15 U.S.C. § 77fff — Securities not registered under Securities

Page 182 TITLE 15—COMMERCE AND TRADE § 77fff permit the application to become effective, if it finds that any person designated as trustee under such indenture is not eligible to act as such under subsection (a) of section 77jjj of this title, but no order shall be issued except after notice and opportunity for hearing within the periods and in the manner required with respect to refusal orders pursuant to section 8(b) of the Securities Act of 1933 [15 U.S.C. 77h(b)]. If after notice and opportunity for hearing the Commis- sion issues an order under this provision, the ob- ligor shall within 5 calendar days appoint a trustee meeting the requirements of subsection (a) of section 77jjj of this title. No such appoint- ment shall be effective and such refusal order shall not be rescinded by the Commission until a person eligible to act as trustee under sub- section (a) of section 77jjj of this title has been appointed. If no order is issued, an application filed pursuant to this paragraph shall be effec- tive the tenth day after filing thereof or such earlier date as the Commission may determine, having due regard to the adequacy of informa- tion provided therein, the public interest, and the protection of investors. (c) Information required in prospectus A prospectus relating to any such security shall include to the extent the Commission may prescribe by rules and regulations as necessary and appropriate in the public interest or for the protection of investors, as though such inclusion were required by section 10 of the Securities Act of 1933 [15 U.S.C. 77j], a written statement con- taining the analysis set forth in the registration statement, of any indenture provisions with re- spect to the matters specified in paragraph (2) of subsection (a) of this section, together with a supplementary analysis, prepared by the Com- mission, of such provisions and of the effect thereof, if, in the opinion of the Commission, the inclusion of such supplementary analysis is necessary or appropriate in the public interest or for the protection of investors, and the Com- mission so declares by order after notice and, if demanded by the issuer, opportunity for hearing thereon. Such order shall be entered prior to the effective date of registration, except that if op- portunity for hearing thereon is demanded by the issuer such order shall be entered within a reasonable time after such opportunity for hear- ing. (d) Applicability of other statutory provisions The provisions of sections 11, 12, 17, and 24 of the Securities Act of 1933 [15 U.S.C. 77k, 77l, 77q, 77x], and the provisions of sections 77www and 77yyy of this title, shall not apply to statements in or omissions from any analysis required under the provisions of this section or section 77fff or 77ggg of this title. (May 27, 1933, ch. 38, title III, § 305, as added Aug. 3, 1939, ch. 411, 53 Stat. 1154; amended Aug. 10, 1954, ch. 667, title III, § 303, 68 Stat. 687; Pub. L. 101–550, title IV, § 404, Nov. 15, 1990, 104 Stat. 2722.) Editorial Notes REFERENCES IN TEXT The Securities Act of 1933, referred to in subsec. (b)(2), is act May 27, 1933, ch. 38, title I, 48 Stat. 74, which is classified generally to subchapter I (§ 77a et seq.) of this chapter. For complete classification of this Act to the Code, see section 77a of this title and Tables. AMENDMENTS 1990—Subsec. (a)(1). Pub. L. 101–550, § 404(1), struck out ‘‘or has a conflicting interest as defined in sub- section (b) of section 77jjj of this title’’ after ‘‘section 77jjj of this title’’. Subsec. (b). Pub. L. 101–550, § 404(2), designated exist- ing provisions as par. (1), substituted ‘‘Except as may be permitted by paragraph (2) of this subsection, the Commission shall issue’’ for ‘‘The Commission shall issue’’, redesignated former par. (1) as subpar. (a) and inserted ‘‘or’’ at end, struck out former par. (2) which authorized Commission to prohibit a registration state- ment from taking effect if it finds that such indenture does not conform to requirements of sections 77jjj to 77rrr of this title, redesignated former par. (3) as sub- par. (B) and struck out ‘‘or has any conflicting interest as defined in subsection (b) of section 77jjj of this title’’ after ‘‘section 77jjj of this title’’, and added par. (2). 1954—Subsec. (c). Act Aug. 10, 1954, authorized the Commission to prescribe by rule and regulation the ex- tent to which summaries of indenture provisions must be contained in prospectuses. Statutory Notes and Related Subsidiaries EFFECTIVE DATE OF 1954 AMENDMENT Amendment by act Aug. 10, 1954, effective 60 days after Aug. 10, 1954, see note under section 77b of this title. Executive Documents TRANSFER OF FUNCTIONS For transfer of functions of Securities and Exchange Commission, with certain exceptions, to Chairman of such Commission, see Reorg. Plan No. 10 of 1950, §§ 1, 2, eff. May 24, 1950, 15 F.R. 3175, 64 Stat. 1265, set out under section 78d of this title. § 77fff. Securities not registered under Securities Act (a) Prohibitions affecting unregistered securities not issued under indenture In the case of any security which is not reg- istered under the Securities Act of 1933 [15 U.S.C. 77a et seq.] and to which this subsection is applicable notwithstanding the provisions of section 77ddd of this title, unless such security has been or is to be issued under an indenture and an application for qualification is effective as to such indenture, it shall be unlawful for any person, directly or indirectly— (1) to make use of any means or instruments of transportation or communication in inter- state commerce or of the mails to sell such se- curity through the use or medium of any pro- spectus or otherwise; or (2) to carry or cause to be carried through the mails or in interstate commerce, by any means or instruments of transportation, any such security for the purpose of sale or for de- livery after sale. (b) Prohibitions affecting unregistered securities issued under indenture In the case of any security which is not reg- istered under the Securities Act of 1933 [15 U.S.C. 77a