26604 Federal Register / Vol. 60, No. 95 / Wednesday, May 17, 1995 / Rules and Regulations

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.

3See Exchange Act Release No. 34952 (Nov. 9,

1994) (59 FR 59137).

4 15 U.S.C. 77a et seq.

5The term ‘‘new issues’’ as used herein refers to

both initial public offerings and offerings of

additional securities by companies.

6Some 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.

7See 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.

8See Securities Act Release No. 7141 (Feb. 21,

1995) (60 FR 10724) (hereinafter, the ‘‘Proposing

Release’’).

9These 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.

10As 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.

SECURITIES AND EXCHANGE

COMMISSION

17 CFR Parts 202, 228, 229, 230, 232,

239, 240, 270, and 274

[Release No. 33–7168; 34–35705; IC–21061;

File No. S7–7–95]

RIN 3235–AG40

Prospectus Delivery; Securities

Transactions Settlement

AGENCY: Securities and Exchange

Commission.

ACTION: Final rules.

SUMMARY: The Commission is adopting

revisions to its rules and forms and a

new rule in order to implement two

solutions to prospectus delivery issues

arising in connection with the change to

T+3 securities transaction settlement.

These revisions, among other things,

include changes that highlight the

location of the risk factor disclosure

within the prospectus. In addition, the

Commission is eliminating an

exemption from T+3 settlement for

purchases and sales of securities

pursuant to a firm commitment offering,

providing a T+4 time frame to firm

commitment offerings under certain

conditions, and adopting a modified

procedure whereby participants in firm

commitment offerings may agree to an

extended settlement time frame.

EFFECTIVE DATE: The new rule and the

revisions to rules and forms are effective

June 7, 1995.

FOR FURTHER INFORMATION CONTACT:

Anita Klein, Joseph Babits or Michael

Mitchell (202) 942–2900, Division of

Corporation Finance; and, with regard

to questions concerning revisions to the

T+3 settlement rule, Jerry W. Carpenter

or Christine Sibille, (202) 942–4187,

Division of Market Regulation; and,

with regard to questions concerning

Rule 15c2–8 revisions, Alexander Dill,

(202) 942–4892, Division of Market

Regulation; and, with regard to

questions concerning the application to

investment companies, Kathleen Clarke,

(202) 942–0721, Division of Investment

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.

Since the adoption of Rule 15c6–1,

members of the brokerage community

have suggested that the Commission

eliminate this exemption because,

among other reasons, the bifurcated

settlement cycle created for initial sales

and resales of new issues 5 would be

disruptive to broker-dealer operations

and to the clearance and settlement

system.

According to the brokerage

community, the primary reason that

settlement within T + 3 is not feasible

for many new issues is the amount of

time it takes to print and deliver

prospectuses.6

Two proposals to ease prospectus

delivery within T + 3 were submitted

for Commission consideration. One was

submitted by the Securities Industry

Association (‘‘SIA’’) and one was

submitted by a group of four investment

firms: CS First Boston Corporation,

Goldman, Sachs & Co., Lehman Brothers

Inc. and Morgan Stanley & Co.

Incorporated (the ‘‘Four Firms’’).7 These

proposals recommended markedly

different solutions to accomplishing

prospectus delivery within T + 3.

On February 21, 1995, the

Commission proposed new Rule 434

and amendments to existing rules and

forms based upon these two proposals.8

The Commission sought comment

regarding which approach should be

implemented, or whether the

Commission should implement both

approaches and thereby allow market

participants a choice as to which to use

in any given offering. Twenty-nine

comment letters were received in

response to the Proposing Release.9

Most commenters addressing the

question of whether to adopt one or

both approaches favored the adoption of

both of the Commission’s approaches.

As described in greater detail below,

the Commission is adopting both

approaches, largely as proposed, to

provide market participants with the

flexibility of selecting between

alternative methods to expedite

prospectus delivery under a T + 3

clearance and settlement system.10

Because of the concerns expressed by

some commenters with respect to the

potential for investor confusion,

however, the Commission intends to

monitor closely disclosure practices that

develop under the new rules and will

undertake revisions to the rules if

necessary to address investor problems.

On February 21, 1995, the

Commission also proposed amendments

to Rule 15c6–1 to eliminate the current

exemption for firm commitment

offerings except offerings of assetbacked securities and structured

securities, to provide for a T+4 standard

settlement period for offerings priced

after the close of the markets (‘‘aftermarket 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
Federal Register / Vol. 60, No. 95 / Wednesday, May 17, 1995 / Rules and Regulations 26605

11With 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.

12For a discussion of the application of the Four

Firms approach to investment companies, see infra

Section II.A.8.

13Certain 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).

14Commenters 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 pricerelated 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).

15See 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 twelvepoint modern type and at least two points leaded.

16See 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).

17See 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.

18See 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).

19See Instruction to Item 503(c) of Regulations S–

K and S–B, 17 CFR 229.503(c) and 228.503(c).

20See revisions to Rule 457(o) under the

Securities Act, 17 CFR 230.457(o). The amount of

securities to be registered and the proposed

Continued

commenters, however, objected to the

requirements and limitations contained

in the T+3, T+4, or T+5 proposal. As

described below, the Commission is

eliminating the blanket exemption from

Rule 15c6–1 for firm commitment

offerings, is adopting the T+4 standard

for after-market pricings, and is

adopting a revised provision authorizing

exceptions from T+3 settlement for

certain firm commitment offerings.11

II. Prospectus Delivery Approaches

A. The Four Firms Approach

The Four Firms proposal was

premised on the view that the process

of preparing and delivering

prospectuses in new issues could be

accelerated sufficiently to comply with

T+3 if six steps were taken by the

Commission to facilitate the printing of

a significant portion of the final

prospectus prior to pricing. Those six

steps, noted below, are being adopted

substantially as proposed.12 Except as

otherwise noted, these steps are

applicable to any offering.

1. Re-ordering of Prospectuses

As was proposed, the Commission is

adopting rule revisions enabling the

contents of prospectuses to be reordered 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

Further, rule revisions provide that

specific information currently required

on the prospectus cover pages may be

placed under an appropriate caption

elsewhere in the prospectus.17

Otherwise, the prospectus cover pages

must continue to contain information

currently specified by Commission

rules.18

The ‘‘pricing-related information’’

section may include those portions of a

prospectus that may change as a result

of pricing, such as use of proceeds,

capitalization, pro forma financial

information, dilution, selling

shareholder information and shares

eligible for future sale.19 The pricing

information portion itself may be

included in the price-related

information section. These adopted rule

revisions which allow re-ordering of

information within a prospectus for

convenience in printing do not alter

existing requirements with respect to

the filing of post-effective amendments

or supplements with the Commission

when material changes or additions

affect information set forth in the

prospectus contained in an effective

registration statement. However, other

rule revisions discussed below do alter

existing requirements.

2. Changes in Offering Size and

Estimated Price Range

To prevent delays in printing

prospectuses that arise when the size of

an offering is changed after the effective

date of the registration statement, or the

pricing of the securities falls outside the

estimated range, the Commission under

specified conditions is eliminating or

streamlining the filings that result.

Although originally contemplated only

for Rule 430A offerings, the adopted

revisions provide the same flexibility for

all registered offerings.

a. Registration of Classes of Securities

In order to minimize the instances in

which an increase in the offering size

would result in the need to file a new

registration statement, rule revisions are

being adopted to increase registrants’

flexibility with respect to the amount of

securities being registered in an offering.

Under the revised rules, an issuer is

permitted to register securities in an

offering by specifying only the title of

the class of securities to be registered

and the proposed maximum aggregate

offering price.20 Except in the case of
26606 Federal Register / Vol. 60, No. 95 / Wednesday, May 17, 1995 / Rules and Regulations

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).

21See 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.

22While 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.

23See 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.

25Consistent 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.

26See 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.

27See 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.

28Effective 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.

29The 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.

30See 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.

31See Securities Act Release No. 6964 (Oct. 22,

1992) (57 FR 48970) for a discussion of the

materiality standard as it applies to these changes.

the unallocated shelf procedure

available to Form S–3-eligible

companies, the aggregate dollar amount

associated with each class of securities

offered must be disclosed in the

‘‘Calculation of Registration Fee’’ table.

Where issuers register a greater amount

of securities than needed in the offering,

such additional securities may be

carried forward to a subsequent

registration statement without incurring

an additional registration fee.21

b. Increases in Offering Size—

Registration of Additional Securities

When the pricing terms of an offering

are finalized, it is not unusual for

changes to be made in the offering size

through adjustments to both price and

volume.22 Where this process requires

registration of additional securities, the

revised rules and forms permit the filing

of an abbreviated registration statement

to register the additional amount of

securities to be offered and sold.23 Such

an abbreviated registration is available

to an issuer that is registering additional

securities in an amount and at a price

that together represent no more than a

20% increase in the maximum aggregate

offering price set forth in the

‘‘Calculation of Registration Fee’’ table

in the earlier effective registration

statement.24 Such registration would

consist of: The facing page, a statement

incorporating by reference the contents

of the earlier registration statement

relating to the offering, all required

consents and opinions, and the

signature page. While not required by

the rule, the registrant also may include

in the new registration statement,

instead of in a filing under Rule 424,

any price-related information with

respect to the offering that was omitted

from the earlier registration statement

pursuant to Rule 430A.25 The

abbreviated registration statement must

be filed prior to the time sales are made

and confirmations are sent or given, and

will become effective automatically

upon filing.26 As adopted, this

abbreviated registration format is

available regardless of whether the

earlier registration statement was

prepared in reliance upon Rule 430A.

