Release No. 33-8591

Release No. 34-52056

Release No. IC-26993

Financial Reporting Rel. No. 75

International Series Rel. No. 1294

70 Fed. Reg. _____ - ____

Table of Contents

Securities Offering Reform

D. Communications Rules

1. Permitted Continuation of Ongoing Communications During an Offering

a. Overview

We are adopting substantially as proposed two separate, non-exclusive safe harbors from the gun-jumping provisions for continuing ongoing business communications. The first safe harbor permits a reporting issuer’s continued publication or dissemination of regularly released factual business and forward-looking information at any time, including around the time of a registered offering.¹¹³ The second safe harbor permits a non-reporting issuer’s continued publication or dissemination of regularly released factual business information that is intended for use by persons other than in their capacity as investors or potential investors.¹¹⁴ The safe harbors are not exclusive and do not create a presumption that any communication that falls outside the safe harbor is an offer. Accordingly, reliance on one of the safe harbors does not affect the availability of any other exemption or exclusion under the Securities Act. Further, attempted compliance with one of the safe harbors does not act as an exclusive election. For example, attempted reliance on one of the exemptive rules or exclusions we adopt today will not preclude reliance on another available exemption or exclusion. In particular, it will not preclude reliance on the argument that under general securities law principles and our earlier interpretive guidance the communication in question is not an offer under Securities Act Section 2(a)(3).

Investment companies registered under the Investment Company Act of 1940 and business development companies are ineligible to use the safe harbors for factual business information and forward-looking information. These issuers are subject to a separate framework governing communications with investors.¹¹⁵

b. Exception for Regularly Released Factual Business and Forward-Looking Information – Available to Reporting Issuers

We are adopting substantially as proposed the safe harbor for reporting issuers, as well as asset-backed issuers and certain non-reporting foreign private issuers, from the gun-jumping provisions for continued publication or dissemination of communications of regularly released factual business and forward-looking information.¹¹⁶ This safe harbor is a “use” safe harbor in that it applies to communications of factual business and forward-looking information that have been regularly released in the ordinary course by or on behalf of a reporting issuer.¹¹⁷

Commenters supported the proposed safe harbor with certain suggested changes to its scope.¹¹⁸ Commenters suggested that the safe harbor should be available to voluntary filers, non-reporting foreign private issuers, asset-backed issuers, registered investment companies, and business development companies.¹¹⁹ As adopted, the rule is available to non-reporting foreign private issuers meeting certain conditions and to asset-backed issuers (and to a depositor, sponsor, servicer, or affiliated depositor, whether or not the issuer) with regard to registered offerings of asset-backed securities.¹²⁰ We believe that non-reporting foreign private issuers qualifying under the safe harbors, like reporting issuers in the United States, are providing information to the markets even though they are not reporting companies in the United States. Similarly, asset-backed issuers and issuers that are affiliated depositors provide and are encouraged to provide information on an ongoing basis in a manner consistent with that covered by Rule 168. The reference to depositors, sponsors, servicers, and affiliated depositors, whether or not the issuer, is intended to permit communication of information regarding pre-existing transactions or asset pools within the safe harbor where its conditions are satisfied.

As we note above, voluntary filers are not required to report under the Exchange Act and therefore do not fall within Rule 168. Voluntary filers will have available to them the safe harbor for non-reporting issuers in new Rule 169.¹²¹ We also note above that registered investment companies and business development companies are subject to a separate framework governing communications with investors, and we believe that it would be more appropriate to consider investment company issues in the context of a broader reconsideration of this separate framework.

i. Factual Business Information

(A) Scope of the Safe Harbor

We believe it is important to provide increased certainty regarding when the gun-jumping provisions will be inapplicable to the continuing ongoing communication of specified factual business information. We are adopting Securities Act Rule 168, which provides a non-exclusive safe harbor that such a communication is not an impermissible prospectus and does not violate the prohibition on pre-filing offers.¹²² We want to encourage reporting issuers and other issuers eligible to rely on the safe harbor to continue to provide this information. For purposes of Rule 168, factual business information is defined as:¹²³

• factual information about the issuer, its business or financial developments, or other aspects of its business;

• advertisements of, or other information about, the issuer’s products or services; and

• dividend notices.

