Proposed Rules
We proposed to allow the non-public submission of draft offering statements by issuers of Regulation A securities. As we noted in the Proposing Release, such submissions would not be subject to the statutorily-mandated confidentiality of draft initial public offering (IPO) registration statements confidentially submitted by “emerging growth companies”266 under Title I of the JOBS Act.267 Instead, where an issuer seeks to non-publicly submit a draft offering statement, the proposal indicated it could do so in compliance with the Commission’s Rule 83.268 We also sought comment 264 See Rule 259(a). As discussed in Section II.C.5. below in the context of qualification, we are amending the delegated authority of the director of the Division of Corporation Finance to permit the Division to consent to the withdrawal of an offering statement or to declare an offering statement abandoned, as opposed to requiring the Commission to issue an order. Rule 30-1(b)(3), 17 CFR 200.30-1(b)(3).
265 See Rule 259(b).
266 Under Section 2(a)(19) of the Securities Act, an “emerging growth company” is defined as, among other things, an issuer that had total annual gross revenues of less than $1 billion during its most recently completed fiscal year. 15 U.S.C. 77b(a)(19).
267 Under Section 6(e)(2) of the Securities Act, confidential submissions of draft registration statements by emerging growth companies are protected from compelled disclosure under the Freedom of Information Act (FOIA) (5 U.S.C. 552). There is no similar provision under Section 3(b) of the Securities Act.
268 See proposed Rule 252(f); see also Proposing Release, at fn. 212.
on whether we should instead adopt a new rule relating to confidential treatment of draft offering statements in Regulation A.
Under the proposed rules, issuers whose securities have not been previously sold pursuant to a qualified offering statement under Regulation A or an effective registration statement under the Securities Act would be permitted to submit to the Commission a draft offering statement for non-public review. As with the confidential submission of draft registration statements by emerging growth companies, all non-public submissions of draft offering statements would be submitted via EDGAR. The initial non-public submission, all non-public amendments thereto, and correspondence with Commission staff regarding such submissions would be required to be publicly filed and available on EDGAR as exhibits to the offering statement not less than 21 calendar days before
qualification of the offering statement.269 Unlike emerging growth companies in
registered offerings, which must publicly file any confidential submissions not later than 21 calendar days before a road show, the timing requirements for filing by issuers seeking qualification under Regulation A would not depend on whether or not the issuer conducts a road show.