Question: If an issuer uses a free writing prospectus at a time when EDGAR does not accept filings, when can the issuer file the free writing prospectus and still be in compliance with Rule 433?

Answer: The issuer should file the free writing prospectus on EDGAR within the time frame provided in the rule, even if the filing is not “accepted” by EDGAR until a later time. For example, if an issuer first uses a free writing prospectus at 10:00 p.m. on a Monday night, the issuer is required to file the free writing prospectus no later than that Monday, as Rule 433(d)(1) requires the filing to be made “no later than the date of first use.” The issuer in this example would, therefore, be required to file the free writing prospectus on EDGAR no later than that Monday, even if the EDGAR system is closed for accepting filings for that day. [Jan. 26, 2009]

Question: If an issuer free writing prospectus contains both descriptions of certain terms of the securities and other information, when must the issuer file the free writing prospectus?

Answer: The issuer can consider separately the filing requirements for the terms of the securities and the other information that is contained in the free writing prospectus.

With regard to the “other information,” the issuer must file the issuer free writing prospectus, other than the description of certain terms of the securities, no later than the date of first use. With regard to the terms of the securities, the issuer must file the description of the terms of the securities only if that description represents the final terms of the securities. If the description represents the final terms of the securities, the issuer must file that description of the final terms within two days after the later of:

Question: After the filing of the registration statement for an offering, if the issuer’s CEO participates in a live interview with unaffiliated and uncompensated media that is broadcast on radio or television, would that interview be an issuer free writing prospectus that the issuer must file?

Answer: Yes, if the interview constitutes an offer. In that case, the CEO’s interview on a live television or radio program conducted by unaffiliated and uncompensated media would be a written offer and would be treated the same as any other unaffiliated, uncompensated media publication or broadcast. The issuer would have to satisfy its filing obligation with regard to the interview within four business days after the broadcast. [Jan. 26, 2009]

Question: After the filing of the registration statement for an offering, if the issuer’s CEO participates in an interview with unaffiliated and uncompensated media that is published and the substance of the information in the interview is contained in the registration statement, does the issuer have to file the interview as an issuer free writing prospectus?

Answer: No, even if the interview with the unaffiliated and uncompensated media constitutes an offer. If the CEO interview is an offer, it will be an issuer free writing prospectus, but it does not have to be filed as a free writing prospectus. Rule 433(f)(2) contains an exception from the filing conditions for unaffiliated and uncompensated media publications and broadcasts if the substance of the free writing prospectus has been filed previously with the Commission. Of course, the issuer will be responsible for determining whether the substance of the information has been filed previously. [Jan. 26, 2009]

Question: After the filing of the registration statement for an issuer’s initial public offering, but before that registration statement becomes effective, can the issuer’s CEO participate in a broadcast that is a paid “infomercial”?

Answer: While there is an exclusion in Rule 433(f) from the requirement that the statutory prospectus must precede or accompany a media broadcast in an initial public offering, that exclusion is available only if no payment is made or consideration given by or on behalf of the issuer or such other offering participant for the written communication or its dissemination, and the other conditions to the exclusion are satisfied. Because the “no payment” condition is not satisfied for paid infomercials, the requirement that the statutory prospectus precede or accompany the communication applies and cannot be satisfied for a broadcast. Therefore, Rule 164 and Rule 433 would not be available for that communication. [Jan. 26, 2009]

Question: For issuer free writing prospectuses, must the free writing prospectus be filed even if the information in the free writing prospectus is contained in the prospectus in the filed registration statement?

Answer: Yes, unless the Rule 433(f)(2) exclusion for media publications or broadcasts applies. Further, the Rule 433(d)(4) exception from the condition for an issuer to file issuer information would not be available in this situation, as that exception applies only to free writing prospectuses of offering participants other than the issuer when the information is contained in a previously filed prospectus or free writing prospectus relating to the offering. [Jan. 26, 2009]

Question: For issuer free writing prospectuses, must the issuer file the free writing prospectus if the free writing prospectus does not contain substantive changes from or additions to a previously filed free writing prospectus that relates to the offering?

Answer: No. Rule 433(d)(3) provides an exception from the filing requirement in this situation. [Jan. 26, 2009]

Question: If an issuer and underwriter agree that the underwriter will not use a free writing prospectus without the consent of the issuer, will the issuer’s consent to that underwriter’s use of a free writing prospectus mean that the issuer has authorized or approved the communication for purposes of determining whether it is an issuer free writing prospectus as defined in Rule 433(h)(1)?

Answer: The consent given by the issuer to the use of an underwriter free writing prospectus under these circumstances is not, in and of itself, authorization or approval. In this regard, “authorize[d]” or “approve[d]” as used in Rule 433(h)(3) refers to the substance, not the use, of the free writing prospectus. If the issuer’s actions amount to adoption of or entanglement with the free writing prospectus, then the issuer would have approved or authorized the underwriter free writing prospectus. [Jan. 26, 2009]

Question: During a company’s initial public offering, an underwriter sends a free writing prospectus to its clients. A member of the media then receives the free writing prospectus from a client of that firm and not from the underwriter, and writes an article containing information derived from information in the underwriter’s free writing prospectus. Will the article be a free writing prospectus of the underwriter?