In addition to providing an

abbreviated registration format for such

increases in offering size, rule revisions

allow such registration statements to be

filed promptly even when pricing

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.

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.

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
Federal Register / Vol. 60, No. 95 / Wednesday, May 17, 1995 / Rules and Regulations 26607

32See 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.

33See 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.

34See 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.

35See 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.

36See revisions to Rule 430A(a)(3), 17 CFR

230.430A(a)(3).

37The 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).

38See Rule 462(c), 17 CFR 230.462(c).

39See Rule 409, 17 CFR 230.409.

40See 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.

41See 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.

Registration Fee’’ table in the effective

registration statement.32

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 posteffective 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.

Rule revisions also allow opinions

and consents required in abbreviated

registration statements registering an

additional 20% to be incorporated by

reference to the extent that the opinions

and consents contained in the earlier

effective registration statement were

drafted to apply to any subsequent

registration statement filed solely to

increase the offering up to a 20%

threshold.35 Where opinions and

consents cannot be incorporated,

duplicated or facsimile versions of

manual signatures may be included in

the new opinion or consent required to

be filed in the abbreviated registration

statement.

4. Rule 430A Pricing Period

As was proposed, the Commission is

extending the period during which a

prospectus supplement containing

pricing and other related information

omitted from a registration statement

may be filed pursuant to Rule 430A

under the Securities Act.36 The

‘‘pricing’’ period is extended from five

to fifteen business days after the

effective date of the registration

statement or any post-effective

amendment thereto. Although originally

proposed as an extended ten-businessday period, the adopted fifteenbusiness-day period should provide

additional flexibility for purposes of

complying with T+3, without defeating

the purpose of that limitation.37

Where a Rule 430A offering is not

priced within the fifteen-day period, a

post-effective amendment updated in all

respects that either restarts the pricing

period or contains the Rule 430A

pricing information (i.e. similar to a

traditional pricing amendment) must be

filed and effective prior to sales. While

no changes to this requirement are being

made, other rule revisions are being

adopted to minimize the delay that

could result. Such a post-effective

amendment, which must be filed prior

to the time sales are made and

confirmations are sent, will become

effective upon filing if the prospectus

contained therein contains no material

changes from, or additions to, the

prospectus previously filed as part of

the effective registration statement other

than the price-related information

omitted from the registration statement

in reliance on Rule 430A.38 A company

filing a post-effective amendment that

reflects other material prospectus

changes or additions (other than the

‘‘20% increase in offering size’’ changes)

would follow current procedures under

which the post-effective amendment is

subject to selective review and is

declared effective.

5. Immediate Takedowns From a Shelf

Registration

The Four Firms proposal requested

that the Commission permit immediate

takedowns after a shelf registration

statement becomes effective. As

indicated in the Proposing Release,

immediate offerings from an effective

shelf registration statement currently are

permitted. At the time of effectiveness,

information in the shelf registration

statement is required to the extent it is

known or reasonably available to the

registrant.39 Accordingly, if an offering

of securities is certain at the time the

shelf registration statement becomes

effective, the relevant information (e.g,

description of securities, plan of

distribution and use of proceeds) must

be disclosed with respect to the

securities subject to the immediate

takedown and the Rule 430A

undertakings should be included (if the

issuer wants Rule 430A pricing

flexibility).

6. Acceleration of Effectiveness

As was proposed, adopted rule

revisions allow requests to accelerate

effectiveness of registration statements

to be transmitted to the Commission by

fax transmission. In addition, rule

revisions permit oral requests for

acceleration to be made, 40 provided

that the Commission previously receives

a letter indicating that the registrant and

the managing underwriter may make

oral requests for acceleration and that

they are aware of their obligations under

the Securities Act.41

In order to facilitate the ability of the

Commission staff, pursuant to delegated

authority, to reach a determination to

accelerate effectiveness based on the

public availability of information and
26608 Federal Register / Vol. 60, No. 95 / Wednesday, May 17, 1995 / Rules and Regulations

42 15 U.S.C. 77h(a).

43See Rule 418(a)(7), 17 CFR 230.418(a)(7). See

also Rule 460, 17 CFR 230.460.

44See 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.

45One 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.

46See 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.

47As 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.

48See 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 posteffective amendment filed by a UIT for the purpose

of increasing the amount of securities proposed to

be offered under Section 24(e)(1).

49Modifications 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.

50 17 CFR 230.434.

51 ‘‘Short-form’’ registration is used herein to refer

to registration on Commission Forms S–3 or F–3.

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 nonreporting companies, an affirmative

statement from the managing

underwriter may be requested with

regard to whether it has been informed

by participating underwriters and

dealers that copies of the preliminary

prospectus have been or are being

distributed to all persons to whom it is

then expected to mail confirmations not

less than 48 hours prior to the time it

is expected to mail such

confirmations.44

7. T+4 Settlement for Firm Commitment

Offerings Priced After the Close of the

Market

As discussed elsewhere in this

release, the Commission is eliminating

the current exemption contained in Rule

15c6–1 for firm commitment offerings,

thus bringing those transactions under a

T+3 settlement standard. In response to

the Four Firms proposal, the

Commission proposed an amendment to

Rule 15c6–1 that would establish four

business days after the trade date

(‘‘T+4’’) as the standard settlement cycle

for firm commitment offerings priced

after 4:30 p.m. The vast majority of

commenters who addressed this

proposal expressed support for

settlement on a T+4 basis.45 Several of

these commenters reasoned that it is

difficult to print and deliver the final

prospectus within a T+3 settlement time

frame when the securities are priced late

in the day. These commenters also

opined that the potential systemic and

market risks associated with the T+4

provision should be limited because

most of the secondary trading in the

subject securities will not begin until

the opening of the market on the next

business day and, therefore, the primary

issuance of securities will be available

to settle secondary trading in the

security.

The T+4 provision in the Four Firms

proposal was intended to provide time

to deliver prospectuses by settlement.

Establishing T+4 as the standard for this

category of offerings also will provide

certainty and reduce confusion as to the

appropriate settlement cycle.

Accordingly, the Commission is

adopting the amendment for settlement

of specific offerings on a T+4 basis with

only minor technical corrections.46

8. Investment Companies

The Commission requested comment

on whether the Four Firms proposal

should apply to investment companies.

Commenters did not believe that openend 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.

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.
Federal Register / Vol. 60, No. 95 / Wednesday, May 17, 1995 / Rules and Regulations 26609

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.

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.

54The 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.

55See Rule 434(b)(3), 17 CFR 230.434(b)(3).

56As 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).

57See 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).

58See 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).

59See Rule 434(d), 17 CFR 230.434(d).

60 Id.

61See, 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.

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.

63The 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.

65See Rule 434(c)(3), 17 CFR 230.434(c)(3).

66Offering-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.

67See 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).

1. Non-Short-Form Registered Offerings

As adopted, in eligible offerings not

using short-form registration, persons

may comply with their prospectus

delivery obligations by delivering a

preliminary prospectus,52 a term sheet,

if necessary,53 and a confirmation.54

The term sheet is required to include all

information material to investors with

respect to the offering that is not

disclosed in the delivered preliminary

prospectus or the confirmation.55

Neither the process of filing

registration statements and amendments

thereto, nor the Commission’s

registration statement review process, is

intended to be altered in connection

with the adoption of Rule 434.56 Rule

434 requires that the preliminary

prospectus and the term sheet, taken

together, not materially differ from the

disclosure included in the effective

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

Several commenters on the Proposing

Release suggested that the Commission

require that a second preliminary

prospectus (either an updated version or

another copy of the version previously

circulated) be circulated to investors

either with the term sheet or shortly

before the term sheet is delivered.61

Circulation of a second preliminary

prospectus is not required by Rule 434

as adopted, but nothing in the Rule

precludes offering participants from

doing so.

As adopted, Rule 434 is not limited

with respect to the amount of time that

could elapse between delivery of the

preliminary prospectus and the term

sheet. Further, the rule does not contain

any limitation on the magnitude of

changes from the disclosure set forth in

the circulated preliminary prospectus

that the term sheet may contain. As

noted above, however, the Rule is not

available for non-short-form registered

offerings if the disclosure in the

preliminary prospectus and term sheet

materially differ from the disclosure

contained in the prospectus filed as a

part of the effective registration

statement.

