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Release No. 33-6465 Release No. 34-19695
April 22, 1983
ACTION: Final Rules.SUMMARY: The Commission today adopted technical amendments to various rules, forms and schedules under the Securities Act of 1933 and the Securities Exchange Act of 1934. These amendments clarify certain language and correct technical omissions and errata. EFFECTIVE DATE: Upon publication in the Federal Register. FOR FURTHER INFORMATION CONTACT: V. Gerard Comizio, Office of Disclosure Policy, Division of Corporation Finance, Securities and Exchange Commission, 450 Fifth Street, N.W., Washington, D.C. 20549 at (202) 272-2589. SUPPLEMENTARY INFORMATION: The Securities and Exchange Commission is publishing for adoption technical amendments relating to various rules, forms and schedules under the Securities Act of 1933 (the "Securities Act") 15 U.S.C. 77a et seq. (1976 and Supp. IV 1980) and the Securities Exchange Act of 1934 (the "Exchange Act") 15 U.S.C. 78a et seq. (1976 and Supp. IV 1980). These actions relate primarily to technical omissions and errata in the Integrated Disclosure Release adopted by the Commission on March 3, 1982. 1 The following rules, forms and schedules are affected by these amendments: Items 401, 503 and 601 of Regulation S-K 17 CFR 229; Securities Act Industry Guides 4 and 5 17 CFR 2229.801; Securities Act Rules 134, 175, 432 and 494 17 CFR 230; Securities Act Forms C-2 17 CFR 239.4, D-1 17 CFR 239.6, D-1A 17 CFR 239.7, S-1 17 CFR 239.11, S-2 17 CFR 239.12, S-3 17 CFR 239.13, S-8 17 CFR 239.16, S-14 17 CFR 239.23 and S-15 17 CFR 239.29; Exchange Act Rules 3b-6, 13a-13 and 13e-3 17 CFR 240; and Exchange Act Forms 8-K 17 CFR 249.308 and 10-K 17 CFR 249.310. The amendments are being adopted as proposed with only minor modifications. 2 First, the reference to Part I of Form 10-K in Instruction 3 to Paragraph (b) of Item 401, which relates to the options allowed for presenting required information about directors and officers, is not being revised. Second, the following additional technical changes are being adopted: (a) Paragraph (e) of Item 11 of Form S-1, Information with Respect to the Registrant, has been amended to correct the cross-reference to Item 15 of Form S-1. (b) Paragraphs (a)(i)(A) and (B) of Item 12 (Incorporation of Certain Information by Reference) of Form S-15 have been amended to provide a correct reference to Rule 14a-3(b)(6) under the Exchange Act in subparagraph (A), and Rule 14a-3(b)(1) under the Exchange Act in subparagraph (B). (c) Instruction G(3) of Form 10-K (Information to be Incorporated by Reference) has been amended to provide a correct reference to Instruction 3 to Item 401(b) of Regulation S-K. (d) Item 13(d) of Form 10-K (Exhibits, Financial Statement Schedules and Reports on Form 8-K) has been amended to reflect changes made in Accounting Series Release No. 302 ("ASR 302"). 3 ASR 302 generally eliminates the filing of separate financial statements by parent companies in certain instances. Consistent with ASR 302, paragraphs (1) and (3) of Item 13(d) have been deleted and the remaining paragraphs renumbered. The Commission hereby finds pursuant to Section 553(d) of the Administrative Procedure Act 5 U.S.C. §553(d) (1949) that publication in the Federal Register 30 days prior to effectiveness is not necessary because the amendments are technical and correcting in nature. List of Subjects in 17 CFR 229, 230, 239, 240 and 249 Reporting Requirements Securities Text of Amendments In accordance with the foregoing, Title 17, Chapter II, of the Code of Federal Regulations is amended as follows: PART 229-STANDARD INSTRUCTIONS FOR FILING FORMS UNDER SECURITIES ACT OF 1933 AND SECURITIES EXCHANGE ACT OF 1934-REGULATION S-K 1. By revising Instruction 3 to Paragraph (b) in §229.401 to read as follows: §229.401 (Item 401) Directors and executive officers. * * * * * Instructions to Paragraph (b) of Item 401. * * * * * 3. The information regarding executive officers called for by this Item need not be furnished in proxy or information statements prepared in accordance with Schedule 14A under the Exchange Act (§240.14a-101 of this chapter) by those registrants relying on General Instruction G of Form 10-K under the Exchange Act (§249.310 of this chapter). Provided, That such information is furnished in a separate item captioned "Executive officers of the registrant" and included in Part