15 U.S.C. § 77h — Taking effect of registration statements

Page 144 TITLE 15—COMMERCE AND TRADE § 77h ‘‘(2) CONTENT.—Each report required under para- graph (1) shall include— ‘‘(A) an identification of which corporate disclo- sures required under section 7 of the Securities Act of 1933 (15 U.S.C. 77g), section 13 of the Securities Exchange Act of 1934 (15 U.S.C. 78m), and section 14 of the Securities Exchange Act of 1934 (15 U.S.C. 78n) are expressed as machine-readable data and which are not; ‘‘(B) an analysis of the costs and benefits of the use of machine-readable data in corporate disclo- sure to investors, markets, the Securities and Ex- change Commission, and issuers; ‘‘(C) a summary of enforcement actions that re- sult from the use or analysis of machine-readable data collected under the provisions of law described in subparagraph (A); and ‘‘(D) an analysis of how the Securities and Ex- change Commission uses the machine-readable data collected by the Commission. ‘‘(c) SUNSET.—Beginning on the date that is 7 years after the date of enactment of this Act [Dec. 23, 2022], this section shall have no force or effect.’’ FORWARD INCORPORATION BY REFERENCE FOR FORM S–1 Pub. L. 114–94, div. G, title LXXXIV, § 84001, Dec. 4, 2015, 129 Stat. 1797, provided that: ‘‘Not later than 45 days after the date of the enactment of this Act [Dec. 4, 2015], the Securities and Exchange Commission shall revise Form S–1 so as to permit a smaller reporting company (as defined in section 230.405 of title 17, Code of Federal Regulations) to incorporate by reference in a registration statement filed on such form any docu- ments that such company files with the Commission after the effective date of such registration state- ment.’’ OTHER DISCLOSURES Pub. L. 112–106, title I, § 102(c), Apr. 5, 2012, 126 Stat. 310, provided that: ‘‘An emerging growth company may comply with section 229.303(a) of title 17, Code of Fed- eral Regulations, or any successor thereto, by pro- viding information required by such section with re- spect to the financial statements of the emerging growth company for each period presented pursuant to section 7(a) of the Securities Act of 1933 (15 U.S.C. 77g(a)). An emerging growth company may comply with section 229.402 of title 17, Code of Federal Regulations, or any successor thereto, by disclosing the same infor- mation as any issuer with a market value of out- standing voting and nonvoting common equity held by non-affiliates of less than $75,000,000.’’ SIMPLIFIED DISCLOSURE REQUIREMENTS Pub. L. 112–106, title I, § 102(d), as added by Pub. L. 114–94, div. G, title LXXI, § 71003, Dec. 4, 2015, 129 Stat. 1783, provided that: ‘‘With respect to an emerging growth company (as such term is defined under section 2 of the Securities Act of 1933 [15 U.S.C. 77b]): ‘‘(1) REQUIREMENT TO INCLUDE NOTICE ON FORMS S–1 AND F–1.—Not later than 30 days after the date of en- actment of this subsection [Dec. 4, 2015], the Securi- ties and Exchange Commission shall revise its gen- eral instructions on Forms S–1 and F–1 to indicate that a registration statement filed (or submitted for confidential review) by an issuer prior to an initial public offering may omit financial information for historical periods otherwise required by regulation S–X (17 CFR 210.1–01 et seq.) as of the time of filing (or confidential submission) of such registration statement, provided that— ‘‘(A) the omitted financial information relates to a historical period that the issuer reasonably be- lieves will not be required to be included in the Form S–1 or F–1 at the time of the contemplated of- fering; and ‘‘(B) prior to the issuer distributing a preliminary prospectus to investors, such registration state- ment is amended to include all financial informa- tion required by such regulation S–X at the date of such amendment. ‘‘(2) RELIANCE BY ISSUERS.—Effective 30 days after the date of enactment of this subsection, an issuer filing a registration statement (or submitting the statement for confidential review) on Form S–1 or Form F–1 may omit financial information for histor- ical periods otherwise required by regulation S–X (17 CFR 210.1–01 et seq.) as of the time of filing (or con- fidential submission) of such registration statement, provided that— ‘‘(A) the omitted financial information relates to a historical period that the issuer reasonably be- lieves will not be required to be included in the Form S–1 or Form F–1 at the time of the con- templated offering; and ‘‘(B) prior to the issuer distributing a preliminary prospectus to investors, such registration state- ment is amended to include all financial informa- tion required by such regulation S–X at the date of such amendment.’’ 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. § 77h. Taking effect of registration statements and amendments thereto (a) Effective date of registration statement Except as hereinafter provided, the effective date of a registration statement shall be the twentieth day after the filing thereof or such earlier date as the Commission may determine, having due regard to the adequacy of the infor- mation respecting the issuer theretofore avail- able to the public, to the facility with which the nature of the securities to be registered, their relationship to the capital structure of the issuer and the rights of holders thereof can be understood, and to the public interest and the protection of investors. If any amendment to any such statement is filed prior to the effective date of such statement, the registration state- ment shall be deemed to have been filed when such amendment was filed; except that an amendment filed with the consent of the Com- mission, prior to the effective date of the reg- istration statement, or filed pursuant to an order of the Commission, shall be treated as a part of the registration statement. (b) Incomplete or inaccurate registration state- ment If it appears to the Commission that a reg- istration statement is on its face incomplete or inaccurate in any material respect, the Commis- sion may, after notice by