In the most recently issued set of FAQs on the JOBS Act, the SEC Staff also addressed testing-the-waters communications, and, in particular, the requirements of Rule 15c2-8(e).  Rule 15c2-8(e) requires that a broker-dealer make available a copy of the preliminary prospectus (prior to the effective date) for a registered offering of securities before soliciting orders from customers.  If read broadly, the prohibitions of Rule 15c2-8(e) might constrain the types of activities that are permissible during test-the-waters discussions.  The FAQs provide practical guidance noting that while the JOBS Act does not amend Rule 15c2-8(e) (that is, the JOBS Act does not modify the meaning of the term “solicit”), an emerging growth company or a financial intermediary acting on the EGC’s behalf may engage in discussions with institutional investors to gauge their interest in purchasing EGC securities before the EGC has filed its registration statement with the SEC (when 15c2-8 would technically not apply) and after the EGC has filed its registration statement.  During this period, the underwriter may discuss price, volume and market demand and solicit non-binding indications of interest from customers.  Soliciting such a non-binding indication of interest, in the absence of other factors, would not constitute a “solicitation” for purposes of 15c2-8(e).  This is very helpful.  Of course, underwriters still will need to monitor carefully the types of communications that take place during test-the-waters discussions to ensure compliance with the securities laws.