an amendment thereto, except that electronic filers that rely on Trust Indenture Act Section 305(b)(2) for determining the eligibility of the trustee under indentures for securities to be issued, offered or sold on a delayed basis by or on behalf of the registrant shall file such statements separately in the manner prescribed by $260.5b-1 through §260.5b-3 of this chapter and by the EDGAR Filer Manual. (26) Invitations for competitive bids. If the registration statement covers securities that the small business issuer is offering at competitive bidding, any invitation for competitive bid that the small business issuer will send or give to any person shall be filed. (27) through (98) [Reserved] (99) Additional exhibits. (i) Any additional exhibits if listed and described in the exhibit index. (ii) If pursuant to Section 11(a) of the Securities Act (15 U.S.C. 77k(a)) an issuer makes generally available to its security holders an earnings statement covering a period of at least 12 months beginning after the effective date of the registration statement, and if such earnings statement is made available by "other methods" than those specified in paragraphs (a) or (b) of § 230.158 of this chapter, it must be filed as an exhibit to the Form 10-QSB or the Form 10-KSB, as appropriate, covering the period in which the earnings statement was released. [57 FR 36449, Aug. 13, 1992, as amended at 57 FR 48150, Oct. 21, 1992; 58 FR 14660, Mar. 18, 1993; 58 FR 21349, Apr. 21, 1993; 58 FR 26383, May 3, 1993; 58 FR 27469, May 10, 1993; 59 FR 36260, July 15, 1994; 59 FR 67759, Dec. 30, 1994; 60 FR 26614, May 17, 1995; 61 FR 24654, May 15, 1996; 61 FR 30401, June 14, 1996; 62 FR 36455, July 8, 1997; 65 FR 24799, Apr. 27, 2000; 67 FR 246, Jan. 2, 2002] EDITORIAL NOTE: At 65 FR 24799, Apr. 27, 2000, in §thnsp;228.601, paragraph (a), the table was amended by removing the entries for exhibits (27) and (28) and footnote *****, however, this is a photographed table, thus the entries could not be removed. § 228.601T (Item 601T) Item 601T of Regulation S-B. Any issuer that may rely upon the alternative disclosure requirement of § 228.304T shall comply with § 228.601(b)(16) in the following manner: (a) If Arthur Andersen LLP (or a foreign affiliate of Arthur Andersen LLP) has already provided the issuer with a letter addressed to the Commission stating whether it agrees or disagrees with the statements made by the registrant in response to §228.304(c), the issuer must comply with § 228.601(b)(16). (b) If Arthur Andersen LLP (or a foreign affiliate of Arthur Andersen LLP) has not provided the issuer with this letter and the issuer cannot obtain it after reasonable efforts, the issuer need not comply with § 228.601(b)(16). (c) This temporary section will expire on December 31, 2002. [67 FR 13536, Mar. 22, 2002] EFFECTIVE DATE NOTE: At 67 FR 13536, Mar. 22, 2002, § 228.601T was added effective Mar. 18, 2002 through Dec. 31, 2002. § 228.701 (Item 701) Recent sales of unregistered securities; use of proceeds from registered securities. Give the following information for all securities that the small business issuer sold within the past three years without registering the securities under the Securities Act. (a) The date, title and amount of securities sold. (b) Give the names of the principal underwriters, if any. If the small business issuer did not publicly offer any securities, identify the persons or class of persons to whom the small business issuer sold the securities. (c) For securities sold for cash, the total offering price and the total underwriting discounts or commissions. For securities sold other than for cash, describe the transaction and the type and amount of consideration received by the small business issuer. (d) The section of the Securities Act or the rule of the Commission under which the small business issuer claimed exemption from registration and the facts relied upon to make the exemption available. (e) If the information called for by this paragraph (e) is being presented on Form 8-K, Form 10-QSB, Form 10-Q, Form 10-KSB or Form 10-K (§§ 249.308, 249.308b, 249.308a, 249.310b or 249.310) under the Exchange Act, and where the securities sold by the registrant are convertible or exchangeable into equity securities, or are warrants or options representing equity securities, disclose the terms of conversion or exercise of the securities. (f) As required by $230.463 of this chapter, following the effective date of the first registration statement filed under the Securities Act by an issuer, the issuer or successor issuer shall report the use of proceeds on its first periodic report filed pursuant to sections 13(a) and 15(d) of the Exchange Act (15 U.S.C. 78m(a) and 780(d)) after effectiveness of its Securities