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SEC Proposes to Expand “Test-the-Waters” Communications to all Issuers

By | | February 19, 2019

The SEC has proposed new rules that would permit all issuers to solicit investor views about potential offerings to be taken into account at an earlier stage in the process than is the case today. The new rule and related amendments would expand the “test-the-waters” accommodation—currently available to emerging growth companies or “EGCs”—to all issuers, including investment company issuers. The ability for EGCs to engage in test-the-waters-communications was provided for under the JOBS Act.

The proposed rule eases regulatory burdens because Section 5(c) of the Securities Act prohibits any written or oral offers prior to the filing of a formal registration statement with the SEC. Once an issuer has filed a registration statement, Section 5(b)(1) limits written offers to a formal prospectus that conforms to the requirements of the Securities Act. As such, without the proposed rule change, most communications by issuers seeking to gauge investor interest would violate the Securities Act and constitute what is popularly referred to as “gun jumping.” According to the SEC, the ability of EGCs to engage in test-the-waters communications under the JOBS Act has not impaired investor protection.

The proposed rule will allow all issuers to engage in test-the-waters communications with potential investors that are, or that the issuer reasonably believes to be, qualified institutional buyers (“QIBs) or institutional accredited investors (“IAIs”), either prior to or following the date of filing of a registration statement related to such offering. Generally a QIB is a specified institution that, acting for its own account or the accounts of other QIBs, in the aggregate, owns and invests on a discretionary basis at least $100 million in securities of unaffiliated issuers. IAIs are institutional investors that are also accredited investors, that meet the criteria of SEC Rule 501(a)(1), (a)(2), (a)(3), (a)(7), or (a)(8), and includes organizations with assets in excess of $5,000,000 not formed for the purpose of acquiring the securities offered. The SEC believes these types of entities do not need the protections of the Securities Act’s registration process.

The SEC noted its belief that allowing more issuers to engage with certain sophisticated institutional investors while in the process of preparing for a contemplated registered securities offering could help issuers to better assess the demand for and valuation of their securities and to discern which terms and structural components of the offering may be most important to investors before incurring costs associated with launching an offering. This, in turn, could enhance the ability of issuers to conduct successful offerings and lower their cost of capital.

Test-the-waters communications that comply with the proposed rule would not need to be filed with the SEC, nor would they be required to include any specified legends. The SEC does not believe it is necessary to impose such requirements because communications under the proposed rule would be limited to investors that are, or are reasonably believed to be, QIBs and IAIs. These types of investors are generally considered to have the ability to assess investment opportunities, thereby reducing the need for the additional safeguards provided by a filing or legending requirement.

Information provided in a test-the-waters communication under the proposed rule must not conflict with material information in a related registration statement. As is currently the practice of the SEC staff when reviewing offerings conducted by EGCs, the SEC or its staff could request that an issuer furnish the staff any test-the-waters communication used in connection with an offering.

The SEC cautioned public companies to consider whether any information in a test-the-waters communication would trigger any obligations under Regulation FD. Regulation FD requires public companies to make public disclosure of any material nonpublic information that has been selectively disclosed to certain securities market professionals or shareholders. To avoid the application of Regulation FD, a public company could consider obtaining a confidentiality agreements from any potential investor engaged under the proposed rule prior to providing the test-the-waters material.

In addition, the Commission noted that although the new rule would exempt test-the-waters communications from the gun-jumping provisions of Section 5, they would still be considered “offers” as defined under the Securities Act such that Section 12(a)(2) liability and the anti-fraud provisions of the federal securities laws would continue to be applicable.

Under the proposed rule, any potential investor solicited must meet, or issuers must reasonably believe that the potential investor meets, the requirements of the rule. The SEC stated that this standard would avoid imposing an undue burden on issuers compared to requiring issuers to verify investor status. For example, under the proposed rule, an issuer could reasonably believe that a potential investor is a QIB or IAI even though the investor may have provided false information or documentation to the issuer. The SEC does not believe that an issuer should be subject to a violation of Section 5 in such circumstances, so long as the issuer established a reasonable belief with respect to the potential investor’s status based on the particular facts and circumstances.

The SEC did not propose specific steps that an issuer could or must take to establish a reasonable belief that the intended recipients of test-the-waters communications are QIBs or IAIs. Identifying specific steps or providing additional guidance that could be used by an issuer to establish a reasonable belief regarding an investor’s status could create a risk that such steps or guidance would become a de facto minimum standard. The SEC believes issuers should continue to rely on the methods they currently use to establish a reasonable belief regarding an investor’s status in analogous circumstances. By not specifying the steps an issuer could or must take to establish a reasonable belief as to investor status, this approach is intended to provide issuers with the flexibility to use methods that are cost-effective but appropriate in light of the facts and circumstances of each contemplated offering and each potential investor.

Contact Steve Quinlivan or Bryan Pitko for more information.