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INTERPRETATIVE RELEASES RELATING TO THE SECURITIES ACT OF 1933 AND GENERAL RULES AND REGULATIONS THEREUNDER-Continued

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PART 239-FORMS PRESCRIBED UNDER THE SECURITIES ACT OF 1933

Sec.

239.0-1 Availability of forms.

Subpart A-Forms for Registration Statements

239.4-239.10 [Reserved]

239.11 Form S-1, registration statement under the Securities Act of 1933. 239.12 Form S-2, for registration under the Securities Act of 1933 of securities of certain issuers.

239.13 Form S-3, for registration under the Securities Act of 1933 of securities of certain issuers offered pursuant to certain types of transactions.

239.14 Form N-2, for closed-end management investment companies registered on Form N-8A.

239.15 Form N-1, for open-end management investment companies registered on Form N-8A.

239.15A Form N-1A, registration statement

of open-end management investment companies.

239.16 Form S-6, for unit investment trusts registered on Form N-8B-2.

239.16b Form S-8, for registration under the Securities Act of 1933 of securities to be offered to employees pursuant to certain plans.

239.17 [Reserved] 239.17a Form N-3, registration statement for separate accounts organized as management investment companies. 239.17b Form N-4, registration statement for separate accounts organized as unit investment trusts.

239.18 Form S-11, for registration under the Securities Act of 1933 of securities of certain real estate companies.

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239.20 Form S-20, for standardized options.

239.23 Form N-14, for the registration of securities issued in business combination transactions by investment companies and business development companies. 239.24 Form N-5, form for registration of small business investment company under the Securities Act of 1933 and the Investment Company Act of 1940. 239.25 Form S-4, for the registration of securities issued in business combination transactions.

239.26-239.27 [Reserved]

239.28 Form S-18, optional form for the

registration of securities to be sold to the public by the issuer for an aggregate cash price not to exceed $7,500,000. 239.29-239.30 [Reserved] 239.31 Form F-1, registration statement under the Securities Act of 1933 for securities of certain foreign private issu

ers.

239.32 Form F-2, for registration under the Securities Act of 1933 for securities of certain foreign private issuers. 239.33 Form F-3, for registration under the

Securities Act of 1933 of securities of certain foreign private issuers offered pursuant to certain types of transactions.

239.34 Form F-4, for registration of securi

ties of certain foreign private issuers issued in certain business combination transactions.

239.35 [Reserved]

239.36 Form F-6, for registration under the Securities Act of 1933 of depositary shares evidenced by American Depositary Receipts.

239.37-239.60 [Reserved]

239.61 Form SR, report of sales of securities and use of proceeds therefrom. 239.62 Form ET, transmittal form for electronic format documents under the EDGAR pilot.

239.63 Form ID, uniform application for identification numbers and passwords under the EDGAR pilot.

239.64 Form SE, transmittal form for paper format documents under the EDGAR pilot.

Subpart B-Forms Pertaining to Exemptions

239.90 Form 1-A, offering statement under Regulation A.

239.91 Form 2-A, report pursuant to Rule 260 of Regulation A.

239.92 Form 3-A, irrevocable appointment by an individual of agent for service of process, pleadings, and other papers pursuant to Rule 262 of Regulation A.

239.93 Form 4-A, irrevocable appointment by a corporation (or association or other form of organization) of agent for service of process, pleadings, and other papers, pursuant to Rule 262 of Regulation A.

239.94 Form 5-A, certificate of resolution authorizing irrevocable appointment by a corporation (or association or other form of organization) of agent for service of process, pleadings, and other papers, pursuant to Rule 262 of Regulation A.

239.95 Form 6-A, irrevocable appointment by partnership of agent for service of process, pleadings, and other papers, pursuant to Rule 262 of Regulation A. 239.96 Form 7A, optional form of escrow for securities that are subject to the provisions of Rule 253(c) of Regulation A (§ 230.253(c) of this chapter). 239.97-239.100 [Reserved]

239.101 Schedules and forms for offering sheets pertaining to fractional undivided interests in oil or gas rights offered pursuant to exemption under Regulation B. (§§ 230.300-230.346 of this chapter). 239.102-239.143 [Reserved] 239.144 Form 144, for notice of proposed sale of securities pursuant to § 230.144 of this chapter. 239.145-239.199

[Reserved]

239.200 Form 1-E, notification under Regulation E.

239.201 Form 2-E, report of sales pursuant to Rule 609 of Regulation E. 239.202-239.299 [Reserved]

239.300 Form 1-F, notification under Regulation F.

239.500 Form D, notice of sales of securities under Regulation D and section 4(6) of the Securities Act of 1933. AUTHORITY: The Securities Act of 1933, 15 U.S.C. 77a, et seq., unless otherwise noted.

