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There Ain't No Such Thing As a Free Prospectus
The Securities & Exchange Commission's Securities Offering Reform dramatically changed the landscape of registered public offerings. Issuers and underwriters would do well to take advantage of these changes while staying aware of potential fraud liability. See Final Rule: Securities Offering Reform, Release Nos. 33-8591 and 34-52056, 70 Fed. Reg. 44,722, available at www.sec.gov/rules/final/33-8591.pdf. Previously, written offers could only be made after a registration statement had been filed and only in the form of a statutory prospectus. Now, written offers can be made in much freer form through a 'free writing prospectus.' Through this new free writing prospectus, some issuers can even make offers regardless of whether a registration statement has been filed.
A free writing prospectus ' which is any written offer outside of the statutory prospectus ' can take many forms: printed materials, e-mails, Internet Web sites, radio or television broadcasts, faxes, and even widely distributed voice mails. It can contain any information, including information not contained in the registration statement as long as there is no conflict. A free writing prospectus usually needs to be filed with the SEC by the issuer, but not by underwriters unless it is likely to be broadly disseminated. Furthermore, it must contain a legend advising the potential investor to read the registration statement and indicating how it can be obtained. While many issuers still need to have a registration statement on file to use free writing prospectuses, well-known seasoned issuers can now make written offers even before filing through free writing prospectuses.
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