Securities Lawyer's Deskbook                          published by The University of Cincinnati College of Law

Rule 17a-2 -- Recordkeeping Requirements Relating to Stabilizing Activities

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1. Scope of section. This section shall apply to any person who effects any purchase of a security subject to Rule 104 of Regulation M for the purpose of, or who participates in a syndicate or group that engages in, "stabilizing," as defined in Rule 100 of Regulation M, the price of any security; or effects a purchase that is a "syndicate covering transaction," as defined in Rule 100 of Regulation M; or imposes a "penalty bid," as defined in Rule 100 of Regulation M:
   1. With respect to which a registration statement has been, or is to be, filed pursuant to the Securities Act of 1933 as amended or

   2. which is being, or is to be, offered pursuant to an exemption from registration under Regulation A adopted under the Securities Act of 1933 or

   3. which is being, or is to be, otherwise offered, if the aggregate offering price of the securities being offered exceeds $5,000,000.
      
      
2. Definitions. For purposes of this section, the following definitions shall apply:
   
   
   1. The term manager shall mean the person stabilizing or effecting syndicate covering transactions or imposing a penalty bid for its sole account or for the account of a syndicate or group in which it is a participant, and who, by contract or otherwise, deals with the issuer, organizes the selling effort, receives some benefit from the underwriting that is not shared by other underwriters, or represents any other underwriters in such matters as maintaining the records of the distribution and arranging for allotments of the securities offered.
      
      
   2. The term "exempted security" means an exempted security as defined in Section 3(a)(12) of the Act, including securities issued, or guaranteed both as to principal and interest, by the International Bank for Reconstruction and Development.
      
      
3. Records relating to stabilizing, syndicate covering transactions, and penalty bids required to be maintained by manager. Any person subject to this section who acts as a manager and stabilizes or effects syndicate covering transactions or imposes a penalty bid shall:
   
   
   1. Promptly record and maintain the following separately retrievable information, for a period of not less than three years, the first two years in an easily accessible place; Provided, however, That if the information is in a record required to be made pursuant to Rule 17a-3 or Rule 17a-4, or otherwise preserved, such information need not be maintained in a separate file if the person can sort promptly and retrieve the information as if it had been kept in a separate file as a record made pursuant to, and preserves the information in accordance with the time periods specified in, this paragraph (c)(1):
      
      
      1. The name and class of any security stabilized or any security in which syndicate covering transactions have been effected or a penalty bid has been imposed;
         
         
      2. The price, date, and time at which each stabilizing purchase or syndicate covering transaction was effected by the manager or by any participant in the syndicate or group, and whether any penalties were assessed;
         
         
      3. The names and the addresses of the members of the syndicate or group;
         
         
      4. Their respective commitments, or, in the case of a standby or contingent underwriting, the percentage participation of each member of the syndicate or group therein; and
         
         
      5. The dates when any penalty bid was in effect.
         
         
   2. promptly furnish to each of the members of the syndicate or group the name and class of any security being stabilized, and the date and time at which the first stabilizing purchase was effected by the manager or by any participant in the syndicate or group; and
      
      
   3. promptly notify each of the members of such syndicate or group of the date and time when stabilizing was terminated.
      
      
4. Notification to manager. Any person who has a participation in a syndicate account but who is not a manager of such account, and who effects one or more stabilizing purchases or syndicate covering transactions for its sole account or for the account of a syndicate or group, shall within three business days following such purchase notify the manager of the price, date, and time at which such stabilizing purchase or syndicate covering transaction was effected, and shall in addition notify the manager of the date and time when such stabilizing purchase or syndicate covering transaction was terminated. The manager shall maintain such notifications in a separate file, together with the information required by paragraph (c)(1) of this section, for a period of not less than three years, the first two years in an easily accessible place.
   
   

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