Rule 405.docx

1、Rule 405Securities Lawyers Deskbook published by The University of Cincinnati College of Law Regulatory HistorySearch PageSuggestionsMain Table of ContentsHome General Rules and Regulationspromulgatedunder theSecurities Act of 1933Rule 405 - Definitions of Terms Unless the context otherwise requires

2、, all terms used in Rule 400 to Rule 494, inclusive, or in the forms for registration have the same meanings as in the Act and in the general rules and regulations. In addition, the following definitions apply, unless the context otherwise requires:Affiliate. An affiliate of, or person affiliated wi

3、th, a specified person, is a person that directly, or indirectly through one or more intermediaries, controls or is controlled by, or is under common control with, the person specified.Amount. The term amount, when used in regard to securities, means the principal amount if relating to evidences of

4、indebtedness, the number of shares if relating to shares, and the number of units if relating to any other kind of security.Associate. The term associate, when used to indicate a relationship with any person, means (1) a corporation or organization (other than the registrant or a majority-owned subs

5、idiary of the registrant) of which such person is an officer or partner or is, directly or indirectly, the beneficial owner of 10 percent or more of any class of equity securities, (2) any trust or other estate in which such person has a substantial benefical interest or as to which such person serv

6、es as trustee or in a similar capacity, and (3) any relative or spouse of such person, or any relative of such spouse, who has the same home as such person or who is a director or officer of the registrant or any of its parents or subsidiaries.Automatic shelf registration statement. The term automat

7、ic shelf registration statement means a registration statement filed on Form S-3 or Form F-3 by a well-known seasoned issuer pursuant to General Instruction I.D. or I.C. of such forms, respectively. Business combination related shell company. The term business combination related shell company means

8、 a shell company (as defined in Rule 230.405) that is:1. Formed by an entity that is not a shell company solely for the purpose of changing the corporate domicile of that entity solely within the United States; or2. Formed by an entity that is not a shell company solely for the purpose of completing

9、 a business combination transaction (as defined in Rule 230.165(f) among one or more entities other than the shell company, none of which is a shell company.Business development company. The term business development company refers to a company which has elected to be regulated as a business develop

10、ment company under sections 55 through 65 of the Investment Company Act of 1940. Certified. The term certified, when used in regard to financial statements, means examined and reported upon with an opinion expressed by an independent public or certified public accountant.Charter. The term charter in

11、cludes articles of incorporation, declarations of trust, articles of association or partnership, or any similar instrument, as amended, affecting (either with or without filing with any governmental agency) the organization or creation of an incorporated or unincorporated person.Common equity. The t

12、erm common equity means any class of common stock or an equivalent interest, including but not limited to a unit of beneficial interest in a trust or a limited partnership interest.Commission. The term Commission means the Securities and Exchange Commission.Control. The term control (including the t

13、erms controlling, controlled by and under common control with) means the possession, direct or indirect, of the power to direct or cause the direction of the management and policies of a person, whether through the ownership of voting securities, by contract, or otherwise.Depositary share. The term

14、depositary share means a security, evidenced by an American Depositary Receipt, that represents a foreign security or a multiple of or fraction thereof deposited with a depositary.Director. The term director means any director of a corporation or any person performing similar functions with respect

15、to any organization whether incorporated or unincorporated.Dividend or interest reinvestment plan. The term dividend or interest reinvestment plan means a plan which is offered solely to the existing security holders of the registrant, which allows such persons to reinvest dividends or interest paid

16、 to them on securities issued by the registrant, and also may allow additional cash amounts to be contributed by the participants in the plan, provided the securities to be registered are newly issued, or are purchased for the account of plan participants, at prices not in excess of current market p

17、rices at the time of purchase, or at prices not in excess of an amount determined in accordance with a pricing formula specified in the plan and based upon average or current market prices at the time of purchase.Electronic filer. The term electronic filer means a person or an entity that submits fi

18、lings electronically pursuant to Rules 100 and 101 of Regulation S-T.Electronic filing. The term electronic filing means a document under the federal securities laws that is transmitted or delivered to the Commission in electronic format.Employee. The term employee does not include a director, trust

19、ee, or officer.Employee benefit plan. The term employee benefit plan means any written purchase, savings, option, bonus, appreciation, profit sharing, thrift, incentive, pension or similar plan or written compensation contract solely for employees, directors, general partners, trustees (where the re

20、gistrant is a business trust), officers, or consultants or advisors. However, consultants or advisors may participate in an employee benefit plan only if:1. They are natural persons;2. They provide bona fide services to the registrant; and3. The services are not in connection with the offer or sale

21、of securities in a capital-raising transaction, and do not directly or indirectly promote or maintain a market for the registrants securities.Equity security. The term equity security means any stock or similar security, certificate of interest or participation in any profit sharing agreement, preor

22、ganization 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; any security future on any such security; or any security

23、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; or any put, call, straddle, or other option or privilege of buying such a security from or selling such a security to another w

24、ithout being bound to do so.Executive officer. The term executive officer, when used with reference to a registrant, means its president, any vice president of the registrant in charge of a principal business unit, division or function (such as sales, administration or finance), any other officer wh

25、o performs a policy making function or any other person who performs similar policy making functions for the registrant. Executive officers of subsidiaries may be deemed executive officers of the registrant if they perform such policy making functions for the registrant.Fiscal year. The term fiscal

26、year means the annual accounting period or, if no closing date has been adopted, the calendar year ending on December 31.Foreign government. The term foreign government means the government of any foreign country or of any political subdivision of a foreign country.Foreign issuer. The term foreign i

27、ssuer means any issuer which is a foreign government, a national of any foreign country or a corporation or other organization incorporated or organized under the laws of any foreign country.Foreign private issuer. 1. The term foreign private issuer means any foreign issuer other than a foreign gove

28、rnment except an issuer meeting the following conditions as of the last business day of its most recently completed second fiscal quarter:i. More than 50 percent of the outstanding voting securities of such issuer are directly or indirectly owned of record by residents of the United States; andii. A

29、ny of the following:A. The majority of the executive officers or directors are United States citizens or residents;B. More than 50 percent of the assets of the issuer are located in the United States; orC. The business of the issuer is administered principally in the United States.2. In the case of

30、a new registrant with the Commission, the determination of whether an issuer is a foreign private issuer shall be made as of a date within 30 days prior to the issuers filing of an initial registration statement under either the Act or the Securities Exchange Act of 1934.3. Once an issuer qualifies

31、as a foreign private issuer, it will immediately be able to use the forms and rules designated for foreign private issuers until it fails to qualify for this status at the end of its most recently completed second fiscal quarter. An issuers determination that it fails to qualify as a foreign private

32、 issuer governs its eligibility to use the forms and rules designated for foreign private issuers beginning on the first day of the fiscal year following the determination date. Once an issuer fails to qualify for foreign private issuer status, it will remain unqualified unless it meets the requirements for foreign private issuer status as of the last business day of its second fiscal quarter. Instructions to paragraph (1) of this definition: To determine the percentage of outstanding votin