15 U.S.C. § 77f — Registration of securities

Page 138 TITLE 15—COMMERCE AND TRADE § 77f tion rules related to research reports, including those contained in rules governing communications with the public, or to require the filing of communications with the public the purpose of which is not to provide research and analysis of covered investment funds. ‘‘(d) INTERIM EFFECTIVENESS OF SAFE HARBOR.— ‘‘(1) IN GENERAL.—From and after the 270-day period beginning on the date of enactment of this Act, if the Commission has not adopted revisions to section 230.139 of title 17, Code of Federal Regulations, as re- quired by subsection (a), and until such time as the Commission has done so, a broker or dealer distrib- uting or publishing a covered investment fund re- search report after such date shall be able to rely on the provisions of section 230.139 of title 17, Code of Federal Regulations, and the broker or dealer’s publi- cation of such report shall be deemed to satisfy the conditions of paragraph (1) or (2) of section 230.139(a) of title 17, Code of Federal Regulations, if the covered investment fund that is the subject of such report satisfies the reporting history requirements (without regard to Form S–3 or Form F–3 eligibility) and min- imum float provisions of such subsections for pur- poses of the Commission’s rules and regulations under the Federal securities laws and the rules of any self-regulatory organization, as if revised and imple- mented in accordance with subsections (a) and (b). ‘‘(2) STATUS OF COVERED INVESTMENT FUND.—After such period and until the Commission has adopted re- visions to section 230.139 of title 17, Code of Federal Regulations, and FINRA has revised rule 2210, for purposes of subsection (c)(7)(O) of such rule, a covered investment fund shall be deemed to be a security that is listed on a national securities exchange and that is not subject to section 24(b) of the Investment Com- pany Act of 1940 (15 U.S.C. 80a–24(b)). ‘‘(3) COVERED INVESTMENT FUNDS COMMUNICATIONS.— ‘‘(A) IN GENERAL.—Except as provided in subpara- graph (B), communications that concern only cov- ered investment funds that fall within the scope of section 24(b) of the Investment Company Act of 1940 (15 U.S.C. 80a–24(b)) shall not be required to be filed with FINRA. ‘‘(B) EXCEPTION.—FINRA may require the filing of communications with the public if the purpose of those communications is not to provide research and analysis of covered investment funds. ‘‘(e) EXCEPTION.—The safe harbor under subsection (a) shall not apply to the publication or distribution by a broker or a dealer of a covered investment fund re- search report, the subject of which is a business devel- opment company or a registered closed-end investment company, during the time period described in section 230.139(a)(1)(i)(A)(1) of title 17, Code of Federal Regula- tions, except where expressly permitted by the rules and regulations of the Securities and Exchange Com- mission under the Federal securities laws. ‘‘(f) DEFINITIONS.—For purposes of this Act: ‘‘(1) The term ‘affiliated person’ has the meaning given the term in section 2(a) of the Investment Com- pany Act of 1940 (15 U.S.C. 80a–2(a)). ‘‘(2) The term ‘covered investment fund’ means— ‘‘(A) an investment company registered under, or that has filed an election to be treated as a business development company under, the Investment Com- pany Act of 1940 (15 U.S.C. 80a–1 et seq.) and that has filed a registration statement under the Securi- ties Act of 1933 (15 U.S.C. 77a et seq.) for the public offering of a class of its securities, which registra- tion statement has been declared effective by the Commission; and ‘‘(B) a trust or other person— ‘‘(i) issuing securities in an offering registered under the Securities Act of 1933 (15 U.S.C. 77a et seq.) and which class of securities is listed for trading on a national securities exchange; ‘‘(ii) the assets of which consist primarily of commodities, currencies, or derivative instru- ments that reference commodities or currencies, or interests in the foregoing; and ‘‘(iii) that provides in its registration statement under the Securities Act of 1933 (15 U.S.C. 77a et seq.) that a class of its securities are purchased or redeemed, subject to conditions or limitations, for a ratable share of its assets. ‘‘(3) The term ‘covered investment fund research re- port’ means a research report published or distrib- uted by a broker or dealer about a covered invest- ment fund or any securities issued by the covered in- vestment