[Code of Federal Regulations]
[Title 17, Volume 2]
[Revised as of April 1, 2002]
From the U.S. Government Printing Office via GPO Access
[CITE: 17CFR230.138]

[Page 480-481]
 
              TITLE 17--COMMODITY AND SECURITIES EXCHANGES
 
             CHAPTER II--SECURITIES AND EXCHANGE COMMISSION
 
PART 230--GENERAL RULES AND REGULATIONS, SECURITIES ACT OF 1933--Table of Contents
 
Sec. 230.138  Definition of ``offer for sale'' and ``offer to sell'' in sections 2(10) and 5(c) in relation to certain publications.

    (a) Where a registrant which meets the requirements of paragraph 
(c)(1), (c)(2) or (c)(3) of this section proposes to file, has filed or 
has an effective registration statement under the Act relating solely to 
a nonconvertible debt security or to a nonconvertible, nonparticipating 
preferred stock, publication or distribution in the regular course of 
its business by a broker or dealer of information, opinions or 
recommendations relating solely to common stock or to debt or preferred 
stock convertible into common stock of such registrant shall not be 
deemed to constitute an offer for sale or offer to sell the security to 
which such registration statement relates for purposes of sections 2(10) 
and 5(c) of the Act (15 U.S.C. 77a et seq.) even though such broker or 
dealer is or will be a participant in the distribution of the security 
to which such registration statement relates.
    (b) Where a registrant which meets the requirements of paragraph 
(c)(1), (c)(2) or (c)(3) of this section proposes to file, has filed or 
has an effective registration statement under the Act relating solely to 
common stock or to debt or preferred stock convertible into common 
stock, the publication or distribution in the regular course of its 
business by a broker or dealer of information, opinions or 
recommendations relating solely to a nonconvertible debt security, or to 
a nonconvertible nonparticipating preferred stock shall not be deemed to 
constitute an offer for sale or offer to sell the security to which such 
registration statement relates for purposes of sections 2(10) and 5(c) 
of the Act (15 U.S.C. 77a et seq.), even though such broker or dealer is 
or will be a participant in the distribution of the security to which 
such registration statement relates.
    (c)(1) The registrant meets all of the conditions for the use of 
Form S-2 [Sec. 239.12 of this chapter] or Form F-2 [Sec. 239.32 of this 
chapter];
    (2) The registrant meets the registrant requirements of Form S-3 
[Sec. 239.13 of this chapter] or Form F-3 [Sec. 239.33 of this chapter]; 
or
    (3) The registrant is a foreign private issuer which meets all the 
registrant requirements of Form F-3 [Sec. 239.33 of this chapter], other 
than the reporting history provisions of paragraph A.1. and A.2.(a) of 
General Instruction I of such form, and meets the minimum float or 
investment grade securities provisions of either paragraph B.1. or B.2. 
of General Instruction I. of such form and the registrant's securities 
have been traded for a period of at least 12 months on a designated 
offshore securities market, as defined in Sec. 230.902(a).

Instruction to Rule 138: When a registration statement relates to 
securities which are being registered for an offering to be made on a 
continuous or delayed basis pursuant to Rule 415(a)(1)(x) under the Act 
(Sec. 230.415(a)(1)(x)) and the securities which are being registered 
include classes of securities which are specified in both paragraphs (a) 
and (b) of this section on either an allocated or unallocated basis, a 
broker or dealer may nonetheless rely on:
    1. Paragraph (a) of this section when the offering in which such 
broker or dealer is or will be a participant relates solely to classes

[[Page 481]]

of securities specified in paragraph (a) of this section, and
    2. Paragraph (b) of this section when the offering in which such 
broker or dealer is or will be a participant relates solely to classes 
of securities specified in paragraph (b) of this section.

[60 FR 6965, Feb. 6, 1995]