This information includes without limitation in each case such factual business information contained in reports or materials filed with, furnished to, or submitted to us pursuant to the Exchange Act.¹²⁴

(B) Comments on the Scope of the Safe Harbor

Some commenters suggested broadening the categories of factual business information,¹²⁵ including the suggestion that only offering-related information be excluded from the definition of factual business information.¹²⁶ We are adopting the definition of factual business information that in substantive respects is substantially as proposed. The simplification of the definition in the Rule as adopted does not narrow the information included in the definition. We believe that the purpose of the safe harbor is to permit reporting issuers to continue their ordinary course factual business communications, not to define when an offer is considered to occur in all cases. As we have noted, whether or not a communication that is outside the safe harbor would be an offer is a facts and circumstances determination.

We have modified the definition from the proposal to make clear that factual business information may be communicated within the safe harbor by including it in any report or material filed with, furnished to, or submitted to us. The other conditions of the safe harbor, for example, the “regularly released,” condition of course also must be satisfied. In addition, in response to commenters’ concerns, we have made clear in a preliminary note that the safe harbor addresses use and relates to a communication, and, therefore, that another communication of the information in an offering-related manner will not affect the ability to rely on the safe harbor for the protected communication.

ii. Forward-Looking Information

(A) Scope of the Safe Harbor

As we stated in the Proposing Release, our view of the value of forward-looking information in the market has evolved through the years. Through the 1970’s we were most concerned with the potentially misleading effect that forward-looking information could have on investors.¹²⁷ Since the 1980’s, we have encouraged issuers to disclose forward-looking information and, in some situations (such as the disclosures in MD&A), required them to do so.¹²⁸ The existing safe harbors for the content of forward-looking statements are designed to encourage the provision of forward-looking information.¹²⁹

Where an issuer regularly releases forward-looking information in the ordinary course, we indicated in the Proposing Release that we believe that the purpose of such communication is to keep the market informed about the issuer and its future prospects and, thus, the continued release or dissemination of this information in the ordinary course is not for the purpose of offering securities or conditioning the market for new issuances of the issuer’s securities. Many issuers disclose earnings forecasts and other forward-looking information publicly to provide more information to the markets and to enable them to continue to have discussions to which Regulation FD applies. We do not believe that it is beneficial to investors or the markets to force reporting issuers to suspend their ordinary course communications of regularly released information that they would otherwise choose to make because they are raising capital in a registered offering.

We are adopting the definition substantially as proposed to provide for the use of such a communication a safe harbor from being an impermissible prospectus and from violating the prohibitions on pre-filing offers. As adopted, the safe harbor in Rule 168 will apply to the release or dissemination of communications containing some or all of the following forward-looking information if the release or dissemination satisfies the other conditions of the Rule:¹³⁰

• projections of the issuer’s revenues, income (loss), earnings (loss) per share, capital expenditures, dividends, capital structure, or other financial items;

• statements about the issuer management’s plans and objectives for future operations, including plans or objectives relating to the products or services of the issuer;

• statements about the issuer’s future economic performance, including statements of the type contemplated by MD&A described in Item 303 of Regulation S-K and Regulation S-B, or Item 5 of Form 20-F; and

• assumptions underlying or relating to any of the foregoing information.

As with factual business information, we have clarified that any such information may be communicated by including it in a report filed with, or furnished to, or submitted to us. The safe harbor for forward-looking information also addresses “use,” and the preliminary note discussed above applies.

iii. Conditions of Safe Harbor in Rule 168

(A) “By or on Behalf of” the Issuer

(1) Definition

Under the Rule as adopted, factual business and forward-looking information will be considered released or disseminated by or on behalf of an issuer if the issuer or an agent or a representative of the issuer, other than an offering participant who is an underwriter or dealer, authorizes or approves the release or dissemination of the communication before it is made.¹³¹ Satisfaction of this condition is separate from the “regularly released” condition. The safe harbor is not available for information released in a manner intended to circumvent either the conditions to use or the permitted manner of use of the information.

