Securities Lawyer's Deskbook                          published by The University of Cincinnati College of Law

Rule 138 --Publications or Distributions of Research Reports By Brokers or Dealers About Securities Other Than Those They are Distributing.

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1. Registered offerings. Under the following conditions, a broker’s or dealer’s publication or distribution of research reports about securities of an issuer shall be deemed for purposes of sections 2(a)(10) and 5(c) of the Act not to constitute an offer for sale or offer to sell a security 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, even if the broker or dealer is participating or will participate in the registered offering of the issuer’s securities:
   
   
   1. 1. The research report relates solely to the issuer’s common stock, or debt securities, or preferred stock convertible into its common stock, and the offering involves solely the issuer’s non-convertible debt securities or non-convertible, non-participating preferred stock; or
         
         
      2. The research report relates solely to the issuer's non-convertible debt securities or non-convertible, non-participating preferred stock, and the offering involves solely the issuer’s common stock, or debt securities, or preferred stock convertible into its common stock.
         
         

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         Instruction to paragraph (a)(1):
         If the issuer has filed a shelf registration statement under Rule 415(a)(1)(x) or pursuant to General Instruction I.D. of Form S-3 or General Instruction I.C. of Form F-3 with respect to multiple classes of securities, the conditions of paragraph (a)(1) of this section must be satisfied for the offering in which the broker or dealer is participating or will participate.

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   2. The issuer as of the date of reliance on this section:
      
      
      1. Is required to file reports, and has filed all periodic reports required during the preceding 12 months (or such shorter time that the issuer was required to file such reports) on Forms 10-K (Rule 249.310 of this chapter), 10-Q (Rule 249.308a of this chapter), and 20-F (Rule 249.220f of this chapter) pursuant to Section 13 or Section 15(d) of the Securities Exchange Act of 1934; or
         
         
      2. Is a foreign private issuer that:
         
         
         1. Meets all of the registrant requirements of Form F-3 other than the reporting history provisions of General Instructions I.A.1. and I.A.2(a) of Form F-3;
            
            
         2. Either:
            
            
            1. Satisfies the public float threshold in General Instruction I.B.1. of Form F-3; or
               
               
            2. Is issuing non-convertible investment grade securities meeting the provisions of General Instruction I.B.2. of Form F-3; and
               
               
         3. Either:
            
            
            1. Has its equity securities trading on a designated offshore securities market as defined in Rule 902(b) (§230.902(b)) and has had them so traded for at least 12 months; or
               
               
            2. Has a worldwide market value of its outstanding common equity held by non-affiliates of $700 million or more.
               
               
            3. The broker or dealer publishes or distributes research reports on the types of securities in question in the regular course of its business; and
               
               
            4. The issuer is not, and during the past three years neither the issuer nor any of its predecessors was:
               
               
               1. A blank check company as defined in Rule 419(a)(2) (§230.419(a)(2));
                  
                  
               2. A shell company, other than a business combination related shell company, each as defined in Rule 405 (§230.405); or
                  
                  
               3. An issuer for an offering of penny stock as defined in Rule 3a51-1 of the Securities Exchange Act of 1934 (§240.3a51-1 of this chapter).
2. Rule 144A offerings. If the conditions in paragraph (a) of this section are satisfied, a broker’s or dealer’s publication or distribution of a research report shall not be considered an offer for sale or an offer to sell a security or general solicitation or general advertising, in connection with an offering relying on Rule 144A .
   
   
3. Regulation S offerings. If the conditions in paragraph (a) of this section are satisfied, a broker’s or dealer’s publication or distribution of a research report shall not:
   
   
   1. Constitute directed selling efforts as defined in Rule 902(c)for offerings under Regulation S; or
      
      
   2. Be inconsistent with the offshore transaction requirement in Rule 902(h) for offerings under Regulation S.
      
      
4. Definition of research report. For purposes of this section, research report means a written communication, as defined in Rule 405, that includes information, opinions, or recommendations with respect to securities of an issuer or an analysis of a security or an issuer, whether or not it provides information reasonably sufficient upon which to base an investment decision.
   
   

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