Act registration statement, and thereafter on each of its subsequent periodic reports filed pursuant to sections 13(a) and 15(d) of the Exchange Act through the later of disclosure of the application of all the offering proceeds, or disclosure of the termination of the offering. If a report of the use of proceeds is required with respect to the first effective registration statement of the predecessor issuer, the successor issuer shall provide such a report. The information provided pursuant to paragraphs (f)(2) through (f)(4) of this Item need only be provided with respect to the first periodic report filed pursuant to sections 13(a) and 15(d) of the Exchange Act after effectiveness of the registration statement filed under the Securities Act. Subsequent periodic reports filed pursuant to sections 13(a) and 15(d) of the Exchange Act need only provide the information required in paragraphs (f)(2) through (f)(4) of this Item if any of such required information has changed since the last periodic report filed. In disclosing the use of proceeds in the first periodic report filed pursuant to the Exchange Act, the issuer or successor issuer should include the following information: (1) The effective date of the Securities Act registration statement for which the use of proceeds information is being disclosed and the Commission file number assigned to the registration statement; (2) If the offering has commenced, the offering date, and if the offering has not commenced, an explanation why it has not; (3) If the offering terminated before any securities were sold, an explanation for such termination; and (4) If the offering did not terminate before any securities were sold, disclose: (i) Whether the offering has terminated and, if so, whether it terminated before the sale of all securities registered; (ii) The name(s) of the managing underwriter(s), if any; (iii) The title of each class of securities registered and, where a class of convertible securities is being registered, the title of any class of securities into which such securities may be converted; (iv) For each class of securities (other than a class of securities into which a class of convertible securities registered may be converted without additional payment to the issuer) the following information, provided for both the account of the issuer and the account(s) of any selling security holder(s): the amount registered, the aggregate price of the offering amount registered, the amount sold and the aggregate offering price of the amount sold to date; (v) From the effective date of the Securities Act registration statement to the ending date of the reporting period, the amount of expenses incurred for the issuer's account in connection with the issuance and distribution of the securities registered for underwriting discounts and commissions, finders' fees, expenses paid to or for underwriters, other expenses and total expenses. Indicate if a reasonable estimate for the amount of expenses incurred is provided instead of the actual amount of expenses. Indicate whether such payments were: (A) Direct or indirect payments to directors, officers, general partners of the issuer or their associates; to persons owning ten (10) percent or more of any class of equity securities of the issuer; and to affiliates of the issuer; or (B) Direct or indirect payments to others; (vi) The net offering proceeds to the issuer after deducting the total expenses described in paragraph (f)(4)(v) of this Item; (vii) From the effective date of the Securities Act registration statement to the ending date of the reporting period, the amount of net offering proceeds to the issuer used for construction of plant, building and facilities; purchase and installation of machinery and equipment; purchases of real estate; acquisition of other business(es); repayment of indebtedness; working capital; temporary investments (which should be specified); and any other purposes for which at least five (5) percent of the issuer's total offering proceeds or $100,000 (whichever is less) has been used (which should be specified). Indicate if a reasonable estimate for the amount of net offering proceeds applied is provided instead of the actual amount of net offering proceeds used. Indicate whether such payments were: (A) Direct or indirect payments to directors, officers, general partners of the issuer or their associates; to persons owning ten (10) percent or more of any class of equity securities of the issuer; and to affiliates of the issuer; or (B) Direct or indirect payments to others; and (viii) If the use of proceeds in paragraph (f)(4)(vii) of this Item represents a material change in the use of proceeds described in the prospectus, the issuer should describe briefly the material change. [57 FR 36449, Aug. 13, 1992, as amended at 61 FR 54508, Oct. 18, 1996; 62 FR 39761, July 24, 1997] Subpart 229.100-Business 229.101 (Item 101) Description of business. 