(a) When notice is not an offer. For purposes of section 5 of the Act (15 U.S.C. 77e) only, an issuer or a selling security holder (and any person acting on behalf of either of them) that publishes through any medium a notice of a proposed offering to be registered under the Act will not be deemed to offer its securities for sale through that notice if:
(1) Legend. The notice includes a statement to the effect that it does not constitute an offer of any securities for sale; and
(2) Limited notice content. The notice otherwise includes no more than the following information:
(i) The name of the issuer;
(ii) The title, amount and basic terms of the securities offered;
(iii) The amount of the offering, if any, to be made by selling security holders;
(iv) The anticipated timing of the offering;
(v) A brief statement of the manner and the purpose of the offering, without naming the underwriters;
(vi) Whether the issuer is directing its offering to only a particular class of purchasers;
(vii) Any statements or legends required by the laws of any state or foreign country or administrative authority; and
(viii) In the following offerings, the notice may contain additional information, as follows:
(A) Rights offering. In a rights offering to existing security holders:
(1) The class of security holders eligible to subscribe;
(2) The subscription ratio and expected subscription price;
(3) The proposed record date;
(4) The anticipated issuance date of the rights; and
(5) The subscription period or expiration date of the rights offering.
(B) Offering to employees. In an offering to employees of the issuer or an affiliated company:
(1) The name of the employer;
(2) The class of employees being offered the securities;
(3) The offering price; and
(4) The duration of the offering period.
(C) Exchange offer. In an exchange offer:
(1) The basic terms of the exchange offer;
(2) The name of the subject company;
(3) The subject class of securities sought in the exchange offer.
(D) Rule 145(a) offering. In a Sec. 230.145(a) offering:
(1) The name of the person whose assets are to be sold in exchange for the securities to be offered;
(2) The names of any other parties to the transaction;
(3) A brief description of the business of the parties to the transaction;
(4) The date, time and place of the meeting of security holders to vote on or consent to the transaction; and
(5) A brief description of the transaction and the basic terms of the transaction.
(b) Corrections of misstatements about the offering. A person that publishes a notice in reliance on this section may issue a notice that contains no more information than is necessary to correct inaccuracies published about the proposed offering.
Note to Sec. 230.135: Communications under this section relating to business combination transactions must be filed as required by Sec. 230.425(b). [64 FR 61449, Nov. 10, 1999] Sec. 230.135a Generic advertising.
(a) For the purposes only of section 5 of the Act, a notice, circular, advertisement, letter, sign, or other communication, published or transmitted to any person which does not specifically refer by name to the securities of a particular investment company, to the investment company itself, or to any other securities not exempt under section 3(a) of the Act, will not be deemed to offer any security for sale, provided:
(1) Such communication is limited to any one or more of the following:
(i) Explanatory information relating to securities of investment companies generally or to the nature of investment companies, or to services offered in connection with the ownership of such securities,
(ii) The mention or explanation of investment companies of different generic types or having various investment objectives, such as balanced funds, growth funds, income funds, leveraged funds, specialty funds, variable annuities, bond funds, and no-load funds,
(iii) Offers, descriptions, and explanation of various products and services not constituting a security subject to registration under the Act: Provided, That such offers, descriptions, and explanations do not relate directly to the desirability of owning or purchasing a security issued by a registered investment company,
(iv) Invitation to inquire for further information, and
(2) Such communication contains the name and address of a registered broker or dealer or other person sponsoring the communication.
(b) If such communication contains a solicitation of inquiries and prospectuses for investment company securities are to be sent or delivered in response to such inquiries, the number of such investment companies and, if applicable, the fact that the sponsor of the communication is the principal underwriter or investment adviser in respect to such investment companies shall be stated.
(c) With respect to any communication describing any type of security, service, or product, the broker, dealer, or other person sponsoring such communication must offer for sale a security, service, or product of the type described in such communication. [37 FR 10073, May 19, 1972, as amended at 37 FR 10931, June 1, 1972] Sec. 230.135b Materials not deemed an offer to sell or offer to buy nor a prospectus.
Materials meeting the requirements of Sec. 240.9b-1 of this chapter shall not be deemed an offer to sell or offer to buy a security for purposes solely of Section 5 (15 U.S.C. 77e) of the Act, nor shall such materials be deemed a prospectus for purposes of Sections 2(a)(10) and 12(a)(2) (15 U.S.C. 77b(a)(10) and 77l(a)(2)) of the Act, even if such materials are referred to in, deemed to be incorporated by reference into, or otherwise in any manner deemed to be a part of a Form S-20 prospectus. [67 FR 228, Jan. 2, 2002] Sec. 230.135c Notice of certain proposed unregistered offerings.