Secs. 239.62, 239.63 and 239.64 also issued under secs. 6, 7, 8, 10 and 19(a) of the Securities Act (15 U.S.C. 77f, 77g, 77h, 77j, 77s(a)); secs. 3(b), 12, 13, 14, 15(d) and 23(a) of the Exchange Act (15 U.S.C. 78c(b), 781, 78m, 78n, 780(d), 78w(a)); secs. 5, 6, 7, 10, 12, 13, 14, 17 and 20 of the Holding Company Act (15 U.S.C. 79e, 79f, 79g, 79j, 791, 79m, 79n, 79q and 79t); sec. 319(a) of the Trust Indenture Act (15 U.S.C. 77sss(a)) and secs. 8, 24, 30 and 38 of the Investment Company Act (15 U.S.C. 80a-8, 80a-29 and 80a-37).

SOURCE: 33 FR 18991, Dec. 20, 1968, unless otherwise noted.

§ 239.0-1 Availability of forms.

(a) This part identifies and describes the forms prescribed for use under the Securities Act of 1933.

(b) Any person may obtain a copy of any form prescribed for use in this part by written request to the Securities and Exchange Commission, 450 Fifth Street, N.W., Washington, D.C. 20549. Any persons may inspect the forms at this address and at the Commission's regional offices. (See § 200.11 of this chapter for the addresses of SEC regional offices.)

[46 FR 17757, Mar. 20, 1981, as amended at 47 FR 26820, June 22, 1982]

Subpart A-Forms for Registration Statements

§§ 239.4-239.10 [Reserved]

§ 239.11 Form S-1, registration statement under the Securities Act of 1933.

This form shall be used for registration under the Securities Act of 1933 of securities of all issuers for which no other form is authorized or prescribed, except that this form shall not be used for securities of foreign governments or political subdivisions thereof.

(Secs. 7, 10, 19(a), 48 Stat. 78, 81, 85; secs. 205, 209, 48 Stat. 906, 908; sec. 8, 68 Stat. 685; 15 U.S.C. 77g, 77j, 77s(a); secs. 12, 13, 14, 15(d), 23, 48 Stat. 892, 894, 895, 901; sec. 203(a), 49 Stat. 704; secs. 1, 3, 8, 49 Stat. 1375, 1377, 1379; sec. 202, 68 Stat. 686; secs. 3, 4, 5, 6, 10, 78 Stat. 565-568, 569, 570-574, 88a; secs. 1, 2, 3, 82 Stat. 454, 455; secs. 1, 2, 3-5, 28(c), 84 Stat. 1435, 1479; sec. 105(b), 88 Stat. 1503; secs. 8, 9, 10, 18, 89 Stat. 117, 118, 119, 155 (15 U.S.C. 781, 78m, 78n, 780(d), 1979))

EDITORIAL NOTE: For FEDERAL REGISTER Citations affecting Form S-1, see the List of CFR Sections Affected in the Finding Aids section of this volume.

§ 239.12 Form S-2, for registration under the Securities Act of 1933 of securities of certain issuers.

This form may be used for registration of securities under the Securities Act of 1933 which are offered or to be offered in any transaction other than an exchange offer for securities of another person by any registrant which meets the following conditions:

(a) The registrant is organized under the laws of the United States or any State or Territory or the District of Columbia and has its principal busi

ness operations in the United States or its territories;

(b) The registrant has a class of securities registered pursuant to section 12(b) of the Securities Exchange Act of 1934 ("Exchange Act") or has a class of equity securities registered pursuant to section 12(g) of the Exchange Act or is required to file reports pursuant to section 15(d) of the Exchange Act;

(c) The registrant: (1) Has been subject to the requirements of section 12 of 15(d) of the Exchange Act and has filed all the material required to be filed pursuant to section 13, 14 or 15(d) for a period of at least thirty-six calendar months immediately preceding the filing of the registration statement on this Form; and (2) has filed in a timely manner all reports required to be filed during the twelve calendar months and any portion of a month immediately preceding the filing of the registration statement and, if the registrant has used (during the twelve calendar months and any portion of a month immediately preceding the filing of the registration statement) Rule 12b-25(b) (§ 240.12b-25(b) of this chapter) under the Exchange Act with respect to a report or a portion of a report, that report or portion thereof has actually been filed within the time period prescribed by that rule; and

