[Title 17 CFR 230.159A]
[Code of Federal Regulations (annual edition) - April 1, 2007 Edition]
[Title 17 - COMMODITY AND SECURITIES EXCHANGES]
[Chapter II - SECURITIES AND EXCHANGE COMMISSION]
[Part 230 - GENERAL RULES AND REGULATIONS, SECURITIES]
[Sec. 230.159a - Certain definitions for purposes of section 12(a)(2) of the Act.]
[From the U.S. Government Printing Office]


17COMMODITY AND SECURITIES EXCHANGES22007-04-012007-04-01false230.159ASec. 230.159ACOMMODITY AND SECURITIES EXCHANGESSECURITIES AND EXCHANGE COMMISSIONGENERAL RULES AND REGULATIONS, SECURITIES
Sec. 230.159A  Certain definitions for purposes of section 12(a)(2) of the Act.

    (a) Definition of seller for purposes of section 12(a)(2) of the 
Act. For purposes of section 12(a)(2) of the Act only, in a primary 
offering of securities of the issuer, regardless of the underwriting 
method used to sell the issuer's securities, seller shall include the 
issuer of the securities sold to a person as part of the initial 
distribution of such securities, and the issuer shall be considered to 
offer or sell the securities to such person, if the securities are 
offered or sold to such person by means of any of the following 
communications:
    (1) Any preliminary prospectus or prospectus of the issuer relating 
to the offering required to be filed pursuant to Rule 424 (Sec. 
230.424) or Rule 497 (Sec. 230.497);
    (2) Any free writing prospectus as defined in Rule 405 (Sec. 
230.405) relating to the offering prepared by or on behalf of the issuer 
or used or referred to by the issuer and, in the case of an issuer that 
is an open-end management company registered under the Investment 
Company Act of 1940 (15 U.S.C. 80a-1 et seq.), any profile relating to 
the offering provided pursuant to Rule 498 (Sec. 230.498);
    (3) The portion of any other free writing prospectus (or, in the 
case of an issuer that is an investment company registered under the 
Investment Company Act of 1940 or a business development company as 
defined in section 2(a)(48) of the Investment Company Act of 1940 (15 
U.S.C. 80a-2(a)(48)), any advertisement pursuant to Rule 482 (Sec. 
230.482)) relating to the offering containing material information about 
the issuer or its securities provided by or on behalf of the issuer; and
    (4) Any other communication that is an offer in the offering made by 
the issuer to such person.

    Notes to paragraph (a) of Rule 159A.

    1. For purposes of paragraph (a) of this section, information is 
provided or a communication is made by or on behalf of an issuer if an 
issuer or an agent or representative of the issuer authorizes or 
approves the information or communication before its provision or use. 
An offering participant other than the issuer shall not be an agent or 
representative of the issuer solely by virtue of its acting as an 
offering participant.
    2. Paragraph (a) of this section shall not affect in any respect the 
determination of whether any person other than an issuer is a ``seller'' 
for purposes of section 12(a)(2) of the Act.

    (b) Definition of by means of for purposes of section 12(a)(2) of 
the Act. (1) For purposes of section 12(a)(2) of the Act only, an 
offering participant other than the issuer shall not be considered to 
offer or sell securities that are the subject of a registration 
statement by means of a free writing prospectus as to a purchaser unless 
one or more of the following circumstances shall exist:
    (i) The offering participant used or referred to the free writing 
prospectus in offering or selling the securities to the purchaser;

[[Page 603]]

    (ii) The offering participant offered or sold securities to the 
purchaser and participated in planning for the use of the free writing 
prospectus by one or more other offering participants and such free 
writing prospectus was used or referred to in offering or selling 
securities to the purchaser by one or more of such other offering 
participants; or
    (iii) The offering participant was required to file the free writing 
prospectus pursuant to the conditions to use in Rule 433 (Sec. 
230.433).
    (2) For purposes of section 12(a)(2) of the Act only, a person will 
not be considered to offer or sell securities by means of a free writing 
prospectus solely because another person has used or referred to the 
free writing prospectus or filed the free writing prospectus with the 
Commission pursuant to Rule 433.

[70 FR 44805, Aug. 3, 2005]