Quick Answer
A registered deal moves through three phases: pre-filing (no offers of any kind, oral or written), the waiting period (oral offers plus written offers via preliminary prospectus, tombstone, or free writing prospectus, but no sales), and post-effective (sales begin, final prospectus satisfies delivery). Safe harbors carve out limited communications in each phase.
The whole communications framework on one sheet: the three periods, the safe harbors, the free writing prospectus (FWP) mechanics, and the aftermarket delivery day-counts the exam loves.
The Three Registration Periods
- Pre-filing: ALL offers prohibited (oral and written). This is the gun-jumping rule. Only period where oral offers are banned.
- Waiting period (filing to effectiveness): oral offers now permitted; written offers must be a preliminary (red-herring) prospectus, a tombstone, or a free writing prospectus (FWP). No sales until effective.
- Post-effective (effectiveness onward): sales begin; the final prospectus satisfies delivery, deemed met by access-equals-delivery (final prospectus filed on the SEC's EDGAR system, or a good-faith effort to file it on time).
Pre-Filing Safe Harbors
- WKSI safe harbor: a well-known seasoned issuer (WKSI) may make oral and written offers any time pre-filing. Issuer only (never underwriters); written pieces need a legend and get filed when the registration statement is filed.
- 30-day shield: ALL issuers; communications more than 30 days before filing that do NOT reference the offering.
- Regularly-released information: reporting issuers may continue factual AND forward-looking releases; non-reporting issuers get factual ONLY. No offering reference.
- Proposed-offering notice: brief "a deal is coming" notice; no underwriter names, no price.
- Generic advertising: investment-company category ads only ("growth funds," "no-load funds"); names no particular fund or its securities and must give the sponsor's name and address.
The One-Liners That Win Points
- Definition of "prospectus" is content-based, not format-based. A tweet, a webcast, or a slide deck is a prospectus if it offers a security. A truthful communication can still be an illegal prospectus.
- Red herring may omit pricing only; issuer narrative, risk factors, and use of proceeds must be present. It supports written offers but is NOT the basis of a sale.
- Tombstone may state price (if known) and name underwriters (the pre-filing notice may not). Any selling language blows the safe harbor.
- An FWP is NOT a substitute for a preliminary prospectus. Unseasoned and non-reporting issuers may use FWPs only AFTER filing a prelim with pricing, and each FWP must be accompanied or preceded by the latest prospectus.
- A live roadshow is oral (not an FWP); a recorded electronic roadshow is written (a graphic communication). Most written roadshows need not be filed. A non-reporting issuer's common or convertible equity offering must file it unless one bona fide version is available to anyone without restriction, no later than any other version.
- Non-participating-broker safe harbor: a firm NOT in the syndicate or selling group may publish regular-course research on the issuer with no compensation from deal parties, and it is not deemed an offer.
- Forward-looking-statement safe harbor protects an eligible issuer's projections in documents filed with the SEC made in good faith AND on a reasonable basis (both required); it does not cover historical facts.
Numbers to Lock In
| Item | Value |
|---|---|
| WKSI/non-WKSI pre-filing shield window | more than 30 days before filing (no offering reference) |
| FWP filing trigger | date of first use |
| FWP recordkeeping | retain 3 years from the initial bona fide offering |
| IPO preliminary-prospectus rule | reaches customers at least 48 hours before the confirmation |
| Aftermarket delivery, listed / Nasdaq IPO | 25 days |
| Aftermarket delivery, non-listed IPO | 90 days |
| Aftermarket delivery, non-reporting follow-on | 40 days |
| Aftermarket delivery, reporting-issuer follow-on | none |
| Stale-prospectus rule | past 9 months from effective date, financials must be no more than 16 months old |
Top Gotchas
- Match the rule to the phase. WKSI pre-filing offers = pre-filing only; FWPs = post-filing only; access-equals-delivery = post-effective only, and only satisfies delivery AT confirmation.
- Oral offers are the phase tell: banned pre-filing, permitted in the waiting period, permitted post-effective. The oral/written split only matters in the waiting period.
- The aftermarket day-counts are the most-tested item: 25 listed IPO, 90 non-listed IPO, 40 non-reporting follow-on, 0 reporting follow-on (the market already has its periodic filings). Participating dealers must still honor written prospectus requests through the later of the distribution's end or the 40- or 90-day statutory period.
- The 48-hour rule is IPOs only and delivers the PRELIMINARY prospectus; do not confuse it with the aftermarket final-prospectus periods.
- Mechanical failures collapse a permitted communication into an illegal prospectus: missing FWP legend, missed FWP filing, or an unfiled final prospectus without a timely good-faith filing effort. The SEC's cure excuses an immaterial or unintentional miss of an FWP filing or legend only after a good faith, reasonable effort and a prompt fix; otherwise, fitting a permitted category with the mechanics done is the test.
One-Breath Recap
A registered deal runs pre-filing (no offers, the gun-jumping rule), the waiting period (oral offers plus written offers limited to a red herring, a tombstone, or a free writing prospectus, no sales), then post-effective (sales begin; access-equals-delivery via EDGAR satisfies final-prospectus delivery duty at confirmation). Pre-filing safe harbors (WKSI issuer-only, the 30-day no-offering-reference shield, regularly-released information, the proposed-offering notice, generic advertising) carve out limited talk. Lock the FWP mechanics (filed at first use, legend, three-year records; non-seasoned issuers need a prelim first), the non-participating-broker research safe harbor, and aftermarket day-counts (25 listed IPO, 90 non-listed, 40 non-reporting follow-on, 0 reporting follow-on) plus the 48-hour IPO preliminary rule, and this unit answers itself.
Need more than the recap? Read the full Investor Disclosure Materials unit.