personal service or the sending of confirmed telegraphic notice not later than ten days after the filing of the reg- istration statement, and opportunity for hearing (at a time fixed by the Commission) within ten days after such notice by personal service or the sending of such telegraphic notice, issue an order prior to the effective date of registration refusing to permit such statement to become ef- fective until it has been amended in accordance with such order. When such statement has been amended in accordance with such order the Commission shall so declare and the registra- Page 145 TITLE 15—COMMERCE AND TRADE § 77h–1 tion shall become effective at the time provided in subsection (a) or upon the date of such dec- laration, whichever date is the later. (c) Effective date of amendment to registration statement An amendment filed after the effective date of the registration statement, if such amendment, upon its face, appears to the Commission not to be incomplete or inaccurate in any material re- spect, shall become effective on such date as the Commission may determine, having due regard to the public interest and the protection of in- vestors. (d) Untrue statements or omissions in registra- tion statement If it appears to the Commission at any time that the registration statement includes any un- true statement of a material fact or omits to state any material fact required to be stated therein or necessary to make the statements therein not misleading, the Commission may, after notice by personal service or the sending of confirmed telegraphic notice, and after oppor- tunity for hearing (at a time fixed by the Com- mission) within fifteen days after such notice by personal service or the sending of such tele- graphic notice, issue a stop order suspending the effectiveness of the registration statement. When such statement has been amended in ac- cordance with such stop order, the Commission shall so declare and thereupon the stop order shall cease to be effective. (e) Examination for issuance of stop order The Commission is empowered to make an ex- amination in any case in order to determine whether a stop order should issue under sub- section (d). In making such examination the Commission or any officer or officers designated by it shall have access to and may demand the production of any books and papers of, and may administer oaths and affirmations to and exam- ine, the issuer, underwriter, or any other person, in respect of any matter relevant to the exam- ination, and may, in its discretion, require the production of a balance sheet exhibiting the as- sets and liabilities of the issuer, or its income statement, or both, to be certified to by a public or certified accountant approved by the Com- mission. If the issuer or underwriter shall fail to cooperate, or shall obstruct or refuse to permit the making of an examination, such conduct shall be proper ground for the issuance of a stop order. (f) Notice requirements Any notice required under this section shall be sent to or served on the issuer, or, in case of a foreign government or political subdivision thereof, to or on the underwriter, or, in the case of a foreign or Territorial person, to or on its duly authorized representative in the United States named in the registration statement, properly directed in each case of telegraphic no- tice to the address given in such statement. (May 27, 1933, ch. 38, title I, § 8, 48 Stat. 79; Aug. 22, 1940, ch. 686, title III, § 301, 54 Stat. 857.) Editorial Notes AMENDMENTS 1940—Subsec. (a). Act Aug. 22, 1940, amended subsec. (a) generally. 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. § 77h–1. Cease-and-desist proceedings (a) Authority of Commission If the Commission finds, after notice and op- portunity for hearing, that any person is vio- lating, has violated, or is about to violate any provision of this subchapter, or any rule or regu- lation thereunder, the Commission may publish its findings and enter an order requiring such person, and any other person that is, was, or would be a cause of the violation, due to an act or omission the person knew or should have known would contribute to such violation, to cease and desist from committing or causing such violation and any future violation of the same provision, rule, or regulation. Such order may, in addition to requiring a person to cease and desist from committing or causing a viola- tion, require such person to comply, or to take steps to effect compliance, with such provision, rule, or regulation, upon such terms and condi- tions and within such time as the Commission may specify in such order. Any such order may, as the Commission deems appropriate, require future compliance or steps to effect future com- pliance, either permanently or for such period of time as the Commission may specify, with such provision, rule, or regulation with respect to any security, any issuer, or any other person. (b) Hearing The notice instituting proceedings pursuant to subsection (a) shall fix a hearing date not earlier than 30 days nor later than 60 days after service of the notice unless an earlier or a later date is set by the Commission with the consent of any respondent so served. (c) Temporary order (1) In general Whenever the Commission determines that the alleged violation or threatened violation specified in the notice instituting proceedings pursuant to subsection (a), or the continuation thereof, is likely to result in significant dis- sipation or conversion of assets, significant harm to investors, or substantial harm to the public interest, including, but not limited to, losses to the Securities Investor Protection Corporation, prior to the completion of the proceedings, the Commission may enter a tem- porary order requiring the respondent to cease and desist from the violation or threatened violation and to take such action to prevent the violation or threatened violation and to prevent dissipation or conversion of assets, significant harm to investors, or substantial harm to the public interest as the Commission