SEC Rule 135

Overview and Regulatory Purpose

The gun-jumping framework of Section 5 of the Securities Act imposes its most stringent restrictions during the pre-filing period — the period before any registration statement relating to a contemplated offering has been filed with the Commission.

During this period, Section 5(c) prohibits any offer to sell or offer to buy securities, a prohibition whose breadth, combined with Section 2(a)(3)'s expansive definition of offer, could in principle prevent an issuer from even announcing that it intends to conduct a future registered offering, since such an announcement might itself be characterised as conditioning the market for securities that have not yet been registered.

This rigidity, if applied literally, would create a significant information vacuum: investors, analysts, and the financial press would have no advance notice that a company intends to raise capital through a registered offering until the formal registration statement is actually filed, even though the company's decision to pursue such an offering, and the basic parameters of the contemplated transaction, may be matters of legitimate and immediate market interest — particularly for publicly traded issuers whose other securities are actively traded and whose capital structure decisions can have material effects on existing security holders.

Rule 135 addresses this information gap by carving out a narrow category of pre-filing announcement — limited to basic identifying facts about the contemplated offering and accompanied by an explicit disclaimer that the notice does not itself constitute an offer — that falls outside the gun-jumping prohibition entirely, allowing issuers to provide the market with early notice of a contemplated registered offering without that notice itself becoming an unlawful pre-filing offer.

Statutory Authority and Rulemaking History

Rule 135 derives its statutory authority from Sections 2(a)(3), 5, and 19(a) of the Securities Act of 1933. Section 2(a)(3) provides the statutory definition of offer to sell and offer for sale from which Rule 135's exclusion operates; Section 5(c) establishes the pre-filing prohibition on offers that the rule's exclusion relieves; and Section 19(a) provides the Commission's general rulemaking authority to define terms and prescribe implementing rules.

Rule 135 has existed in the Commission's General Rules and Regulations for decades, historically serving as the principal mechanism through which issuers could announce a forthcoming registered offering before any registration statement had been filed.

The rule was substantively revised as part of the comprehensive Securities Offering Reform rulemaking of August 3, 2005 — Securities Act Release No. 33-8591 — the same landmark rulemaking that comprehensively updated Rule 134's tombstone advertisement safe harbour and introduced the research report safe harbours of Rules 137, 138, and 139. 

The 2005 reform's treatment of Rule 135 was consistent with its broader philosophy of relaxing rigid pre-existing gun-jumping restrictions in recognition of the practical realities of modern capital markets communication, while preserving the fundamental distinction between permissible basic notice and impermissible conditioning of the market through more elaborate promotional communication.

The eCFR confirms that Rule 135's text has remained unchanged since January 3, 2017, with no further amendments through June 2026. 

The Commission's broader May 2026 Registered Offering Reform proposal, while not directly amending Rule 135's text, contemplates significant expansion of Form S-3 eligibility and the population of issuers entitled to enhanced registration and communication benefits — a development that, if adopted, would expand the population of issuers for whom Rule 135's pre-filing notice safe harbour operates within a broader and more permissive communications framework than currently exists.

Key Provisions and Operative Requirements

Rule 135(a) establishes the foundational exclusion. For purposes only of Section 5 of the Securities Act, a notice given by an issuer that it proposes to make, is making, or has made a public offering of securities to be registered under the Act shall not be deemed to offer any securities for sale if the notice meets the conditions the rule prescribes. 

The introductory phrase for purposes only of Section 5 is analytically important — Rule 135's exclusion is narrowly calibrated to the gun-jumping provisions specifically, and a notice satisfying Rule 135's conditions remains subject to the general antifraud provisions of the Securities Act, including Section 17(a), and to Rule 10b-5 under the Exchange Act, notwithstanding its exclusion from the offer definition for Section 5 purposes.

The notice permitted under Rule 135 must be limited to specified categories of information, including: a statement that the issuer proposes to make, is making, or has made a public offering of specified securities, to be registered under the Securities Act; the title, amount, and basic terms of the securities to be offered; the anticipated timing of the offering; a brief statement of the manner and purpose of the offering, without naming the underwriters; and, in the case of a rights offering to existing security holders, the class of security holders entitled to subscribe, the subscription ratio, and the actual or anticipated record date. 

