Definición y operacionalización de variables

(http://www.sec.gov/news/press/2008/2008-232.htm). The SEC periodically issues Fee Rate Advisories, which are published as press releases on the SEC’s web site at http://www.sec.gov/news/press.shtml.

13 See Chapter 3 (The Securities Registration and Reporting Process) and Chapter 5 (Shelf Registration) of this volume.

14 See Chapter 6 (Listing on U.S. Securities Exchanges) of this volume.

• unless the offering is specifically exempt from such requirements,¹⁵ U.S. counsel to the underwriters, with input from the issuer and its counsel, prepare and file with FINRA documentation to show that the underwriting arrangements are fair and reasonable;¹⁶

• unless the offering is specifically exempt from such requirements,¹⁷ U.S. counsel to the underwriters, with input from the issuer, prepare and file with various states filings to qualify the offering for sale in those states and territories and prepares a

“blue sky” survey for the underwriters or agents explaining the investors to whom and the states in which the securities may be offered and sold; ¹⁸

• the issuer, the underwriters or agents and their respective counsel agree upon the terms of the securities to be offered (other than the terms to be determined at pricing);

• the other transaction documents are prepared, which normally include:

○ interview question lists about the issuer for management and, in some cases, a directors’ and officers’ questionnaire for management due diligence, an interview list for due diligence with the issuer’s accountants and a document request list for documentary or “legal” due diligence, as discussed in this chapter below under the heading “—Due Diligence;”

○ the agreement between the issuer and the securities firm or firms that the issuer engages to underwrite or place its securities (the scope, content and name of which varies by product and offering and may be referred to as, among other things, an “underwriting agreement,” a “purchase agreement,” a “distribution agreement,” a “dealer agreement,” a “selling agreement” or an “agency agreement”);

○ if the offering is a traditional private placement,¹⁹ a note purchase agreement between the issuer and the investors that would also include the purchase terms, as well as the terms and the form of the securities;

○ in the case of equity securities, the issuer’s organizational documents, if necessary;

15 1933 Act-exempt offerings, including Rule 144A offerings, and offerings of 1933 Act-exempt securities are normally also exempted from FINRA filings.

16 See Chapter 3 (The Securities Registration and Reporting Process) of this volume.

17 1933 Act-exempt offerings, including Rule 144A offerings, of securities that rank junior to securities of the issuer that are listed on a U.S. securities exchange and offerings of 1933 Act-exempt securities are normally also exempted from blue sky laws.

18 For further detail, see the discussion under the heading “‘Blue Sky’ or State Securities Laws” in An Overview of U.S. Securities Regulators and Laws of this volume.

19 See Accessing the U.S. Capital Markets – Securities Products.

○ the agreement or indenture with the entity (normally a commercial bank or trustee), if any, that acts as issuing and paying agent for the securities and, in the case of 1933 Act-registered and sometimes privately-placed debt securities, as trustee for the securityholders;

○ the form or forms of the security being offered; ²⁰

○ if the securities require a calculation agent, such as floating rate, structured and extendible notes, the calculation agency agreement between the issuer and the calculation agent;

○ in the case of book-entry securities, the agreement between the issuer, the issuing agent and DTC;

○ a comfort letter from the issuer’s auditor regarding the financial information in the offering documents; and

○ opinions, officers’ closing certificates and other closing documents, including, as the case may be, 10b-5 statements from U.S. counsel to the issuer and the underwriters to the effect that they do not believe the offering documents contain any material misstatements or omit any material information.

• in the case of a U.S. traditional private placement, the selling agent introduces the investors to the issuer and the issuer negotiates the terms of the securities and the sale price directly with the investors;

• if the offering is 1933 Act-registered, the registration statement is either automatically declared effective in the case of a WKSI or, if not (e.g., in the case of an IPO), any SEC staff comments on the registration statement (and any 1934 Act reports incorporated by reference) are addressed and responded to in one or more amendments to the registration statement and the registration statement, including the preliminary prospectus or “red herring” it contains, is finalized and FINRA approval is obtained;

• if the issuer is only setting up a program or shelf with no immediate take down, the offering document or documents are finalized and a closing occurs at which various transaction documents are signed and delivered as discussed below, but no securities are issued at such time;

• if the issuer is involved in a stand-alone offering or a take down from a program or shelf, the underwriters or agents, with the assistance of the issuer and within applicable guidelines discussed in this chapter below under the heading “—

20 The terms of the securities may be set forth in the security itself or may be set forth in the document (e.g., indenture or organizational document) under which the security is being issued.

