The regime governing communications during public securities offerings in the US
Section 5(c) of the Securities Act prohibits all "offers", in whatever form, prior to the filing of a registration statement. The term offer is interpreted broadly.
In addition, between the public filing of a registration statement and its effective date, Section 5(b)(1) of the Securities Act requires that any "prospectus" – an expansive term that captures nearly all forms of written or broadcast communication – used in connection with a securities offering be limited to a statutory prospectus that meets information and form requirements (a conforming prospectus).
Section 5(a) of the Securities Act prohibits the sale of any securities until the registration statement has been declared effective by the SEC. And Section 5(b)(2) of the Securities Act requires that a security being sold must be accompanied or preceded by a conforming prospectus.
Offers in violation of these restrictions are often referred to as "gun jumping".
For purposes of regulating publicity about an issuer and an offering, the registration process is accordingly divided into three stages:
- the quiet period – from the time an issuer decides to make a public offering until it files its registration statement;
- the waiting period – from the time the registration statement is filed until it is declared effective; and
- the post-effective period – after the registration statement has been declared effective by the SEC.
During each of these stages, publicity about the issuer is restricted in distinct ways.
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An issuer and its underwriters should pay close attention to the contents of their websites (including hyperlinked information), which are routinely reviewed by the SEC staff during the registration process. |
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Publication of research about an issuer in the US by an investment bank participating in an offering during any stage of the registration process raises significant issues that can affect the offering and constitute an unlawful offer of securities or a non-conforming prospectus. Guidelines are often provided by counsel to all investment banks participating in the offering that restrict content and distribution of research. We discuss research reports below. |
Restrictions on publicity during the quiet period
As noted above, the pre-filing or quiet period begins when an issuer decides to make a public offering (usually by retaining an investment bank or banks to undertake the offering) and ends when the registration statement relating to the offering is first filed publicly with the SEC.
During this period, the issuer may not make offers or sales of the securities being registered. The SEC has construed the concept of premature offers broadly to include publicity that does not refer to the proposed offering but which may nevertheless stimulate investor or dealer interest in the issuer or its securities. An issuer should generally not release publicly any forecasts, projections or predictions relating to revenues, income or earnings a share or concerning expected valuations, and should put in place procedures for review of public statements and press releases.
The SEC has provided certain safe harbours from the prohibition on pre-filing offers. In particular, a foreign private issuer may:
- release a limited notice regarding the offering within the US under 1933 Act Rule 135;
- conduct certain press activities outside the US under 1933 Act Rule 135e;
- if the foreign private issuer is a WKSI, make certain offers of securities under 1933 Act Rule 163;
- take advantage of the 30-day safe harbour for certain pre-filing statements under 1933 Act Rule 163A; and
- release certain factual and forward-looking information.
(i) Rule 135
Rule 135 provides that an issuer will not be deemed to make an offer of securities under Section 5(c) as a result of certain public announcements of a planned registered offering during the quiet period. Under Rule 135, the announcement must:
- contain a legend to the effect that it does not constitute an offer of any securities for sale; and
- contain only limited information, including:
- the name of the issuer;
- the title, amount and basic terms of the securities offered;
- the anticipated timing of the offering; and
- a brief statement of the manner and purpose of the offering, without naming the prospective underwriters for the offering.
(ii) Rule 135e
Rule 135e provides that a foreign private issuer will not be deemed to make a Section 5(c) offer by providing journalists with access to: (i) its press conferences held outside the US; (ii) meetings with issuer (or selling security holder) representatives conducted outside the US; or (iii) written press-related materials released outside the US at or in which the issuer discusses its intention to undertake an offering. To take advantage of Rule 135e, the offering must not be conducted solely in the US – that is, the issuer must have a bona fide intent to make an offering offshore in addition to the US offering. The issuer must also provide access to both US and non-US journalists, and ensure that any written press releases or other press-related materials it uses meet the following requirements:
- the materials must be distributed to journalists (including US journalists) outside the US; and
- the materials must contain a legend stating that:
- - they are not an offer of securities for sale in the US;
- - securities may not be offered or sold in the US absent registration or an exemption from registration;
- - any public offering in the US may be made only by means of a prospectus that may be obtained from the issuer and that will contain detailed information about the issuer and management, as well as financial statements; and
- - whether the issuer intends to register the offering in the US.