2. Short-Form Registered Offerings

In Rule 434 eligible offerings using

short-form registration, persons may

comply with their prospectus delivery

obligations by delivering a preliminary

or base prospectus,62 an abbreviated

term sheet63 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.

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
26610 Federal Register / Vol. 60, No. 95 / Wednesday, May 17, 1995 / Rules and Regulations

68See Rule 434(e), 17 CFR 230.434(e).

69See Rule 434(a), 17 CFR 230.434(a). These

MTN offerings rely on Rule 415(a)(1) (ix) or (x),

respectively.

70See letter from Kevin Moynihan, Merrill Lynch

to Jonathan Katz, Securities and Exchange

Commission, dated April 7, 1995.

71 Id.

72 ‘‘Asset-backed security’’ is defined for purposes

of Rule 434 the same way it is defined in General

Instruction I.B.5. of Form S–3: a security that is

primarily serviced by the cashflows of a discrete

pool of receivables or other financial assets, either

fixed or revolving, that by their terms convert into

cash within a finite time period plus any rights or

other assets designed to assure the servicing or

timely distribution of proceeds to the

securityholders. See Rule 434(f), 17 CFR 230.434(f).

73See Rule 434(a), 17 CFR 230.434(a).

74See Rule 434(h), 17 CFR 230.434(h).

75See 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.

76 17 CFR 240.15c2–8.

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

3. Scope of the Proposed Rule

a. Underwritten Offerings for Cash

Rule 434, as adopted, extends only to

offerings where the sole consideration

given in exchange for securities is cash.

Offerings such as exchange offers and

business combinations are not included.

As noted in the Proposing Release, in

those offerings, the final prospectus is

traditionally used to begin the process

of soliciting votes or consents to a

transaction. Thus, the logistical

difficulties of prospectus delivery are

not associated with those offerings.

The adopted Rule also does not

extend to offerings that are made other

than on a firm commitment basis with

underwriters, except for offerings of

investment grade debt made in

connection with a medium-term note

(‘‘MTN’’) program registered with the

Commission on either a continuous or

delayed shelf basis.69 Concern has been

expressed that exclusion of these MTN

securities from the Rule would

unnecessarily push such transactions

out of the T+3 settlement cycle.70

Further, while these MTN securities

typically are sold through an

underwriter on an agency rather than a

firm commitment basis, assurance has

been given that, once an agreement has

been reached between the investor and

the MTN program agent, the preparation

and delivery of a prospectus occurs in

a manner identical to that in a principal

transaction.71

b. Offerings of Asset-Backed Securities

As adopted, Rule 434 excludes

offerings of asset-backed securities

(‘‘ABS’’).72 Settlement in connection

with ABS offerings currently takes place

outside of the T+3 time frame, on

approximately a T+10 cycle, and is

likely to continue to do so. As noted in

the Proposing Release, the existing

settlement schedule is the result

primarily of factors unique to these

offerings, which are the same factors

that result in such offerings not lending

themselves to use of incremental

disclosure. Those factors include: (i)

The distinctive structuring process for

most ABS offerings, which typically

extends almost to the time when the

security is priced, whereby a variety of

structures may be considered as the

sponsor attempts to meet investors’

needs’ (ii) the time needed for

identification of the specific pool of

collateral which will support the ABS;

and (iii) the necessity of creating shortly

before sale of the ABS a prospectus

supplement of significant length and

complexity that details the

characteristics of specific pool assets

and the transaction’s structure, the

summarization of which would not

serve as an adequate substitute for the

complete description in the prospectus

supplement.

c. Offerings of Structured Securities

As adopted, Rule 434 also excludes

offerings of structured securities.73

‘‘Structured securities,’’ for purposes of

Rule 434, are defined to mean securities

whose cash flow characteristics depend

upon one or more indices or that have

imbedded forwards or options or

securities where an investor’s

investment return and the issuer’s

payment obligations are contingent on,

or highly sensitive to, changes in the

value of underlying assets, indices,

interest rates or cash flows.74 This

definition was proposed to be included

in Rule 15c6–1 but is set forth in Rule

434 instead Rule 15c6–1 as adopted

makes no reference to such securities.

As noted in the Proposing Release, these

securities usually have terms that are

highly complex, with many employing

one or more indices as a basis for

determining the issuer’s payment

obligations (e.g., coupon, principal,

redemption payments). A structured

security’s value is derived not only from

the creditworthiness of its issuer, but

also from any underlying assets, indices,

interest rates or cash flow upon which

the security is predicated. Because of

the complexities associated with these

securities, investors may not fully

understand the investment risks when

purchasing structured securities,

especially those with complicated

structures. A complete description of

offering-specific information therefore is

of particular importance to investors in

making an investment decision, given

the market risks resulting from the

structure of these securities. Otherwise,

as noted in the Proposing Release, the

incremental distribution of information

under the Rule, when combined with

the complex nature of these securities,

could result in material disclosure not

being readily accessible to investors.

d. Investment Companies

As proposed, Rule 434 would have

provided that it would not apply to the

offering of any security of any company

registered under the Investment

Company Act. The Commission

requested comment on whether the

prospectus delivery modifications in the

SIA proposal also should apply to

closed-end investment companies and

UITs. Commenters endorsed the

proposed prospectus delivery method

for closed-end investment companies

and UITs, and the Commission is

adopting revisions that apply new Rule

434 to these investment companies.75

4. Conforming Amendments to Rule

14c2–8

a. Rule 15c2–8 Amendments

The Commission is adopting the

amendments to Rule 15c2–876 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.

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
Federal Register / Vol. 60, No. 95 / Wednesday, May 17, 1995 / Rules and Regulations 26611

77Rule 15c2–8(d) was last amended in Exchange

Act Release No. 25546 (Apr. 4, 1988) (53 FR 11841).

78 17 CFR 240.15c2–8(b).

79This requirement is satisfied by delivering a

preliminary prospectus that is current at the time

of its delivery.

80This interpretation of paragraph (b) is

consistent with the longstanding staff position that

delivery of a final prospectus at least 48 hours prior

to sending the confirmation is required in cases

where no preliminary prospectus is circulated and

the offering is sold solely on the basis of a final

prospectus.

81 17 CFR 240. 15c2–8 (g) and (h). Paragraph (g)

requires a managing underwriter to take reasonable

steps to ensure that all broker-dealers participating

in an offering are promptly furnished with

‘‘sufficient copies, as requested by them’’ of each

preliminary, amended, or final prospectus to enable

such participating brokers-dealers to comply with

their obligations under Rule 15c2–8 (b), (c), (d), and

(e). Similarly, paragraph (h) requires a managing

underwriter to take reasonable steps to ensure that

any broker-dealer participating in an offering or

trading in the registered security is furnished

‘‘reasonable quantities of the final prospectus * * *

as requested by him’’ in order to enable to brokerdealer to comply with sections 5(b) (1) and (2) of

the Securities Act.

82See supra footnote 6.

83These 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.

84See 17 CFR 240.15c6–1(b)(2).

85Rule 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.

86See 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.

88Specifically, several commenters asserted that

the settlement period may not be known

sufficiently in advance of pricing to provide written

Continued

that have occurred since the Rule was

last amended.77

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

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 brokerdealer, if the recipient broker-dealer

expressly consents to delivery in such

form.

One commenter suggested revising

Rule 15c2–8(b) to require delivery of the

preliminary prospectus at least 48

hours, but not more than 60 days, prior

to sending the confirmation. Another

commenter suggested that the

Commission require the managing

underwriter to deliver the final

prospectus to offering participants by

the close of business on T+ 2, so that

such participants may send the

prospectus to investors no later than

T + 3. Consistent with the adoption of

both the SIA proposal and the Four

Firms proposal, the Commission

believes that offering participants

should have as much flexibility as

possible to determine how to comply

with their prospectus delivery

obligations within T+ 3, without the

burden of additional restrictions, and

therefore has determined not to amend

the Rule as suggested at this time. As

noted, however, the Commission may

propose additional amendments to Rule

15c2–8 based on its experience with

Rule 434.

III. Revision of the Rule 15c6–1

Exemption

In the Proposing Release, the

Commission proposed to establish 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.

Most commenters supported

elimination of the general exclusion for

firm commitment offerings. As one

commenter noted, establishing a T+ 3

settlement standard for these

transactions will reduce risk, provide

certainty in the form of a written

standard, and avoid bifurcation of the

settlement cycle.86 Several commenters

cited specific categories of securities

requiring settlement cycles longer than

T + 3.87 Most commenters, however,

preferred to resolve difficulties in

settling offerings through a general

override provision rather than specific

exemptions of classes of securities.

The majority of 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
26612 Federal Register / Vol. 60, No. 95 / Wednesday, May 17, 1995 / Rules and Regulations

notice and that such notice is duplicative of the

information provided orally and in the

confirmation.

89See 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).

90Only 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.

91See 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.

92See Letter from George Miller, Public Securities

Association to Jonathan Katz, Securities and

Exchange Commission, dated April 10, 1995.

