[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: 17CFR230.139]

[Page 481-482]
 
              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. 230.139  Definition of ``offer for sale'' and ``offer to sell'' in sections 2(10) and 5(c) in relation to certain publications.

    Where a registrant which is required to file reports pursuant to 
section 13 or 15(d) of the Securities Exchange Act of 1934 (15 U.S.C. 
78a et seq.) or which is a foreign private issuer meeting the conditions 
of paragraph (a)(2) of this section proposes to file, has filed or has 
an effective registration statement under the Securities Act of 1933 (15 
U.S.C. 77a et seq.) relating to its securities, the publication or 
distribution by a broker or dealer of information, an opinion or a 
recommendation with respect to the registrant or any class of its 
securities shall not be deemed to constitute an offer for sale or offer 
to sell the securities registered or proposed to be registered 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 such securities, if the conditions of paragraph (a) or 
(b) of this section have been met:
    (a)(1) 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) 
and the minimum float or investment grade securities provisions of 
either paragraph (B) (1) or (2) of General Instruction I of the 
respective form and such information, opinion or recommendation is 
contained in a publication which is distributed with reasonable 
regularity in the normal course of business; or
    (2) The registrant is a foreign private issuer that meets all the 
registrant requirements of Form F-3 (Sec. 239.33 of this chapter), other 
than the reporting history provisions of paragraphs 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), and such 
information, opinion or recommendation is contained in a publication 
which is distributed with reasonable regularity in the normal course of 
business.
    (b)(1) Such information, opinion or recommendation is contained in a 
publication which:
    (i) Is distributed with reasonable regularity in the normal course 
of business and
    (ii) Includes similar information, opinions or recommendations with 
respect to a substantial number of companies in the registrant's 
industry, or sub-industry, or contains a comprehensive list of 
securities currently recommend by such broker or dealer.
    (2) Such information, opinion or recommendation is given no 
materially greater space or prominence in such publication than that 
given to other securities or registrants; and
    (3) An opinion or recommendation as favorable or more favorable as 
to the registrant or any class of its securities was published by the 
broker or dealer in the last publication of such broker or dealer 
addressing the registrant or its securities prior to the commencement of 
participation in the distribution.
Instructions to Rule 139: 1. For purposes of paragraph (a), a research 
report has not been distributed with reasonable regularity if it 
contains information, an opinion, or a recommendation concerning a 
company with respect to which a broker or dealer currently is not 
publishing research.
    2. Where projections of a registrant's sales or earnings are 
included, the publication must comply with the following in order to 
meet paragraphs (b)(1) and (b)(3).
    A. The projections must have been published previously on a regular 
basis in order for the publication to meet paragraph (b)(1)(i);
    B. The projections must be included with respect to either a 
substantial number of companies in the registrant's industry or sub-
industry or all companies in a comprehensive list which is contained in 
the publication, and must cover the same periods with respect to such 
companies as with respect to the registrant, in order to meet the 
requirements of paragraph (b)(1)(ii); and

[[Page 482]]

    C. Because projections constitute opinions within the meaning of the 
Rule, they must come within paragraph (b)(3).

[49 FR 37573, Sept. 25, 1984, as amended at 59 FR 21650, Apr. 26, 1994; 
60 FR 6966, Feb. 6, 1995]