These materials also must not include any purchase order or coupon that could be used to indicate interest in the proposed offering.
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Although Rule 135e does not limit the content of offshore press announcements, other restrictions of the US federal securities laws (such as the anti-fraud prohibitions of 1934 Act Rule 10b-5) continue to apply. Some caution is therefore warranted in relying on the Rule. Foreign private issuers should avoid making detailed discussions of a pending offering, particularly in the English-language press outside the US. |
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Note that even if Rule 135e is otherwise available, an issuer may not rely on the Rule to provide internet access to its offshore press conferences or written press-related materials issued offshore, unless it implements procedures to ensure that only persons physically located outside the US will have access to the press conferences or materials. |
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Rule 135e applies only to press activities, and does not protect the transmission of press-related materials, including press releases, to investors. |
(iii) Rule 163 – pre-filing offers by WKSIs
Rule 163 creates a non-exclusive exemption for WKSIs from Section 5(c)'s prohibition on pre-filing offers. Under the new rule, which is not available to underwriters, offers by or on behalf of a WKSI before the filing of a registration statement are free from the restraints of Section 5(c), provided that certain conditions are met. These include that:
- the written communication must contain a prescribed legend;
- it must be filed with the SEC promptly upon filing of the registration statement for the offering (unless the communication has previously been filed with the SEC or is exempt from filing under the terms of 1933 Act Rule 433, dealing with free writing prospectuses); and
- it must not relate to "ineligible offerings", including certain business combination transactions.
Written offers under Rule 163 are deemed to be both a statutory prospectus, subject to Section 12(a)(2) liability, and a free writing prospectus subject to filing in accordance with Rule 433 (discussed in more detail below). If no registration statement is filed, however, a Rule 163 communication will not need to be filed.
Although Rule 163 offers are subject to Regulation FD, Regulation FD does not apply to foreign private issuers (even though many foreign private issuers choose to comply with the terms of Regulation FD). In addition, Rule 163 communications will trigger liability under various anti-fraud provisions of the securities laws, including Section 12(a)(2) and Rule 10b-5 under the Exchange Act.
(iv) Rule 163A – the 30-day bright line safe harbour
Rule 163A provides all issuers (whether or not WKSIs) with a non-exclusive safe harbour for certain communications made more than 30 days before the filing of a registration statement. Communications more than 30 days before filing are not considered pre-filing offers prohibited by Section 5(c), and so will be free from traditional restrictions on gun jumping. They are likewise not deemed to be free writing prospectuses.
Use of the safe harbour is subject to the following requirements:
- Rule 163A communications must not refer to the securities offering that is the subject of the registration statement;
- the communications must be made by or on behalf of an issuer – in other words, the issuer will need to authorize or approve Rule 163A communication and communications authorized or approved by underwriters or dealers will not come within the safe harbour;
- the issuer must take "reasonable steps within its control" to prevent further distribution of the information during the 30-day period before filing the registration statement (although the SEC has suggested that the issuer may maintain this information on its website, if the information is appropriately dated, identified as historical material, and not referred to as part of the offering activities); and
- the safe harbour may not be used in connection with certain business combination transactions, offerings to employees registered on Form S-8, and offerings by blank check companies, shell companies or penny stock issuers.
