Direct Public Offerings After the JOBS Act
The Jumpstart Our Business Startups Act, or JOBS Act, is intended, among other things, to reduce barriers to capital formation, particularly for smaller companies in going public transactions. The JOBS Act relaxed the rules and regulations applicable to direct public offerings and the going public process. As explained below, the amendments relax the rules applicable to investors who are accredited investors and/or qualified institutional buyers. The Jobs Act eased the restrictions applicable to direct public offerings by making it easier for issuers to raise capital without an underwriter.
The benefits of the JOBS Act apply to issuers filing registration statements to register their securities offerings and those relying upon exemption from registration.
Section 4(a)(2) of the Securities Act exempts from the registration statement requirements “transactions by an issuer not involving any public offering.” Rule 506(b) is an exemption under Regulation D that provides conditions that an issuer may rely on to meet the requirements of the Section 4(a)(2) exemption. One condition of Rule 506(b) is that an issuer must not use general solicitation to market the securities.
General solicitation includes advertisements published in newspapers and magazines, public websites, communications broadcasted over television and radio, and seminars where attendees have been invited by general solicitation or general advertising. In addition, the use of an unrestricted, and therefore publicly available, website constitutes general solicitation.
The JOBS Act eased these restrictions by allowing a new type of private placement and creating Rule 506(c). The new rules makes it much easier for issuers to obtain the shareholders required by the Financial Industry Regulatory Authority (“FINRA”) for a stock ticker symbol assignment by allowing issuers to use general solicitation and advertising to solicit accredited investors .
Section 201(a) of the JOBS Act requires the SEC to eliminate the prohibition on using general solicitation under Rule 506 where all purchasers of the securities are accredited investors and the issuer takes reasonable steps to verify that the investors are accredited investors.
To implement Section 201(a), the SEC adopted paragraph (c) of Rule 506.
Under Rule 506(c), issuers can offer securities through means of general solicitation, if:
● all purchasers in the offering are accredited investors,
● the issuer takes reasonable steps to verify their accredited investor status, and
● certain other conditions in Regulation D are satisfied.
An “accredited investor” includes a natural person who:
● earned income that exceeded $200,000 (or $300,000 together with a spouse) in each of the prior two years, and reasonably expects the same for the current year, or
● has a net worth over $1 million, either alone or together with a spouse (excluding the value of the person’s primary residence).
An “accredited investor” may also be an entity such as a bank, partnership, corporation, nonprofit or trust, when the entity satisfies certain criteria.
The JOBS Act requires that issuers wishing to engage in general solicitation take “reasonable steps” to verify the accredited investor status of purchasers. Rule 506(c) sets forth a principles-based method of verification which requires an objective determination by the issuer (or those acting on its behalf) as to whether the steps taken are “reasonable” in the context of the particular facts and circumstances of each purchaser and transaction. Among the factors that an issuer should consider under this principles-based method are:
● the nature of the purchaser and the type of accredited investor that the purchaser claims to be;
● the amount and type of information that the issuer has about the purchaser; and
● the nature of the offering, such as the manner in which the purchaser was solicited to participate in the offering, and the terms of the offering, such as a minimum investment amount.
In addition to this flexible, principles-based method, Rule 506(c) includes a non-exclusive list of verification methods that issuers may use, but are not required to use, when seeking greater certainty that they satisfy the verification requirement with respect to natural person purchasers. This non-exclusive list of verification methods consists of:
● verification based on income, by reviewing copies of any Internal Revenue Service form that reports income, such as Form W-2, Form 1099, Schedule K-1 of Form 1065, and a filed Form 1040;
● verification on net worth, by reviewing specific types of documentation dated within the prior three months, such as bank statements, brokerage statements, certificates of deposit, tax assessments and a credit report from at least one of the nationwide consumer reporting agencies, and obtaining a written representation from the investor;
● a written confirmation from a registered broker-dealer, an SEC-registered investment adviser, a licensed attorney or a certified public accountant stating that such person or entity has taken reasonable steps to verify that the purchaser is an accredited investor within the last three months and has determined that such purchaser is an accredited investor; and
● a method for verifying the accredited investor status of persons who had invested in the issuer’s Rule 506(b) offering as an accredited investor before September 23, 2013 and remain investors of the issuer.
Rule 506(b) remains unchanged following the adoption of Rule 506(c) and continues to be available for issuers that wish to conduct a Rule 506 offering without the use of general solicitation or that do not wish to limit sales of securities in the offering to accredited investors.
Securities Act Rule 144A
Rule 144A is a non-exclusive safe harbor exemption from the registration requirements of the Securities Act for resales of certain securities to qualified institutional buyers, or QIBS. A QIB includes certain entities that, in the aggregate, own and invest on a discretionary basis at least $100 million in securities of unaffiliated issuers. A registered broker-dealer qualifies as a QIB if it owns and invests on a discretionary basis at least $10 million in securities of unaffiliated issuers. Prior to the recent amendment to Rule 144A described below, offers of securities under Rule 144A were required to be limited to QIBs, which effectively prohibited the use of general solicitation under Rule 144A.
Section 201(a) of the JOBS Act requires the Commission to revise Rule 144A to provide that securities sold pursuant to Rule 144A may be offered to persons other than QIBs, including by means of general solicitation, provided that securities are sold only to persons that the seller and any person acting on behalf of the seller reasonably believe are QIBs. To implement Section 201(a), the SEC adopted an amendment to Rule 144A to permit the use of general solicitation under Rule 144A, as long as the purchasers are limited to QIBs or to purchasers that the seller and any person acting on behalf of the seller reasonably believe are QIBs.
The adopting release for the amendments to Rule 506 and Rule 144A can be found on the SEC’s website at http://www.sec.gov/rules/final/2013/33-9415.pdf.
The new rules provide issuers with flexibility in their going public transactions and provide additional options for issuers who conduct direct public offerings without the use of an underwriter.
For further information about this securities law blog post, please contact Brenda Hamilton, Securities Attorney at 101 Plaza Real S, Suite 202 N, Boca Raton, Florida, (561) 416-8956, by email at [email protected] or visit www.securitieslawyer101.com. This securities law blog post is provided as a general informational service to clients and friends of Hamilton & Associates Law Group and should not be construed as, and does not constitute, legal advice on any specific matter, nor does this message create an attorney-client relationship. Please note that the prior results discussed herein do not guarantee similar outcomes.
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Brenda Hamilton, Securities Attorney
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