(2) Comments on Definition

Commenters supported the concept of “by or on behalf of” the issuer.¹³²Commenters also supported placing the definition of the term in a single rule, rather than a separate definition in each safe harbor.¹³³ Some commenters suggested further clarifications of the definition, such as identifying the persons authorized or approved to speak on behalf of the issuer, eliminating any issuer responsibility for communications by unauthorized persons, and providing that the communication either be authorized or approved but not both.¹³⁴

We have considered these suggestions carefully and have made some revisions to the definition of “by or on behalf of” the issuer. We have determined not to provide a single definition, instead including an appropriate definition in each relevant rule. We also have not taken the suggestions that the Rule provide that issuers are responsible only for communications made by authorized or approved speakers. The circumstances under which issuers are responsible for the acts of individuals may be determined in accordance with principles not addressed in today’s rules. In addition, we have not defined further who may be considered an agent or representative of the issuer, other than to specifically exclude offering participants who are underwriters and dealers. The definition could cover legitimate representatives or agents of the issuer such as, for example, advertising agencies and public relations companies who normally release or disseminate product advertising or promotional communications containing such information on behalf of an issuer. We also have modified the definition to provide that the communication does not have to be both approved and authorized for it to be considered to be made by or on behalf of the issuer.

A few commenters suggested that the Rule not include the preliminary note that contains the “scheme to evade” language because they believed it would cause uncertainty about the ability to rely on the safe harbors.¹³⁵ The preliminary note to the Rule is substantially the same preliminary note contained in a significant number of exemptions under the Securities Act upon which market participants have relied and we are adopting the Rule with the preliminary note regarding the “scheme to evade” language as proposed.¹³⁶

(B) Regularly Released Information

(1) Regularly Released Condition

As we discussed in the Proposing Release, the purpose of the safe harbor is to enable a reporting issuer to continue its past ordinary course practice of releasing or disseminating publicly factual business and forward-looking information. Communications of both factual business information and forward-looking information must satisfy the same conditions regarding regular release.

We are adopting the regularly released condition substantially as proposed. Under Rule 168, information will be considered regularly released or disseminated if the issuer has previously released or disseminated the same type of information in the ordinary course of its business, and the release or dissemination is consistent in material respects in timing, manner, and form with the issuer’s similar past release or dissemination of such information.¹³⁷ The method of releasing or disseminating the information, thus, also must be consistent in material respects with prior practice. These conditions seek to ensure that the information is not being released to condition the market for the registered offering of the issuer’s securities.

While the Rule does not establish or require any minimum time period to satisfy the regularly released element, the safe harbor requires the issuer to have some track record of releasing the particular type of information. One prior release or dissemination could establish this track record. Issuers should consider the frequency and regularity with which they have released the same type of information. For example, an issuer’s release of new types of financial information or projections just before or during a registered offering will likely prevent a conclusion that the issuer regularly released that type of forward-looking or financial information in the ordinary course of its business.

(2) Comments on Regularly Released Condition

Commenters on the regularly released condition suggested that we further clarify the concept of regularly released information by elaborating on the meaning of timing, manner, and form.¹³⁸ Some of these commenters were concerned about the availability of the safe harbor for non-scheduled releases of information and information distributed using new or different technologies.¹³⁹ Other commenters on this point, however, desired greater flexibility with no definition of “ordinary course.”¹⁴⁰

We have not changed the “regularly released” language from the proposal because we do not believe that a bright-line test of “regularly released” is appropriate. We believe that it is more appropriate to provide issuers the flexibility to use the means and timing they believe is appropriate for their ongoing business communications. We would note, however, that there are circumstances in which communications made outside a predetermined schedule or not at regular intervals would be covered by the safe harbor. The Rule is not intended to cover only scheduled releases of information but also could cover communications, such as product advertising and product release information or earnings guidance changes, that are made on an unscheduled or episodic basis, provided that the issuer has previously provided such communications containing factual business and forward-looking information in that manner. Thus, for unscheduled or episodic releases, the nature of the event triggering the communication would be taken into account in determining whether the regularly released condition is satisfied. For example, if an issuer only gives guidance upon the occurrence of certain types of developments, a release of guidance when a materially similar event occurs could be materially consistent, even if not done at regular intervals. As another example, if an issuer launches a product only episodically, disclosure or advertising of a product launch still could be materially consistent.

