|
Overview
|
 Requires
specified disclosures about plan of distribution for securities offering  Rule
Petition
for rule changes
- Filed by CalPERS, CalSTERS, LACERA, Illinois SURS,
TCRS and several financial institutions
- Letter
to Nancy Morris, Secretary (SEC) 10.19.07
|
S-K 508 Plan of Distribution
 General
- Complete text of Instruction
- GPO version
|
508(a)
Underwriters
- Name underwriters, amount written and
nature of underwriting obligation
- Identify any relationship with the registrant
- Underwriters and underwriting obligation. If the securities are to be
offered through underwriters, name the principal underwriters, and state the
respective amounts underwritten. Identify each such underwriter having a
material relationship with the registrant and state the nature of the
relationship. State briefly the nature of the obligation of the underwriter(s)
to take the securities.
- Instruction to Paragraph 508(a):
All that is required as to the nature of the underwriters' obligation is whether
the underwriters are or will be committed to take and to pay for all of the
securities if any are taken, or whether it is merely an agency or the type of
best efforts arrangement under which the underwriters
are required to take and to pay for only such securities as they may sell to the
public. Conditions precedent to the underwriters' taking the securities,
including market-outs, need not be described except in
the case of an agency or best efforts arrangement.
|
508(b)
New underwriters
- Additional disclosures required, if:
◊ Lead underwriter(s) have only become registered as a broker-dealer in past three years, and
◊ Issuer is a first-time registrant or has
material risks
- New underwriters. Where securities being registered are those of a
registrant that has not previously been required to file reports pursuant to
section 13(a) or 15(d) of the Exchange Act, or where a prospectus is required to
include reference on its cover page to material risks pursuant to Item 501 of
Regulation S-K, and any one or more of the managing underwriter(s) (or where
there are no managing underwriters, a majority of the principal underwriters)
has been organized, reactivated, or first registered as a broker-dealer within
the past three years, these facts concerning such underwriter(s) shall be
disclosed in the prospectus together with, where applicable, the disclosures
that the principal business function of such underwriter(s) will be to sell the
securities to be registered, or that the promoters of the registrant have a
material relationship with such underwriter(s). Sufficient details shall be
given to allow full appreciation of such underwriter(s) experience and its
relationship with the registrant, promoters and their controlling persons.
|
508(c)
Other distributions
- Applies if securities will be offered
other than through underwriters
- Additional disclosures required for DRIPs
- Other distributions. Outline briefly the plan of distribution of any
securities to be registered that are to be offered otherwise than through
underwriters.
- 1. If any securities are to be offered
pursuant to a dividend or interest reinvestment plan the terms of which provide
for the purchase of some securities on the market, state whether the registrant
or the participant pays fees, commissions, and expenses incurred in connection
with the plan. If the participant will pay such fees, commissions and expenses,
state the anticipated cost to participants by transaction or other convenient
reference.
- 2. If the securities are to be offered
through the selling efforts of brokers or dealers, describe the plan of
distribution and the terms of any agreement, arrangement, or understanding
entered into with broker(s) or dealer(s) prior to the effective date of the
registration statement, including volume limitations on sales, parties to the
agreement and the conditions under which the agreement may be terminated. If
known, identify the broker(s) or dealer(s) which will participate in the
offering and state the amount to be offered through each.
- 3. If any of the securities being
registered are to be offered otherwise than for cash, state briefly the general
purposes of the distribution, the basis upon which the securities are to be
offered, the amount of compensation and other expenses of distribution, and by
whom they are to be borne. If the distribution is to be made pursuant to a plan
of acquisition, reorganization, readjustment or succession, describe briefly the
general effect of the plan and state when it became or is to become operative.
As to any material amount of assets to be acquired under the plan, furnish
information corresponding to that required by Instruction 5 of Item 504 of
Regulation S-K.
|
508(d)
Offerings on exchange
- Disclose exchange, if applicable
- Additional disclosures for exchange-traded call options
- Offerings on exchange. If the securities are to be offered on an
exchange, indicate the exchange. If the registered securities are to be offered
in connection with the writing of exchange-traded call options, describe briefly
such transactions.
|
508(e)
Underwriters' compensation
- Disclose underwriters' compensation
- Tabular format required
- Refers to NASD Fair Practice Rules
- Disclose offering expenses per
S-K 511
- Underwriter's compensation. Provide a table that sets out the nature
of the compensation and the amount of discounts and commissions to be paid to
the underwriter for each security and in total. The table must show the separate
amounts to be paid by the company and the selling shareholders. In addition,
include in the table all other items considered by the National Association of
Securities Dealers to be underwriting compensation for purposes of that
Association's Rules of Fair Practice.
- Instructions to paragraph 508(e):
- 1. The term "commissions" is defined in
paragraph (17) of Schedule A of the Securities Act. Show separately in the table
the cash commissions paid by the registrant and selling security holders. Also
show in the table commissions paid by other persons. Disclose any finder's fee
or similar payments in the table.