fund, but does not include a research report to the extent that the research report is published or distributed by the covered investment fund or any af- filiate of the covered investment fund, or any re- search report published or distributed by any broker or dealer that is an investment adviser (or an affili- ated person of an investment adviser) for the covered investment fund. ‘‘(4) The term ‘FINRA’ means the Financial Indus- try Regulatory Authority. ‘‘(5) The term ‘investment adviser’ has the meaning given the term in section 2(a) of the Investment Com- pany Act of 1940 (15 U.S.C. 80a–2(a)). ‘‘(6) The term ‘research report’ has the meaning given that term under section 2(a)(3) of the Securities Act of 1933 (15 U.S.C. 77b(a)(3)), except that such term shall not include an oral communication. ‘‘(7) The term ‘self-regulatory organization’ has the meaning given that term under section 3(a)(26) of the Securities Exchange Act of 1934 (15 U.S.C. 78c(a)(26)).’’ INCREASED ACCESS TO FOREIGN BUSINESS INFORMATION Pub. L. 104–290, title I, § 109, Oct. 11, 1996, 110 Stat. 3426, provided that: ‘‘Not later than 1 year after the date of enactment of this Act [Oct. 11, 1996], the Com- mission shall adopt rules under the Securities Act of 1933 [15 U.S.C. 77a et seq.] concerning the status under the registration provisions of the Securities Act of 1933 of foreign press conferences and foreign press releases by persons engaged in the offer and sale of securities.’’ § 77f. Registration of securities (a) Method of registration Any security may be registered with the Com- mission under the terms and conditions herein- after provided, by filing a registration state- ment in triplicate, at least one of which shall be signed by each issuer, its principal executive of- ficer or officers, its principal financial officer, its comptroller or principal accounting officer, and the majority of its board of directors or per- sons performing similar functions (or, if there is no board of directors or persons performing similar functions, by the majority of the persons or board having the power of management of the issuer), and in case the issuer is a foreign or Ter- ritorial person by its duly authorized represent- ative in the United States; except that when such registration statement relates to a secu- rity issued by a foreign government, or political subdivision thereof, it need be signed only by the underwriter of such security. Signatures of all such persons when written on the said reg- istration statements shall be presumed to have been so written by authority of the person whose signature is so affixed and the burden of proof, in the event such authority shall be de- nied, shall be upon the party denying the same. The affixing of any signature without the au- thority of the purported signer shall constitute a violation of this subchapter. A registration statement shall be deemed effective only as to the securities specified therein as proposed to be offered. Page 139 TITLE 15—COMMERCE AND TRADE § 77f 1 See Adjustment of Registration Fee Rate notes below. 2 See References in Text note below. (b) Registration fee (1) Fee payment required At the time of filing a registration state- ment, the applicant shall pay to the Commis- sion a fee at a rate that shall be equal to $92 1 per $1,000,000 of the maximum aggregate price at which such securities are proposed to be of- fered, except that during fiscal year 2003 and any succeeding fiscal year such fee shall be ad- justed pursuant to paragraph (2). (2) Annual adjustment For each fiscal year, the Commission shall by order adjust the rate required by paragraph (1) for such fiscal year to a rate that, when ap- plied to the baseline estimate of the aggregate maximum offering prices for such fiscal year, is reasonably likely to produce aggregate fee collections under this subsection that are equal to the target fee collection amount for such fiscal year. (3) Pro rata application The rates per $1,000,000 required by this sub- section shall be applied pro rata to amounts and balances of less than $1,000,000. (4) Review and effective date In exercising its authority under this sub- section, the Commission shall not be required to comply with the provisions of section 553 of title 5. An adjusted rate prescribed under para- graph (2) and published under paragraph (5) shall not be subject to judicial review. An ad- justed rate prescribed under paragraph (2) shall take effect on the first day of the fiscal year to which such rate applies. (5) Publication