of the registrants annual report on Form 10-K. * * * * * 2. By revising paragraphs (d)(3)(i), (3)(v), (4)(i) and the first sentence of (4)(ii) and adding a new paragraph (d)(3)(vi) to §229.503 to read as follows: §229.503 (Item 503) Summary information, risk factors and ratio of earnings to fixed charges. * * * * * (d) Ratio of earnings to fixed charges. * * * * * (3) * * * (i) Add to pretax income the amount of fixed charges computed pursuant to paragraph (d)(4) of this section. Adjusted to exclude (A) the amount of any interest capitalized during the period and (B) the actual amount of any preferred stock dividend requirements of majority-owned subsidiaries and fifty-percent-owned persons which were included in such fixed charges amount but not deducted in the determination of pretax income. * * * * * (v) Registrants other than public utilities may add to earnings the amount of previously capitalized interest amortized during the period. (vi) A registrant which is a rate-regulated public utility shall not reduce fixed charges (see paragraph (4) below) by any allowance for funds used during construction. But rather, shall include any such allowance in the determination of earnings under this paragraph. (4)(i) The term "fixed charges" shall mean the total of (A) interest, whether expensed or capitalized; (B) amortization of debt expense and discount or premium relating to any indebtedness, whether expensed or capitalized; (C) such portion of rental expense as can be demonstrated to be representative of the interest factor in the particular case; and (D) preferred stock dividend requirements of majority-owned subsidiaries and fifty-percent-owned persons, excluding in all cases items which would be or are eliminated in consolidation. (ii) If the registrant is a guarantor of debt of a less than fifty-percent-owned person or of an unaffiliated person (such as a supplier), the amount of fixed charges associated with such debt should not be included in the computation of the ratio unless the registrant has been required to satisfy the guarantee or it is probable that the registrant will be required to honor the guarantee and the amount can reasonably be estimated. * * * * * 3. By revising the first sentence of paragraph (b)(8) and by adding a period after the word "filed" and capitalizing the word "Where" in paragraph (b)(25) in §229.601 to read as follows: §229.601 (Item 601) Exhibits. * * * * * (b) Description of exhibits. * * * * * (8) Opinion re tax matters -For filings on Form S-11 under the Securities Act (§239.18) or those to which Securities Act Industry Guide 5 applies, an opinion of counsel or of an independent public or certified public accountant or, in lieu thereof, a revenue ruling from the Internal Revenue Service, supporting the tax matters and consequences to the shareholders as described in the filing when such tax matters are material to the transaction for which the registration statement is being filed. * * * * * (25) Power of attorney -If any name is signed to the registration statement or report pursuant to a power of attorney, manually signed copies of such power of attorney shall be filed. * * * * * §229.801 Amended 4. By amending Securities Act Industry Guide 4 in §229.801 to revise subparagraph 1 of Item 1 and Item 11 to read as follows (Securities Act Industry Guide 4 does not appear in the Code of Federal Regulations): Guide 4. Prospectus Relating to Interests in Oil and Gas Programs. 1. * * * (1) Terms of Offering: State the title and general nature of the securities being offered; the maximum aggregate amount of the offering; the minimum aggregate amount necessary to initiate the program; the disposition of the funds raised if they are not sufficient for that purpose; the minimum subscription price; the period of the offering; any provisions for additional assessments; and a brief description of the proposed method of distribution, including the amount of any commission to be paid. If funds received from investors are not to be held in trust or in special account pending expenditure in the program, appropriate disclosures should be set forth including when appropriate reference to exposure to claims of creditors of the custodian of the funds. The tabular presentation specified in item 501(c)(7) of Regulation S-K (§229.501(c)(7)) may be omitted: * * * * * 11. Management. Furnish the information required by Items 401 through 403 