15 U.S.C. § 77e — Prohibitions relating to interstate com-

Page 136 TITLE 15—COMMERCE AND TRADE § 77e (2) shall be subject to such other limitations as the Commission shall, by rule, establish. (f) Applicability Section 77d(6) 1 of this title shall not apply to transactions involving the offer or sale of secu- rities by any issuer that— (1) is not organized under and subject to the laws of a State or territory of the United States or the District of Columbia; (2) is subject to the requirement to file re- ports pursuant to section 78m of this title or section 78o(d) of this title; (3) is an investment company, as defined in section 80a–3 of this title, or is excluded from the definition of investment company by sec- tion 80a–3(b) of this title or section 80a–3(c) of this title; or (4) the Commission, by rule or regulation, determines appropriate. (g) Rule of construction Nothing in this section or section 77d(6) 1 of this title shall be construed as preventing an issuer from raising capital through methods not described under section 77d(6) 1 of this title. (h) Certain calculations (1) Dollar amounts Dollar amounts in section 77d(6) 1 of this title and subsection (b) of this section shall be adjusted by the Commission not less fre- quently than once every 5 years, by notice published in the Federal Register to reflect any change in the Consumer Price Index for All Urban Consumers published by the Bureau of Labor Statistics. (2) Income and net worth The income and net worth of a natural per- son under section 77d(6)(B) 1 of this title shall be calculated in accordance with any rules of the Commission under this subchapter regard- ing the calculation of the income and net worth, respectively, of an accredited investor. (May 27, 1933, ch. 38, title I, § 4A, as added Pub. L. 112–106, title III, § 302(b), Apr. 5, 2012, 126 Stat. 315.) Editorial Notes REFERENCES IN TEXT Section 77d(6) of this title, referred to in text, was re- designated section 77d(a)(6) of this title by Pub. L. 112–106, title II, § 201(b)(1), (c)(1), Apr. 5, 2012, 126 Stat. 314. § 77e. Prohibitions relating to interstate com- merce and the mails (a) Sale or delivery after sale of unregistered se- curities Unless a registration statement is in effect as to a security, it shall be unlawful for any per- son, directly or indirectly— (1) to make use of any means or instruments of transportation or communication in inter- state commerce or of the mails to sell such se- curity through the use or medium of any pro- spectus or otherwise; or (2) to carry or cause to be carried through the mails or in interstate commerce, by any means or instruments of transportation, any such security for the purpose of sale or for de- livery after sale. (b) Necessity of prospectus meeting require- ments of section 77j of this title It shall be unlawful for any person, directly or indirectly— (1) to make use of any means or instruments of transportation or communication in inter- state commerce or of the mails to carry or transmit any prospectus relating to any secu- rity with respect to which a registration state- ment has been filed under this subchapter, un- less such prospectus meets the requirements of section 77j of this title; or (2) to carry or cause to be carried through the mails or in interstate commerce any such security for the purpose of sale or for delivery after sale, unless accompanied or preceded by a prospectus that meets the requirements of subsection (a) of section 77j of this title. (c) Necessity of filing registration statement It shall be unlawful for any person, directly or indirectly, to make use of any means or instru- ments of transportation or communication in interstate commerce or of the mails to offer to sell or offer to buy through the use or medium of any prospectus or otherwise any security, un- less a registration statement has been filed as to such security, or while the registration state- ment is the subject of a refusal order or stop order or (prior to the effective date of the reg- istration statement) any public proceeding or examination under section 77h of this title. (d) Limitation Notwithstanding any other provision of this section, an emerging growth company or any person authorized to act on behalf of an emerg- ing growth company may engage in oral or writ- ten communications