93See letter from Joel Brenner, Storch & Brenner

(on behalf of R.R. Donnelley Financial), to Jonathan

G. Katz, Secretary, Securities and Exchange

Commission, dated March 31, 1995.

94 5 U.S.C. 604 (1988).

over the manner in which an alternate

settlement date should be established,

though most commenters concurred that

such authority should not be granted

solely to the managing underwriter.

To address the various issues raised

by the commenters in connection with

the proposed modifications of the

exemption for firm commitment

offerings, the Commission is amending

Rule 15c6–1 to eliminate the exemption

for firm commitment offerings and to

include a specific override provision 89

which will permit the establishment of

an alternate settlement date for the sale

of all securities subject to a firm

commitment offering upon agreement

by the managing underwriter and the

issuer of the securities. This override

provision does not contain the notice

requirements in the proposed override

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.

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 nonstandard 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 nonstandard 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.

V. Cost-Benefit Analysis

Five commenters responded to the

Commission’s request for comments

regarding the costs and benefits of the

proposed rules. Four of the five

commenters expected the cost of

printing and shipping of prospectuses to

decline as a result of the proposed

rules.91 The other commenter stated that

the increased administrative burdens

and costs that may be imposed on

dealers as a result of multiple or

duplicate mailings of various

documents could negate the intended

benefit of the SIA approach.92 One

commenter, a financial printer,

provided empirical data on the

proposals. The printer concluded that,

in three basic scenarios regarding the

printing and delivery of a Form S–1, a

reduction in costs ranging from 8% to

88% would be obtainable as a result of

the new delivery alternatives available

under the proposed. rules.93 The

Commission believes the new rule and

amendments provide market

participants with additional flexibility

that should result in lower transaction

costs, while not diminishing investor

protection.

VI. Summary of Final Regulatory

Flexibility Analysis

The Commission has prepared a Final

Regulatory Flexibility Analysis

(‘‘FRFA’’), pursuant to the requirements

of the Regulatory Flexibility Act,94

regarding the rule and amendments to

existing regulations being adopted. The

FRFA notes that the new rule and

amendments will provide entities with

greater flexibility and efficiency with

respect to the timing of printing and

delivery of prospectus information,

thereby facilitating compliance with

Rule 15c6–1 under the Exchange Act

and access to the public securities

markets. As discussed more fully in the

analysis, the new rule and amendments

to Securities Act regulations should

decrease costs associated with fulfilling

entities’ prospectus delivery obligations

under the Securities Act. The

amendments to Exchange Act rules and

forms are not anticipated to have any

significant economic impact on entities.

The new rule may impose minimal

additional reporting, recordkeeping or

compliance requirements, while the

amendments do not impose any new

reporting, recordkeeping or compliance

requirements on any entities. No

alternatives to the new rule and

amendments consistent with their

objectives and the Commission’s

statutory mandate were found.

The overall effect of the new rule and

amendments is to provide entities

increased efficiency in raising capital

from the public securities markets. The

aspects that provide for the incremental

delivery of prospectus information will

apply to any entity engaged in a public

distribution with respect to an eligible

offering. The amendments to Securities

Act regulations should streamline the

registration process and thereby

facilitate compliance with prospectus

delivery within T+3. The new rule and

amendments to Securities Act

regulations also will apply to certain
Federal Register / Vol. 60, No. 95 / Wednesday, May 17, 1995 / Rules and Regulations 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 § 202.3a to read

as follows:

§ 202.3a Instructions for filing fees.

* * * Filing fees paid pursuant to

Section 6(b) of the Securities Act of

1933 or pursuant to Section 307(b) of

the Trust Indenture Act of 1939 should

be designated as ‘‘restricted,’’ except

that filing fees paid with respect to

registration statements filed pursuant to

Rule 462(b) (§ 230.462(b) of this chapter)

should be designated as ‘‘unrestricted.’’

* * *

PART 228—INTEGRATED

DISCLOSURE SYSTEM FOR SMALL

BUSINESS ISSUERS

3. The authority citation for Part 228

continues to read as follows:

Authority: 15 U.S.C. 77e, 77f, 77g, 77h, 77j,

77k, 77s, 77aa(25), 77aa(26), 77ddd, 77eee,

77ggg, 77hhh, 77jjj, 77nnn, 77sss, 78l, 78m,

78n, 78o, 78w, 78ll, 80a–8, 80a–29, 80a–30,

80a–37, 80b–11, unless otherwise noted.

4. By revising paragraph (a)(4) of

§ 228.501 to read as follows:

§ 228.501 (Item 501) Front of registration

statement and outside front cover of

prospectus.

* * * * *

(a) * * *

(4) Cross reference to, and identify the

location within the prospectus of (e.g.,

by page number or other specific

location), the risk factors section of the

prospectus, printed in bold-face roman

type at least as high as twelve-point

modern type and at least two points

leaded;

* * * * *

5. By amending § 228.502 by revising

the introductory text, removing the

heading from paragraph (a)(1) and

replacing the ‘‘.’’ at the end of paragraph

(a)(1) with a ‘‘;’’, adding a heading and

introductory text to paragraph (a),

adding a sentence at the end of

paragraph (b), adding a sentence at the

end of paragraph (c), revising paragraph

(f) and including the introduction

paragraph to read as follows:

§ 228.502 (Item 502) Inside front and

outside back cover pages of prospectus.

On the inside front cover page of the

prospectus, except as otherwise

specified and except that the outside

back cover page may be used for

paragraphs (e) and (f), disclose the

following:

(a) Available information. On the

inside front cover page of the prospectus

or under an appropriate caption

elsewhere in the prospectus:

* * * * *

(b) * * * Such disclosure need not be

included on the inside front cover page

of the prospectus if it is included under

an appropriate caption elsewhere in the

prospectus.

(c) * * * Such disclosure need not be

included on the inside front cover page

of the prospectus if it is included under

an appropriate caption elsewhere in the

prospectus.

* * * * *

(f) Table of contents. Include a

detailed table of contents showing the

various sections or subdivisions of the

prospectus, including any risk factors

section set forth in the prospectus

pursuant to Item 503(c) (§ 228.503(c)),

and the page number on which each

such section or subdivision begins.

Instruction to Item 502

Canadian issuers should, in addition to the

disclosure required by this Item, provide the

information required by Item 502(f) of

Regulation S–K. Such disclosure need not be

included on the inside front cover page of the

prospectus if it is included under an

appropriate caption elsewhere in the

prospectus.

6. By revising paragraph (b) and

paragraph (c) of § 228.503 to read as

follows:

§ 228.503 (Item 503) Summary information

and risk factors.

* * * * *

(b) Address and telephone number.

Include in the prospectus the complete
26614 Federal Register / Vol. 60, No. 95 / Wednesday, May 17, 1995 / Rules and Regulations

mailing address and telephone number

of the small business issuer’s principal

executive offices.

(c) Risk factors. (1) Discuss under the

caption ‘‘Risk Factors’’ any factors that

make the offering speculative or risky.

These factors may include no operating

history, no recent profit from

operations, poor financial position, the

kind of business in which the small

business issuer is engaged or proposes

to engage, or no market for the small

business issuer’s securities.

(2) The risk factor discussion should

immediately follow the summary

section. If no summary section is

necessary, the risk factor discussion

should immediately follow the cover

page of the prospectus or, if included,

a pricing information section that

immediately follows the cover page.

Instruction to Item 503(c). ‘‘Pricing

information’’ as used in paragraph (c) of this

section shall mean price and price-related

information of the type that may be omitted

from the prospectus in an effective

registration statement in reliance on Rule

430A(a) (§ 230.430A(a) of this chapter) and

information disclosed in a prospectus but

subject to change as a result of pricing.

7. By adding one sentence to the end

of paragraph (a)(1)(ii) of § 228.512 to

read as follows:

§ 228.512 (Item 512) Undertakings.

* * * * *

(a) * * *

(1) * * *

(ii) * * * Notwithstanding the

foregoing, any increase or decrease in

volume of securities offered (if the total

dollar value of securities offered would

not exceed that which was registered)

and any deviation from the low or high

end of the estimated maximum offering

range may be reflected in the form of

prospectus filed with the Commission

pursuant to Rule 424(b) (§ 230.424(b) of

this chapter) if, in the aggregate, the

changes in volume and price represent

no more than a 20% change in the

maximum aggregate offering price set

forth in the ‘‘Calculation of Registration

Fee’’ table in the effective registration

statement.

* * * * *

8. By amending § 228.601 to revise the

third sentence of paragraph (b)(24) to

read as follows:

§ 228.601 (Item 601) Exhibits.

* * * * *

(b) * * *

(24) Power of attorney. * * * A power

of attorney that is filed with the

Commission must relate to a specific

filing or an amendment, provided,

however, that a power of attorney

relating to a registration statement under

the Securities Act or an amendment

thereto also may relate to any

registration statement for the same

offering that is to be effective upon

filing pursuant to Rule 462(b) under the

Securities Act (§ 230.462(b) of this

chapter.* * *

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

§ 229.503 is removed.