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The 30-day bright-line safe harbour might offer less protection in practice than might at first appear. Consider, for example, the position of the CEO of a company planning an IPO who is invited to make a presentation at a trade show or at a conference organized by an investment bank scheduled to take place 45 days before the anticipated filing of the IPO registration statement. If the CEO attends and mentions the IPO in response to a question, Rule 163A will no longer be available. Moreover, even though the CEO scrupulously replies "no comment" to the inevitable question about the IPO, if the CEO gives an interview to the press during the conference at which the CEO makes bullish comments about the company's prospects, and the interview is published during the 30-day period, the Rule 163A will again no longer be available. In both cases, the CEO's communication may be deemed an offer and the issuer will have to find another way to avoid the restrictions of Section 5(c) of the Securities Act. |
(v) Rules 168 and 169 – safe harbours for factual business information and forward-looking information during an offering
Since at least 1971, the SEC has permitted issuers to continue to advertise products and services and to issue press releases regarding factual business and financial developments in accordance with past practice, despite the limitations on gun jumping. In addition, 1933 Act Rules 168 and 169 now codify (and expand) this exclusion in the form of two new safe harbours.
In particular, Rules 168 and 169 exempt from the definition of offer under Section 5(c) (and Section 2(a)(10) of the Securities Act) certain information regularly released by or on behalf of an issuer in the ordinary course of its business. Communications that fall within the new safe harbours will not be prohibited pre-filing offers pursuant to Section 5(c) (and are not free writing prospectuses).
(a) Rule 168
Rule 168 is the new non-exclusive safe harbour for reporting issuers. It allows a reporting issuer and certain non-reporting foreign private issuers to make continued regular release or dissemination of "factual business information" and "forward-looking information", subject to certain conditions. Disclosure of Rule 168 information will be permitted at any time, including before and after the filing of a registration statement.
Non-reporting foreign private issuers that may use Rule 168 include those that:
- meet the registrant eligibility requirements for Form F-3, other than the reporting history requirements of the Form;
- either satisfy certain public float thresholds or are issuing certain non-convertible investment grade securities; and
- either:
- - have equity securities that have traded on certain markets outside the US for at least 12 months; or
- - have a worldwide market value of outstanding common equity held by non-affiliates of $700 million or more.
Under Rule 168, factual business information means:
- factual information about the issuer, its business or financial developments, or other aspects of its business;
- advertisements of, or other information about, the issuer's products or services; and
- dividend notices.
Forward-looking information means:
- projections of an issuer's revenues, income or loss, earnings or loss a share, capital expenditures, dividends, capital structure, or other financial items;
- statements about management's plans and objectives for future operations, including plans or objectives relating to the products or services of the issuer;
- statements about the issuer's future economic performance, including statements generally contemplated by the issuer's MD&A; and
- assumptions underlying or relating to the foregoing.
However, neither term includes information about an offering or information released or disseminated as part of offering activities.
As is the case under Rules 163 and 163A, factual business information and forward-looking information under Rule 168 will be considered released "by or on behalf" of an issuer if the issuer, its agent or its representative, other than an underwriter or a dealer, authorized or approved its use before its release. The SEC has not defined who may be considered an agent or a representative for these purposes (other than to exclude underwriters or dealers that are offering participants), although it has pointed to advertising agencies and public relations firms as possible examples.
There are a number of additional conditions for using the Rule 168 safe harbour. These include that:
- the issuer has previously released or disseminated Rule 168 information in the ordinary course of its business; and
- the timing, manner and form in which the information is released is materially consistent with similar past disclosures.
For the information to be considered regularly released in the ordinary course of business, the method of releasing or disseminating the information, and not just the content, will be required to be consistent with prior practice. Therefore, under Rule 168 the issuer will need to be able to show a record of releasing the particular type of information in the same particular manner, although the SEC has acknowledged that one prior release could establish a record. Information can also be regularly released for these purposes if it is made on an unscheduled or episodic basis (such as product advertising, product release information or earnings guidance). Furthermore, merely using new or different technologies will not necessarily disqualify a communication.