Limitations on Publicity,” market the securities²¹ to potential investors and gather indications of interest in the securities, thereby “building a book” for possible pricing;

• based on the indications of interest obtained by the underwriters or agents,

“pricing” occurs whereby the issuer and the underwriters or agents agree to the terms of the securities and the price at which the issuer sells them, the underwriting agreement or similar agreement is signed by the parties, the issuer’s auditors deliver their comfort letter (if any) and, if the securities are listed on a U.S. securities exchange, trading in the securities is approved on a when-issued basis;

• the underwriters or agents contact investors that have indicated interest in purchasing the securities, inform them of the pricing terms (normally by delivering a terms sheet or, in the case of a 1933 Act-registered offering, a free writing prospectus agreed upon with the issuer) and confirm the investor’s orders and, if the underwriters or agents stabilize the trading price of the securities to ensure an orderly offering, they do so in accordance with the applicable guidelines discussed in this chapter below under the heading “—Stabilization and Regulation M;” and

• normally three business days after the pricing²² of a U.S. securities offering, the closing occurs at which the remaining transaction documents, including the closing documents, are signed and delivered and the securities are delivered by the issuer in exchange for receiving the purchase price from the underwriters or agents or, in the case of a U.S. traditional private placement, the investors.

ISSUER CLASSES

Securities Offering Reform, a comprehensive set of rule and Form changes adopted by the SEC in 2005²³ (“Securities Offering Reform”) that established the following classes of issuers: (i) WKSIs; (ii) “seasoned issuers;” (iii) “unseasoned issuers;” (iv) “non-reporting issuers;” and (v) “ineligible issuers.”

21 Marketing normally occurs through the use of a preliminary offering document. In the case of an offering under a program or a shelf, the base offering document is frequently accompanied by a preliminary supplement relating to the terms of the securities. See also the discussion in this chapter below under the heading “Offering Documents.”

22 Rule 15c6-1 under the 1934 Act establishes three business days (“T+3”) as the standard settlement cycle for securities transactions (T+4 is the standard settlement cycle for the sale of securities priced after 4:30 p.m., Eastern time, pursuant to a registered firm commitment underwritten offering). Rule 15c6-1 also permits the parties to establish a longer settlement cycle in exceptional circumstances when T+3 or T+4, as the case may be, is not feasible or when otherwise expressly agreed to by all parties to the transaction (including purchasers of the securities). The SEC is currently working with the securities industry to determine the feasibility of shortening the settlement cycle to one business day (“T+1”).

23 See SEC Release No. 33-8591 (July 19, 2005) (http://www.sec.gov/rules/final/33-8591.pdf).

WKSIs

Securities Offering Reform is of the most benefit to WKSIs. As defined in Rule 405 under the 1933 Act, an issuer is a WKSI if:

• it is current in its 1934 Act reports and has filed these reports timely in the twelve months preceding the filing of a registration statement;

• it is eligible to use Form S-3 or F-3²⁴ to register a cash offering for its own account;

• as of a date within 60 days of the determination, either:

○ the value of its common equity securities (whether or not voting) held worldwide by unaffiliated persons is at least U.S.$700 million; or

○ it has issued in registered primary offerings at least U.S.$1 billion of non-convertible debt or preferred securities in the preceding three years;

and

• it is not an ineligible issuer.

Majority-owned subsidiaries of WKSIs may qualify as WKSIs themselves based on the parent’s status if:

• the parent fully and unconditionally guarantees the subsidiary’s non-convertible debt or preferred securities;

• the subsidiary securities being registered are guarantees of the debt securities of its parent or the non-convertible securities of another majority-owned subsidiary where such securities are supported by the parent’s full and unconditional guarantee; or

• the subsidiary is registering non-convertible investment grade securities.

Issuers of asset-backed securities, foreign governmental issuers, investment company issuers and business development company issuers registered under the 1940 Act are not eligible for WKSI status.

Seasoned Issuers

“Seasoned issuers” are those issuers that do not qualify as WKSIs but that are eligible to make primary offerings of securities on Form S-3 or Form F-3.