of Regulation S-K (§§ 229.401 through 403) as to the management and operating companies. * * * * * 5. By amending Securities Act Industry Guide 5 in §229.801 to delete paragraph 18 and to renumber paragraphs 19 through 21 as paragraphs 18 through 20 (Securities Act Industry Guide 5 does not appear in the Code of Federal Regulations). PART 230--GENERAL RULES AND REGULATIONS, SECURITIES ACT OF 1933 6. By revising paragraph (a)(14)(ii) in §230.134 to read as follows: §230.134 Communications not deemed a prospectus. * * * * * (a) * * * (14) * * * (ii) For the purpose of paragraph (a)(14)(i) of this section, the term "nationally recognized statistical rating organization" shall have the same meaning as used in Rule 15c3-1(c)(2)(vi)(F) under the Securities Exchange Act of 1934 (17 CFR 240.15c3-1(c)(2)(vi)(F). * * * * * 7. By revising paragraph (b)(2) introductory text and paragraph (b)(2)(i) in §230.175 to read as follows: §230.175 Liability for certain statements by issuers. * * * * * (b) * * * (2) Information which is disclosed in a document filed with the Commission in Part I of a quarterly report on Form 10-Q (§249.308a of this chapter) or in an annual report to shareholders meeting the requirements of Rules 14a-3(b) and (c) or 14c-3(a) and (b) under the Securities Exchange Act of 1934 (§§ 240.14a-3(b) and (c) or 240.14a-3(a) and (b) of this chapter) and which relates to (i) the effects of changing prices on the business enterprise, presented voluntarily or pursuant to Item 303 of Regulation S-K (§229.303 of this chapter) or Item 9 of Form 20-F (§249.220f of this chapter) "Managements discussion and analysis of financial condition and results of operations," or Item 302 of Regulation S-K (§229.302 of this chapter), "Supplementary financial information," or Rule 3-20(c) of Regulation S-X (§210.3 20(c) of this chapter), or * * * * * 8. By revising §230.432 to read as follows: §230.432 Additional information required to be included in prospectuses relating to tender offers. Notwithstanding the provisions * * * not otherwise required to be included therein, required by Rule 14d-6(e)(1) (§240.14d-6(e)(1) of this chapter) to be included in all such tender offers, requests or invitations, published or sent or given to the holders of such securities. 9. By revising paragraph (e) in §230.494 to read as follows: §230.494 Newspaper prospectuses. * * * * * (e) If the registrant or any of the underwriters knows or has reasonable grounds to believe that it is intended to stabilize the price of any security to facilitate the offering of the registered security, there shall be placed in the newspaper prospectus, in capital letters, the statement required by Item 502(d) of Regulation S-K (§229.502(d) of this chapter) to be included in the full prospectus. * * * * * PART 239--FORMS PRESCRIBED UNDER THE SECURITIES ACT OF 1933 §239.4 Amended 10. By removing §239.4, Form C-2, for certain types of certificates of interest in securities. §239.6 Amended 11. By removing Form D-1, for certificates of deposit, in §239.6. §239.7 Amended 12. By removing Form D-1A for certificates of deposit issued by issuer of securities called for deposit in §239.7. 13. By revising paragraph (e) of Item 11 and paragraph (b) of Item 16 of Form S-1 in §239.11 to read as follows (Form S-1 does not appear in the Code of Federal Regulations): §239.11 Forms S-1 Amended * * * * * Item 11. Information with respect to the Registrant. Furnish the following information with respect to the Registrant: * * * * * (e) Financial statements meeting the requirements of Regulation S-X (17 CFR Part 210) (Schedules required under Regulation S-X shall be filed as "Financial Statement Schedules" pursuant to Item 15, Exhibits and Financial Statement Schedules, of this Form) as well as any Financial information required by Rule 3-05 and Article 11 of Regulation S-X. * * * * * Item 16. Exhibits and Financial Statement Schedules. * * * * * (b) Furnish the financial statement schedules required by Regulation S-X (17 CFR Part 210) and Item 11(e) of this form. These schedules shall be lettered or numbered in the manner described for exhibits in paragraph (a). * * * * * 14. By amending Item 12 of Form S-2 in §239.12 by revising the introductory paragraph (a) and paragraphs (a)(3)(i) and (b) to read as follows (Form S-2 does not appear in the Code of Federal Regulations): §239.12 Form S-2 Amended * * * * * Item 12. Incorporation