§230.169. Exemption from sections 2(a)(10) and 5(c) of the Act for certain communications of regularly released factual business information.

17 C.F.R. § 230.169

(a)

For purposes of sections 2(a)(10) and 5(c) of the Act, the regular release or dissemination by or on behalf of an issuer of communications containing factual business information shall be deemed not to constitute an offer to sell or offer for sale of a security by an issuer which is the subject of an offering pursuant to a registration statement that the issuer proposes to file, or has filed, or that is effective, if the conditions of this section are satisfied.

(b)

Definitions.

(1)

Factual business information means some or all of the following information that is released or disseminated under the conditions in paragraph (d) of this section:

(i)

Factual information about the issuer, its business or financial developments, or other aspects of its business; and

(ii)

Advertisements of, or other information about, the issuer's products or services.

(2)

For purposes of this section, the release or dissemination of a communication is by or on behalf of the issuer if the issuer or an agent or representative of the issuer, other than an offering participant who is an underwriter or dealer, authorizes or approves such release or dissemination before it is made.

(c)

Exclusions. A communication containing information about the registered offering or released or disseminated as part of the offering activities in the registered offering is excluded from the exemption of this section.

(d)

Conditions to exemption. The following conditions must be satisfied:

(1)

The issuer has previously released or disseminated information of the type described in this section in the ordinary course of its business;

(2)

The timing, manner, and form in which the information is released or disseminated is consistent in material respects with similar past releases or disseminations;

(3)

The information is released or disseminated for intended use by persons, such as customers and suppliers, other than in their capacities as investors or potential investors in the issuer's securities, by the issuer's employees or agents who historically have provided such information; and

(4)

The issuer is not an investment company registered under the Investment Company Act of 1940 (15 U.S.C. 80a-1 et seq.), other than a registered closed-end investment company.

Notes, amendments, and revision history

Amendments

[70 FR 44808, Aug. 3, 2005, as amended at 85 FR 33353, June 1, 2020]

Authority

Authority: 15 U.S.C. 77b, 77b note, 77c, 77d, 77f, 77g, 77h, 77j, 77r, 77s, 77z-3, 77sss, 78c, 78d, 78j, 78 l, 78m, 78n, 78o, 78o-7 note, 78t, 78w, 78 ll (d), 78mm, 80a-8, 80a-24, 80a-28, 80a-29, 80a-30, and 80a-37, and Pub. L. 112-106, sec. 201(a), sec. 401, 126 Stat. 313 (2012), unless otherwise noted. Section 230.151 is also issued under 15 U.S.C. 77s(a). Section 230.160 is also issued under Section 104(d) of the Electronic Signatures Act. Section 230.193 is also issued under sec. 943, Pub. L. 111-203, 124 Stat. 1376. Sections 230.400 to 230.499 issued under secs. 6, 8, 10, 19, 48 Stat. 78, 79, 81, and 85, as amended (15 U.S.C. 77f, 77h, 77j, 77s). Sec. 230.457 also issued under secs. 6 and 7, 15 U.S.C. 77f and 77g. Section 230.502 is also issued under 15 U.S.C. 80a-8, 80a-29, 80a-30.

Amendments

[55 FR 18322, May 2, 1990, as amended at 62 FR 53954, Oct. 17, 1997; 63 FR 9642, Feb. 25, 1998]

Amendments

[70 FR 44808, Aug. 3, 2005, as amended at 85 FR 33353, June 1, 2020]

§230.169. Exemption from sections 2(a)(10) and 5(c) of the Act for certain communications of regularly released factual business information.

Amendments

Authority

Amendments

Amendments

Cite this provision

Incoming references