(b) Rule 169
Rule 169 is the new non-exclusive safe harbour for non-reporting issuers. It is similar to, but more limited than, Rule 168. Under Rule 169, non-reporting issuers are permitted to continue to release factual business information, but not forward-looking information. Under Rule 169, non-reporting issuers may continue to release factual business information, but not forward-looking information, subject to certain conditions. In addition, the definition of factual business information is narrower under Rule 169 than under Rule 168. Rule 169 information may be released at any time, including before or after the filing of a registration statement.
Under Rule 169, factual business information means:
- factual information about the issuer, its business or financial developments, or other aspects of its business; and
- advertisements of, or other information about, the issuer's products or services.
Unlike Rule 168 for reporting issuers, Rule 169 does not include dividend notices or factual information set forth in the issuer's Exchange Act reports within the definition of factual business information. The SEC has explained that it had not included dividend notices within the definition because the communications covered by Rule 169 are those intended for use by persons other than in their capacity as investors. But the two Rules are similar in that under both, factual business information does not include information about an offering or information released or disseminated as part of offering activities.
As is the case for Rule 168, information will be considered to be released "by or on behalf" of an issuer under Rule 169 if the issuer, its agent or its representative, other than an offering participant that is an underwriter or a dealer, authorized or approved its use before its release.
In addition, to use the Rule 169 safe harbour:
- the issuer must have previously released or disseminated information of the type described in Rule 169 in the ordinary course of its business;
- the timing, manner and form in which the information is released must be materially consistent with similar past disclosures; and
- the information must be released or disseminated to persons, such as customers or suppliers, other than in their capacity as investors or potential investors, by the issuer's employees or agents who historically have provided this information.
The SEC has explained that Rule 169 is aimed at protecting communications intended for non-investors. But the safe harbour will continue to be available even if a widely disseminated communication that otherwise meets the requirements of the Rule is available to or is received by investors.
Restrictions on publicity during the waiting period
(i) Background
The waiting period extends from the time that the registration statement is filed publicly with the SEC until the time that it is declared effective by the SEC. During this period, offers but not sales of the security may be made. Under Section 5(b)(1) a non-conforming prospectus may not be used, and because the term prospectus picks up nearly all forms of written communication (and many electronic communications as well), all written offers must take the form of a conforming prospectus.
Accordingly, a foreign private issuer may:
- continue to advertise products and services and to issue press releases regarding factual business and financial developments in accordance with past practice;
- continue to release factual and forward-looking information in accordance with the Rule 168 and Rule 169 safe harbours;
- continue to conduct certain press activities outside the US under Rule 135e; and
- make a limited notice within the US under 1933 Act Rule 134.
In addition, a foreign private issuer may use a preliminary prospectus, a free writing prospectus and hold road shows during this period. We discuss free writing prospectuses and road shows in more detail below.
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During the waiting period, an issuer should exercise particular caution in interviews with journalists in which information is furnished orally but with the expectation that it may be published. Disclosures of this sort may be considered a written offer and hence a non-conforming prospectus. In particular, an issuer should not make any oral statements that go beyond or are inconsistent with the information contained in the preliminary prospectus. |
(ii) Rule 134
Rule 134 provides that certain limited written communications related to a securities offering as to which a registration statement has been filed will not be considered to be an offer under Section 5. Rule 134 is available once a statutory prospectus has been filed, although in the case of an IPO, most of the information permitted by Rule 134 may be disclosed before the inclusion of a bona fide price range in the registration statement.
The information permitted by Rule 134 includes:
- certain basic factual information about the legal identity and business location of the issuer, including contact details of the issuer;
- information about the business segments through which the issuer operates;
- information about the securities being offered;
- the names of all underwriters participating in the offering and their additional role in the underwriting syndicate;
- the anticipated schedule for the offering, and a description of marketing events;
- a description of the procedures by which the underwriters will conduct the offering and information about procedures for opening accounts and submitting indications of interest;
- expanded disclosure regarding credit ratings (although a bona fide price range, in the case of a non-reporting issuer, must be included in the registration statement before including ratings information in a Rule 134 communication);
- certain additional information, including the names of selling securities holders, certain email addresses, the exchanges on which the securities will be listed and the ticker symbols; and
- a required legend.
