§ 11.303 Candor toward the .
(a) A shall not knowingly:
(1) Make a false statement of fact or law to a or fail to correct a false statement of material fact or law previously made to the by the ;
(2) Fail to disclose to the legal authority in the controlling jurisdiction known to the to be directly adverse to the position of the client and not disclosed by opposing counsel in an inter partes proceeding, or fail to disclose such authority in an ex parte proceeding before the if such authority is not otherwise disclosed; or
(3) Offer evidence that the knows to be false. If a , the 's client, or a witness called by the , has offered material evidence and the comes to know of its falsity, the shall take reasonable remedial measures, including, if necessary, disclosure to the . A may refuse to offer evidence that the reasonably believes is false.
(b) A who represents a client in a proceeding before a and who knows that a intends to engage, is engaging or has engaged in criminal or fraudulent conduct related to the proceeding shall take reasonable remedial measures, including, if necessary, disclosure to the .
(c) The duties in paragraphs (a) and (b) of this section continue to the conclusion of the proceeding, and apply even if compliance requires disclosure of information otherwise protected by § 11.106.
(d) In an ex parte proceeding, a shall inform the of all material facts known to the that will enable the to make an informed decision, whether or not the facts are adverse.
(e) In a proceeding before the , a shall disclose to the information necessary to comply with applicable duty of disclosure provisions.
§ 230.134 Communications not deemed a .
Except as provided in paragraphs (e) and (g) of this section, the terms “prospectus” as defined in section 2(a)(10) of the or “free writing prospectus” as defined in Rule 405 ( § 230.405) shall not include a communication limited to the statements required or permitted by this section, provided that the communication is published or transmitted to any person only after a registration statement relating to the offering that includes a satisfying the requirements of section 10 of the (except as otherwise permitted in paragraph (a) of this section) has been filed.
(a) Such communication may include any one or more of the following items of information, which need not follow the numerical sequence of this paragraph, provided that, except as to paragraphs (a)(4) through (6) of this section, the included in the filed registration statement does not have to include a price range otherwise required by rule:
(1) Factual information about the legal identity and business location of the limited to the following: the name of the of the , the address, phone number, and e-mail address of the 's principal offices and contact for investors, the 's country of organization, and the geographic areas in which it conducts business;
(2) The title of the or securities and the or being offered, which title may include a designation as to whether the securities are convertible, exercisable, or exchangeable, and as to the ranking of the securities;
(3) A brief indication of the general type of business of the , limited to the following:
(i) In the case of a manufacturing company, the general type of manufacturing, the principal products or classes of products manufactured, and the segments in which the company conducts business;
(ii) In the case of a public utility company, the general type of services rendered, a brief indication of the area served, and the segments in which the company conducts business;
(iii) In the case of an asset-backed , the identity of key parties, such as sponsor, depositor, issuing entity, servicer or servicers, and trustee, the asset class of the transaction, and the identity of any credit enhancement or other support; and
(iv) In the case of any other type of company, a corresponding statement;
(4) The price of the , or if the price is not known, the method of its determination or the bona fide estimate of the price range as specified by the or the managing or underwriters;
(5) In the case of a fixed income , the final maturity and interest rate provisions or, if the final maturity or interest rate provisions are not known, the probable final maturity or interest rate provisions, as specified by the or the managing or underwriters;
(6) In the case of a fixed income with a fixed (non-contingent) interest rate provision, the yield or, if the yield is not known, the probable yield range, as specified by the or the managing or and the yield of fixed income securities with comparable maturity and rating;
(7) A brief description of the intended use of proceeds of the offering, if then disclosed in the that is part of the filed registration statement;
(8) The name, address, phone number, and e-mail address of the sender of the communication and the fact that it is participating, or expects to participate, in the of the ;
(9) The type of , if then included in the in the that is part of the filed registration statement;
(10) The names of participating in the offering of the securities, and their additional roles, if any, within the syndicate;
(11) The anticipated schedule for the offering (including the approximate date upon which the proposed sale to the public will begin) and a description of marketing events (including the dates, times, locations, and procedures for attending or otherwise accessing them);
(12) A description of the procedures by which the will conduct the offering and the procedures for transactions in connection with the offering with the or an or participating dealer (including procedures regarding account-opening and submitting indications of interest and conditional offers to buy), and procedures regarding directed and other participation in offerings by officers, directors, and of the ;
(13) Whether, in the opinion of counsel, the is a legal investment for savings banks, fiduciaries, insurance companies, or similar investors under the laws of any or Territory or the District of Columbia, and the permissibility or status of the investment under the Retirement Income of 1974 [ 29 U.S.C. 1001et seq.];
(14) Whether, in the opinion of counsel, the is exempt from specified taxes, or the extent to which the has agreed to pay any tax with respect to the or measured by the income therefrom;
(15) Whether the is being offered through rights issued to holders, and, if so, the class of securities the holders of which will be entitled to subscribe, the subscription ratio, the actual or proposed record date, the date upon which the rights were issued or are expected to be issued, the actual or anticipated date upon which they will expire, and the approximate subscription price, or any of the foregoing;
(16) Any statement or legend required by any law or administrative authority;
(17) [Reserved]
(18) The names of selling holders, if then disclosed in the that is part of the filed registration statement;
(19) The names of securities or other securities markets where any class of the 's securities are, or will be, listed;
(20) The ticker symbols, or proposed ticker symbols, of the 's securities;
(21) The CUSIP number as defined in Rule 17Ad-19(a)(5) of the Securities of 1934 ( § 240.17Ad-19(a)(5) of this chapter) assigned to the securities being offered; and
(22) Information disclosed in order to correct inaccuracies previously contained in a communication permissibly made pursuant to this section.
(b) Except as provided in paragraph (c) of this section, every communication used pursuant to this section shall contain the following:
(1) If the registration statement has not yet become effective, the following statement:
(2) The name and address of a person or persons from whom a written for the offering meeting the requirements of section 10 of the (other than a as defined in Rule 405) including as to the identified paragraphs above a price range where required by rule, may be obtained.
(c) Any of the statements or information specified in paragraph (b) of this section may, but need not, be contained in a communication which:
(1) Does no more than from whom and include the uniform resource locator (URL) where a written meeting the requirements of section 10 of the (other than a as defined in Rule 405) may be obtained, identify the , the price thereof and by whom orders will be executed; or
(2) Is accompanied or preceded by a or a summary , other than a as defined in Rule 405, which meets the requirements of section 10 of the , including a price range where required by rule, at the date of such preliminary communication.
(d) A communication sent or delivered to any person pursuant to this section which is accompanied or preceded by a which meets the requirements of section 10 of the (other than a as defined in Rule 405), including a price range where required by rule, at the date of such communication, may solicit from the recipient of the communication an offer to buy the or request the recipient to indicate whether he or she might be interested in the , if the communication contains substantially the following statement:
Provided, that such statement need not be included in such a communication to a dealer.
(e) A section 10 included in any communication pursuant to this section shall remain a for all purposes under the .
(f) The provision in paragraphs (c)(2) and (d) of this section that a that meets the requirements of section 10 of the precede or accompany a communication will be satisfied if such communication is an electronic communication containing an active hyperlink to such .
(g) This section does not apply to a communication relating to an investment company registered under the of 1940 ( 15 U.S.C. 80a-1et seq.) or a as defined in section 2(a)(48) of the of 1940 ( 15 U.S.C. 80a-2(a)(48))
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70 FR 44800, Aug. 3, 2005, as amended at
76 FR 46617, Aug. 3, 2011]