11. By revising paragraph (c)(4) of

§ 229.501 to read as follows:

§ 229.501 (Item 501) Forepart of

registration statement and outside front

cover page of prospectus.

* * * * *

(c) * * *

(4) Cross reference to and identify the

location within the prospectus of (e.g.,

by page number or other specific

location), where applicable, the

discussion in the prospectus prescribed

by Item 503 of Regulation S–K

(§ 229.503) of material risks in

connection with the purchase of the

securities, printed in bold-face roman

type at least as high as twelve-point

modern type and at least two points

leaded;

* * * * *

12. By amending § 229.502 by revising

the introductory text, revising the

introductory text of paragraph (a),

adding a sentence at the end of

paragraph (b), adding a sentence at the

end of paragraph (c), revising the last

sentence of the introductory text of

paragraph (f), and revising paragraph (g)

to read as follows:

§ 229.502 (Item 502) Inside front and

outside back cover pages of prospectus.

The following information, to the

extent applicable, shall appear on the

inside front cover page of the

prospectus, except as otherwise

specified and except that the

information required by paragraphs (e)

and (g) of this Item may be set forth on

the outside back cover page.

(a) Available information. Registrants

subject to the reporting requirements of

section 13(a) or 15(d) of the Exchange

Act immediately prior to the filing of

the registration statement shall, on the

inside front cover page of the prospectus

or under an appropriate caption

elsewhere in the prospectus:

* * * * *

(b) * * * Such disclosure need not be

included on the inside front cover page

of the prospectus if it is included under

an appropriate caption elsewhere in the

prospectus.

(c) * * * Such disclosure need not be

included on the inside front cover page

of the prospectus if it is included under

an appropriate caption elsewhere in the

prospectus.

* * * * *

(f) * * * Such disclosure need not be

included on the inside front cover page

of the prospectus if it is included under

an appropriate caption elsewhere in the

prospectus.

* * * * *

(g) Table of contents. Include a

reasonably detailed table of contents

showing the subject matter of the

various sections or subdivisions of the

prospectus, including any risk factors

section set forth in the prospectus

pursuant to Item 503(c) (§ 229.503(c)),

and the page number on which each

such section or subdivision begins.

13. By revising paragraph (b) and

paragraph (c) of § 229.503 to read as

follows:

§ 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
Federal Register / Vol. 60, No. 95 / Wednesday, May 17, 1995 / Rules and Regulations 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) (§ 230.430A(a) of this chapter) and

information disclosed in a prospectus but

subject to change as a result of pricing.

* * * * *

14. By revising paragraph (a)(1)(ii) of

§ 229.512 to read as follows:

§ 229.512 (Item 512) Undertakings.

* * * * *

(a) * * *

(1) * * *

(ii) To reflect in the prospectus any

facts or events arising after the effective

date of the registration statement (or the

most recent post-effective amendment

thereof) which, individually or in the

aggregate, represent a fundamental

change in the information set forth in

the registration statement.

Notwithstanding the foregoing, any

increase or decrease in volume of

securities offered (if the total dollar

value of securities offered would not

exceed that which was registered) and

any deviation from the low or high end

of the estimated maximum offering

range may be reflected in the form of

prospectus filed with the Commission

pursuant to Rule 424(b) (§ 230.424(b) of

this chapter) if, in the aggregate, the

changes in volume and price represent

no more than 20% change in the

maximum aggregate offering price set

forth in the ‘‘Calculation of Registration

Fee’’ table in the effective registration

statement.

* * * * *

15. By amending § 229.601 to revise

the fourth sentence of paragraph (b)(24)

to read as follows:

§ 229.601 (Item 601) Exhibits.

* * * * *

(b) * * *

(24) Power of attorney. * * * A power

of attorney that is filed with the

Commission shall relate to a specific

filing or an amendment thereto,

provided, however, that a power of

attorney relating to a registration

statement under the Securities Act or an

amendment thereto also may relate to

any registration statement for the same

offering that is to be effective upon

filing pursuant to Rule 462(b) under the

Securities Act (§ 230.462(b) of this

chapter). * * *

* * * * *

16. Guide 4 (referenced in

§ 229.801(d)) is amended by removing

the first sentence of the Guide.

Note: The text of Guide 4 does not and the

amendments will not appear in the Code of

Federal Regulations.

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

§§ 230.429, 230.439 and 230.461 are

removed.

19. By amending paragraph (a) of

§ 230.110 by revising the phrase

‘‘paragraphs (b) and (c)’’ to read

‘‘paragraphs (b), (c) and (d)’’ and adding

paragraph (d) to read as follows:

§ 230.110 Business hours of the

Commission.

* * * * *

(d) Filings by facsimile. Registration

statements and post-effective

amendments thereto filed by facsimile

transmission pursuant to Rule 462(b)

(§ 230.462(b)) and Rule 455 (§ 230.455)

may be filed with the Commission each

day, except Saturdays, Sundays and

federal holidays, from 5:30 p.m. to 10

p.m., Eastern Standard Time or Eastern

Daylight Savings Time, whichever is

currently in effect.

20. By amending § 230.111 by

designating the existing text as

paragraph (a) and adding paragraph (b)

to read as follows:

§ 230.111 Payment of fees.

* * * * *

(b) Notwithstanding paragraph (a) of

this section, for registration statements

filed pursuant to Rule 462(b)

(§ 230.462(b)) and Rule 110(d)

(§ 230.110(d)), payment of filing fees for

the purposes of this section may be

made by:

(1) The registrant or its agent

instructing its bank or a wire transfer

service to transmit to the Commission

the applicable filing fee by a wire

transfer of such amount from the

issuer’s account or its agent’s account to

the Commission’s account at Mellon

Bank as soon as practicable but no later

than the close of the next business day

following the filing of the registration

statement; and

(2) The registrant submitting with the

registration statement at the time of

filing a certification that:

(i) The registrant or its agent has so

instructed its bank or a wire transfer

service;

(ii) The registrant or its agent will not

revoke such instructions; and

(iii) The registrant or its agent has

sufficient funds in such account to

cover the amount of such filing fee.

Note to paragraph (b): Such instructions

may be sent on the date of filing the

registration statement after the close of

business of such bank or wire transfer

service, provided that the registrant

undertakes in the certification sent to the

Commission with the registration statement

that it will confirm receipt of such

instructions by the bank or wire transfer

service during regular business hours on the

following business day.

21. By amending § 230.402 to add

paragraphs (d) and (e) to read as follows:

§ 230.402 Number of copies; binding;

signatures.

* * * * *

(d) Notwithstanding any other

provision of this section, if a registration

statement is filed pursuant to Rule

462(b) (§ 230.462(b)) and Rule 110(d)

(§ 230.110(d)), one copy of the complete

registration statement, including

exhibits and all other papers and

documents filed as a part thereof shall

be filed with the Commission. Such

copy should not be bound and may

contain facsimile versions of manual

signatures in accordance with paragraph

(e) of this section.

(e) Duplicated or facsimile versions of

manual signatures of persons required

to sign any document filed or submitted

to the Commission under the Act, shall

be considered manual signatures for

purposes of the Act and rules and

regulations thereunder, provided that,

the original manually signed document

is retained by the filer for a period of

five years and upon request the filer

furnishes to the Commission or the staff

the original manually signed document.

22. By amending § 230.424 by adding

paragraph (b)(7) before the Instruction,

by revising the heading ‘‘Instruction:’’ to

read ‘‘Instruction 1:’’, and adding

Instruction 2 to read as follows:

§ 230.424 Filing of prospectuses; number

of copies.

* * * * *

(b) * * *

(7) Ten copies of a term sheet or

abbreviated term sheet sent or given in

reliance upon Rule 434 under the Act

(§ 230.434) shall be filed with the

Commission pursuant to this paragraph

no later than the second business day

following the earlier of the date of

determination of the offering price, or

the date it is first used after

effectiveness in connection with a
26616 Federal Register / Vol. 60, No. 95 / Wednesday, May 17, 1995 / Rules and Regulations

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)

(§ 230.434(e)).

Instruction 1: * * *

Instruction 2: Notwithstanding paragraphs

(b)(1), (b)(2), (b)(4) and (b)(5) of this section,

a form of prospectus sent or given in reliance

on Rule 434(c) (§ 230.434(c)) with respect to

securities registered on Form S–3 or Form F–

3 (§ 239.13 or § 239.33 of this chapter), other

than an abbreviated term sheet filed pursuant

to paragraph (b)(7) of this section, shall be

filed with the Commission on or prior to the

date on which a confirmation is sent or

given.

* * * * *

23. By adding a sentence at the end

of paragraph (b) to § 230.429 to read as

follows:

§ 230.429 Prospectus relating to several

registration statements.