Restrictions on publicity after effectiveness of the registration statement
After effectiveness of the registration statement, underwriters and other distribution participants may only sell the securities by means of a final prospectus. In addition, underwriters will have an obligation to deliver a statutory prospectus during a period of time following effectiveness, even in connection with secondary market resales. We discuss prospectus delivery in more detail below.
Accordingly until the later of (i) completion of "distribution" of the securities (that is, when the securities have been sold to investors), and (ii) expiration of the relevant prospectus-delivery period, limitations on publicity by the issuer will remain in place. Once these periods have passed, offering-related limitations on publicity can generally be eliminated.
Research reports
1933 Act Rules 137, 138 and 139 set out the circumstances under which a broker or dealer may publish research contemporaneously with a registered offering without violating the Section 5(c) prohibitions on pre-filing offers or the form of prospectus requirements of Section 5(b)(1).
(i) Definition of research report
A research report is a written communication that includes information, opinions or recommendations with respect to securities or an issuer, or an analysis of securities or an issuer, whether or not it provides information reasonably sufficient for an investment decision. The term written communication includes a wide variety of electronic communication, such as emails and websites. According to the SEC, the definition of research report is intended to encompass all types of research reports, whether issuer-specific or industry compendiums separately identifying the issuer. In addition, the definition does not (and the related safe harbours do not) cover oral communications, which accordingly may be offers subject to Section 12(a)(2) liability.
(ii) Rule 137 – publication of research by non-participating broker-dealers
Rule 137 provides that a broker or dealer that is not a participant in a registered offering but publishes or distributes research will not be deemed to make offers of a security or to participate in a distribution of those securities as an underwriter.
Rule 137 applies to securities of any issuer, including non-reporting issuers (but excluding blank check companies, shell companies and penny stock issuers). Rule 137 is available only to brokers and dealers who are not participating in the registered offering of the issuer's securities and have not received compensation from the issuer, its affiliates or participants in the securities distribution. Rule 137 also requires that the broker-dealer must publish or distribute the research report in the regular course of business.
(iii) Rule 138 – publication of research by an underwriter on other securities of an issuer
Rule 138 provides that a broker or dealer participating in a distribution of securities by an issuer that is Form F-3 eligible (or, in the case of a foreign private issuer only, meets certain conditions of Form F-3) is not deemed to make an offer of those securities if it publishes or distributes research that is confined to a different type of security of that issuer. For example, Rule 138 allows publication of research with respect to debt securities by an underwriter when participating in a distribution of the issuer's common stock, and vice versa.
Rule 138:
- covers research reports on all reporting issuers that are current in their Exchange Act reporting (with the exception of blank check companies, shell companies and penny stock issuers); and
- includes a requirement that the broker or dealer publish research reports on the types of securities in question in the regular course of its business.
The SEC has explained that the regular course requirement under revised Rule 138 does not mean that the broker or dealer must have a history of publishing research reports about the particular issuer or its securities. Instead, the research report must cover the "same types of securities".
(iv) Rule 139 – publication of research about the securities being offered by an underwriter
Rule 139 provides that a broker or dealer participating in a registered offering by certain seasoned issuers can publish ongoing research about the issuer and its securities without being deemed to offer those securities by way of its research reports. Rule 139 research can take the form of issuer-specific reports, or more general reports covering an industry sector. Rule 139 covers Form F-3 eligible issuers that are current in their Exchange Act reporting for issuer-specific research reports; Exchange Act reporting companies for industry research reports; and certain foreign private issuers for both types of reports. However, the Rule also excludes research reports about blank check companies, shell companies and penny stock issuers from the scope of the safe harbour.