(d) Neither the registrant nor any of its consolidated or unconsolidated subsidiaries have, since the end of their last fiscal year for which certified financial statements of the registrant and its consolidated subsidiaries were included in a report filed pursuant to section 13(a) or 15(d) of the Exchange Act:

(1) Failed to pay any dividend or sinking fund installment on preferred stock; or

(2) Defaulted (i) on any installment or installments on indebtedness for borrowed money, or (ii) on any rental on one or more long term leases, which defaults in the aggregate are material to the financial position of the registrant and its consolidated and unconsolidated subsidiaries, taken as a

whole.

(e) A foreign private issuer which satisfies all of the above provisions of these registrant eligibility require

ments except the provisions in (a) relating to organization and principal business shall be deemed to have met these registrant eligibility requirements provided that such foreign issuer files the same reports with the Commission under section 13(a) or 15(d) of the Exchange Act as a domestic registrant pursuant to paragraph (c) of this section.

(f) If a registrant is a successor registrant it shall be deemed to have met conditions in paragraphs (a), (b), (c) and (d) of this section if: (1) Its predecessor and it, taken together, do so, provided that the succession was primarily for the purpose of changing the state of incorporation of the predecessor of forming a holding company and that the assets and liabilities of the successor at the time of succession were substantially the same as those of the predecessor; or (2) all predecessors met the conditions at the time of succession and the registrant has continued to do so since the succession.

(g) If a registrant is a majorityowned subsidiary which does not itself meet the conditions of the eligibility requirements, it shall nevertheless be deemed to have met such conditions if its parent meets the conditions and if the parent fully guarantees the securities being registered as to principal and interest. Note: In such an instance the parent-guarantor is the issuer of a separate security consisting of the guarantee which must be concurrently registered but may be registered on the same registration statement as are the guaranteed securities.

(Secs. 6, 7, 8, 10, 19(a), 48 Stat. 78, 79, 81, 85; secs. 205, 209, 48 Stat. 906, 908; sec. 301, 54 Stat. 857; sec. 8, 68 Stat. 685; sec. 308(a)(2), 90 Stat. 57; secs. 3(b), 12, 13, 14, 15(d), 23(a), 48 Stat. 882, 892, 894, 895, 901; secs. 203(a), 1, 3, 8, 49 Stat. 704, 1375, 1377, 1379; sec. 202, 68 Stat. 686; secs. 4, 5, 6(d), 78 Stat. 569, 570-574; secs. 1, 2, 3, 82 Stat. 454, 455; secs. 28(c), 1, 2, 3, 4, 5, 84 Stat. 1435, 1497; sec. 105(b), 88 Stat. 1503; secs. 8, 9, 10, 89 Stat. 117, 118, 119; sec. 308(b), 90 Stat 57; sec. 18, 89 Stat. 155; secs. 202, 203, 204, 91 Stat. 1494, 1498-1500; sec. 20(a), 49 Stat. 833; sec. 319, 53 Stat. 1173; sec. 38, 54 Stat. 841; 15 U.S.C. 77f, 77g, 77h, 77j, 77s(a), 78c(b), 781, 78m, 78n, 780(d), 78w(a), 79t(a), 77sss(a), 80a-37)

[47 FR 11451, Mar. 16, 1982]

EDITORIAL NOTE: Form S-2 amended at 47 FR 29840, July 9, 1982; 48 FR 19875, May 3, 1983; 51 FR 42057, Nov. 20, 1986.

§ 239.13 Form S-3, for registration under the Securities Act of 1933 of securities of certain issuers offered pursuant to certain types of transactions.

This form may be used by any registrant which meets the requirements of paragraph (a) of this section ("Registrant Requirements") for the registration of securities under the Securities Act of 1933 ("Securities Act") which are offered in any transaction specified in paragraph (b) of this section ("Transaction Requirements"), provided that the requirements applicable to the specified transaction are met. With respect to majority-owned subsidiaries, see paragraph (c) below.