These enumerated content categories are, like Rule 134's permitted content, deliberately limited to basic identifying and procedural facts rather than promotional or persuasive content — Rule 135 does not permit the inclusion of the names of underwriters, descriptions of the issuer's business prospects, or any other content beyond the narrow categories the rule specifically enumerates.

The mandatory cautionary legend is a critical operative element of Rule 135's framework. 

The notice must include a statement substantially to the effect that the notice does not constitute an offer of any securities for sale, directly reinforcing the rule's underlying premise — that the notice, however informative, is not itself an offer and does not invite or solicit purchase interest in the manner that a true offer would. This legend requirement parallels the cautionary legends required under Rule 134's tombstone advertisement framework and Rule 430's preliminary prospectus framework, reflecting the Commission's consistent approach across the gun-jumping safe harbours of pairing permitted basic disclosure with explicit disclaimers that reinforce the formal registration process's continued primacy as the vehicle through which actual offers and sales must occur.

Rule 135's specific provision addressing business combination transactions establishes that communications under Rule 135 relating to business combination transactions must be filed as required by Rule 425(b). 

This cross-reference connects Rule 135's pre-filing notice safe harbour directly to the specialised communications regime governing mergers, acquisitions, and other business combination transactions, ensuring that a Rule 135 notice announcing a forthcoming registered offering in the business combination context — such as a notice that a company proposes to register shares to be issued as merger consideration — is captured within the filing requirements that Rule 425 establishes for business combination communications generally, regardless of whether the specific communication would otherwise be subject to Rule 135's exclusion from the offer definition.

Scope of Application

Rule 135 is available to issuers proposing to conduct any public offering of securities to be registered under the Securities Act, without the issuer category limitations that restrict the availability of certain other communications safe harbours — though, consistent with the broader gun-jumping safe harbour framework adopted in 2005, blank check companies, penny stock issuers, and shell companies are generally excluded from relying on Rule 135 alongside the other more permissive communications safe harbours that the 2005 reform extended to conventional operating companies.

Rule 135's pre-filing availability distinguishes it sharply from Rule 134, which requires the prior filing of a registration statement containing a Section 10 prospectus. An issuer that has not yet filed any registration statement, and that wishes to announce a forthcoming registered offering, must rely on Rule 135 rather than Rule 134; conversely, an issuer that has already filed a registration statement and wishes to provide more detailed identifying information about the pending offering, including the names of the underwriters and pricing information, should rely on Rule 134 rather than the narrower categories of permitted content under Rule 135.

Relationship to Related Rules and Regulations

Rule 135 operates as the pre-filing counterpart to Rule 134's post-filing tombstone advertisement safe harbour, with the two rules together spanning the complete timeline of basic offering announcement communications from the earliest pre-registration stage through the conclusion of the registered offering process. 

Rule 135's specific cross-reference to Rule 425(b) for business combination-related communications connects the rule directly to the specialised communications framework governing mergers and acquisitions, ensuring consistent filing treatment for pre-filing offering announcements made in connection with business combination transactions regardless of whether those announcements would independently satisfy Rule 135's conditions.

Rule 135's exclusion from the offer definition for Section 5 purposes has been incorporated by reference into the parallel securities offering disclosure rules of other federal financial regulators, most notably the Office of the Comptroller of the Currency's Securities Offering Disclosure Rules at 12 C.F.R. Part 16, which govern securities offerings by national banks and federal savings associations. 

The OCC's rules expressly provide that a pre-registration notice satisfying the requirements of SEC Rule 135 will not be deemed an offer for purposes of the OCC's own securities offering disclosure framework — confirming that Rule 135's basic notice safe harbour functions as a recognised and portable standard across the broader landscape of federal securities regulation applicable to depository institutions whose securities offerings fall outside the Commission's direct jurisdiction but whose regulatory framework has been deliberately harmonised with the Commission's own gun-jumping safe harbours.

Rule 135's narrow exclusion for purposes only of Section 5 means that a notice satisfying the rule's conditions remains fully subject to Rule 10b-5's general antifraud prohibition and Section 17(a) of the Securities Act — a company that issues a technically compliant Rule 135 notice containing materially false or misleading statements about the contemplated offering remains exposed to antifraud liability notwithstanding the notice's exclusion from the gun-jumping offer definition, reinforcing that Rule 135's relief is limited and specific rather than a general immunity from securities law liability.

