240.24b-3

г

Documents to be kept public by exchanges. Nondisclosure

of

information

filed with the Commission and with an exchange. Information filed by issuers and others under sections 12, 13, 14, and 16.

AUTHORITY: The provisions of this Part 240 issued under sec. 23, 48 Stat. 901, as amended; 15 U.S.C. 78w, unless otherwise noted. §§ 240.12b-1 to 240.12b-36 also issued under secs. 12, 13, 15, 48 Stat. 892, as amended, 894, 895, as amended; 15 U.S.C. 781, 78m, 780. §§ 240.14c-1 to 240.14c-101 also issued under sec. 14, 48 Stat. 895; 15 U.S.C. 78n.

NOTE: In §§ 240.0-1 to 240.24b-3, the numbers to the right of the decimal point correspond with the respective rule numbers of the rules and regulations under the Securities Exchange Act of 1934.

RULES OF GENERAL APPLICATION

§ 240.0-1 Definitions.

(a) As used in the rules and regulations in this part, prescribed by the Commission pursuant to title I of the Securities Exchange Act of 1934 (48 Stat. 881-905; 15 U.S.C. chapter 2B), unless the context otherwise specifically requires:

(1) The term "Commission". means the Securities and Exchange Commission.

(2) The term "act" means title I of the Securities Exchange Act of 1934.

(3) The term "section" refers to a section of the Securities Exchange Act of 1934.1

1 The provisions of subparagraph (3) of paragraph (a) relate to the terminology of rules and regulations as published by the Securities and Exchange Commission and are inapplicable to the terminology appearing in the Code of Federal Regulations.

(4) The term "rules and regulations" refers to all rules and regulations adopted by the Commission pursuant to the act, including the forms for registration and reports and the accompanying instructions thereto.

(b) Unless otherwise specifically stated, the terms used in this part shall have the meaning defined in the act.

(c) A rule or regulation which defines a term without express reference to the act or to the rules and regulations, or to a portion thereof, defines such term for all purposes as used both in the act and in the rules and regulations, unless the context otherwise specifically requires.

(d) Unless otherwise specified or the context otherwise requires, the term "prospectus" means a prospectus meeting the requirements of section 10(a) of the Securities Act of 1933 as amended. [13 F.R. 8178, Dec. 22, 1948, as amended at 13 F.R. 9321, Dec. 31, 1948; 19 F.R. 6730, Oct. 20, 1954]

CROSS REFERENCES: For definition of "listed", see § 240.3b-1; "officer", § 240.3b-2; "short sale", § 240.3b-3. For additional definitions, see § 240.15c1-1.

The principal office of the Commission at Washington, D.C., is open each day except Saturdays, Sundays, and holidays from 9:00 a.m. to 5:30 p.m. eastern standard time or eastern daylight saving time whichever is currently in effect in Washington.

[13 F.R. 9321, Dec. 31, 1948]

CROSS REFERENCES: For registration and exemption of exchanges, see §§ 240.6a-1 to 240.6a-3. For forms for permanent registration of securities, see § 240.12b-1. For regulations relating to registration of securities, see §§ 240.12b-1 to 240.12b-36. For forms for applications for registration of brokers and dealers, see §§ 240.15b1-1 to 240.15b8-1.

§ 240.0-3 Filing of material with the Commission.

All papers required to be filed with the Commission pursuant to the act or the rules and regulations thereunder shall be filed at its principal office in Washington, D.C. Material may be filed by delivery to the Commission, through the mails or otherwise. The date on which papers are actually received by the Commission shall be the date of filing thereof if all of the requirements with

respect to the filing have been complied with.

[13 F.R. 9321, Dec. 31. 1948]

§ 240.0-4

Nondisclosure of information obtained in examinations and investigations.

Information or documents obtained by officers or employees of the Commission in the course of any examination or investigation pursuant to section 17(a) (48 Stat. 897, sec. 4, 49 Stat. 1379; 15 U.S.C. 78q(a)) or 21(a) (48 Stat 899; 15 U.S.C. 78u(a)) shall, unless made a matter of public record, be deemed confidential. Officers and employees are hereby prohibited from making such confidential information or documents or any other non-public records of the Commission available to anyone other than a member, officer, or employee of the Commission, unless the Commission authorizes the disclosure of such information or the production of such documents as not being contrary to the public interest. Any officer or employee who is served with a subpoena requiring the disclosure of such information or the production of such documents shall appear in court and, unless the authorization described in the preceding sentence shall have been given, shall respectfully decline to disclose the information or produce the documents called for, basing his refusal upon this section. Any officers or employee who is served with such a subpoena shall promptly advise the Commission of the service of such subpoena, the nature of the information or documents sought, and any circumstances which may bear upon the desirability of making available such information or documents.