(a) For the purposes only of section 5 of the Act, a notice given by an issuer required to file reports pursuant to section 13 or 15(d) of the Securities Exchange Act of 1934 or a foreign issuer that is exempt from registration under the Securities Exchange Act of 1934 pursuant to Sec. 240.12g3-2(b) of this chapter that it proposes to make, is making or has made an offering of securities not registered or required to be registered under the Act shall not be deemed to offer any securities for sale if:
(1) Such notice is not used for the purpose of conditioning the market in the United States for any of the securities offered;
(2) Such notice states that the securities offered will not be or have not been registered under the Act and may not be offered or sold in the United States absent registration or an applicable exemption from registration requirements; and
(3) Such notice contains no more than the following additional information:
(i) The name of the issuer;
(ii) The title, amount and basic terms of the securities offered, the amount of the offering, if any, made by selling security holders, the time of the offering and a brief statement of the manner and purpose of the offering without naming the underwriters;
(iii) In the case of a rights offering to security holders of the issuer, the class of securities the holders of which will be or were entitled to subscribe to the securities offered, the subscription ratio, the record date, the date upon which the rights are proposed to be or were issued, the term or expiration date of the rights and the subscription price, or any of the foregoing;
(iv) In the case of an offering of securities in exchange for other securities of the issuer or of another issuer, the name of the issuer and the title of the securities to be surrendered in exchange for the securities offered, the basis upon which the exchange may be made, or any of the foregoing;
(v) In the case of an offering to employees of the issuer or to employees of any affiliate of the issuer, the name of the employer and class or classes of employees to whom the securities are offered, the offering price or basis of the offering and the period during which the offering is to be or was made or any of the foregoing; and
(vi) Any statement or legend required by State or foreign law or administrative authority.
(b) Any notice contemplated by this section may take the form of a news release or a written communication directed to security holders or employees, as the case may be, or other published statements.
(c) Notwithstanding the provisions of paragraphs (a) and (b) of this section, in the case of a rights offering of a security listed or subject to unlisted trading privileges on a national securities exchange or quoted on the NASDAQ inter-dealer quotation system information with respect to the interest rate, conversion ratio and subscription price may be disseminated through the facilities of the exchange, the consolidated transaction reporting system, the NASDAQ system or the Dow Jones broad tape, provided such information is already disclosed in a Form 8-K (Sec. 249.308 of this chapter) on file with the Commission, in a Form 6-K (Sec. 249.306 of this chapter) furnished to the Commission or, in the case of an issuer relying on Sec. 240.12g3-2(b) of this chapter, in a submission made pursuant to that Section to the Commission.
(d) The issuer shall file any notice contemplated by this section with the Commission under cover of Form 8-K (Sec. 249.308 of this chapter) or furnish such notice under Form 6-K (Sec. 249.306 of this chapter), as applicable, and, if relying on Sec. 240.12g3-2(b) of this chapter, shall furnish such notice to the Commission in accordance with the provisions of that exemptive Section. [59 FR 21649, Apr. 26, 1994] Sec. 230.135d [Reserved] Sec. 230.135e Offshore press conferences, meetings with issuer representatives conducted offshore, and press-related materials releasedoffshore.
(a) For the purposes only of Section 5 of the Act (15 U.S.C. 77e), an issuer that is a foreign private issuer (as defined in Sec. 230.405) or a foreign government issuer, a selling security holder of the securities of such issuers, or their representatives will not be deemed to offer any security for sale by virtue of providing any journalist with access to its press conferences held outside of the United States, to meetings with issuer or selling security holder representatives conducted outside of the United States, or to written press-related materials released outside the United States, at or in which a present or proposed offering of securities is discussed, if:
(1) The present or proposed offering is not being, or to be, conducted solely in the United States;
Note to paragraph (a)(1):
An offering will be considered not to be made solely in the United States under this paragraph (a)(1) only if there is an intent to make a bona fide offering offshore.
(2) Access is provided to both U.S. and foreign journalists; and
(3) Any written press-related materials pertaining to transactions in which any of the securities will be or are being offered in the United States satisfy the requirements of paragraph (b) of this section.
(b) Any written press-related materials specified in paragraph (a)(3) of this section must:
(1) State that the written press-related materials are not an offer of securities for sale in the United States, that securities may not be offered or sold in the United States absent registration or an exemption from registration, that any public offering of securities to be made in the United States will be made by means of a prospectus that may be obtained from the issuer or the selling security holder and that will contain detailed information about the company and management, as well as financial statements;
(2) If the issuer or selling security holder intends to register any part of the present or proposed offering in the United States, include a statement regarding this intention; and
(3) Not include any purchase order, or coupon that could be returned indicating interest in the offering, as part of, or attached to, the written press-related materials.
(c) For the purposes of this section, United States means the United States of America, its territories and possessions, any State of the United States, and the District of Columbia. [62 FR 53954, Oct. 17, 1997]