229.102 (Item 102) Description of property. 229.103 (Item 103) Legal proceedings. Subpart 229.200-Securities of the 229.201 (Item 201) Market price of and divi- Subpart 229.300-Financial Information 229.301 (Item 301) Selected financial data. 229.302 (Item 302) Supplementary financial information. 229.303 (Item 303) Management's discussion and analysis of financial condition and results of operations. 229.304 (Item 304) Changes in and disagreements with accountants on accounting and financial disclosure. 229.304T (Item 304T) Item 304T of Regulation S-K. 229.305 (Item 305) Quantitative and qualitative disclosures about market risk. 229.306 (Item 306) Audit committee report. Subpart 229.400-Management and 229.401 (Item 401) Directors, executive officers, promoters and control persons. 229.402 (Item 402) Executive compensation. 229.403 (Item 403) Security ownership of certain beneficial owners and management. 229.404 (Item 404) Certain relationships and related transactions. 229.405 (Item 405) Compliance with section 16(a) of the Exchange Act. Subpart 229.500-Registration Statement and Prospectus Provisions 229.501 (Item 501) Forepart of registration statement and outside front cover page of prospectus. 229.502 (Item 502) Inside front and outside back cover pages of prospectus. 229.503 (Item 503) Prospectus summary, risk factors, and ratio of earnings to fixed charges. 229.504 (Item 504) Use of proceeds. 229.505 (Item 505) Determination of offering price. 229.506 (Item 506) Dilution. 229.507 (Item 507) Selling security holders. 229.508 (Item 508) Plan of distribution. 229.509 (Item 509) Interests of named experts and counsel. 229.510 (Item 510) Disclosure of Commission position on indemnification for Securities Act liabilities. 229.901 (Item 901) Definitions. 229.902 (Item 902) Individual partnership supplements. 229.903 (Item 903) Summary. 229.904 (Item 904) Risk factors and other considerations. 229.905 (Item 905) Comparative information. 229.906 (Item 906) Allocation of roll-up consideration. 229.907 (Item 907) Background of the roll-up transaction. 229.908 (Item 908) Reasons for and alternatives to the roll-up transaction. 229.909 (Item 909) Conflicts of interest. 229.910 (Item 910) Fairness of the trans action. 229.911 (Item 911) Reports, opinions and appraisals. 229.912 (Item 912) Source and amount of funds and transactional expenses. 229.913 (Item 913) Other provisions of the transaction. 229.914 (Item 914) Pro forma financial statements; selected financial data. 229.915 (Item 915) Federal income tax consequences. Subpart 229.1000-Mergers and 229.1000 (Item 1000) Definitions. 229.1001 (Item 1001) Summary term sheet. 229.1002 (Item 1002) Subject company infor mation. 229.1003 (Item 1003) Identity and background of filing person. 229.1004 (Item 1004) Terms of the trans action. 229.1005 (Item 1005) Past contacts, transactions, negotiations and agreements. 229.1006 (Item 1006) Purposes of the transaction and plans or proposals. 229.1007 (Item 1007) Source and amount of funds or other consideration. 229.1008 (Item 1008) Interest in securities of the subject company. 229.1009 (Item 1009) Persons/assets, retained, employed, compensated or used. 229.1010 (Item 1010) Financial statements. 229.1011 (Item 1011) Additional information. 229.1012 (Item 1012) The solicitation or recommendation. 229.1013 (Item 1013) Purposes, alternatives, reasons and effects in a going-private transaction. 229.1014 (Item 1014) Fairness of the goingprivate transaction. 229.1015 (Item 1015) Reports, opinions, appraisals and negotiations. 229.1016 (Item 1016) Exhibits. AUTHORITY: 15 U.S.C. 77e, 77f, 77g, 77h, 77j, 77k, 77s, 77z-2, 77z-3, 77aa(25), 77aa(26), 77ddd, 77eee, 77ggg, 77hhh, 77iii, 77jjj, 77nnn, 77sss, 78c, 781, 78j, 781, 78m, 78n, 780, 78u-5, 78w, 7811(d), 78mm, 79e, 79n, 79t, 80a-8, 80a-29, 80a30, 80a-31(c), 80a-37, 80a-38(a) and 80b-11, unless otherwise noted. SOURCE: 47 FR 11401, Mar. 16, 1982, unless otherwise noted. EDITORIAL NOTE: Nomenclature changes to part 229 appear at 57 FR 36501, Aug. 13, 1992, and 57 FR 47409, Oct. 16, 1992. ATTENTION ELECTRONIC FILERS THIS REGULATION SHOULD BE READ IN CONJUNCTION WITH REGULATION S-T (PART 232 OF THIS CHAPTER), WHICH GOVERNS THE PREPARATION AND SUBMISSION OF DOCUMENTS IN ELECTRONIC FORMAT. MANY PROVISIONS RELATING TO THE PREPARATION AND SUBMISSION OF DOCUMENTS IN PAPER FORMAT CONTAINED IN THIS REGULATION ARE SUPERSEDED BY THE PROVISIONS OF REGULATION S-T FOR DOCUMENTS REQUIRED TO BE FILED IN ELECTRONIC FORMAT. Subpart 229.1-General $229.10 General. (a) Application of Regulation S-K. This