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Release No. 33-8501 69 Fed. Reg. 67391 - Nov. 17, 2004
Rule 164Post-filing Free Writing Prospectuses in Connection with Certain Registered OfferingsPreliminary Note to Sec. 230.164. Because of the objectives of this section and the policies underlying the Act, this section is not available for any communication that, although in technical compliance with this section, is part of a plan or scheme to evade the requirements of section 5 of the Act. a. In connection with a registered offering, a free writing prospectus as defined in Rule 405 (Sec. 230.405) used by an issuer, underwriter or participating dealer after the filing of the registration statement will be a section 10(b) prospectus for purposes of section 5(b)(1) of the Act provided that the conditions set forth in Rule 433 (Sec. 230.433) are satisfied. b. An immaterial or unintentional failure to file or delay in filing a free writing prospectus as necessary to satisfy the filing condition contained in Rule 433 (Sec. 230.433) will not result in a violation of section 5(b)(1) of the Act or the loss of the ability to rely on this section so long as: 1. A good faith and reasonable effort was made to comply with the filing requirement; and 2. The free writing prospectus is filed as soon as practicable after discovery of the failure to file. c. An unintentional failure to include the legend in a free writing prospectus as necessary to satisfy the legend condition contained in Rule 433 (Sec. 230.433) will not result in a violation of section 5(b)(1) of the Act or the loss of the ability to rely on this section so long as: 1. A good faith and reasonable effort was made to comply with the legend condition; 2. The free writing prospectus is amended to include the legend as soon as practicable after discovery of the omitted legend; and 3. If the free writing prospectus has been transmitted without the legend, the free writing prospectus must be retransmitted with the legend to all prospective purchasers to whom, or by the same means as, the free writing prospectus was originally transmitted.
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