with potential investors that are qualified institutional buyers or insti- tutions that are accredited investors, as such terms are respectively defined in section 230.144A and section 230.501(a) of title 17, Code of Federal Regulations, or any successor thereto, to determine whether such investors might have an interest in a contemplated securities offer- ing, either prior to or following the date of filing of a registration statement with respect to such securities with the Commission, subject to the requirement of subsection (b)(2). (e) Security-based swaps Notwithstanding the provisions of section 77c or 77d of this title, unless a registration state- ment meeting the requirements of section 77j(a) of this title is in effect as to a security-based swap, it shall be unlawful for any person, di- rectly or indirectly, to make use of any means or instruments of transportation or communica- tion in interstate commerce or of the mails to offer to sell, offer to buy or purchase or sell a se- curity-based swap to any person who is not an eligible contract participant as defined in sec- tion 1a(18) of title 7. (May 27, 1933, ch. 38, title I, § 5, 48 Stat. 77; June 6, 1934, ch. 404, title II, § 204, 48 Stat. 906; Aug. 10, 1954, ch. 667, title I, § 7, 68 Stat. 684; Pub. L. 111–203, title VII, § 768(b), July 21, 2010, 124 Stat. Page 137 TITLE 15—COMMERCE AND TRADE § 77e 1801; Pub. L. 112–106, title I, § 105(c), Apr. 5, 2012, 126 Stat. 311.) Editorial Notes AMENDMENTS 2012—Subsecs. (d), (e). Pub. L. 112–106 added subsec. (d) and redesignated former subsec. (d) as (e). 2010—Subsec. (d). Pub. L. 111–203 added subsec. (d). 1954—Subsec. (a)(1). Act Aug. 10, 1954, struck out ‘‘or offer to buy’’ after ‘‘to sell’’. Subsec. (b). Act Aug. 10, 1954, in par. (1) substituted ‘‘with respect to which a registration statement has been filed’’ for ‘‘registered’’ and in par. (2) omitted ‘‘to’’ after ‘‘to carry or’’ and inserted ‘‘subsection (a) of’’ be- fore ‘‘section 77j of this title’’. Subsec. (c). Act Aug. 10, 1954, added subsec. (c). 1934—Act June 6, 1934, repealed subsec. (c), the provi- sions of which were replaced by section 77c(a)(11) of this title. Statutory Notes and Related Subsidiaries EFFECTIVE DATE OF 2010 AMENDMENT Amendment by Pub. L. 111–203 effective on the later of 360 days after July 21, 2010, or, to the extent a provi- sion of subtitle B (§§ 761–774) of title VII of Pub. L. 111–203 requires a rulemaking, not less than 60 days after publication of the final rule or regulation imple- menting such provision of subtitle B, see section 774 of Pub. L. 111–203, set out as a note under section 77b of this title. EFFECTIVE DATE OF 1954 AMENDMENT Amendment by act Aug. 10, 1954, effective 60 days after Aug. 10, 1954, see note under section 77b of this title. ENCOURAGING EMPLOYEE OWNERSHIP Pub. L. 115–174, title V, § 507, May 24, 2018, 132 Stat. 1363, provided that: ‘‘Not later than 60 days after the date of the enactment of this Act [May 24, 2018], the Se- curities and Exchange Commission shall revise section 230.701(e) of title 17, Code of Federal Regulations, so as to increase from $5,000,000 to $10,000,000 the aggregate sales price or amount of securities sold during any con- secutive 12-month period in excess of which the issuer is required under such section to deliver an additional disclosure to investors. The Commission shall index for inflation such aggregate sales price or amount every 5 years to reflect the change in the Consumer Price Index for All Urban Consumers published by the Bureau of Labor Statistics, rounding to the nearest $1,000,000.’’ FAIR ACCESS TO INVESTMENT RESEARCH Pub. L. 115–66, Oct. 6, 2017, 131 Stat. 1196, provided that: ‘‘SECTION 1. SHORT TITLE. ‘‘This Act may be cited as the ‘Fair Access to Invest- ment Research Act of 2017’. ‘‘SEC. 2. SAFE HARBOR FOR INVESTMENT FUND RESEARCH. ‘‘(a) EXPANSION OF THE SAFE HARBOR.