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Securities Alert
april 5‚ 2012
JOBS Act to Ease Capital Formation for Public and Private
Companies and Reduce Regulatory Burdens on Emerging Growth Companies
Alert 2 of 2: Focus
on Easing Capital Formation for Private Companies
On April 5, 2012, after overwhelming bi-partisan support in
Congress but criticism from regulators and investor protection groups,
President Obama signed into law the Jumpstart Our Business Startups Act
(the JOBS Act). The JOBS Act significantly amends the federal securities
laws to:
·
reduce regulatory burdens on smaller “emerging growth
companies” and the investment banking community that serves them,
·
expand access by start-ups and other small companies to
private and public sources of financing in the United States, and
·
increase the thresholds under which private companies are
required to register with the Securities and Exchange Commission (the SEC)
and begin filing periodic public reports.
This alert focuses on the portions of the JOBS Act that are intended
to spur additional private financing and provide regulatory relief from periodic
public reporting. We have also prepared a separate alert that focuses on
the portions of the JOBS Act that impact smaller public companies and
public financing.
Congress enacted the JOBS Act for the express purpose of
“increas[ing] American job creation and economic growth by improving access
to the public capital markets for emerging growth companies.” The number of
initial public offerings in the United States has fallen dramatically since
2000, in part because of increased costs of regulatory compliance as a
result of the Sarbanes-Oxley Act of 2002 and other burdens, according to
the IPO Task Force of the National Venture Capital Association, which has
championed the JOBS Act’s reforms through the legislative process over the
past year.
Although the JOBS Act will result in significant changes to
the federal securities laws, many of the changes are not self-effectuating
and require rulemaking by the SEC, which in some cases could take up to a
year or longer to complete. Moreover, given that the SEC has expressed
concerns about the JOBS Act’s loosening of existing regulations, the SEC
could, in exercising its rulemaking authority, require changes that are
more restrictive than what Congress has proposed if the SEC believes these
changes are necessary for the protection of investors. We will monitor the
rulemaking process and continue to provide further updates on these matters
as they develop.
Title II of the JOBS Act: Expansion of Marketing in Certain Private Offerings
Rule 506 of Regulation D provides an exemption from the
registration requirements of the Securities Act of 1933 (the Securities
Act) that companies often utilize when raising capital through the private
placement of securities. Similarly, Rule 144A provides an exemption from
these registration requirements for certain private resales of previously
issued securities.
Under Title II – Access to Capital for Job Creators – of the
JOBS Act, the SEC has 90 days after the enactment of the JOBS Act to amend
(1) Regulation D to allow general solicitations and general advertising in
private placements conducted under Rule 506 if all purchasers in the
offering are accredited investors and the company takes reasonable steps to
verify that such purchasers are accredited investors using methods that the
SEC will determine, and (2) Rule 144A to allow general solicitations and
general advertising in private offerings conducted under Rule 144A if all
purchasers in the offering are reasonably believed to be qualified
institutional buyers (QIBs).
Title II of the JOBS Act also will exempt certain market
participants in private placements conducted under Rule 506 from
registering as a broker-dealer solely because (1) the person maintains a
platform or mechanism that permits the offer, sale, purchase or negotiation
of or with respect to securities or permits general solicitations, general
advertisements or similar related activities by issuers, whether online, in
person, or through other means, (2) any person associated with that person
co-invests in the securities, or (3) any person associated with that person
provides ancillary services with respect to the securities, provided, that
in each case (a) such person and associated persons receive no compensation
in connection with the purchase and sale of such security, (b) such person
and associated persons do not have possession of customer funds, and (c)
such person or any associated person is not subject to a statutory
disqualification.
Title III of the JOBS Act: Expansion of Alternatives: Crowdfunding – a
New Exemption
Title III – Crowdfunding - of the JOBS Act will amend the
Securities Act to provide a new exemption from securities registration for
private companies raising capital in a “crowdfunding” – a private financing
comprised of the pooled investments of many small investors. Companies will
be allowed to raise up to $1,000,000 within a 12-month period without
registering the securities offered with the SEC, subject to certain
restrictions. Companies raising between $100,000 and $500,000 will have to
engage an auditor to “review” their financial statements, and companies
raising over $500,000 will need to provide investors with audited
financials. For more information on this new offering exemption see our
Venture Capital and Emerging Companies Alert, Crowdfunding:
One Step Closer to Reality.
