[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: 17CFR230.155]

[Page 501-502]
 
              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. 230.155  Integration of abandoned offerings.

    Preliminary Note: Compliance with paragraph (b) or (c) of this 
section provides a non-exclusive safe harbor from integration of private 
and registered offerings. Because of the objectives of Rule 155 and the 
policies underlying the Act, Rule 155 is not available to any issuer for 
any transaction or series of transactions that, although in technical 
compliance with the rule, is part of a plan or scheme to evade the 
registration requirements of the Act.

    (a) Definition of terms. For the purposes of this section only, a 
private offering means an unregistered offering of securities that is 
exempt from registration under Section 4(2) or 4(6) of the Act (15 
U.S.C. 77d(2) and 77d(6)) or Rule 506 of Regulation D (Sec. 230.506).
    (b) Abandoned private offering followed by a registered offering. A 
private offering of securities will not be considered part of an 
offering for which the issuer later files a registration statement if:
    (1) No securities were sold in the private offering;
    (2) The issuer and any person(s) acting on its behalf terminate all 
offering activity in the private offering before the issuer files the 
registration statement;
    (3) The Section 10(a) final prospectus and any Section 10 
preliminary prospectus used in the registered offering disclose 
information about the abandoned private offering, including:

[[Page 502]]

    (i) The size and nature of the private offering;
    (ii) The date on which the issuer abandoned the private offering;
    (iii) That any offers to buy or indications of interest given in the 
private offering were rejected or otherwise not accepted; and
    (iv) That the prospectus delivered in the registered offering 
supersedes any offering materials used in the private offering; and
    (4) The issuer does not file the registration statement until at 
least 30 calendar days after termination of all offering activity in the 
private offering, unless the issuer and any person acting on its behalf 
offered securities in the private offering only to persons who were (or 
who the issuer reasonably believes were):
    (i) Accredited investors (as that term is defined in 
Sec. 230.501(a)); or
    (ii) Persons who satisfy the knowledge and experience standard of 
Sec. 230.506(b)(2)(ii).
    (c) Abandoned registered offering followed by a private offering. An 
offering for which the issuer filed a registration statement will not be 
considered part of a later commenced private offering if:
    (1) No securities were sold in the registered offering;
    (2) The issuer withdraws the registration statement under 
Sec. 230.477;
    (3) Neither the issuer nor any person acting on the issuer's behalf 
commences the private offering earlier than 30 calendar days after the 
effective date of withdrawal of the registration statement under 
Sec. 230.477;
    (4) The issuer notifies each offeree in the private offering that:
    (i) The offering is not registered under the Act;
    (ii) The securities will be ``restricted securities'' (as that term 
is defined in Sec. 230.144(a)(3)) and may not be resold unless they are 
registered under the Act or an exemption from registration is available;
    (iii) Purchasers in the private offering do not have the protection 
of Section 11 of the Act (15 U.S.C. 77k); and
    (iv) A registration statement for the abandoned offering was filed 
and withdrawn, specifying the effective date of the withdrawal; and
    (5) Any disclosure document used in the private offering discloses 
any changes in the issuer's business or financial condition that 
occurred after the issuer filed the registration statement that are 
material to the investment decision in the private offering.

[66 FR 8896, Feb. 5, 2001]