The
SEC’s Division of Trading and Markets has issued guidance for research analysts
and underwriters regarding the Jumpstart Our Business Startups (JOBS) Act. Much
of the guidance concerns JOBS Act Section 105, which amended provisions within
the Securities Act and Exchange Act regarding testing-the-waters, analyst
communications, and post offering communications.
The
guidance contains 14 new Q&A topics. For example, Question 1 asks whether
an emerging growth company’s ability to test the waters conflicts with Exchange
Act Rule 15c2-8(e). The staff answered that the JOBS Act provision can be consistent
with Rule 15c2-8(e), although an underwriter may wish to seek non-binding
indications of interest from its customers about a potential offering, such as the
number of shares a customer might buy within a price range. If the
underwriter does not seek a commitment to purchase the securities from a customer, the
underwriter likely is not soliciting a customer order under Rule 15c2-8(e). The staff
also noted that Rule 15c2-8(e) applies to “filed” registration statements, and
that the submission of a confidential draft registration statement for staff review
under JOBS Act Section 106(a) is not the “filing” of a registration statement.
Separately, the
Commission is scheduled to hold an open meeting August 29, 2012 to consider
whether to propose rules under JOBS Act Title II.