March 23, 2006
Thank you for this important work. Implementing these recommendations would increase fairness and access to capital for small businesses. These are comments on three of the recommendations:
IV.P.3. The wording would limit expanded use of S-3 to reporting companies "on a national securities exchange, NASDAQ or the OTCBB." The eligibility should be related to investors' access to information. If a company is filing reports, accessible through EDGAR, then it should not make any difference whether its securities are traded in any particular forum. The quoted language would franchise those markets exclusively and deter the expansion of trading mechanisms.
IV.P.5. This would take away state review of offering documents where sales were made to investors with $2 million in net worth, or other revised levels. It leaves the extensive burden of state review on businesses who would like to offer their securities to their customers and other communities they serve, without these high wealth limitations. It would be more fair to make the covered securities preemption effective for all securities registered under the Securities Act of 1933 or qualified under Regulation A. That would relate the exemption from state review to a required adequacy of disclosure, rather than to how wealthy the investors may be.
However, a sufficiently broad definition of "pre-existing business relationship" could eliminate the unfairness. It would prevent use of the exemption for "cold call," general advertising and "spam" communications.
IV.S.11 Proposed preemption of state review of offerings would be based upon the choice of a particular service for reporting trading information in an interdealer aftermarket. We suggest that any preemption should be for reporting companies, whether or not they choose to use a named over-the-counter reporting service. The proposal, as worded, could entrench the named services and restrict market innovation.
We appreciate the opportunity to provide these comments.