Hypothetical 6--Delivery of  Preliminary Prospectus/Acceleration--Questions
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Part I. Delivery of  Preliminary Prospectus--Question

1. What is a so-called red herring prospectus?

2. What sort of legend must be included on the cover page of a Preliminary Prospectus.

3. What information may be omitted from the preliminary prospectus? See Rule 430(a).

4. What does Regulation S-K Item 501(b)(3)(Instruction 1(A)) provide must be included on the cover page of a Preliminary Prospectus in connection with an IPO with respect to the offering price and the number of shares being offered?

5. Does the Preliminary Prospectus included in the initial filing of the registration statement of Salesforce.Com include the estimated range of offering price and maximum number of shares being offered? At what point in the registration process did Salesforce.Com include the estimated range of offering price and the estimated number of shares to be offered on the cover page of the Preliminary Prospectus? Did it change the range before it became effective? At what price was the offering made? See Salesforce.Com Registration Statement. (Use bookmarks to navigate).

6. A Preliminary Prospectus in connection with an IPO that does not include an estimated range of offering price and number of shares to be offered is sometimes referred to as a pink prospectus. Can you circulate a preliminary prospectus in an IPO that does not include an estimate of the range of offering price and the maximum number of shares being offered? At what point do you presume, the Preliminary Prospectus of Domino’s Pizza was circulated?

7. Is there any specific regulation that provides “thou shall circulate a Preliminary Prospectus during the waiting period”? If there is not, why is it circulated?

8. RTC Securities, a member of the AnimateEase selling group, ran out of its supply of preliminary prospectuses. Several of its customers solicited for indications of interest requested a copy of the preliminary prospectus. None were sent to them. What are the implications?

9. What steps, if any, must participants in the distribution of an IPO take to deliver a preliminary prospectus, and to whom, and when, whether or not requested?

10. What steps, if any, must a broker-dealer participating in the distribution of an IPO take to make available copies of the Preliminary Prospectus to persons associated with the broker-dealer?

11. Who has the responsibility to assure that there is a supply of the Preliminary Prospectus available to anyone who may have an obligation to deliver or otherwise make the Preliminary Prospectus available?

12. What changes does SOR make with respect to the delivery prospectus?  See § 1:18          Delivery of a preliminary prospectus after SOR

                                                                      
 

 Part II. Amendments and Acceleration

The registration statement is filed on a date certain (hereinafter F-Day for filing date). The registration statement is reviewed by an examining group in the SEC's Division of Corporation Finance. The branch chief sends AnimatEase's outside counsel, on a date certain (e.g. 30 days from F-Day) (hereinafter C-Day for comment date) a six page comment (deficiency) letter pointing out the respects in which the prospectus might (could, should, must) be changed, in some instances asking for clarification and/or supplemental information. Issuer, underwriter, and their respective counsel (perhaps, after a call or two to the Branch Chief to discuss a comment(s)) prepare Amendment No. 1 to the registration statement and file it with the Commission on a date certain (e.g. 10 days after C-Day) (hereinafter A-Day). This amendment, like the initial filing, does not include the so-called pricing information as it has not been determined as yet. Several days later (e.g. five days), on a Monday, the branch chief calls outside counsel, tells him/her the staff will have no further comments and they agree that the registration statement will go effective the following Wednesday morning (hereinafter E-Day for effective date). On Tuesday night preceding E-Day, the underwriter, issuer, and respective counsel meet to execute the underwriting documents and negotiate the final offering price and the underwriter's discount.

1. Under Section 8(a) of the Securities Act, when does a registration statement becomes effective?  What did the registrant do to keep it from coming effective on that date and why would it want to do so?

2. When it files the Amendment on A-Day, does that start a new waiting period?  How can a registrant obtain an earlier effective date? See Rule 460 and 461.

3. Review Rule 15c2-8 in connection with these Hypotheticals. See also ABOVE. How does that fit in with the request for acceleration?

4. If between F-Day and A-Day there have been substantial material developments, all disclosed in the amended prospectus included in the registration statement filed on A-Day, what, if anything, should be done if acceleration of the effective date is important, as is invariably the case?