24 The criteria for use of Form F-3 are described in Chapter 3 (The Securities Registration and Reporting Process) of this volume.

Unseasoned Issuers

“Unseasoned issuers” are those issuers that are required to file reports under the 1934 Act but are ineligible to make primary offerings on Form S-3 or F-3. Unseasoned issuers include issuers that voluntarily file reports under the 1934 Act even though they are not obligated to do so. Such unseasoned issuers are neither eligible for WKSI status nor seasoned issuer status.

Voluntary Filer Status

The facing sheets for Forms 10-K and 20-F require the issuer to state whether it is required to file reports pursuant to the 1934 Act. Issuers who file reports as technical volunteers must identify themselves as such. Most voluntary filers are obligors on debt securities. Because many issues of debt securities are held of record by less than 300 persons, the obligor’s reporting obligation under Section 15(d) automatically falls into suspense after the fiscal year in which the associated registration statement became effective. Voluntary filers of this type generally report to comply with indenture covenants to continue reporting, notwithstanding the suspension of the statutory duty. The SEC believes that investors should be aware that voluntary filers may, at least under the 1934 Act, stop reporting at any time.

Non-Reporting Issuers

“Non-reporting issuers” are issuers that do not file 1934 Act reports with the SEC voluntarily or otherwise. Generally, this category covers issuers filing their first registration statement with the SEC. Such an issuer becomes subject to 1934 Act reporting obligations upon effectiveness of its 1933 Act registration statement.

Ineligible Issuers

“Ineligible issuers” may not be WKSIs and are subject to certain other disabilities. As defined in Rule 405 under the 1933 Act, ineligible issuers include:

• issuers that are subject to the reporting requirements of the 1934 Act but are delinquent in filing those reports in the prior 12 months, except for certain current reports on Form 8-K or 6-K;²⁵

25 In the case of an asset-backed issuer, this would also include a delinquency by the depositor of another asset-backed issuer of a class of securities involving the same asset class established by the same depositor.

• issuers that are or have been in the past three years a blank check issuer,²⁶ shell company²⁷ or penny stock company;²⁸

• limited partnerships when offering securities other than in firm-commitment underwritings;

• issuers that have filed for bankruptcy or insolvency in the preceding three years;

• issuers, including subsidiaries, that in the past three years have been convicted of specified offenses under the 1934 Act or that are subject to a decree or order of a U.S. or non-U.S. court prohibiting conduct specified in the anti-fraud provisions of the federal securities laws; and

• issuers that are or have been in the past three years subject to certain administrative proceedings under the 1933 Act.

The disqualification for decrees and orders related to the anti-fraud provisions of the federal securities laws will include decrees and orders entered as part of settlements with the government, such as consent decrees, but do not apply to any settlement entered into before December 1, 2005. Disqualifications stemming from a subsidiary’s misconduct will only result if the issuer owned the subsidiary at the time of the actions in question, which will prevent an issuer acquiring a new subsidiary from becoming an ineligible issuer as the result of actions taken at a time before the subsidiary was acquired.

The SEC may determine, “upon a showing of good cause,” that an issuer otherwise covered by the definition should not be considered an ineligible issuer. The staff has authority under this provision to make the determination that an issuer need not be considered ineligible.

26 Rule 419(a)(2) under the 1933 Act defines a blank check company as a “development stage company that (i) has no specific business plan or purpose or has indicated that its business plan is to engage in a merger or acquisition with an unidentified company or other entity or person and (ii) is issuing ‘penny stock’ as defined in Rule 3a51-1 of 1934 Act.”

27 Rule 405 under the 1933 Act defines a shell company as a registrant, other than an asset-backed issuer as defined in Item 1101(b) of Regulation AB, that has:

(1) no or nominal operations; and (2) either:

(i) No or nominal assets;

(ii) Assets consisting only of cash or cash equivalents; or

(iii) Assets consisting of any amount of cash and cash equivalents and nominal other assets.

28 Rule 3a51-1 under the 1934 Act defines “penny stock” generally as an equity security with a price of less than U.S.$5.00 which is not listed on a national securities exchange. “Penny stock” typically comprises very low-priced, high-risk, speculative shares in unproven companies.

OFFERING DOCUMENTS

The preparation of the offering documents for a U.S. securities offering is a very important task, as these documents are the basis on which the securities are offered and sold.