Title IV of the JOBS Act: Expansion of Regulation A under the
Securities Act
Regulation A has provided private companies for many years
with a streamlined process in which to sell securities by allowing scaled
SEC disclosure requirements as compared to the traditional public offering
and registration process. Additionally, a company does not become subject
to the periodic reporting requirements under the Securities Exchange Act of
1934 (the Exchange Act), including the obligation to file Forms 10-K, 10-Q,
and 8-K, solely by conducting an offering under Regulation A. However,
Regulation A has not often been used by companies since it only allows the
sale of up to $5,000,000, including up to $1,500,000 by certain selling
shareholders, of securities in any 12-month period. Also, an offering under
Regulation A is subject to state “blue sky” laws.
Title IV – Small Company Capital Formation – of the JOBS Act
will require the SEC (although the Title does not set a timeframe for SEC
action) to expand Regulation A or create a new similar exemption under
which a company may sell in public or private offerings up to $50,000,000,
without a maximum for selling shareholders, of equity securities, debt
securities, and debt securities convertible into equity in any 12-month
period. However, the expanded rule will, among other things, subject a
company to the civil liability provisions of Section 12(a)(2) of the
Securities Act and require the filing with the SEC of annual audited
financial statements. Through rulemaking, the SEC may also require that the
company file with the SEC and distribute to potential investors an offering
statement and may require the company to file additional periodic
disclosures. If the securities are offered and sold on a national
securities exchange or to a qualified purchaser, the offer and sale will be
exempt from state “blue sky” laws. In addition, within three months of the
enactment of the JOBS Act a study must be completed assessing the impact of
state “blue sky” laws on offerings made under Regulation A.
Titles V and VI of the JOBS Act: Expansion of Shareholder Thresholds
for Exchange Act Registration
The Exchange Act and the rules and regulations promulgated
thereunder currently require a company to register under the Exchange Act
and file periodic public reports if on the last day of its fiscal year the
company had total assets exceeding $10,000,000 and a class of equity
securities held of record by 500 or more persons, excluding beneficial
holders of shares held in “street name.”
Under Title V – Private Company Flexibility and Growth – and
Title VI – Capital Expansion – of the JOBS Act, the thresholds for the
number of shareholders of record a company may have before it must register
under the Exchange Act will be increased significantly. Under the new
thresholds in Title V, a company must register under the Exchange Act and
become subject to its periodic disclosure requirements if on the last day
of its fiscal year it had total assets exceeding $10,000,000 and a class of
equity securities held of record by 2,000 or more persons or by 500 or more
persons who are not accredited investors.1
Shareholders that received their securities pursuant to an employee
compensation plan in a transaction exempt from registration under Section 5
of the Securities Act or through an offering conducted under the
“crowdfunding” exemption in the JOBS Act (discussed above) will not count
towards the holders of record thresholds. Although Title V mandates the SEC
to make amendments to its rules and regulations to implement these changes,
no time frame to do so is included in the statutory mandate.
In addition, within 120 days of the enactment of the JOBS
Act, the SEC must make a recommendation to Congress as to whether it
believes the current manner in which shareholders of record are determined
for purposes of the thresholds discussed above should be altered (for
example, whether beneficial holders of securities should be deemed holders
of record).
* * *
As noted above, the SEC is now charged with issuing rules to
implement various sections of the JOBS Act. In many cases, the JOBS Act
calls for these changes to take effect within 90 days or one year from the
date on which the JOBS Act became law. Mintz Levin will continue to update
its clients and friends on these rules and the effects of the multiple
changes in this area as they develop.
Megan
N. Gates
Pamela
B. Greene
Daniel
T. Kajunski
Brian
P. Keane
Jonathan
L. Kravetz
Scott
A. Samuels
Click here to view Mintz Levin’s Securities
attorneys.
1. Under
Title VI, the threshold will be increased to 2,000 or more persons for a
bank or bank holding company and the number of shareholders of record a
bank or bank holding company may have to deregister under Section 12(g) of
the Exchange Act and suspend its reporting obligations under Section 15(d)
of the Exchange Act will be increased from 300 (500 in certain
circumstances) to 1,200. The JOBS Act did not change the 300 (500 in certain
circumstances) shareholder of record thresholds to deregister and suspend
reporting obligations for companies that are not banks or bank holding
companies. The SEC is mandated within one year of the enactment of the JOBS
Act to make amendments to its rules and regulations to implement these
changes with respect to banks and bank holding companies.
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