SECTION 2
Forms
Title 2
Title 3
Title 4

SECTION 3
Securities Act
Exchange Act
Sarbanes-Oxley Act
SOX TABLE
Title 5

SECTION 4
'33 ACT Reg
'34 ACT Reg
Reg. S-K
 

Title 4
Title 5
Title 6

Written communication published or distributed by the media as a free writing prospectus

Rule 433(f)[1], possibly with the GOOGLE/Playboy incident in mind, provides that any written offer including information provided, authorized or approved by the issuer or other offering participant that is published or disseminated by unaffiliated persons in the business of publishing, radio or television broadcasting or otherwise disseminating information shall be deemed a free writing prospectus prepared by or on behalf of the issuer or as appropriate other offering participant. Provided no payment or consideration is paid by the issuer or offering participant for the publication, such a free writing prospectus is subject to a somewhat different regimen. The publication is not subject to the restriction on including information in conflict with the prospectus (See § 1:10) and does not have to include the prescribed legend, but the issuer or other offering participant as appropriate must file the written communication with the Commission with the required legend within four business day after becoming aware of the publication or dissemination.[2]

The issuer or other offering participant as appropriate is not required to file such free writing prospectus if the substance of the information has been filed previously.[3] The filed media publication may “include information that the issuer or offering participant in question reasonably believes is necessary or appropriate to correct information included in the communication.”[4] In lieu of filing the media publication, the filer “may file a copy of the materials provided to the media, including transcripts of interviews or similar materials, provided the copy or transcripts contain all the information provided to the media.”[5]

The Adopting Release states specifically with respect to media publications subject to the regimen described above, “[p]ersons in the media have no filing or other responsibilities under these provisions.”[6].If, however, the issuer of the securities offered is in the business of publishing or radio or television broadcasting it may rely on the foregoing regimen relating to media publications that are free writing prospectus pertaining to an offering by it, subject to the following conditions:[7]

1.       Is the publisher of a bona fide newspaper, magazine, or business or financial publication of general and regular circulation or bona fide broadcaster of news including business and financial news;

2.       Has established policies and procedures for the independence of the content of the publications or broadcasts from the offering activities of the issuer; and

3.       Publishes or broadcasts the communication in the ordinary course.

The Adopting Release in discussing the definition of a free writing prospectus includes a comment that also should be relevant in determining whether a media publication is an offer by the issuer or the information was provided or authorized by the issuer for purposes of Rule 433(f) and provide guidance when the issuer or other offering participant are contacted by the media.. The Adopting Release stated in that context as follows:[8]

While the definition of "offer" is broad, not all communications relating to an offering are offers or offers by an offering participant. As a non-exclusive illustration, the gun-jumping provisions have been administered in a manner that excludes from categorization as an offer a media publication or television or radio broadcast that is based solely on information that is filed with us or available on an unrestricted basis or on other information the dissemination of which did not represent an offer by an issuer or other offering participant, where there is no other involvement or participation by an offering participant. On that basis, for example, a newspaper article about an initial public offering that is based on the filed registration statement, on a press release that is filed with or furnished to us, on a filed free writing prospectus, or on filed issuer information where the issuer and other offering participants have refused to comment and not otherwise been involved, would not be categorized as an offer under the gun-jumping provisions

If the issuer is a non-reporting or unseasoned company, the preliminary prospectus delivery requirements that are applicable to such issuers with respect to free writing prospectuses are not applicable if no payment is made for publication.[9] If payment were made by the issuer or a participant in the offering for the publication it would be subject to the same filing, legend, delivery of a preliminary prospectus (as to a non-reporting or unseasoned issuer,[10])and. requirements applicable to a free writing prospectus generally.[11] As noted at at § 1:12, underwriters and participants in the offering other than the issuer are required to file free writing prospectuses used by them only in the event of a “broad unrestricted dissemination,”[12] and for this purpose releasing information by such offering participants to the media constitutes a broad unrestricted dissemination requiring the participant releasing the information to comply with the foregoing filing requirements.[13]

Rule 433 and archived historical information on the Web

Rule 433(e)(1)[14] provides that a communication on the issuer’s website or hyperlinked on its web site to a third party’s web site that constitutes an offer of the securities “is a written offer of such securities by the issuer” and unless otherwise exempt (presumably, e.g. by Rule 168 or 169) from Section 5(b)(1) is a free writing prospectus and subject to the filing requirements described above. This, of course, follows in view of the Rule 405 definition of graphic communications as a written communication.[15] See § 1:10 What is interesting is that the Commission took the occasion to provide that “historical information that is identified as such” and located in a separate section of the website “will not be considered a current offer of the issuer's securities and therefore will not be a free writing prospectus.[16] The exclusion for such historical information is available, however, only if such information “has not been incorporated by reference into or otherwise included in a prospectus of the issuer for the offering and that has not otherwise been used or referred to in connection with the offering.”[17] The Adopting Release notes that historical information not included in a separate section of the web site may not constitute an offer, stating: “For example, certain information that, while not contained in a separate section of an issuer's web site, is dated or otherwise identified as historical information and is not referred to in connection with the offering activities may not be a current offer, depending on the particular facts and circumstances.”[18]