[13 F.R. 8179, Dec. 22, 1948, as amended at 26 F.R. 3102, Apr. 12, 1961]

CROSS REFERENCE: For nondisclosure of information filed with the Commission and with an exchange, see § 240.24b-2.

§ 240.0-5 Reference to rule by obsolete designation.

Wherever in any rule, form, or instruction book specific reference is made to a rule by number or other designation which is now obsolete, such reference shall be deemed to be made to the corresponding rule or rules in the existing general rules and regulations. [13 F.R. 8179, Dec. 22, 1948]

§ 240.0-6

Disclosure detrimental to the national security.

(a) Any requirement to the contrary notwithstanding, no application for registration, registration statement, report, proxy statement or other document filed with the Commission or any securities exchange shall contain any document or information that has been classified or determined by an appropriate department or agency of the United States to require protection in the interests of national defense.

(b) Where a document is omitted pursuant to paragraph (a) of this section, there shall be filed, in lieu of such document, a statement from an appropriate department or agency of the United States to the effect that such document has been classified or that the status of such document is awaiting determination. Where a document is omitted pursuant to paragraph (a) of this section, but information relating to the subject-matter of such document is nevertheless included in material filed with the Commission pursuant to a determination of an appropriate department or agency of the United States that disclosure of such information would not be contrary to the interests of national defense, a statement to that effect shall be submitted for the information of the Commission.

(c) The Commission may protect any information in its possession which may require classification in the interests of national defense pending determination by an appropriate department or agency as to whether such information should be classified.

[20 F.R. 7035, Sept. 20, 1955, as amended at 30 F.R. 2022, Feb. 13, 1965. Redesignated, 30 F.R. 2022, Feb. 13, 1965]

§ 240.0-7 Consent to service of process to be furnished by non-resident investment advisers and by non-resident investment general partners or managing agents of investment advisers. (a) Each non-resident investment adviser registered or applying for registration pursuant to section 203 of the Investment Advisers Act of 1940, each nonresident general partner of an investment adviser partnership which is registered or applying for registration, and each non-resident managing agent of 1 any other unincorporated investment adviser which is registered or applying for registration, shall furnish to the

Commission, in a form prescribed by or acceptable to it, a written irrevocable consent and power of attorney which (1) designates the Securities and Exchange Commission as an agent upon whom may be served any process, pleadings, or other papers in any civil suit or action brought in any appropriate court in any place subject to the jurisdiction of the United States, where the cause of action (i) accrues on or after the effective date of this section, (ii) arises out of any activity, in any place subject to the jurisdiction of the United States, occurring in connection with the conduct of business of an investment adviser, and (iii) is founded, directly or indirectly, upon the provisions of the Securities Act of 1933, the Securities Exchange Act of 1934, the Trust Indenture Act of 1939, the Investment Company Act of 1940, the Investment Advisers Act of 1940, or any rule or regulation under any of said acts; and (2) stipulates and agrees that any such civil suit or action may be commenced by the service of process upon the Commission and the forwarding of a copy thereof as provided in paragraph (c) of this section, and that the service as aforesaid of any such process, pleadings, or other papers upon the Commission shall be taken and held in all courts to be as valid and binding as if due personal service thereof had been made.

(b) The required consent and power of attorney shall be furnished to the Commission within the following period of time:

(1) Each non-resident investment adviser registered at the time this section becomes effective, and each non-resident general partner or managing agent of an unincorporated investment adviser registered at the time this section becomes effective, shall furnish such consent and power of attorney within 60 days after such date;

(2) Each investment adviser applying for registration after the effective date of this section shall furnish, at the time of filing such application, all the consents and power of attorney required to be furnished by such investment adviser and by each general partner or managing agent thereof: Provided, however, That where an application for registration of an investment adviser is pending at the time this rule becomes effective such consents and powers of attorney shall be furnished within 30 days after this section becomes effective.

(3) Each investment adviser registered or applying for registration who or which becomes a non-resident investment adviser after the effective date of this section, and each general partner or managing agent, of an unincorporated investment adviser registered or applying for registration, who becomes a nonresident after the effective date of this section shall furnish such consent and power of attorney within 30 days thereafter.

