[Title 17 CFR 228.512]
[Code of Federal Regulations (annual edition) - April 1, 2007 Edition]
[Title 17 - COMMODITY AND SECURITIES EXCHANGES]
[Chapter II - SECURITIES AND EXCHANGE COMMISSION]
[Part 228 - INTEGRATED DISCLOSURE SYSTEM FOR SMALL]
[Subpart A - Regulation S-B]
[Sec. 228.512 - (Item 512) Undertakings.]
[From the U.S. Government Printing Office]


17COMMODITY AND SECURITIES EXCHANGES22007-04-012007-04-01false228.512Sec. 228.512COMMODITY AND SECURITIES EXCHANGESSECURITIES AND EXCHANGE COMMISSIONINTEGRATED DISCLOSURE SYSTEM FOR SMALLRegulation S-B
Sec. 228.512  (Item 512) Undertakings.

    Include each of the following undertakings that apply to the 
offering.
    (a) Rule 415 Offering. If the small business issuer is registering 
securities under Rule 415 of the Securities Act (Sec. 230.415 of this 
chapter), that the small business issuer will:
    (1) File, during any period in which it offers or sells securities, 
a post-effective amendment to this registration statement to:
    (i) Include any prospectus required by section 10(a)(3) of the 
Securities Act;
    (ii) Reflect in the prospectus any facts or events which, 
individually or together, represent a fundamental change in the 
information in the registration statement. Notwithstanding the 
foregoing, any increase or decrease in volume of securities offered (if 
the total dollar value of securities offered would not exceed that which 
was registered) and any deviation from the low or high end of the 
estimated maximum offering range may be reflected in the form of 
prospectus filed with the Commission pursuant to Rule 424(b) (Sec. 
230.424(b) of this chapter) if, in the aggregate, the changes in volume 
and price represent no more than a 20% change in the maximum aggregate 
offering price set forth in the ``Calculation of Registration Fee'' 
table in the effective registration statement; and
    (iii) Include any additional or changed material information on the 
plan of distribution.

    Notes to paragraph (a)(1): 1. Small business issuers do not need to 
give the statements in paragraphs (a)(1)(i) and (a)(1)(ii) of this Item 
if the registration statement is on Form S-8 (Sec. 239.16b of this 
chapter), and the information required in a post-effective amendment is 
incorporated by reference from periodic reports filed by the small 
business issuer under the Exchange Act; and
    2. Small business issuers do not need to give the statements in 
paragraphs (a)(1)(i), (a)(1)(ii), and (a)(1)(iii) of this Item if the 
registration statement is on Form S-3 (Sec. 239.13 of this chapter) and 
the information required in a post-effective amendment is incorporated 
by reference from periodic reports filed by the small business issuer 
under the Exchange Act, or is contained in a form of prospectus filed 
pursuant to Rule 424(b) (Sec. 230.424(b) of this chapter) that is 
deemed part of and included in the registration statement.

    (2) For determining liability under the Securities Act, treat each 
post-effective amendment as a new registration statement of the 
securities offered, and the offering of the securities at that time to 
be the initial bona fide offering.
    (3) File a post-effective amendment to remove from registration any 
of the securities that remain unsold at the end of the offering.

[[Page 389]]

    (4) For determining liability of the undersigned small business 
issuer under the Securities Act to any purchaser in the initial 
distribution of the securities, the undersigned small business issuer 
undertakes that in a primary offering of securities of the undersigned 
small business issuer pursuant to this registration statement, 
regardless of the underwriting method used to sell the securities to the 
purchaser, if the securities are offered or sold to such purchaser by 
means of any of the following communications, the undersigned small 
business issuer will be a seller to the purchaser and will be considered 
to offer or sell such securities to such purchaser:
    (i) Any preliminary prospectus or prospectus of the undersigned 
small business issuer relating to the offering required to be filed 
pursuant to Rule 424 (Sec. 230.424 of this chapter);
    (ii) Any free writing prospectus relating to the offering prepared 
by or on behalf of the undersigned small business issuer or used or 
referred to by the undersigned small business issuer;
    (iii) The portion of any other free writing prospectus relating to 
the offering containing material information about the undersigned small 
business issuer or its securities provided by or on behalf of the 
undersigned small business issuer; and
    (iv) Any other communication that is an offer in the offering made 
by the undersigned small business issuer to the purchaser.
    (b) Warrants and rights offerings. If the small business issuer will 
offer the securities to existing security holders under warrants or 
rights and the small business issuer will reoffer to the public any 
securities not taken by security holders, with any modifications that 
suit the particular case--The small business issuer will supplement the 
prospectus, after the end of the subscription period, to include the 
results of the subscription offer, the transactions by the underwriters 
during the subscription period, the amount of unsubscribed securities 
that the underwriters will purchase and the terms of any later 
reoffering. If the underwriters make any public offering of the 
securities on terms different from those on the cover page of the 
prospectus, the small business issuer will file a post-effective 
amendment to state the terms of such offering.
    (c) Competitive bids. If the small business issuer is offering 
securities at competitive bidding, with modifications to suit the 
particular case, the small business issuer will:
    (1) Use its best efforts to distribute before the opening of bids, 
to prospective bidders, underwriters, and dealers, a reasonable number 
of copies of a prospectus that meet the requirements of section 10(a) of 
the Securities Act, and relating to the securities offered at 
competitive bidding, as contained in the registration statement, 
together with any supplements; and
    (2) File an amendment to the registration statement reflecting the 
results of bidding, the terms of the reoffering and related matters 
where required by the applicable form, not later than the first use, 
authorized by the issuer after the opening of bids, of a prospectus 
relating to the securities offered at competitive bidding, unless the 
issuer proposes no further public offering of such securities by the 
issuer or by the purchasers.
    (d) Equity offerings of nonreporting small business issuers. If a 
small business issuer that before the offering had no duty to file 
reports with the Commission under section 13(a) or 15(d) of the Exchange 
Act is registering equity securities for sale in an underwritten 
offering--The small business issuer will provide to the underwriter at 
the closing specified in the underwriting agreement certificates in such 
denominations and registered in such names as required by the 
underwriter to permit prompt delivery to each purchaser.
    (e) Request for acceleration of effective date. If the small 
business issuer will request acceleration of the effective date of the 
registration statement under Rule 461 under the Securities Act, include 
the following:

