§ 230.158Definitions of certain terms in the last paragraph of section 11(a).
(a) An “earning statement” made generally available to securityholders of the
registrant pursuant to the last paragraph of
section 11(a) of the Act shall be sufficient for the purposes of such
(1) There is included the information required for statements of income
(i) In Item 8 of Form 10-K (§ 239.310 of this
chapter), part I, Item 1 of Form 10-Q (§ 240.308a of this chapter), or Rule 14a-3(b) (§ 240.14a-3(b) of this chapter)
under the Securities
Exchange Act of 1934;
(ii) In Item 17 of Form 20-F (§ 249.220f of this
chapter), if appropriate; or
(iii) In Form 40-F (§ 249.240f of this
(2) The information specified in the last paragraph of section 11(a) is contained in one report or
any combination of reports either:
(i) On Form 10-K, Form 10-Q, Form 8-K (§ 249.308 of
this chapter), or in the annual report to security holders
pursuant to Rule 14a-3 under the Securities
Exchange Act of 1934 (§ 240.14a-3
of this chapter); or
(ii) On Form 20-F, Form 40-F or Form 6-K (§ 249.306 of
A subsidiary issuing debt securities guaranteed by its parent will be deemed to have met the requirements of this
paragraph if the parent's income statements satisfy the criteria of this
paragraph and information respecting the subsidiary is included to the same extent as was presented in
the registration statement. An “earning statement” not meeting the requirements
of this paragraph may otherwise be sufficient for purposes of the last paragraph
of section 11(a).
(b) For purposes of the last paragraph of section
11(a) only, the “earning statement” contemplated by paragraph (a)
of this section shall be deemed to be “made generally available to its
security holders” if the registrant:
(1) Is required to file reports pursuant to section 13
or 15(d) of the Securities
Exchange Act of 1934 and
(2) Has filed its report or reports on Form 10-K and Form 10-KSB, Form 10-Q
and Form 10-QSB, Form 8-K, Form 20-F, Form 40-F, or Form 6-K, or has
supplied to the Commission copies of the annual report sent to security
holders pursuant to Rule 14a-3(c), (§ 240.14a-3(c) of this chapter) containing such
A registrant may use other methods to make an
earning statement “generally available to its security holders” for purposes of
the last paragraph of section 11(a).
(c) For purposes of the last paragraph of section 11(a)
of the Act only, the effective date of the registration
statement is deemed to be the date of the latest to occur of:
(1) The effective date of the registration statement;
(2) The effective date of the last post-effective amendment to the
registration statement next preceding a particular sale of the issuer's registered securities to the public filed for
the purposes of:
(i) Including any prospectus required by section
10(a)(3) of the Act; or
(ii) Reflecting in the prospectus any facts or events arising after the
effective date of the registration statement (or the most recent
post-effective amendment thereof) which, individually or in the aggregate,
represent a fundamental change in the information set forth in the
(3) The date of filing of the last report of the issuer incorporated by reference into the prospectus that is part of the registration statement or
the date that a form of prospectus filed pursuant to Rule 424(b) or Rule 497(b),
(c), (d), or (e) (§ 230.424(b) or § 230.497(b), (c), (d), or (e)) is deemed part of and included in the registration statement, and
relied upon in either case in lieu of filing a
post-effective amendment for purposes of paragraphs (c)(2)(i) and (ii) of
this section next preceding a particular sale of the issuer's registered securities to the public; or
(4) As to the issuer and any underwriter at that time only, the most recent effective
date of the registration statement for purposes of liability under section 11 of the Act of the issuer and any such underwriter only at the time of or next preceding a
particular sale of the issuer's registered securities to the public determined
pursuant to Rule 430B (§ 230.430B).
(d) If an earnings statement was made available by “other methods” than those
specified in paragraphs (a) and (b) of this section, the earnings statement
must be filed as exhibit 99 to the next periodic report required by section 13 or 15(d) of the Exchange Act covering the period in which the earnings
statement was released.
[48 FR 44770, Sept. 30, 1983, as amended at 56 FR 30054, July 1, 1991; 58 FR
14669, Mar. 18, 1993; 70 FR 44804, Aug.
3, 2005; 73 FR 967, Jan. 4, 2008]
Title 17 published on 2014-04-01.
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