252 Rule 251(d)(2)(ii)(D); see also Securities Act Rule 174(b).
253 Rule 251(d)(2)(ii)(C); see also Securities Act Rule 174(d).
254 See Proposing Release, at Section II.C.1.
255 See Securities Offering Reform, Rel. No. 33-8591, at 245 (noting that access equals delivery is not appropriate for preliminary prospectus delivery obligations in IPOs because it is important for potential investors to be sent the preliminary prospectus).
We therefore are amending, as proposed, Rule 251(d)(2)(i) to require issuers and participating broker-dealers to deliver only a preliminary offering circular to prospective purchasers256 at least 48 hours in advance of sale only when a preliminary offering circular is used during the prequalification period to offer such securities to potential investors.257 To make the final rules more consistent with the requirements of Exchange Act Rule 15c2-8(b) for issuers who already provide continuous, ongoing information to investors and the market, the final rules do not require an issuer or its intermediaries to deliver a preliminary offering circular at least 48 hours in advance of sale where the issuer is already subject to a Tier 2 reporting obligation. In such instances, however, the issuer and its intermediaries will otherwise remain subject to the general delivery requirements of the rules, including compliance with the requirements for making offers pursuant to Rule 251(d)(1) and for including a preliminary offering circular in any solicitation materials used after filing the offering statement with the Commission pursuant to Rule 255. As proposed and adopted, the delivery requirements under the final rules apply to both issuers and participating broker-dealers.258 We believe these delivery requirements are an important investor protection that should apply to issuers in advance of sale, in addition to their intermediaries, and is consistent with current 256 Prospective purchasers include any person that has indicated an interest in purchasing the Regulation A securities before qualification, including, but not limited to, those investors that respond to an issuer’s solicitation materials. See Rule 251(d)(2)(i).
257 In accordance with time of sale provisions discussed in Securities Offering Reform, see Rel. No. 33-8591, at p. 173 et seq., the final rules provide that the 48-hour delivery obligation must be made in advance of “sale” rather than the “mailing of the confirmation of sale.” See also Section II.D. below for a discussion of the delivery requirements for solicitation materials used after publicly filing the offering statement.
258 Issuers may rely on reasonable assurances of delivery from participating broker-dealers to satisfy their delivery obligations.
Regulation A.259 We are also adopting, as proposed, the requirement that a final offering circular must accompany or precede any written communications that constitute offers in the post-qualification period.260
In addition to the revised delivery requirements discussed above, we are adopting, as proposed, final rules analogous to Securities Act Rule 173.261 Rule 251(d)(2)(ii) requires issuers and participating broker-dealers, not later than two business days after completion of the sale, to provide the purchaser with a copy of the final offering circular or a notice stating that the sale occurred pursuant to a qualified offering statement.262
The notice must include the URL263 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 where a request for a final offering circular can be sent and received in response.
