The SEC’s amendment to the test-the-waters provisions, extending the ability to test-the-waters to issuers that are not emerging growth companies (“EGCs”), is now effective. The guide summarizes the provisions of new Rule 163B. Under the new rule, any issuer, or person authorized to act on behalf of the issuer (including an underwriter), may engage in exempt oral or written communications with potential investors that are, or are reasonably believed to be, qualified institutional buyers (“QIBs”) or institutional accredited investors (“IAIs”) to determine whether such investors might have an interest in a contemplated registered securities offering. These test-the-waters communications may occur either prior to or following the date of filing of a registration statement with respect to such registered offering. The rule is non-exclusive and issuers may rely concurrently on other Securities Act communications rules or exemptions when determining how, when, and what to communicate related to a contemplated securities offering. The rule is available to registered investment companies and business development companies. The guide notes that issuers that are, or are considering becoming, registered investment companies or business development companies are eligible to engage in test-the-waters communications under the rule. Access the guide here.

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