216 See Proposing Release, at Section II.C.1.
217 See proposed Rule 251(d)(2)(iii).
218 17 CFR 230.251(d)(2)(i) (2014).
219 See proposed Rule 251(d)(2)(i).
220 See proposed Rule 251(d)(1)(iii).
In addition to the revised delivery requirements discussed above, we proposed to add a provision analogous to Rule 173,221 which would require issuers, underwriters, and dealers, not later than two business days after completion of a sale, to provide purchasers with a copy of the final offering circular or a notice stating that the sale occurred pursuant
to a qualified offering statement.222 As proposed, the notice must include the website address223 where the final offering circular, or the offering statement of which such final offering circular is part, may be obtained on EDGAR and contact information sufficient to notify a purchaser how it may request and receive a final offering circular from the issuer.224
We further proposed to allow an issuer to withdraw an offering statement, with the Commission’s consent, if none of the securities that are the subject of such offering statement has been sold and such offering statement is not the subject of a Commission order temporarily suspending a Regulation A exemption. Under the proposed rules, the Commission also would be able to declare an offering statement abandoned if the offering statement has been on file with the Commission for nine months without amendment and has not become qualified. These withdrawal and abandonment procedures are similar to the ones that apply to registration statements under the
Securities Act.225
221 17 CFR 230.173.
222 See proposed Rule 251(d)(2)(ii).
223 In the case of an electronic-only offering, the notice must include an active hyperlink to the final offering circular or to the offering statement of which such final offering circular is part.
224 See proposed Rule 251(d)(2)(ii).
225 See Securities Act Rule 477, 17 CFR 230.477, and Rule 479, 17 CFR 230.479.
Comments on the Proposed Rules
No commenters opposed the proposed requirement that issuers be required to file offering statements and related material electronically with the Commission on EDGAR, while two commenters expressly supported such a requirement.226 One commenter recommended only requiring preliminary or final offering circular delivery 48 hours in advance of sale for initial public offerings and not for offerings by issuers that are already subject to Tier 2 ongoing reporting requirements.227 This commenter also recommended eliminating dealer offering circular delivery requirements for Tier 2 issuers that are subject to ongoing reporting.
A few commenters opposed an access equals delivery model of final offering circular delivery.228 These commenters raised concerns about the perceived challenge of finding these materials on EDGAR and not requiring delivery 48 hours in advance of sale in all circumstances. One commenter recommended, in addition to requiring electronic filing on EDGAR, requiring issuers to maintain a corporate web site where the public may access copies of all non-confidential filings in a timely manner so that investors not familiar with EDGAR may access the most complete information provided to the Commission.229 In addition to suggested changes to the filing process itself, several commenters
226 See MCS Letter; OTC Markets Letter.
227 Paul Hastings Letter.
228 Massachusetts Letter 2; NASAA Letter 2; WDFI Letter.
229 Ladd Letter 2.
encouraged the Commission to find ways to reduce the staff’s review time for offering statements.230