General Rules and Regulations
Securities Act of 1933
Rule 163A -- Exemption from Section 5(c) of the Act for Certain Communications
Made by or on Behalf of Issuers More than 30 days Before a
Registration Statement is Filed
Preliminary Note to Rule 163A
Attempted compliance with this section does not act as an exclusive election and
the issuer also may claim the availability of any other applicable exemption or exclusion.
Reliance on this section does not affect the availability of any other exemption or
exclusion from the requirements of section 5 of the Act.
Except as excluded pursuant to paragraph (b) of this section, in all
registered offerings by issuers, any communication made by or on behalf of an issuer
more than 30 days before the date of the filing of the registration statement that does not
reference a securities offering that is or will be the subject of a registration statement
shall not constitute an offer to sell, offer for sale, or offer to buy the securities being
offered under the registration statement for purposes of section 5(c) of the Act, provided
that the issuer takes reasonable steps within its control to prevent further distribution or
publication of such communication during the 30 days immediately preceding the date of
filing the registration statement
The exemption in paragraph (a) of this section shall not be available with
respect to the following communications:
Communications relating to business combination transactions that are
subject to Rule 165 or Rule 166;
Communications made in connection with offerings registered on Form
S-8 (§239.16b of this chapter), other than by well-known seasoned issuers;
Communications in offerings of securities of an issuer that is, or during
the past three years was (or any of whose predecessors during the last three years was):
A shell company, other than a business combination related shell
company, each as defined in Rule 405; or
An issuer for an offering of penny stock as defined in Rule 3a51-1 of the
Securities Exchange Act of 1934; or
Communications made by an issuer that is:
An investment company registered under the Investment Company Act of
A business development company as defined in section 2(a)(48) of the
Investment Company Act of 1940.
For purposes of this section, a communication is made by or on behalf of
an issuer if the issuer or an agent or representative of the issuer, other than an offering
participant who is an underwriter or dealer, authorizes or approves the communication
before it is made.
A communication exempt from section 5(c) of the Act pursuant to this
section will not be considered to be in connection with a securities offering registered
under the Securities Act for purposes of Rule 100(b)(2)(iv) of Regulation FD under the
Securities Exchange Act of 1934.
Notice to Users: The Deskbook is made available
with the understanding that the University of Cincinnati College
of Law is not engaged in rendering legal, accounting or other professional
services. If legal advice or other expert assistance is required,
the services of a competent professional person should be sought. See Terms and Conditions of Use.