—Not later than the end of the 180-day period beginning on the date of enactment of this Act [Oct. 6, 2017], the Securities and Exchange Commission shall propose, and not later than the end of the 270-day period beginning on such date, the Commission shall adopt, upon such terms, condi- tions, or requirements as the Commission may deter- mine necessary or appropriate in the public interest, for the protection of investors, and for the promotion of capital formation, revisions to section 230.139 of title 17, Code of Federal Regulations, to provide that a cov- ered investment fund research report that is published or distributed by a broker or dealer, other than a broker or dealer that is an investment adviser to the fund or an affiliated person of the investment adviser to the fund— ‘‘(1) shall be deemed, for purposes of sections 2(a)(10) and 5(c) of the Securities Act of 1933 (15 U.S.C. 77b(a)(10), 77e(c)), not to constitute an offer for sale or an offer to sell a security that is the subject of an of- fering pursuant to a registration statement that is ef- fective, even if the broker or dealer is participating or will participate in the registered offering of the covered investment fund’s securities; and ‘‘(2) shall be deemed to satisfy the conditions of paragraph (1) or (2) of section 230.139(a) of title 17, Code of Federal Regulations, or any successor provi- sions, for purposes of the Commission’s rules and reg- ulations under the Federal securities laws and the rules of any self-regulatory organization. ‘‘(b) IMPLEMENTATION OF SAFE HARBOR.—In imple- menting the safe harbor pursuant to subsection (a), the Commission shall— ‘‘(1) not, in the case of a covered investment fund with a class of securities in substantially continuous distribution, condition the safe harbor on whether the broker’s or dealer’s publication or distribution of a covered investment fund research report con- stitutes such broker’s or dealer’s initiation or reiniti- ation of research coverage on such covered invest- ment fund or its securities; ‘‘(2) not— ‘‘(A) require the covered investment fund to have been registered as an investment company under the Investment Company Act of 1940 (15 U.S.C. 80a–1 et seq.) or subject to the reporting requirements of section 13 or 15(d) of the Securities Exchange Act of 1934 (15 U.S.C. 78m, 78o(d)) for any period exceeding the period of time referenced under section 230.139(a)(1)(i)(A)(1) of title 17, Code of Federal Reg- ulations; or ‘‘(B) impose a minimum float provision exceeding that referenced in section 230.139(a)(1)(i)(A)(1)(i) of title 17, Code of Federal Regulations; ‘‘(3) provide that a self-regulatory organization may not maintain or enforce any rule that would— ‘‘(A) prohibit the ability of a member to publish or distribute a covered investment fund research re- port solely because the member is also partici- pating in a registered offering or other distribution of any securities of such covered investment fund; or ‘‘(B) prohibit the ability of a member to partici- pate in a registered offering or other distribution of securities of a covered investment fund solely be- cause the member has published or distributed a covered investment fund research report about such covered investment fund or its securities; and ‘‘(4) provide that a covered investment fund re- search report shall not be subject to section 24(b) of the Investment Company Act of 1940 (15 U.S.C. 80a–24(b)) or the rules and regulations thereunder, ex- cept that such report may still be subject to such sec- tion and the rules and regulations thereunder to the extent that it is otherwise not subject to the content standards in the rules of any self-regulatory organi- zation related to research reports, including those contained in the rules governing communications with the public regarding investment companies or substantially similar standards. ‘‘(c) RULES OF CONSTRUCTION.—Nothing in this Act shall be construed as in any way limiting— ‘‘(1) the applicability of the antifraud or antimanipulation provisions of the Federal securities laws and rules adopted thereunder to a covered in- vestment fund research report, including section 17 of the Securities Act of 1933 (15 U.S.C. 77q), section 34(b) of the Investment Company Act of 1940 (15 U.S.C. 80a–33(b)), and sections 9 and 10 of the Securities Ex- change Act of 1934 (15 U.S.C. 78i, 78j); or ‘‘(2) the authority of any self-regulatory organiza- tion to examine or supervise a member’s practices in connection with such member’s publication or dis- tribution of a covered investment fund research re- port for compliance with applicable provisions of the Federal securities laws or self-regulatory organiza- 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.