page 26610]] that
prospectus by issuer name and date. The term sheet or 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\
\68\See Rule 434(e), 17 CFR 230.434(e).
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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\
\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.
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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 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.
\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).
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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 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.
\73\See Rule 434(a), 17 CFR 230.434(a).
\74\See Rule 434(h), 17 CFR 230.434(h).
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\
\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.
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4. Conforming Amendments to Rule 14c2-8
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, the 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.
\76\17 CFR 240.15c2-8.
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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 [[Page 26611]] that have occurred since the Rule
was last amended.\77\
\77\Rule 15c2-8(d) was last amended in Exchange Act Release No.
25546 (Apr. 4, 1988) (53 FR 11841).
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 prospect is 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\
\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.
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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 to modify any obligation that a managing underwriter
currently has pursuant to paragraphs (g) or (g) 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.
\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 to
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 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.
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 A+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.
\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.
---------------------------------------------------------------------------
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.
\86\See letter from Brent Taylor, J.P. Morgan Securities, Inc.
to Jonathan Katz, Securities and Exchange Commission , dated March
20, 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.
---------------------------------------------------------------------------
The majority of comments that addressed the merits of the proposed
override provisions 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
perspective purchasers on or before pricing was burdensome and should
be eliminated.\88\ Commenters disagreed [[Page 26612]] 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.
\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.
---------------------------------------------------------------------------
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 position 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 believes that
an alternate settlement cycle can be established for these offerings
through the override provision for firm commitment offerings.
\89\See Rule 15c6-1(d), 17 CFR 15c6-1(d). This specific override
provision would not extend to offerings of investigation grade debt
made in connection with a medium-term note program sold through an
underwriter on an agency basis. Such transportation may, however, be
accomplished in accordance with the general override provision set
forth in Rule 15c6-1(a), 17 CFR 240.15c6-1(a).
---------------------------------------------------------------------------
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 concert that lack of certainty in settlement standards
may create confusion in the marketplace. Accordingly, the Commission
stresses that the override position 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.
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.
\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.
---------------------------------------------------------------------------
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.
\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, Nike 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.
---------------------------------------------------------------------------
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 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.
\94\5 U.S.C. 604 (1988).
---------------------------------------------------------------------------
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 [[Page 26613]] 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, NW., Mail Stop 3-3, Washington, DC 20549, (202) 942-2900.
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.
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 in 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:
PART 202--[AMENDED]
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, 78II(d), 79r,
79t, 77sss, 77uuu, 80a-37, 80a-41, 80b-9, and 80b-11, unless
otherwise noted.
* * * * *
2. By revising the seventh sentence of the introductory text of
Sec. 202.3a to read as follows:
Sec. 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) (Sec. 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 Sec. 228.501 to read as follows:
Sec. 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 Sec. 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 including the introduction paragraph to read as
follows:
Sec. 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) (Sec. 228.503(c)), and the page number on which each such
section or subdivision begins.
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 Sec. 228.503 to
read as follows:
Sec. 228.503 (Item 503) Summary information and risk factors.
* * * * *
(b) Address and telephone number. Include in the prospectus the
complete [[Page 26614]] 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)
(Sec. 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
Sec. 228.512 to read as follows:
Sec. 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) (Sec. 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 Sec. 228.601 to revise the third sentence of
paragraph (b)(24) to read as follows:
Sec. 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 (Sec. 230.462(b) of this chapter.* * *
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, 77i, 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 Sec. 229.503 is removed.
11. By revising paragraph (c)(4) of Sec. 229.501 to read as
follows:
Sec. 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 (Sec. 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 Sec. 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:
Sec. 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) (Sec. 229.503(c)), and
the page number on which each such section or subdivision begins.
13. By revising paragraph (b) and paragraph (c) of Sec. 229.503 to
read as follows:
Sec. 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 [[Page 26615]] 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)
(Sec. 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 Sec. 229.512 to read as
follows:
Sec. 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) (Sec. 230.424(b) of this
chapter) if, in the aggregate, the changes in volume and price
represent no more than 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 Sec. 229.601 to revise the fourth sentence of
paragraph (b)(24) to read as follows:
Sec. 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 statement for the same offering
that is to be effective upon filing pursuant to Rule 462(b) under the
Securities Act (Sec. 230.462(b) of this chapter). * * *
* * * * *
16. Guide 4 (referenced in Sec. 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.
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), 78t, 80a-8, 80a-29, 80a-30,
and 80a-37, unless otherwise noted.
* * * * *
18. The authority citations following Secs. 230.429, 230.439 and
230.461 are removed.
19. By amending paragraph (a) of Sec. 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:
Sec. 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) (Sec. 230.462(b)) and Rule 455 (Sec. 230.455) may be
filed with the Commission each day, except Saturdays, Sundays and
federal holidays, from 5:30 p.m. to 10 p.m., Eastern Standard Time or
Eastern Daylight Savings Time, whichever is currently in effect.
20. By amending Sec. 230.111 by designating the existing text as
paragraph (a) and adding paragraph (b) to read as follows:
Sec. 230.111 Payment of fees.
* * * * *
(b) Notwithstanding paragraph (a) of this section, for registration
statements filed pursuant to Rule 462(b) (Sec. 230.462(b)) and Rule
110(d) (Sec. 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 Sec. 230.402 to add paragraphs (d) and (e) to read
as follows:
Sec. 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)
(Sec. 230.462(b)) and Rule 110(d) (Sec. 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 Sec. 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:
Sec. 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 (Sec. 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 [[Page 26616]] 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 shall include the information required by Rule
434(e) (Sec. 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) (Sec. 230.434(c)) with respect to securities
registered on Form S-3 or Form F-3 (Sec. 239.13 or Sec. 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
Sec. 230.429 to read as follows:
Sec. 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 Sec. 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:
Sec. 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) (Sec. 230.424(b)(1)) or Rule 497(h)
(Sec. 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 Sec. 230.434 to read as follows:
Sec. 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:
(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
purpose of sale or for delivery after sale for purposes of Section
5(b)(2) of the Act.
