TABLE OF KEY CONCEPTS

SOR as it relates to liberalizing communications while an issuer is “in registration” builds on the existing conceptual scheme of things, redefining in particular contexts Securities Act terms like the Section 2(a)(10) definition of “prospectus” and the Section 2(a)(3) definition of “offer to sell,” and providing exemptions (e.g., from Section 5(c)) when and to the extent necessary to accomplish the liberalization objectives. The Proposing Release included a table that tied together the manner in which the proposed rules conceptually liberalized communications within the Section 5 framework while an issuer is in registration. The table was modified in some limited respects in the Adopting Release. Because it is helpful in understanding the conceptual basis and underlying implications of a number of SOR rules, we have extracted the table from the Adopting Release and reproduce it below:^{^[1]}

	Could it be an “offer” as defined in Section 2(a)(3)?	Is it a “prospectus” as defined in Section 2(a)(10)?	Is it a prohibited pre-filing offer for purposes of Section 5(c)?	Is it a prohibited prospectus for purposes of Section 5(b)(1)?		Comments of the author
Regularly Released Factual Business Information	Yes	No [R. 168 for reporting companies; R. 169 for non-reporting companies. See conditions]	Rule defines it as not an offer for Section 5(c) purposes	Section 5(b)(1) relates only to “prospectuses”—it is not applicable		Available to ineligible issuers; not a prospectus
Regularly Released Forward-Looking Information	Yes	No [R. 168 for reporting companies. See conditions]	Rule defines it as not an offer for Section 5(c) purposes	Section 5(b)(1) relates only to “prospectuses”—it is not applicable		Is NOT available to a non-reporting issuer. Is available to a reporting ineligible issuer.
Communications Made More Than 30 Days Before Filing of Registration Statement	Yes	Possibly, based on facts and circumstances [Rule 163A. See condition re reasonable steps to keep it from being used within 30 days of filing]	Rule defines it as not an offer for Section 5(c) purposes	Section 5(b)(1) does not apply in the pre-filing period—it is not applicable		Not a free writing prospectus and no filing requirement. NOT available if company is or was during past 3 years a shell company, blank check company, or made penny stock offering
Well-Known Seasoned Issuers—Oral Offers Made Within 30 Days of Filing of Registration Statement [any time before filing)]	Yes [Rule 163]	No	Is exempted from prohibition of Section 5(c)	Section 5(b)(1) does not apply in the pre-filing period—it is not applicable		Rule 163 covers both written and oral offers. Written offers as noted below have to be filed, but oral offers do not. N0T available for ineligible issuers
Well-Known Seasoned Issuers—Written Offers Made Within 30 Days of Filing of Registration Statement [any time before filing)]	Yes	Yes. It also, would be a free writing prospectus [Legend required]	Is exempted from prohibition of Section 5(c) [Rule 163]		Section 5(b)(1) does not apply in the pre-filing period—it is not applicable	If a written offer is a free writing prospectus. Must be filed when file registration statement. Is not part of the registration statement.
Well-Known Seasoned Issuers—Free Writing Prospectuses Used Before Filing of Registration Statement	Yes	Yes	Is exempted from prohibition of Section 5(c)		Section 5(b)(1) does not apply in the pre-filing period—it is not applicable	Not available for ineligible issuers. Filed when file registration statement]
Identifying Statements in Accordance with Rule 134	Yes	No [Rule 134; is existing R. 134 with some changes]	Section 5(c) is not applicable, as Rule 134 relates only to the period after the filing of a registration statement		Section 5(b)(1) relates only to “prospectuses”—it is not applicable	Available to ineligible issuers. If solicit indication of interest must be preceded or accompanied by a preliminary prospectus including offering price range in case of a non-reporting company
All Eligible Issuers—Free Writing Prospectuses Used After Filing of Registration Statement	Yes	Yes	Section 5(c) would not be applicable, as it does not apply in the post-filing period		Section 5(b)(1) will be satisfied, as the free writing prospectus will be a permitted Section 10(b) prospectus [R. 433]	Not available to ineligible issuers. Non-reporting and unseasoned reporting issuers must be accompanied or preceded by preliminary prospectus. Filing/legend requirements.

^{^[1]} Sec. Act Release No. 8591 (July 19, 2005), 2005 WL 1692642, at *21, also available at http://www.sec.gov/rules/final/33-8591.pdf.