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SEC Proposes Amends to Rule 163; Would Facilitate Pre-Registration Communications for WKSIs

Investor Views Getting Attention: Proposal Permitting Pre-Filing Communications by Underwriters Stalled but Request for Fixed Income Offering "Speed Bump" Gets Traction

Davis Polk
April 29, 2010

Please see our Hot Topics for more on proposed amends to Rule 163.

Debevoise & Plimpton
January 21, 2010

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Paul Weiss
January 11, 2010

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Proposed Amendment to Rule 163(c)

Proskauer Rose
January 8, 2010

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Shearman & Sterling
January 6, 2010

Please see our Hot Topics for more on this subject.

Bass Berry Sims
January 6, 2010

Please see our Hot Topics for more on this subject.

Morrison & Foerster
January 4, 2009

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Gibson, Dunn & Crutcher
January 5, 2009

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Fried Frank
January 4, 2009

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Sonnenschein
January 4, 2010

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Skadden
December 30, 2009

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Willkie Farr & Gallagher
December 31, 2009

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Cahill
December 28, 2009

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Sullivan & Cromwell
December 23, 2009

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Cleary Gottlieb
December 23, 2009

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The SEC Proposes Revisions to Securities Act Rule 163; Would Facilitate Investor Communications for WKSIs considering a Registered Securities Offering

December 28, 2009

On December 22, 2009, the SEC published proposed amendments to Securities Act Rule 163 which should (if adopted) make it easier for certain large companies to gauge investor interest in an offering of their securities before a registration statement is filed.

In 2005, the SEC adopted Rule 163 which currently allows “well-known seasoned issuers” (“WKSIs”) to engage in unrestricted oral and written offers before a registration statement is filed without violating the “gun-jumping” provisions of the Securities Act. The SEC reasoned in 2005 that because WKSI's are big public companies with an Exchange Act reporting history and a wide market following, "it is appropriate to provide [them with] communications and registration flexibilities ... beyond that provided to other issuers." The hope at the time was to de-risk the offering process from the issuer perspective (eg allow an issuer to better assess whether an offering would succeed or embarrassingly fail) and thereby encourage issuers to offer securities in registered offerings (registered offerings generally providing more protection to investors than their unregistered counterparts).

This flexibility to "test the waters" as to a securities offering is, however, currently ...

Davis Polk
December 22, 2009

Please see our Hot Topics for more on this subject.

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SEC Proposes Amends to Rule 163; Would Facilitate Pre-Registration Communications for WKSIs

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