- Issuer-specific reports: To qualify for the Rule 139 safe harbour, the broker-dealer must publish issuer-specific research reports in the regular course of its business. That publication may not represent the initiation of publication of research about the issuer or its securities (or re-initiation of publication following discontinuation). The SEC has explained that this requirement means that the broker-dealer must have previously published at least one research report on the issuer or its securities, or have published one such report following discontinuation of coverage.
- Industry reports: Rule 139 requires that the broker or dealer must publish research in the regular course of its business and, at the time of the publication of the research report, must include similar information about the issuer or its securities in similar reports.
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Rule 139 no longer contains the prior requirement that the broker-dealer not make a recommendation in the report more favourable than that contained in previous reports, and in fact the broker-dealer need not have included any recommendation in its prior reports. |
Prospectus delivery
(i) Prospectus-delivery requirements
Once the registration statement becomes effective, and generally for 40 days thereafter, dealers may sell the registered securities (including in secondary market transactions) only if the confirmation of any sale is accompanied or preceded by the final prospectus included in the registration statement. However:
- the prospectus-delivery period is 25 days if the issuer is a first-time registrant, and the securities offered are listed or quoted in the US;
- the prospectus-delivery period is 90 days in all other initial public offerings; and
- there is no requirement to deliver a prospectus if the issuer was already a reporting company under the Exchange Act immediately before the registration statement was filed.
(ii) Rule 172
Under Rule 172, after the effective date of a registration statement:
- written trade confirmations and notices of allocation of securities are exempt from Section 5(b)(1)'s prohibition on non-conforming prospectuses; and
- any obligation to deliver a final prospectus is deemed to be met provided the issuer makes a good faith and reasonable effort to file a final prospectus by the required prospectus filing date under Rule 424 (and if it fails timely to file, it files the prospectus as soon as possible thereafter).
To satisfy Rule 172, the registration statement cannot be the subject of any stop orders and the issuer cannot be subject to any cease and desist proceedings. Furthermore, Rule 172 does not apply to employee benefit offerings registered on Form S-8.
(iii) Rule 173
Under Rule 173, each underwriter or broker-dealer participating in an offering in which the final prospectus-delivery requirements apply may deliver, in lieu of a final prospectus, a notice to the effect that the sale was made pursuant to a registration statement or in a transaction in which a final prospectus would have been required to have been delivered in the absence of Rule 172. The notice – which will be exempt from Section 5(b)(1)'s prohibition on non-conforming prospectuses – must be delivered not later than two business days following completion of the sale. Compliance with Rule 173 will not be a condition for the Rule 172 exemption from prospectus delivery, and hence failure to send the required notice will not result in a violation of Section 5.
(iv) Rule 174
Under Rule 174, any obligation to deliver a prospectus under the Rule will be satisfied by complying with Rule 172. In other words, during the 25-, 40- or 90-day period following effectiveness (depending on the type of transaction and whether the issuer was an Exchange Act reporting company prior to filing the registration statement), no physical prospectus needs to be delivered.
Endnotes
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1933 Act Rule 135(a)(1).
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1933 Act Rule 135(a)(2).
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1933 Act Rule 135e(a)(2), (b)(1), (b)(2).
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Use of Electronic Media, Securities Act Release 7856, Exchange Act Release 42728, Investment Company Act Release 24426, [2000 Transfer Binder] Fed Sec L Rep (CCH) ¶ 86,304, at 83,384 n.68 (April 28, 2000) [Use of Electronic Media Release].
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Securities Act Reform Release, Section III.D.2.b.ii, n.170, at 79.
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1933 Act Rule 163(a).
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1933 Act Rule 163(b)(1).
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1933 Act Rule 163(b)(2).
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1933 Act Rule 163(b)(3).
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1933 Act Rule 163(a)(1).