part (together with the General Rules and Regulations under the Securities Act of 1933, 15 U.S.C. 77a et seq., as amended (Securities Act), and the Securities Exchange Act of 1934, 15 U.S.C. 78a et seq., as amended (Exchange Act) (parts 230 and 240 of this chapter), the Interpretative Releases under these Acts (parts 231 and 241 of this chapter) and the forms under these Acts (parts 239 and 249 of this chapter)) states the requirements applicable to the content of the non-financial statement portions of: (1) Registration statements under the Securities Act (part 239 of this chapter) to the extent provided in the forms to be used for registration under such Act; and (2) Registration statements under section 12 (subpart C of part 249 of this chapter), annual or other reports under sections 13 and 15(d) (subparts D and E of part 249 of this chapter), going-private transaction statements under section 13 (part 240 of this chapter), tender offer statements under sections 13 and 14 (part 240 of this chapter), annual reports to security holders and proxy and information statements under section 14 (part 240 of this chapter), and any other documents required to be filed under the Exchange Act, to the extent provided in the forms and rules under that Act. (b) Commission policy on projections. The Commission encourages the use in documents specified in Rule 175 under the Securities Act (§ 230.175 of this chapter) and Rule 3b-6 under the Exchange Act (§ 240.3b-6 of this chapter) of management's projections of future economic performance that have a reasonable basis and are presented in an appropriate format. The guidelines set forth herein represent the Commission's views on important factors to be considered in formulating and disclosing such projections. (1) Basis for projections. The Commission believes that management must have the option to present in Commission filings its good faith assessment of a registrant's future performance. Management, however, must have a reasonable basis for such an assessment. Although a history of operations or experience in projecting may be among the factors providing a basis for management's assessment, the Commission does not believe that a registrant always must have had such a history or experience in order to formulate projections with a reasonable basis. An outside review of management's projections may furnish additional support for having a reasonable basis for a projection. If management decides to include a report of such a review in a Commission filing, there also should be disclosure of the qualifica tions of the reviewer, the extent of the review, the relationship between the reviewer and the registrant, and other material factors concerning the process by which any outside review was sought or obtained. Moreover, in the case of a registration statement under the Securities Act, the reviewer would be deemed an expert and an appropriate consent must be filed with the registration statement. (2) Format for projections. In determining the appropriate format for projections included in Commission filings, consideration must be given to, among other things, the financial items to be projected, the period to be covered, and the manner of presentation to be used. Although traditionally projections have been given for three financial items generally considered to be of primary importance to investors (revenues, net income (loss) and earnings (loss) per share), projection information need not necessarily be limited to these three items. However, management should take care to assure that the choice of items projected is not susceptible of misleading inferences through selective projection of only favorable items. Revenues, net income (loss) and earnings (loss) per share usually are presented together in order to avoid any misleading inferences that may arise when the individual items reflect contradictory trends. There may be instances, however, when it is appropriate to present earnings (loss) from continuing operations, or income (loss) before extraordinary items in addition to or in lieu of net income (loss). It generally would be misleading to present sales or revenue projections without one of the foregoing measures of income. The period that appropriately may be covered by a projection depends to a large extent on the particular circumstances of the company involved. For certain companies in certain industries, a projection covering a two or three year period may be entirely reasonable. Other companies may not have a reasonable basis for projections beyond the current year. Accordingly, management should select the period most appropriate in the circumstances. In addition, management, in making a projection, should disclose what, in its opinion, is |