The Commission shall publish in the Federal Register notices of the rate applicable under this subsection and under sections 78m(e) and 78n(g) 2 of this title for each fiscal year not later than August 31 of the fiscal year pre- ceding the fiscal year to which such rate ap- plies, together with any estimates or projec- tions on which such rate is based. (6) Definitions For purposes of this subsection: (A) Target fee collection amount The target fee collection amount for each fiscal year is determined according to the following table: Fiscal year: Target fee collection amount 2002 .............................. $377,000,000 2003 .............................. $435,000,000 2004 .............................. $467,000,000 2005 .............................. $570,000,000 2006 .............................. $689,000,000 2007 .............................. $214,000,000 2008 .............................. $234,000,000 2009 .............................. $284,000,000 2010 .............................. $334,000,000 2011 .............................. $394,000,000 2012 .............................. $425,000,000 2013 .............................. $455,000,000 Fiscal year: Target fee collection amount 2014 .............................. $485,000,000 2015 .............................. $515,000,000 2016 .............................. $550,000,000 2017 .............................. $585,000,000 2018 .............................. $620,000,000 2019 .............................. $660,000,000 2020 .............................. $705,000,000 2021 and each fiscal year thereafter. An amount that is equal to the target fee collection amount for the prior fis- cal year, adjusted by the rate of inflation. (B) Baseline estimate of the aggregate max- imum offering prices The baseline estimate of the aggregate maximum offering prices for any fiscal year is the baseline estimate of the aggregate maximum offering price at which securities are proposed to be offered pursuant to reg- istration statements filed with the Commis- sion during such fiscal year as determined by the Commission, after consultation with the Congressional Budget Office and the Of- fice of Management and Budget, using the methodology required for projections pursu- ant to section 907 of title 2. (c) Time registration effective The filing with the Commission of a registra- tion statement, or of an amendment to a reg- istration statement, shall be deemed to have taken place upon the receipt thereof, but the fil- ing of a registration statement shall not be deemed to have taken place unless it is accom- panied by a United States postal money order or a certified bank check or cash for the amount of the fee required under subsection (b). (d) Information available to public The information contained in or filed with any registration statement shall be made available to the public under such regulations as the Com- mission may prescribe, and copies thereof, pho- tostatic or otherwise, shall be furnished to every applicant at such reasonable charge as the Com- mission may prescribe. (e) Emerging growth companies (1) In general Any emerging growth company, prior to its initial public offering date, may confidentially submit to the Commission a draft registration statement, for confidential nonpublic review by the staff of the Commission prior to public filing, provided that the initial confidential submission and all amendments thereto shall be publicly filed with the Commission not later than 15 days before the date on which the issuer conducts a road show, as such term is defined in section 230.433(h)(4) of title 17, Code of Federal Regulations, or any successor thereto. An issuer that was an emerging growth company at the time it submitted a confidential registration statement or, in lieu thereof, a publicly filed registration statement for review under this subsection but ceases to be an emerging growth company thereafter shall continue to be treated as an emerging market growth company for the purposes of this subsection through the earlier of the date Page 140 TITLE 15—COMMERCE AND TRADE § 77f on which the issuer consummates its initial public offering pursuant to such registrations statement or the end of the 1-year period be- ginning on the date the company ceases to be an emerging growth company. (2) Confidentiality Notwithstanding any other provision of this subchapter, the Commission shall not be com- pelled to disclose any information provided to or obtained by the Commission pursuant to this subsection. For