A. Amendment to Rule 506
The SEC amended Rule 506 by adding subsection (c), which permits general solicitation and general advertising under the following conditions:
B. Verification Standards
To take advantage of the general solicitation and general advertising permitted under Rule 506(c), there is an affirmative requirement that the issuer take “reasonable steps to verify that the purchasers of the securities are accredited investors”. The specific steps required to be taken are not dictated by the new rules. Instead, the reasonableness of the steps taken turns on the objective assessment of the issuer. However, the final rules do set forth a non-exclusive and non-mandatory list of methods that are deemed to satisfy the verification requirement for purchasers who are natural persons, including:
In addition to the foregoing, issuers may verify the accredited status of Rule 506(c) investors in any other reasonable manner that they select. The SEC discusses various other available methods, including a review of pay stubs or a review of an SEC or other governmental filing listing the investor’s annual compensation. Alternatively, if the amount of the investment is very high, such that only accredited investors would reasonably be expected to make such an investment, and the investor certifies that the investment is not being financed by a third party, this could be taken into account in determining that the investor is accredited. Conversely, merely having the investor check the “accredited investor” box on a questionnaire would not alone be a sufficient basis to demonstrate that the issuer has taken “reasonable steps” to verify the investor’s accredited status.
C. Proposed Form D Amendments
The SEC proposed amendments to Form D that would require additional information from issuers, such as the methods used to verify the accredited investor status of investors and the types of general solicitation and general advertising used. An issuer relying on new Rule 506(c) would also be required to file Form D with the SEC no later than fifteen days prior to commencing a Rule 506(c) offering and an amended Form D within thirty days following the completion of the offering. The SEC also proposed disqualifying issuers from relying on Regulation D for one year if they fail to file Form D and requiring additional legends and disclosures in all offering materials relying on Rule 506(c). Additionally, the SEC is proposing that for the first two years after the effective date of the rule an issuer relying on Rule 506(c) be required to file all general solicitation and general advertising materials with the SEC.
D. Bad Actor Disqualification
As mandated by Section 926 of the Dodd-Frank Wall Street Reform and Consumer Protection Act of 2010 (the “Dodd-Frank Act”), the SEC also approved final rules to disqualify securities offerings involving certain felons and other so-called “bad actors” from reliance on the exemption from Securities Act registration pursuant to Rule 506. If such “bad actors”, which now include investment managers and principals of private investment funds, are the subject to certain “disqualifying events”, then they will disqualify an issuer from relying on Rule 506. Disqualification will not arise as a result of triggering events that occurred before the effective date of the rule. However, matters that existed before the effective date of the rule and would otherwise be disqualifying are subject to a mandatory disclosure requirement to investors.
E. Retention of the Existing Rule 506 Safe Harbor
The SEC is retaining the existing ability of issuers to conduct Rule 506(b) offerings without engaging in a general solicitation or general advertising.
F. Amendment to Rule 144A
The SEC also adopted an amendment to Rule 144A to permit securities sold under Rule 144A to be offered to investors other than qualified institutional buyers (“QIBs”), including by general solicitation or advertising, so long as the securities are only sold to investors that the issuer reasonably believes to be QIBs at the time of sale.
The final rules will go into effect sixty days after their publication in the Federal Register (mid-September 2013). The proposed Form D amendments are currently open for comment for sixty days.
G. Noteworthy Considerations
Rule 506 Offerings
Secondary Market Transactions
Offerings in Close Proximity
Please contact Mitchell C. Littman, Esq. at mlittman@littmankrooks.com, Steven D. Uslaner, Esq. at suslaner@littmankrooks.com or Lesley DeCasseres, Esq. at ldecasseres@littmankrooks.com if you have questions concerning the Rule.
* General solicitation and general advertising include advertisements published in newspapers and magazines, website postings, press releases, communications broadcast over television and radio, and seminars or meetings where attendees have been invited by general solicitation or general advertising.
The post The SEC Approves Final Rules Regarding General Solicitation and General Advertising in Rule 506(c) Offerings first appeared on SEONewsWire.net.]]>The market has been busy for several reasons. Since the market has been weak, companies are being more creative to build value for their investors. Some “activist investors” even push company management to separate the high-growth part of the business from the rest of the company. The uptick in spinoffs may also be a result of a slow IPO market.
Spinoffs should be attempted only after considering the complicated legal issues that are likely to arise with a qualified corporate and securities lawyer. The board needs to take into consideration what is in the best interest of the shareholders while still being fair to the stakeholders. Management will have to carefully split up assets, liabilities and workers so that neither of the two companies created by the spinoff are left weak and potentially unable to survive.
Management will also need to revisit compensation terms and non-compete agreements since the structure of the new company may put one of the new businesses (and its executives) at higher risk. Thorough disclosure to shareholders is also required in a spinoff transaction.
U.S. tax codes dictate that both companies in the spinoff need to have been performing the same function for at least five years to qualify as a tax-free transaction. This means a company cannot start a new business and immediately spin it off into a new public company. It would need to incubate for five years.
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