* * * * *

(b) * * * Where a combined

prospectus is being used pursuant to

paragraph (a) of this section, a note

should be added to the ‘‘Calculation of

Registration Fee’’ table in the latest

registration statement or any

amendment thereto, stating the number

or amount of securities being carried

forward and the amount of the filing fee

associated with such securities that was

previously paid with the earlier

registration statement(s).

24. By amending § 230.430A by

removing the word ‘‘five’’ and adding,

in each place it appears, the word

‘‘fifteen’’ in paragraph (a)(3) and by

adding a sentence at the end of

Instruction to paragraph (a) to read as

follows:

§ 230.430A Prospectus in a registration

statement at the time of effectiveness.

* * * * *

Instruction to paragraph (a): * * *

Notwithstanding the foregoing, any increase

or decrease in volume (if the total dollar

value of securities offered would not exceed

that which was registered) and any deviation

from the low or high end of the range may

be reflected in the form of prospectus filed

with the Commission pursuant to Rule

424(b)(1) (§ 230.424(b)(1)) or Rule 497(h)

(§ 230.497(h)) if, in the aggregate, the changes

in volume and price represent no more than

a 20% change in the maximum aggregate

offering price set forth in the ‘‘Calculation of

Registration Fee’’ table in the effective

registration statement.

* * * * *

25. By adding § 230.434 to read as

follows:

§ 230.434 Prospectus delivery

requirements in firm commitment

underwritten offerings of securities for

cash.

(a) Where securities are offered for

cash in a firm commitment

underwritten offering or investment

grade debt securities are offered for cash

on an agency basis under a medium

term note program, and such securities

are neither asset-backed securities nor

structured securities, and the conditions

described in paragraph (b) or paragraph

(c) of this section are satisfied, then:

(1) The prospectus subject to

completion and the term sheet

described in paragraph (b) of this

section, taken together, and the

prospectus subject to completion and

the abbreviated term sheet described in

paragraph (c) of this section, taken

together, shall constitute prospectuses

that meet the requirements of section

10(a) of the Act (15 U.S.C. 77j(a)) for

purposes of section 5(b)(2) of the Act (15

U.S.C. 77e(b)(2)) and section 2(10(a) of

the Act (15 U.S.C. 77b(10)(a)); and

(2) The section 10(a) prospectus

described in paragraph (a)(1) of this

section shall have:

(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

(§ 239.13 or § 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 (§ 274.11a–1 of

this chapter) or Form S–6 (§ 239.16 of

this chapter), the following conditions

are satisfied:

(1) A prospectus subject to

completion and any term sheet

described in paragraph (b)(3) of this

section, together or separately, are sent

or given prior to or at the same time

with the confirmation;

(2) Such prospectus subject to

completion and term sheet, together, are

not materially different from the

prospectus in the registration statement

at the time of its effectiveness or an

effective post-effective amendment

thereto (including, in both, instances,

information deemed to be a part of the

registration statement at the time of

effectiveness pursuant to Rule 430A(b)

(§ 230.430A(b)); and

(3) A term sheet under this paragraph

(b) shall set forth all information

material to investors with respect to the

offering that is not disclosed in the

prospectus subject to completion or the

confirmation.

(c) With respect to offerings of

securities registered on Form S–3 or

Form F–3 (§ 239.13 or § 239.33 of this

chapter), the following conditions are

satisfied.

(1) A prospectus subject to

completion and the abbreviated term

sheet described in paragraph (c)(3) of

this section, together or separately, are

sent or given prior to or at the same time

with the confirmation;

(2) A form of prospectus that:

(i) Discloses information previously

omitted from the prospectus filed as

part of an effective registration

statement in reliance upon Rule 430A

(§ 230.430A), to the 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) (§ 230.424(b)) on or prior to the

date on which a confirmation is sent or

given; or

(ii) Discloses the public offering price,

description of securities, to the extent

not set forth in the abbreviated term

sheet (as described in paragraph (c)(3) of

this section), and specific method of

distribution or similar matters shall be

filed pursuant to Rule 424(b)

(§ 230.424(b)) on or prior to the date on

which a 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 (§ 229.202 of this chapter), or a fair

and accurate summary thereof; and

(ii) All material changes to the

registrant’s affairs required to be

disclosed pursuant to Item 11 of Form

S–3 or Form F–3 (§ 239.13 or § 239.33 of

this chapter), as applicable.

(d) Except in the case of offerings

pursuant to Rule 415(a)(1)(x),

(§ 230.415(a)(1)(x), the information

contained in any term sheet or

abbreviated term sheet described under

this section shall be deemed to be a part

of the registration statement as of the

time such registration statement was

declared effective. In the case of

offerings pursuant to Rule 415(a)(1)(x)

(§ 230.415(a)(1)(x)), the information

contained in any term sheet or

abbreviated term sheet described under

this section shall be deemed to be a part

of the registration statement as of the
Federal Register / Vol. 60, No. 95 / Wednesday, May 17, 1995 / Rules and Regulations 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) (§ 230.424(b)) or

Rule 497(h) (§ 230.497(h)).

(e) Any term sheet or abbreviated term

sheet described under this section shall,

in the top center of the cover page

thereof, state that such document is a

supplement to a prospectus and identify

that prospectus by issuer name and

date; clearly identify that such

document is a term sheet or abbreviated

term sheet used in reliance on Rule 434;

set forth the approximate date of first

use of such document; and clearly

identify the documents that, when taken

together, constitute the Section 10(a)

prospectus.

(f) For purposes of this section, assetbacked securities shall mean assetbacked securities as defined in General

Instruction 1.B.5. of Form S–3 (§ 239.13

of this chapter).

(g) For purposes of this section,

prospectus subject to completion shall

mean any prospectus that is either a

preliminary prospectus used in reliance

on Rule 430 (§ 230.430), a prospectus

omitting information in reliance upon

Rule 430A (§ 230.430A), or a prospectus

omitting information that is not yet

known concerning a delayed offering

pursuant to Rule 415(a)(i)(x)

(§ 230.415(a)(1)(x)) that is contained in a

registration statement at the time of

effectiveness or as subsequently revised.

(h) For purposes of this section,

structured securities shall mean

securities whose cash flow

characteristics depend upon one or

more indices or that have 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 (§ 239.13 or § 239.33 of

this chapter).

(j) For the purposes of this section, a

firm commitment underwritten offering

shall include a firm commitment

underwritten offering of securities by a

closed-end company or by a unit

investment trust registered under the

Investment Company Act of 1940.

26. By designating the existing text as

paragraph (a) and adding paragraph (b)

to § 230.439 to read as follows:

§ 230.439 Consent to use of material

incorporated by reference.

(a) * * *

(b) Notwithstanding paragraph (a) of

this section, any required consent may

be incorporated by reference into a

registration statement filed pursuant to

Rule 462(b) under the Act (§ 230.462(b))

from a previously filed registration

statement relating to that offering,

provided that, the consent contained in

the previously filed registration

statement expressly provides for such

incorporation.

27. By revising the second and third

sentences of § 230.455 to read as

follows:

§ 230.455 Place of filing.

* * * Registration statements on

Form SB–1 or SB–2 may be filed with

the Commission either at its principal

office or at the Commission’s regional or

district offices as specified in General

Instruction A to each of those forms,

except that registration statements and

post-effective amendments thereto on

such forms that are filed pursuant to

Rule 462(b) (§ 230.462(b)) and Rule

110(d) (§ 230.110(d)) shall be filed at the

Commission’s principal office. Such

material may be filed by delivery to the

Commission through the mails or

otherwise; provided, however, that only

registration statements and posteffective amendments thereto filed

pursuant to Rule 462(b) (§ 230.462(b))

and Rule 110(d) (§ 230.110(d)) may be

filed by means of facsimile

transmission.

28. By amending § 230.457 to revise

paragraph (o) read as follows:

§ 230.457 Computation of fee.

* * * * *

(o) Where an issuer is offering

securities, the registration fee may be

calculated on the basis of the maximum

aggregate offering price of all the

securities listed in the ‘‘Calculation of

Registration Fee’’ Table. The number of

shares or units of securities need not be

included in the ‘‘Calculation of

Registration Fee’’ Table. If the maximum

aggregate offering price increases prior

to the effective date of the registration

statement, a pre-effective amendment

must be filed to increase the maximum

dollar value being registered and the

additional filing fee shall be paid.

29. By revising the first sentence of

paragraph (a) and adding two new

sentences immediately after the first

sentence of paragraph (a) to § 230.461 to

read as follows:

§ 230.461 Acceleration of effective date.

(a) Requests for acceleration of the

effective date of a registration statement

shall be made by the registrant and the

managing underwriters of the proposed

issue, or, if there are no managing

underwriters, by the principal

underwriters of the proposed issue, and

shall state the date upon which it is

desired that the registration statement

shall become effective. Such requests

may be made in writing or orally,

provided that, if an oral request is to be

made, a letter indicating that fact and

stating that the registrant and the

managing or principal underwriters are

aware of their obligations under the Act

must accompany the registration

statement 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 § 230.462 to read as follows:

§ 230.462 Immediate effectiveness of

certain registration statements and posteffective 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 (§ 230.430A), such

post-effective amendment shall become

effective upon filing with the

Commission.