Merely using new or different technologies will not be necessarily inconsistent in material respects under the conditions of the Rule. An issuer will have to determine whether its use of new or different technologies to release information falls within the safe harbor, including whether the release or dissemination is consistent in material respects with how the issuer is already releasing or disseminating its communications containing factual business or forward-looking information using analogous methods. For example, whether the new or different technology makes a material difference in terms of the breadth of dissemination to investors or other reach of the communication to investors is relevant in determining whether the manner or form is consistent in material respects.

(C) Exclusion for Offering-Related Information

(1) Scope of Exclusion

We are adopting as proposed the exclusion from the safe harbor of any information about the registered offering itself. Publication of information about a registered offering outside the registration statement or a prospectus is limited to statements allowed under other exemptions or exclusions, including Rule 134 and Rule 135.¹⁴¹

As we discussed in the Proposing Release, because the safe harbor is a “use” exemption intended to facilitate continued release or dissemination of regularly released ordinary course factual business and forward-looking communications, it also excludes the release of that information as part of the offering activities in the registered offering. For example, while the safe harbor could be available for factual business information contained in an Exchange Act report at the time it is initially filed, the safe harbor will not be available for the distribution of that information to investors or potential investors as part of offering activities, such as incorporation by reference into a prospectus that is part of a registration statement, disclosure at a road show, or disclosure in a free writing prospectus. As another example, as permitted by the “regularly released” condition, an issuer could rely on the safe harbor for the publication of an earnings release consistent with past practice, including the posting of and maintaining the release on an issuer’s web site, whether or not located in a separate section of the web site for historical information. The distribution of that earnings release, however, as part of the marketing activities to potential investors will be outside the scope of the safe harbor.

(2) Comments on Exclusion

Commenters requested further clarification that release of a communication containing information in reliance on the safe harbor will not be affected by release of the same information in offering-related communications.¹⁴² We have made clear in a preliminary note in the adopted Rule that the release of communications containing information outside the safe harbor will not affect the availability of the safe harbor for any other release or dissemination of a communication containing the same information that is (or was) within the scope of the safe harbor.

Some commenters requested that we define “offering-related” or “part of the offering activities.”¹⁴³ We decline to do so. An issuer must determine, based upon the particular facts and circumstances, whether or not a communication contains information about the registered offering or is being used as part of the offering activities.

Certain commenters requested that we clarify the impact Rule 168 and Rule 169 (as discussed below) would have on our guidance regarding the filing requirement for ordinary or routine business communications that refer to a business combination transaction in a non-substantive way.¹⁴⁴ We believe that guidance is unaffected by the adoption of the safe harbors of Rule 168 and Rule 169, regardless of whether the communication falls within the scope of such safe harbors or our other interpretive guidance regarding ongoing factual and business communications.¹⁴⁵

c. Exception for Regularly Released Factual Business Information – Available to Non-Reporting Issuers

i. Scope of the Safe Harbor

We are adopting substantially as proposed a non-exclusive safe harbor from the gun-jumping provisions for regularly released factual business information that, unlike Rule 168, is available to all eligible issuers, including non-reporting issuers.¹⁴⁶ The Rule provides a non-exclusive safe harbor for the issuer’s release or dissemination of regularly released ordinary course factual business information intended for use by persons other than in their capacity as investors or potential investors, such as customers and suppliers.¹⁴⁷ Under the safe harbor, a non-reporting issuer’s release or dissemination of factual business information that satisfies the conditions of the Rule would not be an impermissible prospectus and would not violate the prohibition on pre-filing offers.¹⁴⁸As we noted in the Proposing Release, because a condition of the safe harbor involves the manner and timing of the communication, the same issuer employees or agents who historically have been responsible for providing the information for intended use by customers and suppliers must communicate the information provided in reliance on this safe harbor.

Under the safe harbor, factual business information is defined as:

• factual information about the issuer, its business or financial developments, or other aspects of its business; and

• advertisements of, or other information about, the issuer’s products or services.¹⁴⁹

As with the safe harbor for reporting issuers, the safe harbor requires that the information be regularly released in the ordinary course of business, released or disseminated by or on behalf of the issuer, and not include information about the registered offering or information released or disseminated as part of the offering activities in the registered offering. We have made the same modifications to these conditions and to the preliminary note to Rule 169 as in new Rule 168 for reporting issuers.