These documents, together with the other information conveyed to investors at the time they decide to purchase offered securities (which we collectively call the “disclosure package”), are also the primary source of liability for issuers, their directors and controlling persons, underwriters and accounting firms.²⁹ The issuer and its counsel (with input from the underwriters or agents and their counsel, the issuer’s auditors and others) normally prepare the offering documents and typically review and comment on all other parts of the disclosure package. The issuer, the underwriters and their respective counsel perform the due diligence discussed in this chapter below under the heading “—Due Diligence” with a view to ensuring that the offering documents and other information contained in the disclosure package, including information incorporated therein by reference, contain no material misstatements and omit no material information.

Most offerings in the U.S. capital markets use at least two offering documents. The offering document initially distributed to the investors to solicit their interest is discussed in this chapter below under the heading “—Offering Documents—Primary Offering Document.” The other offering document contains the pricing terms and is sent to investors by the underwriters or agents, normally via a Bloomberg message or other electronic means. In the context of a 1933 Act-registered offering, this is a “free writing prospectus.” Most offering documents also incorporate information by reference from other documents filed by the issuer with the SEC that are electronically available to investors.

Free Writing Prospectus

A “free writing prospectus” is any written communication offering for sale securities registered under the 1933 Act, but does not include the prospectus forming part of the registration statement, limited announcements pursuant to Rules 134 and 135 under the 1933 Act, certain materials permitted by the rules for issuers of asset-backed securities or sales literature used after the effective date of a registration statement that is accompanied or preceded by a prospectus satisfying Section 10(a) of the 1933 Act.

Because a free writing prospectus is not a part of the registration statement, the Section 11 liability provisions of the 1933 Act do not apply to it. However, material misstatements and omissions in a free writing prospectus are actionable under Section 12(a)(2) of the 1933 Act.

Misleading disclosure in a free writing prospectus may also lead to liability under Section 17(a) of the 1933 Act, which is enforceable by the SEC, but not by private litigants, and liability under Rule 10b-5 under the 1934 Act.

29 See Chapter 17 (Liabilities under U.S. Securities Laws) of this volume.

Pre-Filing Free Writing Prospectuses by WKSIs

Rule 163 under the 1933 Act provides that it is not gun jumping³⁰ for WKSIs to make oral and written communications about an offering of securities prior to filing a 1933 Act registration statement. The written offers are considered free writing prospectuses, must contain a prescribed legend and, with some exceptions, must be filed with the SEC “promptly” upon the filing of the registration statement. There are cure provisions for “immaterial or unintentional”

failures to include the required legend or make the required filing. Rule 163 may not be used by prospective underwriters or other offering participants on behalf of a WKSI issuer. Rule 163 is not available to investment companies, business development companies or acquisitions being registered under the 1933 Act.

Post-filing Free Writing Prospectuses

Pursuant to Rule 164 under the 1933 Act, a free writing prospectus may be used by the issuer or any offering participant after the filing of a registration statement. The rule prescribes eligibility conditions and makes provisions for the cure of certain compliance failures, which are similar to the cure provisions in Rule 163. Rule 433 under the 1933 Act sets out the filing, delivery, notice and recordkeeping conditions to the use of a free writing prospectus.

Certain issuers are not eligible to use free writing prospectuses, including investment companies and business development companies and issuers that are, or have been in the past three years, blank check companies, certain shell issuers and penny stock issuers. The ability of ineligible issuers to use of a free writing prospectus is limited to providing descriptions of the offerings, the terms of the securities being offered and, for issuers of asset-backed securities, certain specified information from Regulation AB.

The following conditions apply to the use of the free writing prospectus under Rule 433:

• issuers other than WKSIs must have filed with the SEC a 1933 Act registration statement that includes a prospectus satisfying Section 10 of the 1933 Act;

• unseasoned and non-reporting issuers must make prior or contemporaneous delivery (which might be satisfied by hyperlink access) of the prospectus satisfying Section 10;

• information in the free writing prospectus, “the substance of which is not included in the registration statement,” may not “conflict” with information that is part of the registration statement, including 1934 Act reports incorporated by reference;

• the free writing prospectus must include a prescribed legend directing investors to the prospectus in the registration statement;

30 For a further discussion of gun jumping, see the discussion in this chapter below under the heading “—

Limitations on Publicity—Rules That Apply to a 1933 Act-Registered Offering.”