31. By amending § 230.472 to add

paragraph (e) to read as follows:
26618 Federal Register / Vol. 60, No. 95 / Wednesday, May 17, 1995 / Rules and Regulations

§ 230.472 Filing of amendments; number

of copies.

* * * * *

(e) Notwithstanding any other

provision of this section, if a posteffective amendment is filed pursuant to

Rule 462(b) (§ 230.462(b)) and Rule

110(d) (§ 230.110(d)), one copy of the

complete post-effective amendment,

including exhibits and all other papers

and documents filed as a part thereof

shall be filed with the Commission.

Such copy should not be bound and

may contain facsimile versions of

manual signatures in accordance with

Rule 402(e) (§ 230.402)e)).

32. By amending § 230.483 to add a

sentence at the end of paragraph (b) and

to designate the existing text of

paragraph (c) as paragraph (c)(1) and

adding paragraph (c)(2) to read as

follows:

§ 230.483 Exhibits for certain registration

statements, financial data schedule.

* * * * *

(b) * * * A power of attorney that is

filed with the Commission shall relate

to a specific filing, an amendment

thereto, or a related registration

statement that is to be effective upon

filing pursuant to Rule 462(b)

(§ 230.462(b)) under the Act.

(c)(1) * * *

(2) In a registration statement filed

pursuant to Rule 462(b) (§ 230.462(b))

by a closed-end company, any required

consent may be incorporated by

reference into the registration statement

from a previously filed registration

statement related to the offering,

provided that the consent contained in

the previously filed registration

statement expressly provides for such

incorporation. Any consent filed in a

Rule 462(b) (§ 230.462(b)) registration

statement may contain duplicated or

facsimile versions of required

signatures, and such signatures shall be

considered manually filed for the

purposes of the Act and the rules

thereunder.

33. By amending § 230.497 to

designate the existing text of paragraph

(h) as paragraph (h)(1) and adding

paragraph (h)(2) to read as follows:

230.497 Filing of investment company

prospectuses—number of copies.

(h) * * *

(2) Ten copies of each term sheet or

abbreviated term sheet sent or given in

reliance upon Rule 434 (§ 230.434) shall

be filed with the Commission no later

than the second business day following

the earlier of the date of determination

of the offering price, or the date it is first

used after effectiveness in connection

with a public offering or sales, or

transmitted by a means reasonably

calculated to result in filing with the

Commission by that date.

* * * * *

PART 232—REGULATION S–T—

GENERAL RULES AND REGULATIONS

FOR ELECTRONIC FILERS

34. The authority citation for Part 232

continues to read as follows:

Authority: 15 U.S.C. 77f, 77g, 77h, 77j,

77s(a), 77sss(a), 78c(b), 78l, 78m, 78n, 78o(d),

78w(a), 78ll(d), 79t(a), 80a–8, 80a–29, 80a–30

and 80a–37.

35. By adding paragraph (a)(3) before

the Note to § 232.13 to read as follows:

§ 232.13 Date of filing; adjustment of filing

date.

(a) * * *

(3) Notwithstanding paragraph (a)(2)

of this section, any registration

statement or any post-effective

amendment thereto filed pursuant to

Rule 462(b) (§ 230.462(b) of this chapter)

by direct transmission 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.

§ 239.9 [Amended]

* * * * *

37. By amending Form SB–1

(referenced in § 239.9) by adding three

check boxes to the cover page

immediately before ‘‘Calculation of

Registration Fee,’’ by adding a Note to

appear immediately after the

Calculation of Registration Fee table,

and by adding paragraph H to General

Instructions to read as follows:

Note: The text of Form SB–1 does not and

the amendments will not appear in the Code

of Federal Regulations.

Form SB–1–Registration Statement Under the

Securities Act of 1933

* * * * *

If this Form is filed to register additional

securities for an offering pursuant to Rule

462(b) under the Securities Act, check the

following box and list the Securities Act

registration statement number of the earlier

effective registration statement for the same

offering.[ ]

If this Form is a post-effective amendment

filed pursuant to Rule 462(c) under the

Securities Act, check the following box and

list the Securities Act registration statement

number of the earlier effective registration

statement for the same offering.[ ]

If delivery of the prospectus is expected to

be made pursuant to Rule 434, please check

the following box.[ ]

* * * * *

Calculation of Registration Fee

Note: If the filing fee is calculated pursuant

to Rule 457(o) under the Securities Act, only

the title of the class of securities to be

registered, the proposed maximum aggregate

offering price for that class of securities and

the amount of registration fee need to appear

in the Calculation of Registration Fee table.

Any difference between the dollar amount of

securities registered for such offerings and

the dollar amount of securities sold may be

carried forward on a future registration

statement pursuant to Rule 429 under the

Securities Act.

* * * * *

General Instructions

* * * * *

H. Registration of additional securities.

With respect to the registration of additional

securities for an offering pursuant to Rule

462(b) under the Securities Act, the registrant

may file a registration statement consisting

only of the following: The facing page; a

statement that the contents of the earlier

registration statement, identified by file

number, are incorporated by reference;

required opinions and consents; the signature

page; and any price-related information

omitted from the earlier registration

statement in reliance on Rule 430A that the

registrant chooses to include in the new

registration statement. The information

contained in such a Rule 462(b) registration

statement shall be deemed to be a part of the

earlier registration statement as of the date of

effectiveness of the Rule 462(b) registration

statement. Any opinion or consent required

in the Rule 462(b) registration statement may

be incorporated by reference from the earlier

registration statement with respect to the

offering, if: (i) Such opinion or consent

expressly provides for such incorporation;

and (ii) such opinion relates the securities

registered pursuant to Rule 462(b). See Rule

411(c) and Rule 439(b) under the Securities

Act.

* * * * *

§ 239.10 [Amended]

38. By amending Form SB–2

(referenced in § 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

* * * * *
Federal Register / Vol. 60, No. 95 / Wednesday, May 17, 1995 / Rules and Regulations 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.

§ 239.11 [Amended]

39. By amending Form S–1

(referenced in § 239.11) by adding three

check boxes to the cover page

immediately before ‘‘Calculation of

Registration Fee,’’ and by adding two

sentences to 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.[ ] llllll

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. [ ]

llllll

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.

* * * * *

§ 239.12 [Amended]

40. By amending Form S–2

(referenced in § 239.12) by adding three

check boxes to the cover page

immediately before ‘‘Calculation of

Registration Fee,’’ by adding two

sentences to the end of the Note

following the Calculation of Registration

Fee 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.[ ]

llllll

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. [ ]

llllll

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
26620 Federal Register / Vol. 60, No. 95 / Wednesday, May 17, 1995 / Rules and Regulations

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.

* * * * *

§ 239.13 [Amended]

41. By amending Form S–3

(referenced in § 239.13) by adding three

check boxes to the cover page

immediately before ‘‘Calculation of

Registration Fee,’’ by adding three

sentences to the end of the Note

following the Calculation of Registration

Fee table, and by adding paragraph IV.

to General Instructions to read as

follows:

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.[ ]llllll

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.[ ]

llllll

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.

* * * * *

§ 239.18 [Amended]

42. By amending Form S–11

(referenced in § 239.18) by adding

paragraph G. to General Instructions, by

adding three check boxes to the cover

page immediately before ‘‘Calculation of

Registration Fee’’ and by adding two

sentences to the end of the Note

following the Calculation of Registration

Fee table to read as follows:

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. [ ] llllll

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. [ ]

llllll

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.

* * * * *

§ 239.31 [Amended]

43. By amending Form F–1

(referenced in § 239.31) by adding three

check boxes to the cover page

immediately before ‘‘Calculation of

Registration Fee,’’ by adding two

sentences to the end of the Note

following the Calculation of Registration

Fee 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
Federal Register / Vol. 60, No. 95 / Wednesday, May 17, 1995 / Rules and Regulations 26621

the following box and list the Securities Act

registration statement number of the earlier

effective registration statement for the same

offering. [ ] llllll

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. [ ]

llllll

If delivery of the prospectus is expected to

be made pursuant to Rule 434, please check

the following box. [ ]

* * * * *

Calculation of Registration Fee

* * * * *

Note: * * * If the filing fee is calculated

pursuant to Rule 457(o) under the Securities

Act, only the title of the class of securities to

be registered, the proposed maximum

aggregate offering price for that class of

securities and the amount of registration fee

need to appear in the Calculation of

Registration Fee table. Any difference

between the dollar amount of securities

registered for such offerings and the dollar

amount of securities sold may be carried

forward on a future registration statement

pursuant to Rule 429 under the Securities

Act.