Answer: The media provisions of the free writing prospectus rules apply to articles based on information provided by or on behalf of the issuer or other offering participants to the media. If a free writing prospectus (or the information contained therein) is not provided to the media by an issuer or other offering participant or any person acting on behalf of either of them, a media publication based on that free writing prospectus (or information) would not be a free writing prospectus of the issuer or other offering participant. The staff may request information about the role, if any, that the underwriter or issuer played with regard to the provision of the free writing prospectus (or information contained therein) or the publication, at least in certain circumstances when it is not clear. If the issuer or underwriter, or a person acting on their behalf, provided, authorized, or approved the publication, the free writing prospectus rules might apply to the publication. [Jan. 26, 2009]

Question: Can a non-reporting issuer that is registering an initial public offering of common equity post a transcript of an electronic road show on its web site as a “bona fide electronic road show” instead of providing an electronic presentation constituting a “bona fide electronic road show?”

Answer: No. A bona fide electronic road show is defined in Rule 433(h) as “a road show that is a written communication transmitted by graphic means that contains a presentation by one or more officers of an issuer or other persons in an issuer’s management … and, if more than one road show that is a written communication is being used, includes discussion of the same general areas of information regarding the issuer, such management, and the securities being offered as such other issuer road show or shows for the same offering that are written communications.” A transcript of a road show is not a “presentation” within the meaning of the rule and would not be considered a “bona fide electronic road show.” Such a transcript would be an issuer free writing prospectus that would have to be filed with the Commission pursuant to Rule 433. [Jan. 26, 2009]

Question: If an issuer intends to distribute a subscription agreement to a limited number of institutional investors in a registered directed offering conducted through a placement agent, and the subscription agreement will not be widely disseminated, must the issuer file the subscription agreement as a free writing prospectus?

Answer: A subscription agreement that contains provisions in addition to the final terms of the securities would not qualify for the exclusion from filing in Rule 433(d)(5)(i). If the subscription agreement is not filed as an annex or appendix to the registration statement, it will be subject to Rule 433 and must be filed as an issuer free writing prospectus. The method of dissemination of the subscription agreement is not relevant in analyzing the filing conditions of an issuer free writing prospectus. The issuer could include the subscription agreement in the Form S-3 as an annex or appendix to such Form by filing it under cover of Form 8-K. [Jan. 26, 2009]

Question: Under Rule 433(f)(2)(i), an issuer or offering participant does not have to file a free writing prospectus if the substance of that free writing prospectus has "previously been filed" with the Commission. Is Rule 433(f)(2)(i) available if the substance of the free writing prospectus was previously disclosed in a document that is deemed to be furnished, not filed, with the Commission (e.g., Item 2.02 Form 8-K)?

Answer: No. For Rule 433(f)(2)(i) to be available, the substance of the free writing prospectus must have previously been filed, not furnished, with the Commission. [Mar. 4, 2011]

Question: An officer participates in an interview with unaffiliated and uncompensated media and provides, as part of the interview, a package of written materials consisting only of the issuer's Commission filings for possible use in the media publication. Does the package of written materials or a copy of the media publication need to be filed as a free writing prospectus?

Answer: No. Pursuant to Rule 433(f)(2)(i), the issuer is not obligated to file either the package of written materials or the media publication as a free writing prospectus so long as the package of written materials includes only information that has previously been filed with the Commission. [Mar. 4, 2011]

Question: With the exception of free writing prospectuses that comply with Rule 433(f)(1), a free writing prospectus distributed in reliance on Rule 433 must contain the legend required by Rule 433(c)(2)(i). Some electronic communication platforms, such as those made available through certain social media websites, limit the number of characters or amount of text that can be included in the communication, effectively precluding display of the required legend together with the other information. Under what circumstances would the use of a hyperlink to the required legend satisfy Rule 433(c)(2)(i)?

Answer: Recognizing the growing interest in using technologies such as social media to communicate with security holders and potential investors, the staff will not object to the use of an active hyperlink to satisfy the requirements of Rule 433(c)(2)(i) in the following limited circumstances:

Where an electronic communication is capable of including the required legend, along with the other information, without exceeding the applicable limit on number of characters or amount of text, the use of a hyperlink to the required legend would be inappropriate. [April 21, 2014]

Question: Some electronic communication platforms, such as those made available through certain social media websites, permit users to re-transmit a posting or message they receive from another party. When an issuer distributes an electronic communication in compliance with Rule 134 or Rule 433, must the issuer ensure compliance with Rule 134 or Rule 433 of a re-transmission of that communication by a third party that is not an offering participant?

Answer: If the third party is neither an offering participant nor acting on behalf of the issuer or an offering participant and the issuer has no involvement in the third party’s re-transmission beyond having initially prepared and distributed the communication in compliance with either Rule 134 or Rule 433, the re-transmission would not be attributable to the issuer. As explained in Securities Act Release No. 33-8591 (July 19, 2005), “[W]hether information prepared and distributed by third parties that are not offering participants is attributable to an issuer or other offering participant depends upon whether the issuer or other offering participant has involved itself in the preparation of the information or explicitly or implicitly endorsed or approved the information.” [April 21, 2014]