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Securities Act Reform Release, Section III.D.2.b.iii, at 82.
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Specifically, these communications will not be considered to be made in "connection with a securities offering registered under the Securities Act" for purposes of Rule 100(b)(2)(iv) of Regulation FD. 1933 Act Rule 163(e).
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Securities Act Reform Release, Section III.D.2.b.ii, n.169, at 78.
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1933 Act Rule 163A(a).
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Like Rule 163 communications, Rule 163A communications are still subject to Regulation FD, as they would not be considered to be made in "connection with a securities offering registered under the Securities Act" for purposes of Rule 100(b)(2)(iv) of Regulation FD. 1933 Act Rule 163A(d).
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See 1933 Act Rule 405, definition of Free Writing Prospectus, Section (3) (a free writing prospectus includes a written communication that constitutes an offer to sell or solicitation of an offer to buy securities).
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1933 Act Rule 163A(a).
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1933 Act Rule 163A(a), (c); see also Securities Act Reform Release, Section III.D.2.a.1, at 72 (offering participants that are underwriters or dealers are not "agents or representatives of the issuer" for purposes of Rule 163A).
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Securities Act Reform Release, Section III.D.2.a.ii, at 76 - 77.
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1933 Act Rule 163A(b).
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Guidelines for the Release of Information by Issuers Whose Securities are in Registration, Securities Act Release 5180 (Aug. 16, 1971) [Information Guidelines].
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1933 Act Rules 168(a) and 169(a).
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See 1933 Act Rule 405, definition of Free Writing Prospectus, Section (3) (a free writing prospectus includes a written communication that constitutes an offer to sell or solicitation of an offer to buy securities).
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1933 Act Rule 168(a).
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Id.
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1933 Act Rule 168(a)(2).
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1933 Act Rule 168(b)(1).
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1933 Act Rule 168(b)(2).
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1933 Act Rule 168(b)(4).
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Securities Act Reform Release, Section III.D.1.b.iii(A)(2), at 62.
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1933 Act Rule 168(d).
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Securities Act Reform Release, Section III.D.1.b.iii(B)(1), at 63.
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1933 Act Rule 169(a); see also Securities Act Reform Release, Section III.D.1.c.i., n.146, at 68 (principal relevance of Rule 169 is to issuers not eligible for Rule 168). Investment companies may not take advantage of Rule 169. 1933 Act Rule 169(d)(4).
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1933 Act Rule 169(a).
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1933 Act Rule 169(b)(1).
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Securities Act Reform Release, Section III.D.1.c.i, n.149, at 69.
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1933 Act Rules 168(c) and 169(c).
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Securities Act Reform Release, Section III.D.1.c.ii, at 70.
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Information Guidelines.
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1933 Act Rule 134(a).
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Id.
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1933 Act Sections 5(b)(2); 10(a); 2(a)(10).
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Additional considerations may apply if a portion of the securities were sold offshore under Regulation S. In particular, to the extent these periods expire before the expiration of the Regulation S distribution compliance period, publicity in the US will continue to be prohibited until the distribution compliance period has ended.
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1933 Act Rules 137(e), 138(d), 139(d).
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Securities Act Reform Release, Section III.D.4.b.i(A), at 158.
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Id. at 160.
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1933 Act Rule 138(a).
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Securities Act Reform Release, Section III.D.4.b.iii(A), at 164.
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1933 Act Rule 139(a)(1).
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Securities Act Reform Release, Section III.D.4.b.iv(A)(1), at 167.
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1933 Act Rule 139(a)(2).
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Securities Act Reform Release, Section III.D.4.b.iv(B)(1), at 168-169.
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1933 Act Section 4(3).
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1933 Act Section 5(d)(2).
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1933 Act Rule 174(d).
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1933 Act Section 4(3).
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1933 Act Rule 174(b).
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Securities Act Reform Release, Section VI.B.1.c(i), at 249 - 250.