of Certain Information by Reference. (a) The documents listed in (1), (2), and, if applicable, the portions of the documents listed in (3) and (4) below, shall be specifically incorporated by reference into the prospectus, by means of a statement to that effect in the prospectus listing all such documents. In lieu of incorporating portions of the documents listed in (3) and (4) below, the registrant may incorporate by reference its entire annual or quarterly report to security holders. * * * * * (3) * * * (i) description of business furnished in accordance with the provisions of Rule 14a-3(b)(6) under the Exchange Act (§240.14a-3(b)(6) of this chapter): * * * * * (b) The registrant may also state, if it so chooses, that specifically described portions of its annual or quarterly report to security holders, other than those portions required to be incorporated by reference pursuant to paragraphs (a)(3) and (4) above, are not part of the registration statement. In such case, the description of portions which are not incorporated by reference or which are excluded shall be made with clarity and in reasonable detail. 15. By amending Item 11 of Form S-3 in §239.13 to revise paragraph (b) to read as follows (Form S-3 does not appear in the Code of Federal Regulations): §239.13 Form S-3 Amended Item 11. Material Changes * * * * * (b) Include in the prospectus, if not incorporated by reference therein from the reports filed under the Exchange Act specified in Item 12(a), a proxy or information statement filed pursuant to Section 14 of the Exchange Act, a prospectus previously filed pursuant to Rule 424(b) or (c) under the Securities Act (§230.424(b) or (c) of this chapter) or a Form 8-K filed during either of the two preceeding fiscal years: (i) Information required by Rule 3-05 and Article 11 of Regulation S-X (17 CFR Part 210); (ii) restated financial statements prepared in accordance with Regulation S-X if there has been a change in accounting principles or a correction in an error where such change or correction requires a material retroactive restatement of financial statements; (iii) restated financial statements prepared in accordance with Regulation S-X where one or more business combinations accounted for by the pooling of interest method of accounting have been consummated subsequent to the most recent fiscal year and the acquired businesses, considered in the aggregate, are significant pursuant to Rule 11-01(b), or (iv) any financial information required because of a material disposition of assets outside the normal course of business. * * * * * 16. By revising Form S-8 in §239.16 to delete the instruction to Item 5; and to revise subparagraph (1)(a) of General Instruction A; Note 1 to General Instruction C; the introductory paragraph and paragraph (b) of Item 15; and the signature provision; and Instruction 1 to the signature provision to read as follows (Form S-8 does not appear in the Code of Federal Regulations): §239.16 Form S-8 Amended General Instructions A. Rule as to use of Form S-8. (1) * * * (a) Securities of such issuer to be offered to its employees, or to employees of its subsidiaries or parents, pursuant to any employee benefit plan. (See Rule 405 of Regulation C) (§230.405 of this chapter) defining "employee benefit plan"). * * * * * C. Unavailability of the Form S-8 Prospectus for Reoffers or Resales * * * * * Notes--1. Registered securities may be included in a reoffer prospectus if they have been or will be acquired by the selling security holder pursuant to the plan. If after the effective date the issuer wishes to add any person who has acquired or will acquire any registered securities pursuant to the plan to the list of selling shareholders, the issuer may do so by filing a post-effective amendment or by use of a prospectus filed pursuant to Rule 424(c) under the Securities Act (§230.424(c) of this chapter). * * * * * PART I--INFORMATION REQUIRED IN THE PROSPECTUS * * * * * Item 15. Incorporation of Certain Documents by Reference. The issuer and, where interests in the plan are being registered, the plan, shall incorporate by reference into the prospectus the documents listed in (a) through (c) below and shall state that all documents subsequently filed by them pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Securities Exchange Act of 1934, prior to the filing of a post effective amendment which indicates that all