purposes of section 552 of title 5, this subsection shall be considered a statute described in subsection (b)(3)(B) of such section 552. Information described in or obtained pursuant to this subsection shall be deemed to constitute confidential information for purposes of section 78x(b)(2) of this title. (May 27, 1933, ch. 38, title I, § 6, 48 Stat. 78; Pub. L. 89–289, § 1, Oct. 22, 1965, 79 Stat. 1051; Pub. L. 100–181, title II, § 205, Dec. 4, 1987, 101 Stat. 1252; Pub. L. 104–290, title IV, § 404, Oct. 11, 1996, 110 Stat. 3441; Pub. L. 107–123, § 4, Jan. 16, 2002, 115 Stat. 2393; Pub. L. 111–203, title IX, § 991(b)(1), July 21, 2010, 124 Stat. 1951; Pub. L. 112–106, title I, § 106(a), Apr. 5, 2012, 126 Stat. 312; Pub. L. 114–94, div. G, title LXXI, §§ 71001, 71002, Dec. 4, 2015, 129 Stat. 1783.) Editorial Notes REFERENCES IN TEXT Sections 78m(e) and 78n(g) of this title, referred to in subsec. (b)(5), were in the original, ‘‘sections 13(e) and 14(g)’’ and were translated as meaning sections 13(e) and 14(g) of the Securities Exchange Act of 1934 to re- flect the probable intent of Congress. AMENDMENTS 2015—Subsec. (e)(1). Pub. L. 114–94 substituted ‘‘15 days’’ for ‘‘21 days’’ and inserted at end ‘‘An issuer that was an emerging growth company at the time it sub- mitted a confidential registration statement or, in lieu thereof, a publicly filed registration statement for re- view under this subsection but ceases to be an emerg- ing growth company thereafter shall continue to be treated as an emerging market growth company for the purposes of this subsection through the earlier of the date on which the issuer consummates its initial public offering pursuant to such registrations statement or the end of the 1-year period beginning on the date the company ceases to be an emerging growth company.’’ 2012—Subsec. (e). Pub. L. 112–106 added subsec. (e). 2010—Subsec. (b). Pub. L. 111–203, § 991(b)(1)(A)–(G), in par. (5), substituted ‘‘target fee’’ for ‘‘target offsetting’’ and, in par. (11)(A), substituted ‘‘Target fee’’ for ‘‘Tar- get offsetting’’ in heading and table and ‘‘target fee’’ for ‘‘target offsetting’’ in introductory provisions, re- designated pars. (2), (5), (7), (10), and (11) as (1), (2), (3), (5), and (6), respectively, and struck out former pars. (1), (3), (4), (6), (8), and (9) which related to recovery of cost of services, offsetting collections, prohibition of treatment of fees as general revenues, final rate adjust- ment, review and effective date of rates, and rate dur- ing lapse of appropriation, respectively. Subsec. (b)(1). Pub. L. 111–203, § 991(b)(1)(H), sub- stituted ‘‘paragraph (2).’’ for ‘‘paragraph (5) or (6).’’ Subsec. (b)(2). Pub. L. 111–203, § 991(b)(1)(I), sub- stituted ‘‘For each fiscal year’’ for ‘‘For each of the fis- cal years 2003 through 2011’’ and ‘‘paragraph (1)’’ for ‘‘paragraph (2)’’. Subsec. (b)(4). Pub. L. 111–203, § 991(b)(1)(J), added par. (4). Former par. (4) struck out. Subsec. (b)(5). Pub. L. 111–203, § 991(b)(1)(K), sub- stituted ‘‘August 31’’ for ‘‘April 30’’. Subsec. (b)(6)(A). Pub. L. 111–203, § 991(b)(1)(L), sub- stituted ‘‘each fiscal year’’ for ‘‘each of the fiscal years 2002 through 2011’’ in introductory provisions and, in table, added items for fiscal years 2012 to 2021 and each fiscal year thereafter. 2002—Subsec. (b)(2) to (11). Pub. L. 107–123 added pars. (2) to (11) and struck out former pars. (2) to (5), which required fee payment, set out rates for general revenue and offsetting collection fees, and required pro rata rates for amounts and balances equal to less than $1,000,000. 1996—Subsec. (b). Pub. L. 104–290 inserted heading and amended text of subsec. (b) generally. Prior to amend- ment, text read as follows: ‘‘At the time of filing a reg- istration statement the applicant shall pay to the Com- mission a fee of one-fiftieth of 1 per centum of the max- imum aggregate price at which such securities are pro- posed to be offered, but in no case shall such fee be less than $100.’’ 1987—Subsec. (e). Pub. L. 100–181 struck out subsec. (e) which provided that no registration statement should be filed within the first 40 days following May 27, 1933. 1965—Subsec. (b). Pub. L. 89–289 substituted ‘‘one-fif- tieth’’ for ‘‘one one-hundredth’’ and ‘‘$100’’ for ‘‘$25’’. Statutory Notes and Related Subsidiaries EFFECTIVE DATE OF 2010 AMENDMENT Pub. L. 111–203, title IX, § 991(b)(4), July 21, 2010, 124 Stat. 1953, provided that: ‘‘The amendments made by this subsection [amending this section and sections 78m and 78n of this title] shall take effect on October 1, 2011, except that for fiscal year 2012, the [Securities and Ex- change] Commission shall publish the rate established under section 6(b) of the Securities Act of 1933 (15 U.S.C. 77f(b)), as amended by this Act, on August 31, 2011.’’ EFFECTIVE DATE OF 2002 AMENDMENT Amendment by Pub. L. 107–123 effective Oct. 1, 2001, except that authorities provided by subsec. (b)(9) of this section to not apply until Oct. 1, 2002, see section 11 of Pub. L. 107–123, set out as a note under section 78ee of this title. EFFECTIVE DATE OF 1965 AMENDMENT Pub. L. 89–289, § 2, Oct. 22, 1965, 79 Stat. 1051, provided that: ‘‘The amendment made by the first section of this Act [amending this section] shall take effect January 1, 1966.’’ INCREASE IN REGISTRATION FEES AND DEPOSIT INTO TREASURY Pub. L. 105–46, § 113, Sept. 30, 1997, 111 Stat. 1156, pro- vided that the amount made available to the Securities and Exchange Commission, under the heading Salaries and Expenses, was to include, in addition to direct ap- propriations, the amount collected under the fee rate and offsetting collection authority contained in Public Law 104–208, which fee rate and offsetting collection au- thority was to remain in effect during the period of Pub. L. 105–46 which provided continuing appropria- tions for fiscal year 1998. Pub. L. 104–208, div. A, title I, § 101(a) [title V], Sept. 30, 1996, 110 Stat. 3009, 3009–61, which provided in part that on Sept. 30, 1996, the rate of fees under subsec. (b) of this section were increased from one-fiftieth of one percentum to one-thirty-third of one percentum, and such increase was to be deposited as an offsetting col- lection to this appropriation, to remain available until expended, to recover costs of services of the securities registration process, was from the Departments of Commerce, Justice, and State, the Judiciary, and Re- lated Agencies Appropriations Act, 1997, and was not repeated in subsequent appropriations acts. Similar provisions were contained in the following prior appro- priation acts: Pub. L. 104–134, title I, § 101[(a)] [title V], Apr. 26, 1996, 110 Stat. 1321, 1321–60; renumbered title I, Pub. L. 104–140, § 1(a), May 2, 1996, 110 Stat. 1327. Page 141 TITLE 15—COMMERCE AND TRADE § 77g Pub. L. 104–99, title II, § 209, Jan. 26, 1996, 110 Stat. 37. Pub. L. 104–56, § 119, Nov. 20, 1995, 109 Stat. 552. Pub. L. 104–54, § 119, Nov. 19, 1995, 109 Stat. 544. Pub. L. 104–31, § 120, Sept. 30, 1995, 109 Stat. 282. Pub. L. 103–352, Oct. 10, 1994, 108 Stat. 3148. Pub. L. 103–121, title I, Oct. 27, 1993, 107 Stat. 1168. Pub. L. 102–395, title I, Oct. 6, 1992, 106 Stat. 1848. Pub. L. 102–140, title I, Oct. 28, 1991, 105 Stat. 798. Pub. L. 101–515, title V, Nov. 5, 1990, 104 Stat. 2139. Pub. L. 101–162, title V, Nov. 21, 1989, 103 Stat. 1022. ADJUSTMENT OF REGISTRATION FEE RATE By order dated Aug. 25, 2023, the Securities and Ex- change Commission adjusted the fee rates applicable under subsec. (b) of this section to $147.60 per $1,000,000, effective Oct. 1, 2023, see 88 F.R. 59953. By order dated Aug. 25, 2022, the Securities and Ex- change Commission adjusted the fee rates applicable under subsec. (b) of this section to $110.20 per $1,000,000, effective Oct. 1, 2022, see 87 F.R. 53030. By order dated Aug. 23, 2021, the Securities and Ex- change Commission adjusted the fee rates applicable under subsec. (b) of this section to $92.70 per $1,000,000, effective Oct. 1, 2021, see 86 F.R. 47696. By order dated Aug. 26, 2020, the Securities and Ex- change Commission adjusted the fee rates applicable under subsec. (b) of this section to $109.10 per $1,000,000, effective Oct. 1, 2020, see 85 F.R. 53890. By order dated Aug. 23, 2019, the Securities and Ex- change Commission adjusted the fee rates applicable under subsec. (b) of this section to $129.80 per $1,000,000, effective Oct. 1, 2019, see 84 F.R. 45601. By order dated Aug. 24, 2018, the Securities and Ex- change Commission adjusted the fee rates applicable under subsec. (b) of this section to $121.20 per $1,000,000, effective Oct. 1, 2018, see 83 F.R. 44101. By order dated Aug. 24, 2017, the Securities and Ex- change Commission adjusted the fee rates applicable under subsec. (b) of this section to $124.50 per $1,000,000, effective Oct. 1, 2017, see 82 F.R. 41080. By order dated Aug. 30, 2016, the Securities and Ex- change Commission adjusted the fee rates applicable under subsec. (b) of this section to $115.90 per $1,000,000, effective Oct. 1, 2016, see 81 F.R. 61283. By order dated