Amendment History and Regulatory Evolution

Rule 135's substantive framework has been stable since the 2005 Securities Offering Reform, which integrated the rule into the broader modernised gun-jumping safe harbour structure alongside Rule 134, Rule 137, Rule 138, and Rule 139. 

The rule's core architecture — permitting basic pre-filing notice of a contemplated registered offering subject to narrow content limitations and a mandatory cautionary legend — has not required substantive revision in the two decades since the 2005 reform, reflecting the durability of the rule's calibrated approach to the pre-filing communications problem.

The Commission's broader regulatory agenda affecting the offering communications framework — most significantly the May 26, 2026 Registered Offering Reform proposal, which would substantially expand Form S-3 eligibility and extend enhanced registration and communication benefits to a significantly broader population of issuers by eliminating prior public float and one-year seasoning requirements — does not propose direct amendments to Rule 135's text but reflects the Commission's continuing engagement with the broader question of how communications restrictions applicable to registered offerings should be calibrated to modern capital markets practice. Comments on the Registered Offering Reform proposal were due July 27, 2026, and no final rule had been adopted through that date.

Enforcement Context and SEC Action Patterns

Rule 135 enforcement typically arises in circumstances where issuers have published pre-filing notices that exceed the rule's narrow permitted content categories — including notices that identify underwriters, characterise the offering's anticipated reception in the market, or otherwise include promotional content beyond the basic identifying facts the rule specifically enumerates. 

Where a purported Rule 135 notice exceeds these limitations, the notice loses the rule's exclusion and may be characterised as an unlawful pre-filing offer in violation of Section 5(c), exposing the issuer to potential rescission liability for the subsequent offering and to Commission enforcement scrutiny regarding the adequacy of the issuer's gun-jumping compliance procedures.

The Division of Corporation Finance has addressed Rule 135 compliance questions through informal guidance and registration statement comment letter practice, particularly in circumstances involving complex transaction structures such as business combination transactions where the interaction between Rule 135's general framework and Rule 425(b)'s specific filing requirements for business combination communications requires careful coordination to ensure that pre-filing notices satisfy both provisions simultaneously.

Examination Relevance and Key Takeaways

Rule 135 is examined at the Series 7 and Series 65 levels as the principal pre-filing notice safe harbour within the Securities Act's gun-jumping communications framework. Candidates should understand the rule's defining characteristic — availability before any registration statement has been filed — and the consequent distinction from Rule 134, which requires the prior filing of a registration statement containing a Section 10 prospectus. The rule's narrow permitted content categories, the prohibition on identifying underwriters, and the mandatory cautionary legend confirming that the notice does not constitute an offer are the primary substantive examination concepts.

The narrow for purposes only of Section 5 scope of Rule 135's exclusion — leaving notices fully subject to the general antifraud provisions of Section 17(a) and Rule 10b-5 notwithstanding their exclusion from the gun-jumping offer definition — is a useful examination concept for understanding the limited and specific character of the gun-jumping safe harbours generally.

The key points to retain are these. 

Rule 135 permits issuers to publish a notice of a proposed, ongoing, or completed registered offering before any registration statement has been filed, without that notice constituting an offer for purposes of Section 5's gun-jumping restrictions. 

The notice must be limited to enumerated basic identifying information — including the offering's general terms, anticipated timing, and, for rights offerings, the subscription class, ratio, and record date — and must not identify underwriters. 

A mandatory legend confirming the notice does not constitute an offer of securities for sale is required. Communications relating to business combination transactions must additionally satisfy the filing requirements of Rule 425(b).

The exclusion applies only for Section 5 purposes, leaving Rule 135 notices fully subject to the antifraud provisions of Section 17(a) and Rule 10b-5. Other federal regulators, including the OCC, have incorporated Rule 135's standard by reference into their own securities offering disclosure frameworks. Rule 135 has not been amended since January 3, 2017 and no direct amendments are pending through June 2026, though the broader pending Registered Offering Reform proposal would expand the population of issuers operating within the surrounding registration and communications framework.