securities offered have been sold or which deregisters all securities then remaining unsold, shall be deemed to be incorporated by reference in the prospectus and to be a part thereof from the date of filings of such documents. Copies of these documents are not required to be filed with the registration statement. * * * * * (b) All other reports filed pursuant to Sections 13(a) or 15(d) of the Securities Exchange Act of 1934 since the end of the fiscal year covered by the annual reports or the prospectus referred to in (a) above. Signatures * * * * * The Plan. Pursuant to the requirements of the Securities Act of 1933, the plan has duly caused this registration statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of __________, State of __________, on the __________ day of 19______, ____________________ (The Plan) By______________________________________ (Signature and Title) Instructions. 1. The registration statement shall be signed by the registrant, its principal executive officer or officers, its controller or principal accounting officer, and by at least a majority of the board of directors or persons performing similar functions. Where interests in the plan are being registered, the registration statement shall be signed by the plan. If the signing person is a foreign person.*** 17. By amending the heading of Part II of Form S-14 in §239.23 to read as follows: §239.23 Form S-14 Amended Part II. Information Not Required in Prospectus 18. By amending Item 12 of Form S-15 in §239.29 to revise (b) to read as follows (Form S-15 does not appear in the Code of Federal Regulations): §239.29 Form S-15 Amended * * * * * Item 12. Incorporation of Certain Information by Reference (a) * * * (i) * * * (A) description of business furnished in accordance with the provisions of Rule 14a-3(b)(6); (B) certified financial statements furnished in accordance with the provisions of Rule 14a-3(b)(1); * * * * * (b) The issuer may also state, if it so chooses, that specifically described portions of its annual or quarterly report to security holders, other than those portions required to be incorporated by reference pursuant to paragraphs (a)(i) and (iv) above, are not part of the registration statement. In such case, the description of portions which are incorporated by reference or which are excluded shall be made with clarity and in reasonable detail. * * * * * PART 240-GENERAL RULES AND REGULATIONS, SECURITIES EXCHANGE ACT OF 1934 19. By revising the introductory text to paragraph (b)(2) and paragraph (b)(2)(i) in §240.3b-6 to read as follows: §240.3b-6 Liability for certain statements by issuers. * * * * * (b) * * * (2) Information which is disclosed in a document filed with the Commission, in Part I of a quarterly report on Form 10-Q (§249.308a of this chapter) or in an annual report to shareholders meeting the requirements of Rules 14a-3 (b) and (c) or 14c-3(a) and (b) under the Securities Exchange Act of 1934 (§§ 240.14a-3 (b) and (c) or 240.14c-3 (a) and (b) of this chapter) and which relates to (i) the effects of changing prices on the business enterprise, presented-voluntarily or pursuant to Item 303 of Regulation S-K (§229.303 of this chapter) or Item 9 of Form 20-F (§249.220f of this chapter). "Managements discussion and analysis of financial condition and results of operations," or Item 302 of Regulation S-K (§229.302 of this chapter), "Supplementary financial information," or Rule 3-20(c) of Regulation S-X (§210.3-20(c) of this chapter) or * * * * * 20. By amending paragraph (e)(1) of §240.13a-13 to read as follows: §240.13a-13 Quarterly reports on Form 10-Q (§249.308a of this chapter). * * * * * (c) * * * (1) Life insurance companies and holding companies having only life insurance subsidiaries for quarters in fiscal years ending on or before December 20, 1983, if they do not meet the test specified in Item 302(a)(5)(i) of Regulation S-K (§229.302 of this chapter) or * * * * * 21. By revising Instruction 2(a) to paragraph (e) of §240.13e-3 to read as follows: §240.13e-3 Going private transactions by certain issuers or their affiliates. * * * * * (e) Disclosure of certain information. * * * Instructions.*** 2.