(b) With respect to offerings of securities that are registered on
a form other than Form S-3 or Form F-3 (Sec. 239.13 or Sec. 239.33 of
this chapter), and with respect to offerings of securities by only
those investment companies registered under the Investment Company Act
of 1940 (15 U.S.C. 80a-1 et seq.) that register their securities on
Form N-2 (Sec. 274.11a-1 of this chapter) or Form S-6 (Sec. 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) (Sec. 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 (Sec. 239.13 or Sec. 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 (Sec. 230.430A), to the extend 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) (Sec. 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) (Sec. 230.424(b)) on or prior to the date on which a
conformation 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 (Sec. 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 (Sec. 239.13
or Sec. 239.33 of this chapter), as applicable.
(d) Except in the case of offerings pursuant to Rule 415(a)(1)(x),
(Sec. 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
registration statement was declared effective. In the case of offerings
pursuant to Rule 415(a)(1)(x) (Sec. 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 [[Page 26617]] 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) (Sec. 230.424(b)) or Rule 497(h)
(Sec. 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 1.B.5.
of Form S-3 (Sec. 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 (Sec. 230.430), a prospectus omitting
information in reliance upon Rule 430A (Sec. 230.430A), or a prospectus
omitting information that is not yet known concerning a delayed
offering pursuant to Rule 415(a)(i)(x) (Sec. 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 embedded 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 (Sec. 239.13 or Sec. 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 Sec. 230.439 to read as follows:
Sec. 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 (Sec. 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 Sec. 230.455 to
read as follows:
Sec. 230.455 Place of filing.
* * * 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) (Sec. 230.462(b)) and Rule 110(d)
(Sec. 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) (Sec. 230.462(b)) and Rule 110(d) (Sec. 230.110(d)) may be filed
by means of facsimile transmission.
28. By amending Sec. 230.457 to revise paragraph (o) read as
follows:
Sec. 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
Sec. 230.461 to read as follows:
Sec. 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 for 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 Sec. 230.462 to
read as follows:
Sec. 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 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 (Sec. 230.430A), such post-effective
amendment shall become effective upon filing with the Commission.
31. By amending Sec. 230.472 to add paragraph (e) to read as
follows: [[Page 26618]]
Sec. 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) (Sec. 230.462(b))
and Rule 110(d) (Sec. 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) (Sec. 230.402)e)).
32. By amending Sec. 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:
Sec. 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) (Sec. 230.462(b)) under the Act.
(c)(1) * * *
(2) In a registration statement filed pursuant to Rule 462(b)
(Sec. 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) (Sec. 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 Sec. 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 (Sec. 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 Sec. 232.13 to
read as follows:
Sec. 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) (Sec. 230.462(b) of this chapter) by direct
transmission commending on or before 10 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, 79, 79m, 79n,
79q, 79t, 80a-8, 80a-29, 80a-30 and 80a-37, unless otherwise noted.
Sec. 239.9 [Amended]
* * * * *
37. By amending Form SB-1 (referenced in Sec. 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 the securities registered pursuant to Rule 462(b). See Rule
411(c) and Rule 439(b) under the Securities Act.
* * * * *
Sec. 239.10 [Amended]
38. By amending Form SB-2 (referenced in Sec. 239.10) 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 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
* * * * * [[Page 26619]]
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 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.
Sec. 239.11 [Amended]
39. By amending Form S-1 (referenced in Sec. 239.11) 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, 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 ommitted 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.
* * * * *
Sec. 239.12 [Amended]
40. By amending Form S-2 (referenced in Sec. 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 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 [[Page 26620]] ommitted 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.
* * * * *
Sec. 239.13 [Amended]
41. By amending Form S-3 (referenced in Sec. 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:
Note: The text of Form S-3 does not and the amendments will not
appear in the Code of Federal Regulations.
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.
* * * * *
Sec. 239.18 [Amended]
42. By amending Form S-11 (referenced in Sec. 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:
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 needed 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.
* * * * *
Sec. 239.31 [Amended]
43. By amending Form F-1 (referenced in Sec. 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 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 [[Page 26621]] 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 Sec. 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:
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 Sec. 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:
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
* * * * *
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 [[Page 26622]] 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, 777ttt, 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 Sec. 15c2-8 is removed.
48. By amending Sec. 240.12b-11 to add paragraph (d) to read as
follows:
Sec. 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 Sec. 240.14d-1 to add paragraph (d) to read as
follows:
Sec. 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''.
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:
Sec. 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 Sec. 240.15c6-1 by revising the phrase ``paragraph (b)''
in paragraph (a) to read ``paragraphs (b), (c), and (d)''; by revising
the phrase ``Paragraph (a)'' 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:
Sec. 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 Sec. 240.16a-3 to add paragraph (i) to read as
follows:
Sec. 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 Sec. 270.8b-11 to add paragraph (e) to read as
follows:
Sec. 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.
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:
[[Page 26623]] 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.
Secs. 239.14 and 274.11a-1 [Amended]
59. By amending Form N-2 (referenced in Secs. 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 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 pursuant to Rule 462(b). See Rule 411(c) and Rule 483(c)
under the Securities Act.
* * * * *
Dated: May 11, 1995.
By the Commission.
Margaret H. McFarland,
Deputy Secretary.
[FR Doc. 95-12007 Filed 5-16-95; 8:45 am]
BILLING CODE 8010-01-M
