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SEC Regulation A+: More Access to Capital for Small Companies With Less Regulation?

On March 25, 2015, the U.S. Securities & Exchange Commission (SEC) adopted final rules to amend Regulation A intended to modernize the current framework by increasing the access to capital for smaller companies. The final rules implement Title IV of the JOBS Act.

The existing Regulation A framework permitted issuers to offer and sell up to $5 million of securities in any 12-month period. Due to the regulatory burden and exceedingly high costs associated with registering this type of offering with both the SEC and state securities regulators, Regulation A has gone virtually unused by issuers for decades. The final rules, often referred to as “Regulation A+”, expand Regulation A into two tiers.

Tier 1 Offerings

Tier 1 provides an exemption for offerings of up to $20 million in any 12-month period, including no more than $6 million in securities sold on behalf of selling shareholders who are affiliates of the issuer. Tier 1 offerings will continue to be subject to state regulation, but issuers can avail themselves of the North American Securities Administrators Association’s (NASAA) coordinated review program.

Tier 2 Offerings

Tier 2 provides an exemption for offerings of up to $50 million in any 12-month period, including no more than $15 million in securities sold on behalf of selling shareholders who are affiliates of the issuer. The final rules also limit sales by all selling securities holders in an issuer’s initial Regulation A offering and any subsequently qualified Regulation A offering within the first 12-month period to no more than 30% of the aggregate offering price.

Unlike Tier 1 offerings, the rules governing Tier 2 offerings will preempt state registration and qualification laws. Instead, Tier 2 issuers will be required to file offering documents with the SEC at least 21 calendar days before any sales are made.

In a Tier 2 offering, issuers may offer to non-accredited investors no more than 10% of: (i) for natural persons, the greater of such investor’s annual income or net worth, or (ii) for non-natural persons, the greater of such investor’s annual revenue or net assets at fiscal year end. Note, however, this limit does not apply to purchases of securities that will be listed on a national securities exchange upon qualification. A process the SEC substantially streamlined by permitting Tier 2 issuers to use the Form 8-A short form registration statement to register a class of securities for trading under the Securities Exchange Act of 1934 concurrently with the qualification of a Regulation A offering statement.

Information Delivery Requirements

The final rules provide for scaled initial disclosure requirements for Tier 1 issuers, consistent with the prior Regulation A framework.
However, Tier 2 issuers will be required to file audited financial statements with the offering circular. Such issuers must also file annual and semi-annual reports and current event updates that will be appropriately scaled for Regulation A offerings.

Testing the Waters

While issuers were previously prohibited from using “testing the waters” materials, or advertising materials, once the offering statement was filed, the final rules now allow issuers to use such materials both before and after the filing of the offering statement.

Eligible Securities

The securities that may be offered under Regulation A are limited to equity securities, debt securities and debt securities convertible into or exchangeable into equity interests, including any guarantees of such securities.

Ineligible Issuers

Certain issuers, such as reporting companies, investment companies and so-called “bad boy” issuers, that are currently unable to rely on Regulation A, continue to be ineligible under the new rules.

Commentary

Without extending preemption to Tier 1 offerings, it doesn’t appear the SEC reduced the regulatory burden enough to make Tier 1 a viable capital source for small businesses. However, by including preemption from state securities law regulation in Tier 2, the SEC may have done a better job of balancing the regulatory burden with the ability to access capital. Small businesses looking to raise between $20 and $50 million now have a viable option to consider — the opportunity to access greater amounts of capital without the burden of review by state securities regulators or the full reporting obligations of public companies.

© 2019 Dinsmore & Shohl LLP. All rights reserved.

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About this Author

David J. Lavan, Dinsmore, Corporate Litigation Attorney, SEC Registration
Partner

David is a partner in the Corporate Department who focuses his practice on all aspects of SEC registration, reporting and compliance. He routinely advises clients on public and private offerings of debt and equity, disclosure matters, corporate governance and accounting issues. As a former government bond broker, David provides clients with unique insights into the financial marketplace, counseling them on transactional and regulatory matters, as well as litigation. He represents both public and private companies, as well as independent board and committee members,...

202-372-9122
J. Eric Quinn, Associate, Dinsmore Law Firm, Mergers and Acquisitions
Associate

Eric Quinn is a member of the Corporate Department and practices in the Mergers & Acquisitions and Securities Practice Groups. Prior to joining Dinsmore, Eric worked in the U.S. Securities & Exchange Commission’s Division of Corporation Finance, where he reviewed public company filings for compliance with federal securities laws and regulations and communicated with registrants and their counsel to identify and resolve complex disclosure issues.

513-977-8606
Christian Gonzales, banking, corporate and securities lawyer, Dinsmore law firm
Associate

Christian advises clients on various aspects of banking, corporate and securities law, including mergers and acquisitions, securities offerings, business formation, regulatory compliance, and general corporate governance matters. 

Christian has extensive experience servicing the financial sector clients ranging from multi-billion dollar financial institutions to community banks and thrifts. Christian assists financial institutions in strategic growth, M&A transactions and other critical situations, and he has a broad range of experience in...

614-628-6921