    Insofar as indemnification for liabilities arising under the 
Securities Act of 1933 (the ``Act'') may be permitted to directors, 
officers and controlling persons of the small business issuer pursuant 
to the foregoing provisions, or otherwise, the small business issuer has 
been advised that in the opinion of the Securities and Exchange 
Commission such indemnification is against public policy

[[Page 390]]

as expressed in the Act and is, therefore, unenforceable.


In the event that a claim for indemnification against such liabilities 
(other than the payment by the small business issuer of expenses 
incurred or paid by a director, officer or controlling person of the 
small business issuer in the successful defense of any action, suit or 
proceeding) is asserted by such director, officer or controlling person 
in connection with the securities being registered, the small business 
issuer will, unless in the opinion of its counsel the matter has been 
settled by controlling precedent, submit to a court of appropriate 
jurisdiction the question whether such indemnification by it is against 
public policy as expressed in the Securities Act and will be governed by 
the final adjudication of such issue.
    (f) If the issuer relies on Rule 430A under the Securities Act 
[Sec. 230.430A of this chapter], that the small business issuer will:
    (1) For determining any liability under the Securities Act, treat 
the information omitted from the form of prospectus filed as part of 
this registration statement in reliance upon Rule 430A and contained in 
a form of prospectus filed by the small business issuer under Rule 
424(b)(1), or (4) or 497(h) under the Securities Act (Sec. Sec. 
230.424(b)(1), (4) or 230.497(h)) as part of this registration statement 
as of the time the Commission declared it effective.
    (2) For determining any liability under the Securities Act, treat 
each post-effective amendment that contains a form of prospectus as a 
new registration statement for the securities offered in the 
registration statement, and that offering of the securities at that time 
as the initial bona fide offering of those securities.
    (g) That, for the purpose of determining liability under the 
Securities Act to any purchaser:
    (1) If the small business issuer is relying on Rule 430B (Sec. 
230.430B of this chapter):
    (i) Each prospectus filed by the undersigned small business issuer 
pursuant to Rule 424(b)(3) (Sec. 230.424(b)(3) of this chapter) shall 
be deemed to be part of the registration statement as of the date the 
filed prospectus was deemed part of and included in the registration 
statement; and
    (ii) Each prospectus required to be filed pursuant to Rule 
424(b)(2), (b)(5), or (b)(7) (Sec. 230.424(b)(2), (b)(5), or (b)(7) of 
this chapter) as part of a registration statement in reliance on Rule 
430B relating to an offering made pursuant to Rule 415(a)(1)(i), (vii), 
or (x) (Sec. 230.415(a)(1)(i), (vii), or (x) of this chapter) for the 
purpose of providing the information required by section 10(a) of the 
Securities Act shall be deemed to be part of and included in the 
registration statement as of the earlier of the date such form of 
prospectus is first used after effectiveness or the date of the first 
contract of sale of securities in the offering described in the 
prospectus. As provided in Rule 430B, for liability purposes of the 
issuer and any person that is at that date an underwriter, such date 
shall be deemed to be a new effective date of the registration statement 
relating to the securities in the registration statement to which that 
prospectus relates, and the offering of such securities at that time 
shall be deemed to be the initial bona fide offering thereof. Provided, 
however, that no statement made in a registration statement or 
prospectus that is part of the registration statement or made in a 
document incorporated or deemed incorporated by reference into the 
registration statement or prospectus that is part of the registration 
statement will, as to a purchaser with a time of contract of sale prior 
to such effective date, supersede or modify any statement that was made 
in the registration statement or prospectus that was part of the 
registration statement or made in any such document immediately prior to 
such effective date; or
    (2) If the small business issuer is subject to Rule 430C (Sec. 
230.430C of this chapter), include the following:

    Each prospectus filed pursuant to Rule 424(b)(Sec. 230.424(b) of 
this chapter) as part of a registration statement relating to an 
offering, other than registration statements relying on Rule 430B or 
other than prospectuses filed in reliance on Rule 430A (Sec. 230.430A 
of this chapter), shall be deemed to be part of and included in the 
registration statement as of the date it is first used after 
effectiveness. Provided, however, that no statement

[[Page 391]]

made in a registration statement or prospectus that is part of the 
registration statement or made in a document incorporated or deemed 
incorporated by reference into the registration statement or prospectus 
that is part of the registration statement will, as to a purchaser with 
a time of contract of sale prior to such first use, supersede or modify 
any statement that was made in the registration statement or prospectus 
that was part of the registration statement or made in any such document 
immediately prior to such date of first use.

[57 FR 36449, Aug. 13, 1992, as amended at 60 FR 26614, May 17, 1995; 70 
FR 44799, Aug. 3, 2005]