As we discussed in the Proposing Release, because non-reporting issuers generally are not releasing information in connection with securities market activities, we believe it is appropriate to limit the scope of the safe harbor to the specified regularly released ordinary course factual business information.¹⁵⁰ Further, we are not adopting a safe harbor for forward-looking information for non-reporting issuers because of the lack of such information or history for these issuers in the marketplace. In those circumstances, we believe that the potential for abuse in permitting a safe harbor for the continued release of forward-looking information as a way to condition the market for the issuer’s securities outweighs the legitimate utility to the issuer of the safe harbor.

ii. Comments on the Safe Harbor

Commenters supported the proposed safe harbor and suggested certain expansions and clarifications.¹⁵¹ Commenters wanted us to clarify that information that was directed to customers, suppliers, etc., would be covered by the safe harbor even if the information became available to other persons, including investors or potential investors.¹⁵² As we discuss above, the Rule is aimed at assuring that the communication is intended for use by an audience that is other than an investor audience, not at ensuring that the communication is not received by or available to an investor or potential investor. We have modified the Rule to clarify this point. For example, a widely disseminated communication (such as a press release) intended for use by a non-investor audience and otherwise meeting the conditions of the safe harbor will not lose protection if it is available to or received by investors or potential investors.

We had requested comment in the Proposing Release as to whether the safe harbor also should cover forward-looking information and whether the safe harbor for forward-looking statements contained in Securities Act Section 27A should be extended to initial public offerings. We further requested comment on whether we should require projections or other forward-looking information to be included in initial public offering registration statements. In response, some commenters supported extending the Section 27A safe harbor for forward-looking statements to initial public offerings but did not support requiring projections to be included in registration statements.¹⁵³ Some commenters were concerned that, because of the relatively untested nature of companies engaging in initial public offerings, there was limited basis to assess the reasonableness of assumptions underlying the projections about the issuer’s business.¹⁵⁴ We appreciate commenters’ input on these points and, in light of the fact that these companies are generally untested, as commenters noted, we have determined not to include forward-looking statements in the Rule 169 safe harbor we are adopting today or to extend the safe harbor for forward-looking statements in Securities Act Section 27A to initial public offerings.

¹¹³ See Rule 168.

¹¹⁴ See Rule 169.

¹¹⁵ See, e.g., Securities Act Rules 156, 482, and 498 [17 CFR 230.156; 17 CFR 230.482; 17 CFR 230.498]; Investment Company Act Rule 34b-1 [17 CFR 270.34b-1].

¹¹⁶ The safe harbor also covers communications that incorporate regularly released factual business or forward-looking information.

¹¹⁷ See Rule 168.

¹¹⁸ See, e.g., letters from ABA; Cleary; Davis Polk; Fried Frank; NYSBA; and SCSGP.

¹¹⁹ See, e.g., letters from ABA; ABA-ABS; Allied; Alston; the Commercial Mortgage Securities Association (“CMSA”); Davis Polk; Fried Frank; Richard Hall; NYCBA; NYSBA; and S & C.

¹²⁰ The eligibility conditions for non-reporting foreign private issuers will be the same as the eligibility conditions for such issuers contained in Securities Act Rules 138 and 139 as we are amending them today.

¹²¹ These issuers may, of course, continue to rely on existing Commission interpretations concerning ongoing business disclosures. See the discussion at note 122 below regarding the interpretive releases on factual business information.

¹²² Rule 168 is a safe harbor from the definition of “prospectus” in Securities Act Section 2(a)(10) and, therefore, prevents the application of the prohibition in Securities Act Section 5(b)(1) on the use of a prospectus that is not a statutory prospectus. The Rule also is a safe harbor from the prohibitions on pre-filing “offers” in Securities Act Section 5(c).