General Instructions

* * * * *

V. Registration of additional securities.

With respect to the registration of additional

securities for an offering pursuant to Rule

462(b) under the Securities Act, the registrant

may file a registration statement consisting

only of the following: The facing page; a

statement that the contents of the earlier

registration statement, identified by file

number, are incorporated by reference;

required opinions and consents; the signature

page; and any price-related information

omitted from the earlier registration

statement in reliance on Rule 430A that the

registrant chooses to include in the new

registration statement. The information

contained in such a Rule 462(b) registration

statement shall be deemed to be a part of the

earlier registration statement as of the date of

effectiveness of the Rule 462(b) registration

statement. Any opinion or consent required

in the rule 462(b) registration statement may

be incorporated by reference from the earlier

registration statement with respect to the

offering, if: (i) such opinion or consent

expressly provides for such incorporation;

and (ii) such opinion relates to the securities

registered pursuant to Rule 462(b). See Rule

411(c) and Rule 439(b) under the Securities

Act.

* * * * *

44. By amending Form F–2

(referenced in § 239.32) by adding three

check boxes to the cover page

immediately before ‘‘Calculation of

Registration Fee,’’ by adding two

sentences to the end of the Note

following the Calculation of Registration

Fee table, and by adding paragraph IV.

to General Instructions to read as

follows:

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. [ ] llllll

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. [ ]

llllll

If delivery of the prospectus is

expected to be made pursuant to Rule

434, please check the following box. [ ]

* * * * *

Calculation of Registration Fee

* * * * *

Note: * * * If the filing fee is calculated

pursuant to Rule 457(o) under the Securities

Act, only the title of the class of securities to

be registered, the proposed maximum

aggregate offering price for that class of

securities and the amount of registration fee

need to appear in the Calculation of

Registration Fee table. Any difference

between the dollar amount of securities

registered for such offerings and the dollar

amount of securities sold may be carried

forward on a future registration statement

pursuant to Rule 429 under the Securities

Act.

General Instructions

* * * * *

IV. Registration of additional securities.

With respect to the registration of additional

securities for an offering pursuant to Rule

462(b) under the Securities Act, the registrant

may file a registration statement consisting

only of the following: The facing page; a

statement that the contents of the earlier

registration statement, identified by file

number, are incorporated by reference;

required opinions and consents; the signature

page; and any price-related information

omitted from the earlier registration

statement in reliance on Rule 430A that the

registrant chooses to include in the new

registration statement. The information

contained in such a Rule 462(b) registration

statement shall be deemed to be a part of the

earlier registration statement as of the date of

effectiveness of the Rule 462(b) registration

statement. Any opinion or consent required

in the Rule 462(b) registration statement may

be incorporated by reference from the earlier

registration statement with respect to the

offering, if: (i) Such opinion or consent

expressly provides for such incorporation;

and (ii) such opinion relates to the securities

registered pursuant to Rule 462(b). See Rule

411(c) and Rule 439(b) under the Securities

Act.

* * * * *

45. By amending Form F–3

(referenced in § 239.33) by adding three

check boxes to the cover page

immediately before ‘‘Calculation of

Registration Fee,’’ by adding three

sentences to the end of the Note

following the Calculation of Registration

Fee table, and by adding paragraph IV.

to General Instructions to read as

follows:

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. [ ] llllll

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.[ ]

lllllll

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
26622 Federal Register / Vol. 60, No. 95 / Wednesday, May 17, 1995 / Rules and Regulations

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

§ 15c2–8 is removed.

48. By amending § 240.12b–11 to add

paragraph (d) to read as follows:

§ 240.12b–11 Number of copies;

signatures; binding.

* * * * *

(d) Duplicated or facsimile versions of

manual signatures of persons required

to sign any registration statement

pursuant to sections 12(b) and 12(g) of

the Act (15 U.S.C. 78l(b) and 78l(g)), any

report or schedule filed pursuant to

sections 13 and 15(d) of the Act (15

U.S.C. 78m and 78o(d)), or any

amendment or exhibit to such

registration statement, report or

schedule, that are filed or submitted to

the Commission under the Act, shall be

considered manual signatures for

purposes of the Act and rules and

regulations thereunder; provided that,

the original signed document is retained

by the filer for a period of five years

and, upon request, the filer furnishes to

the Commission or the staff the original

manually signed document.

49. By amending § 240.14d–1 to add

paragraph (d) to read as follows:

§ 240.14d–1 Scope of and definitions

applicable to Regulations 14D and 14E.

* * * * *

(d) Duplicated or facsimile versions of

manual signatures of persons required

to sign any document pursuant to

Regulation 14D and Regulation 14E that

is filed or submitted to the Commission

under the Act shall be considered

manual signatures for purposes of the

Act and rules and regulations

thereunder; provided that, the original

signed document is retained by the filer

for a period of five years and, upon

request, the filer furnishes to the

Commission or the staff the original

manually signed document.

50. Section 240.15c2–8(b) is amended

by revising the word ‘‘mailing’’ to read

‘‘sending’’.

51 Section 240.15c2–8(c) is amended

by revising the word ‘‘mail’’ to read

‘‘send’’.

52. Section 240.15c2–8(d) is amended

by revising the word ‘‘mail’’ to read

‘‘send’’.

53. Section 240.15c2–8 is amended by

adding paragraph (j) to read as follows:

§ 240.15c2–8 Delivery of Prospectus

* * * * *

(j) For purposes of this section, the

term preliminary prospectus shall

include the term prospectus subject to

completion as used in 17 CFR

230.434(a), and the term final

prospectus shall include the term

Section 10(a) prospectus as used in 17

CFR 230.434(a).

54. Amend § 240.15c6–1 by revising

the phrase ‘‘paragraph (b)’’ 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:

§ 240.15c6–1 Settlement cycle.

* * * * *

(c) Paragraph (a) of this section shall

not apply to contracts for the sale for

cash of securities that are priced after

4:30 p.m. Eastern time on the date such

securities are priced and that are sold by

an issuer to an underwriter pursuant to

a firm commitment underwritten

offering registered under the Securities

Act of 1933 or sold to an initial

purchaser by a broker-dealer

participating in such offering provided

that a broker or dealer shall not effect

or enter into a contract for the purchase

or sale of such securities that provides

for payment of funds and delivery of

securities later than the fourth business

day after the date of the contract unless

otherwise expressly agreed to by the

parties at the time of the transaction.

(d) For purposes of paragraphs (a) and

(c) of this section, the parties to a

contract shall be deemed to have

expressly agreed to an alternate date for

payment of funds and delivery of

securities at the time of the transaction

for a contract for the sale for cash of

securities pursuant to a firm

commitment offering if the managing

underwriter and the issuer have agreed

to such date for all securities sold

pursuant to such offering and the parties

to the contract have not expressly

agreed to another date for payment of

funds and delivery of securities at the

time of the transaction.

55. By amending § 240.16a–3 to add

paragraph (i) to read as follows:

§ 240.16a–3 Reporting transactions and

holdings.

* * * * *

(i) Duplicated or facsimile versions of

manual signatures of persons required

to sign any document pursuant to

Section 16 of the Act (15 U.S.C. 78p)

that is filed or submitted to the

Commission under the Act shall be

considered manual signatures for

purposes of the Act and rules and

regulations thereunder; provided that,

the original signed document is retained

by the filer for a period of five years

and, upon request, the filer furnishes to

the Commission or the staff the original

manually signed document.

PART 270—GENERAL RULES AND

REGULATIONS, INVESTMENT

COMPANY ACT OF 1940

56. The authority citation for Part 270

continues to read, in part as follows:

Authority: 15 U.S.C. 80a–1 et seq., 80a–37,

80a–39 unless otherwise noted.

* * * * *

57. By amending § 270.8b–11 to add

paragraph (e) to read as follows:

§ 270.8b–11 Number of copies; signatures;

binding.

* * * * *

(e) Duplicated or facsimile versions of

manual signatures of persons required

to sign any registration statement or

report, including all amendments and

exhibits to such statements or reports,

that are filed or submitted to the

Commission under the Act, shall be

considered manual signatures for the

purposes of the Act and the rules and

regulations thereunder; provided that,

the original signed document is retained

by the filer for a period of five years

and, upon request, the filer furnishes to

the Commission or the staff the original

manually signed document.

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:
Federal Register / Vol. 60, No. 95 / Wednesday, May 17, 1995 / Rules and Regulations 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.

§§ 239.14 and 274.11a–1 [Amended]

59. By amending Form N–2

(referenced in §§ 239.14 and 274.11a–1)

by adding one check box to the cover

page immediately before ‘‘Calculation of

Registration Fee Under the Securities

Act of 1933,’’ and by adding two

sentences to the end of the first

Instruction following the Calculation of

Registration Fee Under the Securities

Act of 1933 table and by adding

paragraph J. to the General Instructions

to read as follows:

Note: The text of Form N–2 does not and

these amendments will not appear in the

Code of Federal Regulations.

Form N–2—Registration Statement Under

the Securities Act of 1933

* * * * *

[ ] This Form is filed to register additional

securities for an offering pursuant to Rule

462(b) under the Securities Act and the

Securities Act registration statement number

of the earlier effective registration statement

for the same offering is llllll .

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