In this installment we tackle the various sections of Rule 424(b), how they are used and what you have to file by when. We have done this in the form of a matrix, which we very much hope you will find easier to follow than the somewhat convoluted plot of The Matrix. This chart* is not a substitute for a careful review of the rules, of course – and it won’t answer the question whether Neo really is “the One” – but it should help you sort through 424(b)’s various provisions.
| Section | Application | Filing Deadline |
| 424(b)(1) |
Used to convey information previously omitted from a prospectus filed as part of an effective registration statement pursuant to Rule 430A – i.e., pricing-related information Bear in mind that Rule 430A provides a safe harbor for changes in volume or price up to 20% (and can also be used for changes greater than 20% if they would not materially change the disclosure). There are lots of twists and turns to this – for a discussion of how Rule 430A works, see our Client Alert “Upsizing and Downsizing Your IPO” as well as C&DIs 227.01-227.03
| Second business day after the earlier of pricing or first use. |
| 424(b)(2) |
Used in connection with:
| Second business day after pricing or first use |
| 424(b)(3) | Used to convey facts or events other than those covered by 424(b)(1), (2) or (6) that were not contained in the previous filing or are a substantive change to it | Fifth business day after the date of first use |
| 424(b)(4) | Used when both 424(b)(1) and 424(b)(3) information is being conveyed | Second business day after the earlier of pricing or first use |
| 424(b)(5) | Used when both 424(b)(2) and 424(b)(3) information is being conveyed | Second business day after the earlier of pricing or first use |
| 424(b)(6) | Used in connection with certain Canadian securities offerings | Date of first use in Canada |
| 424(b)(7) | Used to identify selling stockholder information previously omitted in reliance on Rule 430B (for example, to add new selling stockholders to a WKSI shelf). In limited circumstances, non-WKSIs may add selling stockholders to a resale registration statement; otherwise they will need to file a post-effective amendment to add selling stockholders. For more on this, see C&DI 220.04 | Second business day following the earlier of pricing or first use |
| 424(b)(8) | Used as a catch-all for unintentional late filings in categories (b)(1)-(7) above | As soon as practicable after discovering the failure to file, a 424(b)(8) filing is necessary in addition to the filing required by (b)(1)‑(7) above, not instead of it |
* If you'd like a printable version, click here.
A few additional points to bear in mind:
- You will most likely file a prospectus supplement for a medium-term note offering off a shelf under 424(b)(2) – C&DI 212.29 discusses this.
- In addition to making sure you are filing your prospectus under the correct section of Rule 424(b), Rule 424(e) requires that you indicate that section on your filing (in the upper right-hand corner). You should also make sure that the financial printer that is actually pushing the button on the filing has it teed up correctly so that it is filed pursuant to the correct subsection on EDGAR. If you are filing a prospectus supplement in connection with an offering that involves two registration statements (i.e., an initial effective registration statement and one registering additional securities under Rule 462(b)), your filing should be filed under the registration number (the number beginning 33- or 333-) assigned to the initial registration statement, but you should list both on the cover page of your filing (see C&DI 644.06). In this case, it is particularly important to confirm that the printer has both the correct section of 424(b) you are using and the correct registration number.
- Rule 424(b) prospectuses may not be part of a science fiction movie, but they do have an intriguing ability to travel back in time. Remember that a Rule 424(b) prospectus is filed after the registration statement to which it relates. But, the information in a Rule 424(b) prospectus is, in various circumstances, “poured back” into that registration statement (in other words, deemed to be part of that registration statement at a date earlier than the date the Rule 424(b) prospectus is actually filed).
Here is a brief summary of how that works:
- Rule 424(b)(1) – Pricing-related information in a prospectus filed under Rule 424(b)(1) is deemed to have been a part of the registration statement as of its effective date. See Rule 430A(b).
- Rule 424(b)(2), (5) or (7) – Information omitted from a Rule 424(b)(2), (5) or (7) prospectus pursuant to Rule 430B is deemed to be a part of the registration statement on the earlier of the date of first use or the date and time of the first contract of sale of the securities. See Rule 430B(f)(1). (Note the SEC’s position that the date of first use is not the date that the prospectus supplement is given to a purchaser; instead, it is the date the prospectus is made available to the managing underwriter, syndicate member or any prospective purchaser. See Release 33-8591 at note 462.)
- Any other Rule 424(b) prospectus – For any Rule 424(b) prospectus that does not fit in the above buckets, information is deemed to be part of a registration statement on the date the prospectus is first used. See Rule 430C(a). (By the way, if you can follow Rule 430C(b), you likely find The Matrix crystal clear.)