In general, as we recognized many years ago, ordinary factual business communications that an issuer regularly releases are not considered an offer of securities. See, e.g., the guidelines contained in the 2000 Electronics Release. note 96 at Section II.B.2; Guidelines for the Release of Information by Issuers Whose Securities are in Registration, Release No. 33-5180 (Aug. 16, 1971) [36 FR 16506]; Publication of Information Prior to or After the Filing and Effective Date of a Registration Statement Under the Securities Act of 1933, Release No. 33-5009 (Oct. 7, 1969) [34 FR 16870]; Offers and Sales by Underwriters and Dealers, Release No. 33-4697 (May 28, 1964) [29 FR 7317]; and Publication of Information Prior to or After the Effective Date of a Registration Statement, Release No. 33-3844 (Oct. 8, 1957) [22 FR 8359]. The non-exclusive safe harbors we are adopting today will not affect in any way the Securities Act analysis regarding ordinary course business communications that are not within the safe harbors and we have made that clear in the Preliminary Note to the Rule. Such communications will not be presumed to be offers, and whether they are offers will depend on the facts and circumstances.

¹²³ Under the Rule as adopted, regularly released factual business information does not include the release of information about the registered offering or the release of information as part of the offering activities in the registered offering.

¹²⁴ As we discuss below, some commenters expressed concern about the treatment of information contained in Exchange Act reports at the time they are originally filed with, furnished to, or submitted to us. See, e.g., letters from ABA and Fried Frank. We believe this modification will make clear that all covered information within Exchange Act filings will be covered by the safe harbor.

Factual business information that reporting issuers release or disseminate will continue to be subject to the provisions of Regulation FD, Regulation FD, Item 10 of Regulation S-K and Regulation S-B [17 CFR 229.10 et seq. and 17 CFR 228.10 et seq.], and Item 2.02 of Form 8-K.

¹²⁵ See, e.g., letters from ABA and SCSGP.

¹²⁶ See, e.g., letters from Davis Polk and SCSGP.

¹²⁷ Until the 1970’s, the Commission prohibited disclosure of forward-looking information in any disclosure document. In 1979, the Commission adopted a safe harbor for release of forward-looking information. See Statement by the Commission on the Disclosure of Projections of Future Economic Performance, Release No. 33-5362 (Feb. 2, 1973) [38 FR 7220]; Safe Harbor Rule for Projections, Release No. 33-6084 (June 25, 1979) [44 FR 38810]. See also, the Wheat Report, note 21, at 94.

¹²⁸ See Item 303 of Regulation S-K and Regulation S-B [17 CFR 229.303 and 17 CFR 228.303]. In our 2003 MD&A Release discussed at note 38, we issued interpretive guidance on MD&A which stated:

In addressing prospective financial condition and operating performance, there are circumstances, particularly regarding known material trends and uncertainties, where forward-looking information is required to be disclosed. We also encourage companies to discuss prospective matters and include forward-looking information in circumstances where that information may not be required, but will provide useful material information for investors that promotes understanding…

[M]aterial forward-looking information regarding known material trends and uncertainties is required to be disclosed as part of the required discussion of those matters and the analysis of their effects. In addition, forward-looking information is required in connection with the disclosure in MD&A regarding off-balance sheet arrangements.

¹²⁹ See Securities Act Section 27A [15 U.S.C. 77z-2] and Securities Act Rule 175 [17 CFR 230.175]. Section 27A provides a safe harbor for certain forward-looking statements. See also, the Off-Balance Sheet Disclosure Release at note 92 (stating that any forward-looking information required pursuant to the off-balance sheet arrangement disclosure in Items 303(a)(4) and (a)(5) of Regulation S-K and Regulation S-B would be subject to the statutory safe harbor contained in Sections 27A of the Securities Act and 21E of the Exchange Act [15 U.S.C. 78u-5]). Rule 175 provides a limited safe harbor for the content of forward-looking statements contained in documents filed with us, including in registration statements and periodic reports.

¹³⁰ The listed categories of forward-looking information in the safe harbor are essentially the same categories of statements that are defined as forward-looking statements under the safe harbor in Securities Act Section 27A(i)(1) [15 U.S.C. 77z-2(i)(1)]. The safe harbor covering the release or dissemination is available for the regular release of earnings expectations and guidance information. Rule 168 provides a safe harbor for the use of such information, not the content of the communication. An issuer’s communications of forward-looking information made in reliance on the safe harbor will still have to satisfy the conditions of Securities Act Section 27A if the issuer wishes to rely on the statutory safe harbor for the content of the information.

