I would say there is a categorical confusion regarding this. The open market for shares is one market. The company is enjoined by the SEC to make sure that's a fair market by not creating asymmetric information advantage to some players in that market. The 'direct' market by the company to sell shares via offerings is an entirely different market and a company is under no constraints that I know of to keep that 'fair' vs the open market. Absolute proof of this assertion is the fact that secondary offering buyers when buying from distressed companies get to dictate whatever terms they can, including below market pricing for shares and huge kickers like huge numbers of free warrants.
Just as there is no rule saying that pricing has to be 'fair' across the 2 markets for the shares, there also seems to be no rule that buyers of offerings cannot have more info than open market buyers do. I'm sure that there is a rule that having bought on the offering with extra info, those buyers are not allowed to sell to open market buyers until everybody has the same info.
The fact that a secondary offering is even taking place at all is one clear secret information item that must be kept to avoid 'insider' trading by those who know about the offering. But I was told by a licensed broker that the company can also give arbitrary additional info under an NDA. The info gained under NDA prevents the receiver of the info from doing any trading on the open market but not purchase of shares in an offering. Presumably, the NDA'ed info is regarded by the company as required to entice the offering buyer into the purchase, or to get better terms. Maybe that's 'unfair' vs we who are left in the dark about stuff disclosed via NDA, but it's up to the company to do whatever they need to do in order to raise more capital.
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