et seq.], but which has been or is to be issued under an indenture as to which an ap- plication for qualification is effective, it shall be unlawful for any person, directly or indirectly— Page 183 TITLE 15—COMMERCE AND TRADE § 77ggg (1) to make use of any means or instruments of transportation or communication in inter- state commerce or of the mails to carry or transmit any prospectus relating to any such security, unless such prospectus, to the extent the Commission may prescribe by rules and regulations as necessary and appropriate in the public interest or for the protection of in- vestors, includes or is accompanied by a writ- ten statement that contains the information specified in subsection (c) of section 77eee of this title; or (2) to carry or to cause to be carried through the mails or in interstate commerce any such security for the purpose of sale or for delivery after sale, unless, to the extent the Commis- sion may prescribe by rules and regulations as necessary or appropriate in the public interest or for the protection of investors, accom- panied or preceded by a written statement that contains the information specified in sub- section (c) of section 77eee of this title. (c) Necessity of issuance under indenture; appli- cation for qualification It shall be unlawful for any person, directly or indirectly, to make use of any means or instru- ments of transportation or communication in interstate commerce or of the mails to offer to sell through the use or medium of any pro- spectus or otherwise any security which is not registered under the Securities Act of 1933 [15 U.S.C. 77a et seq.] and to which this subsection is applicable notwithstanding the provisions of section 77ddd of this title, unless such security has been or is to be issued under an indenture and an application for qualification has been filed as to such indenture, or while the applica- tion is the subject of a refusal order or stop order or (prior to qualification) any public pro- ceeding or examination under section 77ggg(c) of this title. (May 27, 1933, ch. 38, title III, § 306, as added Aug. 3, 1939, ch. 411, 53 Stat. 1155; amended Aug. 10, 1954, ch. 667, title III, § 304, 68 Stat. 687.) Editorial Notes REFERENCES IN TEXT The Securities Act of 1933, referred to in subsecs. (a) to (c), is act May 27, 1933, ch. 38, title I, 48 Stat. 74, which is classified generally to subchapter I (§ 77a et seq.) of this chapter. For complete classification of this Act to the Code, see section 77a of this title and Tables. AMENDMENTS 1954—Subsec. (b). Act Aug. 10, 1954, authorized the Commission to prescribe the extent to which sum- maries of indenture provisions must be used in the sale of specified types of securities. Subsec. (c). Act Aug. 10, 1954, added subsec. (c). Statutory Notes and Related Subsidiaries EFFECTIVE DATE OF 1954 AMENDMENT Amendment by act Aug. 10, 1954, effective 60 days after Aug. 10, 1954, see note under section 77b of this title. Executive Documents TRANSFER OF FUNCTIONS For transfer of functions of Securities and Exchange Commission, with certain exceptions, to Chairman of such Commission, see Reorg. Plan No. 10 of 1950, §§ 1, 2, eff. May 24, 1950, 15 F.R. 3175, 64 Stat. 1265, set out under section 78d of this title. § 77ggg. Qualification of indentures covering se- curities not required to be registered (a) Application; information required; avail- ability of information to public In the case of any security which is not re- quired to be registered under the Securities Act of 1933 [15 U.S.C. 77a et seq.] and to which sub- section (a) of section 77fff of this title is applica- ble notwithstanding the provisions of section 77ddd of this title, an application for qualifica- tion of the indenture under which such security has been or is to be issued shall be filed with the Commission by the issuer of such security. Each such application shall be in such form, and shall be signed in such manner, as the Commission may by rules and regulations prescribe as nec- essary or appropriate in the public interest or for the protection of investors. Each such appli- cation shall include the information and docu- ments required by subsection (a) of section 77eee of this title. The information and documents re- quired by paragraph (1) of such subsection with respect to the person designated to act as inden- ture trustee shall be contained in a separate part of such application, which part shall be signed by such person. Each such application shall also include such of the other information and documents which would be required to be filed in order to register such indenture security under the Securities Act of 1933 as the Commis- sion may by rules and regulations prescribe as necessary or appropriate in the public interest or for the protection of investors. An applica- tion may be withdrawn by the applicant at any time prior to the effective date thereof. Subject to the provisions of section 77uuu of this title, the information and documents contained in or filed with any application shall be made avail- able to the public under such regulations as the Commission may prescribe, and copies thereof, photostatic or otherwise, shall be furnished to every applicant therefor at such reasonable charge as the Commission may prescribe. (b) Filing of application The filing with the Commission of an applica- tion, or of an amendment to an application, shall be deemed to have taken place upon the re- ceipt thereof by the Commission. (c) Applicability of other statutory provisions The provisions of section 77h of this title and the provisions of subsection (b) of section 77eee of this title shall apply with respect to every such application, as though such application were a registration statement filed pursuant to the provisions of the Securities Act of 1933 [15 U.S.C. 77a et seq.]. (May 27, 1933, ch. 38, title III, § 307, as added Aug. 3, 1939, ch. 411, 53 Stat. 1156; amended Pub. L. 107–123, § 7, Jan. 16, 2002, 115 Stat. 2397.) Editorial Notes REFERENCES IN TEXT The Securities Act of 1933, referred to in subsecs. (a) and (c), is act May 27, 1933, ch. 38, title I, 48 Stat. 74,