(a) Registrant requirements. All registrants must meet the following conditions in order to use this Form S-3 for registration under the Securities Act of securities offered in the transactions specified in paragraph (b) of this section:

(1) The registrant is organized under the laws of the United States or any State or Territory or the District of Columbia and has its principal business operations in the United States or its territories.

(2) The registrant has a class of securities registered pursuant to section 12(b) of the Securities Exchange Act of 1934 ("Exchange Act") or a class of equity securities registered pursuant to section 12(g) of the Exchange Act or is required to file reports pursuant to section 15(d) of the Exchange Act;

(3) The registrant: (i) Has been subject to the requirements of section 12 or 15(d) of the Exchange Act and has filed all the material required to be filed pursuant to sections 13, 14 or 15(d) for a period of at least thirty-six calendar months immediately preceding the filing of the registration statement on this Form; and (ii) has filed in a timely manner all reports required to be filed during the twelve calendar months and any portion of a month immediately preceding the filing of the registration statement and, if the registrant has used (during the twelve calendar months and any portion of a month immediately pre

ceding the filing of the registration statement) Rule 12b-25(b) (§ 240.12b25(b) of this chapter) under the Exchange Act with respect to a report or a portion of a report, that report or portion thereof has actually been filed within the time period prescribed by the Rule; and

(4) Neither the registrant nor any of its consolidated or unconsolidated subsidiaries have, since the end of the last fiscal year for which certified financial statements of the registrant and its consolidated subsidiaries were included in a report filed pursuant to section 13(a) or 15(d) of the Exchange Act: (i) Failed to pay any dividend or sinking fund installment on preferred stock; or (ii) defaulted (A) on any installment or installments on indebtedness for borrowed money, or (B) on any rental on one or more long term leases, which defaults in the aggregate are material to the financial position of the registrant and its consolidated and unconsolidated subsidiaries, taken as a whole.

(5) A foreign private issuer which satisfies all of the above provisions of these registrant eligibility requirements except the provisions in (a)(1) relating to organization and principal business shall be deemed to have met these registrant eligibility requirements provided that such foreign issuer files the same reports with the Commission under section 13(a) or 15(d) of the Exchange Act as a domestic registrant pursuant to (a)(3) of this section.

(6) If the registrant is a successor registrant, it shall be deemed to have met conditions in paragraph (a) (1), (2), (3), and (4) of this section if: (i) its predecessor and it, taken together, do so, provided that the succession was primarily for the purpose of changing the state of incorporation of the predecessor or forming a holding company and that the assets and liabilities of the successor at the time of succession were substantially the same as those of the predecessor; or (ii) if all predecessors met the conditions at the time of succession and the registrant has continued to do so since the succession.

(b) Transaction requirements. Security offerings meeting and of the fol

lowing conditions and made by registrants meeting the Registrant Requirements above may be registered on this Form:

(1) Primary and secondary offerings by certain registrants. Securities to be offered for cash by or on behalf of a registrant, or outstanding securities to be offered for cash for the account of any person other than the registrant, including securities acquired by standby underwriters in connection with the call or redemption by the registrant of warrants or a class of convertible securities; provided that the aggregate market value of the voting stock held by non-affiliates of the registrant is $150 million or more, or alternatively, the aggregate market value of the voting stock held by nonaffiliates of the registrant is $100 million or more and the registrant has had an annual trading volume of such stock of 3 million shares or more.

Instructions.

The aggregate market value of the registrant's outstanding voting stock shall be computed by use of the price at which the stock was last sold, or the average of the bid and asked prices of such stock, as of a date within 60 days prior to the date of filing. Annual trading volume shall be the volume of shares traded in any continuous twelve month period ended within 60 days prior to the date of filing. See the definition of “affiliate" in Securities Act Rule 405 (§ 230.405 of this chapter).

(2) Primary offerings of certain debt and non-convertible preferred securities. Non-convertible debt and preferred securities to be offered for cash by or on behalf of a registrant, provided such securities are "investment grade securities," as defined below. A non-convertible debt or preferred security is an "investment grade security" if, at the time of effectiveness of the registration statement, at least one nationally recognized statistical rating organization (as that term is used in Rule 15c3-1(c)(2)(vi)(F) under the Securities Exchange Act of 1934 (§ 240.15c3-1(c)(2)(vi)(F) of this chapter)) has rated the security in one of its generic rating categories which signifies investment grade; typically, the four highest rating categories (within which there may be sub-categories or

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