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Law Outlines Securities Regulation Outlines

Updating And Correcting The Registration Statement Outline

Updated Updating And Correcting The Registration Statement Notes

Securities Regulation Outlines

Securities Regulation

Approximately 385 pages

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Updating and Correcting the Registration Statement

  1. Post-Effective Amendments

    1. Correcting Material Inaccuracy

      • The registration statement can be amended after it has become effective, and under § 8(c), a post-effective amendment "shall become effective on such date as the Commission may determine."

      • § 10(b) provides that "a prospectus . . . shall contain the information in the registration statement."

        • Sales of securities by means of a materially deficient prospectus exposes sellers to liability under § 12(a)(2) of the '33 Act as well as the '34 Act's anti-fraud provisions.

      • § 10(a) requires the prospectus to "contain the information contained in the registration statement."

        • In practice, this language is interpreted to require a post-effective amendment of the registration statement only when the post-effective amendment of the registration statement only when the post-effective information is to be substituted for, but not added to, information appearing in the registration statement.

        • Information that does not portend the type of substantive change or addition referred to in Rule 424(a) can occur without filing an amendment to the registration statement.

          • Usually, such an addition occurs by placing a sticker containing the new information on the prospectus.

            • The stickers are affixed to the cover page or sometimes other appropriate pages in the prospectus.

            • The procedures for filing the stickered prospectus with the Commission are set forth in Rule 424(b)(3)-(5), and such filing does not constitute an amendment to the registration statement.

        • Post-effective amendments do not become effective without action by the Commission's staff.

          • While waiting for the staff to declare the amendment effective, the distribution efforts can continue using the stickered prospectus because the filing of a post-effective amendment does not disturb or suspend the effectiveness of an earlier effective registration statement.

          • When the post-effective amendment is declared effective, it reaffirms all that appears in the registration statement, and under § 11(a), the entire registration statement is deemed to speak as of the date that the post-effective amendment became effective.

            • This could create a liability problem if some of the information in the original registration statement was incorrect as of the date on which the post-effective amendment became effective.

            • EXCEPTION

              • § 10(a)(3) requires that whenever a prospectus is used more than nine months after the registration statement became effective, the information in such prospectus must not be from a date more than 16 months prior to such use.

              • § 10(a)(3) therefore demands that more recent information be substituted for that appearing in the earlier effective registration statement in those instances in which a prospectus is being used more than nine months after the registration statement became effective.

              • § 10(b)(3) however does not require this more recent information to be...

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