- 2. Disclose the offering expenses specified
in Item 511 of Regulation S-K.
- 3. If the underwriter has any arrangement
with the issuer, such as an over- allotment option, under which the underwriter
may purchase additional shares in connection with the offering, indicate that
this arrangement exists and state the amount of additional shares that the
underwriter may purchase under the arrangement. Where the underwriter has such
an arrangement, present maximum- minimum information in a separate column to the
table, based on the purchase of all or none of the shares subject to the
arrangement. Describe the key terms of the arrangement in the narrative.
|
| 508(f)
Underwriter's representative on board SEC_CODE_REF_0090001192884
- Disclose any right of an underwriter
to board representation
- Underwriter's representative on board of directors. Describe any
arrangement whereby the underwriter has the right to designate or nominate a
member or members of the board of directors of the registrant. The registrant
shall disclose the identity of any director so designated or nominated, and
indicate whether or not a person so designated or nominated, or allowed to be
designated or nominated by the underwriter is or may be a director, officer,
partner, employee or affiliate of the underwriter.
|
508(g)
Indemnification of underwriters
- Describe indemnification arrangements with
underwriters
- Indemnification of underwriters. If the underwriting agreement
provides for indemnification by the registrant of the underwriters or their
controlling persons against any liability arising under the Securities Act,
furnish a brief description of such indemnification provisions.
|
508(h)
Dealers' compensation
- Describe dealer's compensation
- Dealers' compensation. State briefly the discounts and commissions to
be allowed or paid to dealers, including all cash, securities, contracts or
other considerations to be received by any dealer in connection with the sale of
the securities. If any dealers are to act in the capacity of sub-underwriters
and are to be allowed or paid any additional discounts or commissions for acting
in such capacity, a general statement to that effect will suffice without giving
the additional amounts to be sold.
|
508(i)
Finders
- Identify any finders
- Additional disclosures, if applicable
- Finders. Identify any finder and, if applicable, describe the nature
of any material relationship between such finder and the registrant, its
officers, directors, principal stockholders, finders or promoters or the
principal underwriter(s), or if there is a managing underwriter(s), the managing
underwriter(s), (including, in each case, affiliates or associates thereof).
|
508(j)
Discretionary accounts
- Additional disclosures required, if:
◊ Issuer is a first-time registrant, and
◊ Principal underwriter intends to sell into
its
discretionary accounts
- Discretionary accounts. If the registrant was not, immediately prior
to the filing of the registration statement, subject to the requirements of
section 13(a) or 15(d) of the Exchange Act, identify any principal underwriter
that intends to sell to any accounts over which it exercises discretionary
authority and include an estimate of the amount of securities so intended to be
sold. The response to this paragraph shall be contained in a pre-effective
amendment which shall be circulated if the information is not available when the
registration statement is filed.
|
508(k)
Passive market making
- Passive market making. If the underwriters or any selling group
members intend to engage in passive market making transactions as permitted by
Rule 103 of Regulation M, indicate such intention and briefly describe passive
market making.
|
508(l)
Stabilization and other transactions
- Describe stabilization activities
- Identify exchanges on which transactions will occur
- Disclosure requirements for reofferings
- Can only revise plan of distribution by post-effective amendment
- 1. Briefly describe any transaction that the underwriter intends to
conduct during the offering that stabilizes, maintains, or otherwise affects the
market price of the offered securities. Include information on stabilizing
transactions, syndicate short covering transactions, penalty bids, or any other
transaction that affects the offered security's price. Describe the nature of
the transactions clearly and explain how the transactions affect the offered
security's price. Identify the exchange or other market on which these
transactions may occur. If true, disclose that the underwriter may discontinue
these transactions at any time;
- 2. If the stabilizing began before the effective date of the
registration statement, disclose the amount of securities bought, the prices at
which they were bought and the period within which they were bought. If you use
Rule 430A of this chapter, the prospectus you file under Rule 424(b) of this
chapter or include in a post-effective amendment must contain information on the
stabilizing transactions that took place before the determination of the public
offering price; and
- 3. If you are making a warrants or rights offering of securities to
existing security holders and any securities not purchased by existing security
holders are to be reoffered to the public, disclose in a supplement to the
prospectus or in the prospectus used in connection with the reoffering:
- i. The amount of securities bought in
stabilization activities during the offering period and the price or range of
prices at which the securities were bought;
- ii. The amount of the offered securities
subscribed for during the offering period;
- iii. The amount of the offered securities
subscribed for by the underwriter during the offering period;
- iv. The amount of the offered securities
sold during the offering period by the underwriter and the price or price ranges
at which the securities were sold; and
- v. The amount of the offered securities
that will be reoffered to the public and the public offering price.
|
Applies
To
SEC Releases
Related Topics
|