Aug. 26, 2015, the Securities and Ex- change Commission adjusted the fee rates applicable under subsec. (b) of this section to $100.70 per $1,000,000, effective Oct. 1, 2015, see 80 F.R. 52824. By order dated Aug. 29, 2014, the Securities and Ex- change Commission adjusted the fee rates applicable under subsec. (b) of this section to $116.20 per $1,000,000, effective Oct. 1, 2014, see 79 F.R. 52771. By order dated Aug. 30, 2013, the Securities and Ex- change Commission adjusted the fee rates applicable under subsec. (b) of this section to $128.80 per $1,000,000, effective Oct. 1, 2013, see 78 F.R. 54934. By order dated Aug. 31, 2012, the Securities and Ex- change Commission adjusted the fee rates applicable under subsec. (b) of this section to $136.40 per $1,000,000, effective Oct. 1, 2012, see 77 F.R. 55240. By order dated Aug. 31, 2011, the Securities and Ex- change Commission adjusted the fee rates applicable under subsec. (b) of this section to $114.60 per $1,000,000, effective Oct. 1, 2011, see 76 F.R. 55139. Executive Documents TRANSFER OF FUNCTIONS For transfer of functions of Securities and Exchange Commission, with certain exceptions, to Chairman of such Commission, see Reorg. Plan No. 10 of 1950, §§ 1, 2, eff. May 24, 1950, 15 F.R. 3175, 64 Stat. 1265, set out under section 78d of this title. § 77g. Information required in registration state- ment (a) Information required in registration state- ment (1) In general The registration statement, when relating to a security other than a security issued by a foreign government, or political subdivision thereof, shall contain the information, and be accompanied by the documents, specified in Schedule A of section 77aa of this title, and when relating to a security issued by a foreign government, or political subdivision thereof, shall contain the information, and be accom- panied by the documents, specified in Sched- ule B of section 77aa of this title; except that the Commission may by rules or regulations provide that any such information or docu- ment need not be included in respect of any class of issuers or securities if it finds that the requirement of such information or document is inapplicable to such class and that disclo- sure fully adequate for the protection of inves- tors is otherwise required to be included with- in the registration statement. If any account- ant, engineer, or appraiser, or any person whose profession gives authority to a state- ment made by him, is named as having pre- pared or certified any part of the registration statement, or is named as having prepared or certified a report or valuation for use in con- nection with the registration statement, the written consent of such person shall be filed with the registration statement. If any such person is named as having prepared or cer- tified a report or valuation (other than a pub- lic official document or statement) which is used in connection with the registration state- ment, but is not named as having prepared or certified such report or valuation for use in connection with the registration statement, the written consent of such person shall be filed with the registration statement unless the Commission dispenses with such filing as impracticable or as involving undue hardship on the person filing the registration state- ment. Any such registration statement shall contain such other information, and be accom- panied by such other documents, as the Com- mission may by rules or regulations require as being necessary or appropriate in the public interest or for the protection of investors. (2) Treatment of emerging growth companies An emerging growth company— (A) need not present more than 2 years of audited financial statements in order for the registration statement of such emerging growth company with respect to an initial public offering of its common equity securi- ties to be effective, and in any other reg- istration statement to be filed with the Commission, an emerging growth company need not present selected financial data in accordance with section 229.301 of title 17, Code of Federal Regulations, for any period prior to the earliest audited period presented in connection with its initial public offering; and (B) may not be required to comply with any new or revised financial accounting standard until such date that a company that is not an issuer (as defined under sec- tion 7201 of this title) is required to comply with such new or revised accounting stand- ard, if such standard applies to companies that are not issuers.