Yesterday, the SEC announced that it had adopted final rules permitting all companies to gauge market interest in a possible initial public offering or other registered securities offering to “test the waters” by reaching out to certain institutional investors before filing a registration statement. Previously, only EGCs had been able to engage in this activity under applicable provisions of the JOBS Act. Here’s an excerpt from the fact sheet included in the press release summarizing the rule:
Securities Act Rule 163B will permit any issuer, or any person authorized to act on its behalf, to engage in oral or written communications with potential investors that are, or are reasonably believed to be, QIBs or IAIs, either prior to or following the filing of a registration statement, to determine whether such investors might have an interest in a contemplated registered securities offering. The rule is non-exclusive and an issuer may rely on other Securities Act communications rules or exemptions when determining how, when, and what to communicate about a contemplated securities offering.
Under the rule:
– there are no filing or legending requirements;
– the communications are deemed “offers”; and
– issuers subject to Regulation FD will need to consider whether any information in a test-the-waters communication would trigger disclosure obligations under Regulation FD or whether an exemption under Regulation FD would apply.
In a public statement accompanying the announcement of the new rule, SEC Chair Jay Clayton said that it will allow issuers to “better identify information that is important to investors and enhance the ability to conduct a successful registered offering, ultimately providing both Main Street and institutional investors with more opportunities to invest in public companies that, in turn, provide ongoing disclosures to their investors.” The new rule will become effective 60 days after publication in the federal register.
-John Jenkins, TheCorporateCounsel.net September 27, 2019