(c) Service of any process, pleadings or other papers on the Commission under this part shall be made by delivering the requisite number of copies thereof to the Secretary of the Commission or to such other person as the Commission may authorize to act in its behalf. Whenever any process, pleadings or other papers as aforesaid are served upon the Commission, it shall promptly forward a copy thereof by registered or certified mail to the appropriate defendants at their last address of record filed with the Commission. The Commission shall be furnished a sufficient number of copies for such purpose, and one copy for its file.

(d) For purposes of this section the following definitions shall apply:

(1) The term "investment adviser" shall have the meaning set out in section 202 (a) (11) of the Investment Advisers Act of 1940.

(2) The term "managing agent" shall mean any person, including a trustee, who directs or manages or who participates in the directing or managing of the affairs of any unincorporated organization or association which is not a partnership.

(3) The term "non-resident investment adviser” shall mean (i) in the case of an individual, one who resides in or has his principal place of business in any place not subject to the jurisdiction of the United States; (ii) in the case of a corporation, one incorporated in or having its principal place of business in any place not subject to the jurisdiction of the United States; (iii) in the case of a partnership or other unincorporated organization or association, one having its principal place of business in any place not subject to the jurisdiction of the United States.

(4) A general partner or managing agent of an investment adviser shall be deemed to be a nonresident if he resides

in any place not subject to the jurisdiction of the United States.

(Sec. 19, 48 Stat. 85, as amended, sec. 319, 53 Stat. 1173, secs. 38, 211, 54 Stat. 841, 855; 15 U.S.C. 778, 77sss, 80a-37, 80b-11) [19 F.R. 4300, July 14, 1954; 20 F.R. 2510, Apr. 16, 1955, as amended at 29 F.R. 16982, Dec. 11, 1964]

§ 240.0-8 Application of rules to registered broker-dealers.

Any provision of any rule or regulation under the Act which prohibits any act, practice, or course of business by any person if the mails or any means or instrumentality of interstate commerce are used in connection therewith, shall also prohibit any such act, practice, or course of business by any broker or dealer registered pursuant to section 15 (b) of the Act, or any person acting on behalf of such a broker or dealer, irrespective of any use of the mails or any means or instrumentality of interstate commerce. [29 F.R. 12555, Sept. 3, 1964]

DEFINITION OF "EQUITY SECURITY" AS USED IN SECTIONS 12(g) AND 16 § 240.3a11-1 Definition of the term "equity security".

The term "equity security" is hereby defined to include any stock or similar security, certificate of interest or participation in any profit sharing agreement, preorganization certificate or subscription, transferable share, voting trust certificate or certificate of deposit for an equity security, limited partnership interest, interest in a joint venture, or certificate of interest in a business trust; or any security convertible, with or without consideration into such a security, or carrying any warrant or right to subscribe to or purchase such a security; or any such warrant or right. [30 F.R. 6114, Apr. 30, 1965]

MISCELLANEOUS EXEMPTIONS

§ 240.3a12-2 Exemption of certain securities, the income on which is substantially guaranteed by States or political subdivisions thereof.

(a) A security shall be exempt from the operation of such provisions of the act as by their terms do not apply to an "exempted security" or to "exempted securities" if:

(1) A State or political subdivision thereof is obligated to make good to the issuer of such security any deficiency in the income of such issuer, to the extent necessary to pay to the holders of such

security interest or dividends at a specified rate; and

(2) The business of such issuer is managed by such State or political subdivision or by a board of officers appointed by such State or political subdivision.

(b) The exemption provided by this section shall be available to such security only so long as the conditions specified in paragraph (a) of this section are satisfied or during the subsequent dissolution of the issuer of any security so exempted.

(Sec. 3, 48 Stat. 884; 15 U.S.C. 78c) 8179, Dec. 22, 1948]

[18 F.R.

§ 240.3a12-3 Exemption from sections 14 and 16 for securities of certain foreign issuers.

(a) Securities for which the filing of registration statements on Forms 18 (17 CFR 249.218) and 21 (17 CFR 249.221) are authorized shall be exempt from the operation of sections 14 and 16 of the Act.

(b) Securities for which the filing of registration statements on Form 20 (17 CFR 249.220) is authorized shall be exempt from the operation of sections 14 and 16 of the Act except that this paragraph shall not apply if at the end of the last fiscal year of the issuer (1) more than 50 percent of the outstanding voting securities of the issuer are held of record either directly or through voting trust certificates or depositary receipts by residents of the United States, and (2) the business of such issuer is administered principally in the United States or 50 percent or more of the members of the Board of Directors are residents of the United States. For the purpose of this paragraph the term "resident," as applied to security holders, shall mean any person whose address appears on the records of the issuer, the voting trustee or the depositary as being located in the United States.