The comments on the definition of forward-looking information related primarily to the interplay between such information and the exclusion of offering-related information from the scope of the safe harbor and the way in which newer issuers would establish a history of regular release of such information. See letter from ABA.

¹³¹ We are using a similar definition as contained in Securities Act Rule 146 [17 CFR 230.146].

As we note above, for asset-backed securities offerings, the safe harbor is available to asset-backed issuers, depositors, affiliated depositors, sponsors, and servicers. We have included a provision regarding communication by or on behalf of such persons.

¹³² See, e.g., letters from ABA; Cleary; S & C; and William J. Williams, Jr.

¹³³ See Id.

¹³⁴ See, e.g., letters from ABA; Alston; Cleary; Davis Polk; and S & C.

¹³⁵ See, e.g., letters from ABA and William J. Williams, Jr.

¹³⁶ See, e.g., Regulation D [17 CFR 230.501 et seq.] and Rule 155 [17 CFR 230.155].

¹³⁷ In the case of asset-backed issuers, the regularly released requirement will be tested against the previous communications of those persons included in the Rule’s provisions, taken together.

¹³⁸ See, e.g., letters from Davis Polk; the Investment Company Institute (“ICI”); and TBMA.

¹³⁹ See Id.

¹⁴⁰  Some commenters also expressed concern about offshore communications. See, e.g., letters from ABA and Fried Frank. Communications that are considered not to be offers because they are made offshore and meet other criteria we have previously discussed would be treated in the same manner as they are today. See Statement of the Commission Regarding Use of Internet Web Sites to Offer Securities, Solicit Securities Transactions or Advertise Investment Services Offshore, Release No. 33-7516 (Mar. 27, 1998) [63 FR 14806]; Offshore Press Conferences, Meetings with Company Representatives Conducted Offshore and Press-Related Materials Released Offshore, Release No. 33-7470 (Oct. 17, 1997) [62 FR 53948].

¹⁴¹ See 17 CFR 230.135. Our other rules address communications in the offering context. For example, we are amending Rule 134 to increase the amount of communication allowed under that rule about a registered offering without it being considered a prospectus.

¹⁴² See, e.g., letters from Fried Frank and SCSGP.

¹⁴³ See, e.g., letters from Davis Polk and SCSGP.

¹⁴⁴ See, e.g., letters from ABA; Alston; and S & C.

¹⁴⁵  See the Regulation M-A Release, note 95, at footnote 45.

¹⁴⁶  See Rule 169. Because Rule 168 is available to reporting issuers and some non-reporting issuers (including asset-backed issuers and certain non-reporting foreign private issuers), the principal practical relevance of Rule 169 is to other non-reporting issuers.

¹⁴⁷  The fact that a customer also may be a potential investor in the issuer’s securities or that the information may be received by other persons will not affect the availability of the safe harbor if the conditions are otherwise satisfied. For purposes of the safe harbor, the communication must be intended for use by an audience that is other than an investor audience.

¹⁴⁸  Rule 169 is a safe harbor from the definition of “prospectus” in Securities Act Section 2(a)(10) and therefore disapplies the prohibition in Securities Act Section 5(b)(1) on the use of a prospectus that is not a statutory prospectus. The Rule also is a safe harbor from the prohibitions on pre-filing “offers” in Securities Act Section 5(c).

¹⁴⁹ We have not included dividend notices within the definition because the communications covered by the Rule are those intended for use by persons other than in their capacity as investors or potential investors.

¹⁵⁰ These issuers will still be able to rely on our interpretive positions for the release of factual business information. See note 122. In addition, these issuers may still be able to rely on Securities Act Rules 134 and 135 and new Securities Act Rules 163A and 164.

¹⁵¹ See, e.g., letters from ABA; NYCBA; NYSBA; and Reuters.

¹⁵² See, e.g., letters from ABA and NYSBA.

¹⁵³ See, e.g., letters from AICPA; E & Y; KPMG LLP (“KPMG”); and PricewaterhouseCoopers LLP (“PwC”).

¹⁵⁴ See, e.g., letters from AICPA and E & Y.