Securities Lawyer's Deskbook
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General Rules and Regulations
under the
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.

  1. 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

  2. The exemption in paragraph (a) of this section shall not be available with respect to the following communications:

    1. Communications relating to business combination transactions that are subject to Rule 165 or Rule 166;

    2. Communications made in connection with offerings registered on Form S-8 (239.16b of this chapter), other than by well-known seasoned issuers;

    3. 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):

      1. A blank check company as defined in Rule 419(a)(2);

      2. A shell company, other than a business combination related shell company, each as defined in Rule 405; or

      3. An issuer for an offering of penny stock as defined in Rule 3a51-1 of the Securities Exchange Act of 1934; or

    4. Communications made by an issuer that is:

      1. An investment company registered under the Investment Company Act of 1940; or

      2. A business development company as defined in section 2(a)(48) of the Investment Company Act of 1940.

  3. 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.

  4. 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.

Regulatory History

70 FR 44722, 44806, Dec. 1, 2005.

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