SEC Reporting Companies Now Regulation A+ Eligible
December 26, 2018
On December 19, 2018, the Securities and Exchange Commission issued final rules to permit reporting companies under the Securities Exchange Act to offer securities under Regulation A (affectionately referred to often as Regulation A+), as mandated by the Economic Growth, Regulatory Relief, and Consumer Protection Act of 2018. The rule amendments also provide that so long as an issuer is current in its Exchange Act reporting, its periodic Regulation A reporting obligation will be deemed to be met. I previously blogged here about the SEC’s statutory mandate to make Exchange Act reporting companies Regulation A eligible. The rule amendments are effective upon publication in the Federal Register. This post will identify particular features that would make Regulation A attractive for Exchange Act reporting companies.
The amendments will likely impact U.S. and Canadian reporting companies seeking to conduct public offerings within the Regulation A offering limit of $50 million, particularly offerings of non-exchange-listed-securities. That’s because blue sky preemption is available for Tier 2 of Regulation A, but is generally not available for non-exchange-listed securities sold in registered offerings. During 2017, there were approximately 584 reporting companies with registered securities offerings of up to $50 million that would now be eligible for Regulation A, including approximately 267 offerings of non-exchange-listed securities.
The amendments may also benefit previous Regulation A issuers that became Exchange Act reporting companies and that may seek to engage in follow-on Regulation A offerings.
Exchange Act reporting companies may also be attracted to Regulation A’s more flexible “test-the-waters” communication rules for soliciting investor interest as compared with registered offerings. Although companies qualifying as “emerging growth companies” are also permitted to test the waters in registered offerings, such solicitations are limited to qualified institutional buyers and institutional accredited investors and exclude individuals. Regulation A’s test-the-water rules permit issuers to solicit all prospective investors, including individuals, and without a requirement to file test-the-waters materials (as is the case with registered offerings).
Regulation A also contains a safe harbor from integration of Regulation A offerings with prior offers or sales of securities, as well as with subsequent offers or sales of securities registered under the Securities Act. The flexibility to alternate between Regulation A and registered offerings may be particularly valuable for Exchange Act reporting companies, particularly those that are uncertain about whether their future funding strategy will rely on Regulation A or registered offerings.
Finally, the conditional exemption for Tier 2 securities from the shareholders of record threshold for Section 12(g) registration purposes would be attractive for Exchange Act reporting issuers because maintaining a lower number of shareholders of record would make it easier to deregister and suspend Exchange Act reporting in the future.
On the flip side, one disadvantage worth noting is that Regulation A does not permit at-the-market offerings, which may limit the attractiveness of Regulation A for some Exchange Act reporting companies seeking the flexibility of at-the-market offerings.