(c) Securities for which the filing of registration statements on Form 16 (17 CFR 249.216) or 19 (17 CFR 249.219) is authorized shall be exempt from the operation of sections 14 and 16 of the Act if the securities deposited pursuant to the voting trust or other agreement are so exempt pursuant to paragraph (b) of this section.

The foregoing action, which has been taken pursuant to the Securities Exchange Act of 1934, particularly sections

3(a) (12) and 23 (a) thereof, shall become effective June 1, 1966.

(Secs. 3, 16, 48 Stat. 884, 896; 15 U.S.C. 78c, 78p) [31 F.R. 6705, May 5, 1966]

DEFINITIONS

§ 240.3b-1 Definition of "listed."

The term "listed" means admitted to full trading privileges upon application by the issuer or its fiscal agent or, in the case of the securities of a foreign corporation, upon application by a banker engaged in distributing them; and includes securities for which authority to add to the list on official notice of issuance has been granted.

(Sec. 3, 48 Stat. 884; 15 U.S.C. 78c) [13 F.R. 8179, Dec. 22, 1948]

§ 240.3b-2 Definition of "officer."

The term "officer" means a president, vice-president, treasurer, secretary comptroller, and any other person who performs for an issuer, whether incorporated or unincorporated, functions corresponding to those performed by the foregoing officers.

(Sec. 3, 48 Stat. 884; 15 U.S.C. 78c) [13 F.R. 8179, Dec. 22, 1948]

§ 240.3b-3 Definition of "short sale."

The term "short sale" means any sale of a security which the seller does not own or any sale which is consummated by the delivery of a security borrowed by or for the account of the seller. (Sec. 3, 48 Stat. 884; 15 U.S.C. 78c) [13 F.R. 8179, Dec. 22, 1948]

CROSS REFERENCE: For regulations relating to "short sale", see §§ 240.10a-1, 240.10a-2. REGISTRATION AND EXEMPTION OF EXCHANGES

§ 240.6a-1 Form of application and

amendments.

(a) An application of an exchange for registration as a national securities exchange, or for exemption from such registration, shall be made in duplicate on Form 1 (§ 249.1 of this chapter), each of which shall be accompanied by the statement and exhibits prescribed to be filed in connection therewith.

(b) An amendment to such application shall be made in duplicate on Form 1-A (§ 249.1a of this chapter), and each amendment shall be dated and numbered in order of filing.

(c) Promptly after the discovery that any information in the statement, any exhibit, or any amendment was inaccu

rate when filed, the exchange shall file with the Commission an amendment correcting such inaccuracy.

(d) Whenever the number of changes to be reported in an amendment, or the number of amendments filed, are so great that the purpose of clarity will be promoted by the filing of a new complete statement and exhibits, an exchange may, at its election, or shall, upon request of the Commission, file as an amendment a complete new statement together with all exhibits which are prescribed to be filed in connection with Form 1.

(Secs. 5, 6, 17, 48 Stat. 885, 897, as amended; 15 U.S.C. 78e, 78f, 78q) [14 F.R. 7759, Dec. 29, 1949]

§ 240.6a-2

Annual amendments to registration statements or exemption statements of exchanges.

Prior to June 30 of each year each exchange registered as a national securities exchange or exempted from such registration shall file an annual amendment setting forth:

(a) All changes, and the effective dates thereof, which have been effected in any of the information contained or incorporated in the statement, or in Exhibits A(1), A(2), A(3), B, C and D, and which have not previously been reported in an annual amendment. Such amendment shall bring the statement and Exhibits A(1), A(2), A(3), B, C and D up to date as of the latest practicable date within one month of the date on which the amendment is filed. In the event that no changes have occurred in any of this material during the period covered by the amendment, a statement to that effect shall be set forth in the amendment.

(b) Complete Exhibits E and F as of the end of the latest fiscal year of the exchange, and of each affiliate and subsidiary listed in answer to Item 8 of the statement. In the event that Exhibit F is inapplicable to the exchange for the reason that it has no affiliate or subsidiary, the amendment shall include a statement to that effect in lieu of the information called for in Exhibit F.

(c) Complete Exhibits G, H, I, J, K, L and M. The information contained in these exhibits shall be up to date as of the latest practicable date within 3 months of the date on which the annual amendment is filed.

(Secs. 5, 6, 17, 48 Stat. 885, 897, as amended; 15 U.S.C. 78e, 78f, 78q) [14 F.R. 7759, Dec. 29, 1949]