Does Item 10(e) of Regulation S-K apply to filed free writing prospectuses?
Regulation S-K applies to registration statements filed under the Securities Act, as well as registration statements, periodic and current reports and other documents required to be filed under the Exchange Act. A filed free writing prospectus is not filed as part of the issuer’s registration statement, unless the issuer files it on Form 8-K or otherwise includes it or incorporates it by reference into the registration statement. Therefore, Item 10(e) of Regulation S-K does not apply to a filed free writing prospectus unless the free writing prospectus is included in or incorporated by reference into the issuer’s registration statement or included in an Exchange Act filing. Question 12 Q: During a company’s IPO, an underwriter sends a free writing prospectus to its clients. A member of the media then receives the free writing prospectus from a client of that firm and not from the underwriter, and writes an article containing information derived from information in the underwriter’s fre
