[Code of Federal Regulations]
[Title 17, Volume 2]
[Revised as of April 1, 2001]
From the U.S. Government Printing Office via GPO Access
[CITE: 17CFR228.512]

[Page 340-341]
 
              TITLE 17--COMMODITY AND SECURITIES EXCHANGES
 
             CHAPTER II--SECURITIES AND EXCHANGE COMMISSION
 
PART 228--INTEGRATED DISCLOSURE SYSTEM FOR SMALL BUSINESS ISSUERS--Table of Contents
 
                        Subpart A--Regulation S-B
 
Sec. 228.512  (Item 512) Undertakings.

    Include each of the following undertakings that apply to the 
offering.
    (a) Rule 415 Offering. If the small business issuer is registering 
securities under Rule 415 of the Securities Act (Sec. 230.415 of this 
chapter), that the small business issuer will:
    (1) File, during any period in which it offers or sells securities, 
a post-effective amendment to this registration statement to:
    (i) Include any prospectus required by section 10(a)(3) of the 
Securities Act;
    (ii) Reflect in the prospectus any facts or events which, 
individually or together, represent a fundamental change in the 
information in the registration statement. Notwithstanding the 
foregoing, any increase or decrease in volume of securities offered (if 
the total dollar value of securities offered would not exceed that which 
was registered) and any deviation from the low or high end of the 
estimated maximum offering range may be reflected in the form of 
prospectus filed with the Commission pursuant to Rule 424(b) 
(Sec. 230.424(b) of this chapter) if, in the aggregate, the changes in 
volume and price represent no more than a 20% change in the maximum 
aggregate offering price set forth in the ``Calculation of Registration 
Fee'' table in the effective registration statement; and
    (iii) Include any additional or changed material information on the 
plan of distribution.

    Note: Small business issuers do not need to give the statements in 
paragraphs (a)(1)(i) and (a)(1)(ii) of this Item if the registration 
statement is on Form S-3 or S-8 (Secs. 239.13 or 239.16b of this 
chapter), and the information required in a post-effective amendment is 
incorporated by reference from periodic reports filed by the small 
business issuer under the Exchange Act.

    (2) For determining liability under the Securities Act, treat each 
post-effective amendment as a new registration statement of the 
securities offered, and the offering of the securities at that time to 
be the initial bona fide offering.
    (3) File a post-effective amendment to remove from registration any 
of the securities that remain unsold at the end of the offering.
    (b) Warrants and rights offerings. If the small business issuer will 
offer the securities to existing security holders under warrants or 
rights and the small business issuer will reoffer to the public any 
securities not taken by security holders, with any modifications that 
suit the particular case--The small business issuer will supplement the 
prospectus, after the end of the subscription period, to include the 
results of the subscription offer, the transactions by the underwriters 
during the subscription period, the amount of unsubscribed securities 
that the underwriters will purchase and the terms of any later 
reoffering. If the underwriters make any public offering of the 
securities on terms different from those on the cover page of the 
prospectus, the small business issuer will file a post-effective 
amendment to state the terms of such offering.
    (c) Competitive bids. If the small business issuer is offering 
securities at competitive bidding, with modifications to suit the 
particular case, the small business issuer will:
    (1) Use its best efforts to distribute before the opening of bids, 
to prospective bidders, underwriters, and dealers,

[[Page 341]]

a reasonable number of copies of a prospectus that meet the requirements 
of section 10(a) of the Securities Act, and relating to the securities 
offered at competitive bidding, as contained in the registration 
statement, together with any supplements; and
    (2) File an amendment to the registration statement reflecting the 
results of bidding, the terms of the reoffering and related matters 
where required by the applicable form, not later than the first use, 
authorized by the issuer after the opening of bids, of a prospectus 
relating to the securities offered at competitive bidding, unless the 
issuer proposes no further public offering of such securities by the 
issuer or by the purchasers.
    (d) Equity offerings of nonreporting small business issuers. If a 
small business issuer that before the offering had no duty to file 
reports with the Commission under section 13(a) or 15(d) of the Exchange 
Act is registering equity securities for sale in an underwritten 
offering--The small business issuer will provide to the underwriter at 
the closing specified in the underwriting agreement certificates in such 
denominations and registered in such names as required by the 
underwriter to permit prompt delivery to each purchaser.
    (e) Request for acceleration of effective date. If the small 
business issuer will request acceleration of the effective date of the 
registration statement under Rule 461 under the Securities Act, include 
the following:

    Insofar as indemnification for liabilities arising under the 
Securities Act of 1933 (the ``Act'') may be permitted to directors, 
officers and controlling persons of the small business issuer pursuant 
to the foregoing provisions, or otherwise, the small business issuer has 
been advised that in the opinion of the Securities and Exchange 
Commission such indemnification is against public policy as expressed in 
the Act and is, therefore, unenforceable.


In the event that a claim for indemnification against such liabilities 
(other than the payment by the small business issuer of expenses 
incurred or paid by a director, officer or controlling person of the 
small business issuer in the successful defense of any action, suit or 
proceeding) is asserted by such director, officer or controlling person 
in connection with the securities being registered, the small business 
issuer will, unless in the opinion of its counsel the matter has been 
settled by controlling precedent, submit to a court of appropriate 
jurisdiction the question whether such indemnification by it is against 
public policy as expressed in the Securities Act and will be governed by 
the final adjudication of such issue.
    (f) If the issuer relies on Rule 430A under the Securities Act 
[Sec. 230.430A of this chapter], that the small business issuer will:
    (1) For determining any liability under the Securities Act, treat 
the information omitted from the form of prospectus filed as part of 
this registration statement in reliance upon Rule 430A and contained in 
a form of prospectus filed by the small business issuer under Rule 
424(b)(1), or (4) or 497(h) under the Securities Act 
(Secs. 230.424(b)(1), (4) or 230.497(h)) as part of this registration 
statement as of the time the Commission declared it effective.
    (2) For determining any liability under the Securities Act, treat 
each post-effective amendment that contains a form of prospectus as a 
new registration statement for the securities offered in the 
registration statement, and that offering of the securities at that time 
as the initial bona fide offering of those securities.

[57 FR 36449, Aug. 13, 1992, as amended at 60 FR 26614, May 17, 1995]