17 C.F.R. § 230.460

Distribution of preliminary prospectus

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(a) Pursuant to the statutory requirement that the Commission in ruling upon requests for acceleration of the effective date of a registration statement shall have due regard to the adequacy of the information respecting the issuer theretofore available to the public, the Commission may consider whether the persons making the offering have taken reasonable steps to make the information contained in the registration statement conveniently available to underwriters and dealers who it is reasonably anticipated will be invited to participate in the distribution of the security to be offered or sold.

(b)(1) As a minimum, reasonable steps to make the information conveniently available would involve the distribution, to each underwriter and dealer who it is reasonably anticipated will be invited to participate in the distribution of the security, a reasonable time in advance of the anticipated effective date of the registration statement, of as many copies of the proposed form of preliminary prospectus permitted by Rule 430 (§ 230.430) as appears to be reasonable to secure adequate distribution of the preliminary prospectus.

(2) In the case of a registration statement filed by a closed-end investment company on Form N-2 (§ 239.14 and § 274.11a-1 of this chapter), reasonable steps to make information conveniently available would involve distribution of a sufficient number of copies of the Statement of Additional Information required by § 230.430(b) as it appears to be reasonable to secure their adequate distribution either to each underwriter or dealer who it is reasonably anticipated will be invited to participate in the distribution of the security, or to the underwriter, dealer or other source named on the cover page of the preliminary prospectus as being the person investors should contact in order to obtain the Statement of Additional Information.

(1) The distribution of a preliminary prospectus in any state where such distribution would be illegal; or

(2) The distribution of a preliminary prospectus (i) in the case of a registration statement relating solely to securities to be offered at competitive bidding, provided the undertaking in Item 512(d)(1) of Regulation S-K (§ 229.512(d)(2) of this chapter) is included in the registration statement and distribution of prospectuses pursuant to such undertaking is made prior to the publication or distribution of the invitation for bids, or

(ii) In the case of a registration statement relating to a security issued by a face-amount certificate company or a redeemable security issued by an open-end management company or unit investment trust if any other security of the same class is currently being offered or sold, pursuant to an effective registration statement by the issuer or by or through an underwriter, or

(iii) In the case of an offering of subscription rights unless it is contemplated that the distribution will be made through dealers and the underwriters intend to make the offering during the stockholders' subscription period, in which case copies of the preliminary prospectus must be distributed to dealers prior to the effective date of the registration statement in the same fashion as is required in the case of other offerings through underwriters, or

(iv) In the case of a registration statement pertaining to a security to be offered pursuant to an exchange offer or transaction described in Rule 145 (§ 230.145).

[47 FR 11443, Mar. 16, 1982, as amended at 57 FR 56834, Dec. 1, 1992; 76 FR 71876, Nov. 21, 2011]

Notes of Decisions

Cited in 5 cases, 1969–2003 · leading case: Fed. Sec. L. Rep. P 94,496 Richard J. Sargent v. Genesco, Inc., 492 F.2d 750 (5th Cir. 1974).

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Fed. Sec. L. Rep. P 94,496 Richard J. Sargent v. Genesco, Inc., 492 F.2d 750 (5th Cir. 1974). · cites it 2× “18617 (1968), in which the SEC notes that it feels that indemnification for Securities Act liabilities is against public policy and the note to SEC Rule 460, 17 C.F.R. 230.460. The underwriting agreement between Leeds and the underwriters contained the 'Johnson and Johnson…”

Seiffer v. Topsy's Int'l, Inc., 70 F.R.D. 622 (D. Kan. 1976). “The note to 17 C.F.R. § 230.460 speaks to acceleration of a registration statement and the undertaking, required of a registrant-issuer when such acceleration of the effective date of the statement is sought.”

Globus v. Law Rsch. Serv., Inc., 418 F.2d 1276 (2d Cir. 1969). “17 C.F.R. § 230.460 . If we follow the syllogism through to its conclusion, underwriters should be treated equally with controlling persons and hence prohibited from obtaining indemnity from the issuer.”

In Re Initial Pub. Offering Antitrust Litig., 287 F. Supp. 2d 497 (S.D.N.Y. 2003). “137 to 139 (permitting certain communications through issuance of research reports); 17 C.F.R. § 230.460 (in context of requests for acceleration of the effective date of a registration statement, recognizing the role of underwriters in disseminating information about the…”

Fed. Sec. L. Rep. P 92,474 Morton Globus v. Law Rsch. Serv., Inc. & Ellias C. Hoppenfeld, Blair & Co., Granbery Marache Inc., & Third-Party v. Paul Wiener, Third-Party, 418 F.2d 1276 (2d Cir. 1970). “17 C.F.R. 230.460. If we follow the syllogism through to its conclusion, underwriters should be treated equally with controlling persons and hence prohibited from obtaining indemnity from the issuer.”

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