*** (a) The following summary financial information for (i) the two most recent fiscal years and (ii) the latest year-to-date interim period and corresponding interim period of the preceding year: Income Statement: Net sales and operating revenues and other revenues Income before extraordinary items Net Income Balance Sheet (at end of period); Working capital Total assets Total assets less deferred research and development charges and excess of cost of assets acquired over book value Shareholders equity Per Share: 4 Income per common share before extraordinary items Extraordinary items Net income per common share (and common share equivalents, if applicable) * * * * * Net income per share on a fully diluted basis * * * * * PART 249--FORMS, SECURITIES EXCHANGE ACT OF 1934 22. By amending Item 7 of Form 8-K in §249.308 to redesignate paragraph (a)(3) as paragraph (a)(4); to add a new paragraph (a)(3); and to revise paragraph (b)(2) to read as follows (Form 8-K does not appear in the Code of Federal Regulations): §249.308 Form 8-K Amended Item 7. Financial Statements, Pro Forma Financial Information and Exhibits. (a) * * * (3) With regard to the acquisition of one or more real estate properties, the financial statements and any additional information specified by Rule 3-14 of Regulation S-X shall be filed. (b) * * * (2) The provisions of (a)(4) above shall also apply to pro forma financial information relative to the acquired business. * * * * * 23. By revising the last sentence of General Instruction G of Form 10-K in Section 249.310 to read "See Instruction 3 to Item 401(b) of Regulation S-K (Section 229.401(b) of this Chapter)." 24. By revising General Instruction I of Form 10-K in §249.310 to read as follows (Form 10-K does not appear in the Code of Federal Regulations): §249.310 Form 10-K Amended * * * * * I. Registrants filing on Form S-18.If the registrant is subject to the reporting requirements of Section 15(d) of the Exchange Act and such obligation arises solely because the registrant has filed a registration statement on Form S-18 (§239.28 of this chapter) which has become effective during the last fiscal year, the registrant may comply with the disclosure requirements of Form S-18 Item 16, Description of Business; Item 18, Interest of Management and Others in Certain Transactions; and Item 20, Remuneration of Directors and Officers, in lieu of complying with the disclosure requirements of Item 1. Business; Item 11. Management Remuneration; and Item 13. Certain relationships and related transactions, herein. Item 6 of this Form, Selected Financial Data, may be omitted at the election of such registrant. * * * * * Item 13. Exhibits, Financial Statement Schedules and Reports on Form 8-K. * * * * * (d) Registrants shall file, as financial statement schedules to this Form, the financial statements required by Regulation S-X (17 CFR 210) which are excluded from the annual report to shareholders by Rule 14a-3(b) including (1) separate financial statements of subsidiaries not consolidated and fifty percent or less owned persons; (2) separate financial statements of affiliates whose securities are pledged as collateral and (3) schedules. * * * * * Statutory Authority These amendments are being adopted pursuant to authority in Sections 6, 7, 8, 10 and 19(a) of the Securities Act of 1933 and Sections 12, 13, 14, 15(d) and 23(a) of the Securities Act of 1934. (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, 88 Stat. 685; sec. 1, 79 Stat. 1051; sec. 308(a)(2), 90 Stat. 57; secs. 12, 13, 14, 15(d), 23(a), 48 Stat. 892, 895, 901; secs. 1, 3, 8, 49 Stat. 1375, 1377, 1379; sec. 203(a), 49 Stat. 704; sec. 202, 68 Stat. 686; secs. 3, 4, 5, 6, 78 Stat. 565-568, 569, 570-574; secs. 1, 2, 3, 82 Stat. 454, 455; secs. 28(c), 1, 2, 3-5, 84 Stat. 1435, 1497; sec. 105(b), 88 Stat. 1503; secs. 8, 9, 10, 18, 89 Stat. 117, 118, 119, 155; sec. 308(b), 90 Stat. 57; secs. 202, 203, 204, 81 Stat. 1494, 1498, 1499, 1500; 15 U.S.C. 77f, 77g, 77h, 77j, 77s(a), 781, 78m, 78n, 78o(d), 78w(a)) By the Commission. George A. Fitzsimmons Secretary 1 Release No. 33-6383 (March 3, 1982) 47 FR 11380, March 16, 1982. 2 Pursuant to the Commissions request for comment, three letters of comment were submitted. The comment letters are available for public inspection and copying at the Commissions Public Reference Room (See File No. S7-961). 3 Securities Act Release No. 33-6359 (November 6, 1981) 46 FR 56171, November 19, 1981. 4 Average number of shares of common stock outstanding during each period was __________ (as adjusted to give effect to stock dividends or stock splits). |
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