The exempt offering secondary market, largely governed by Rule 144A, is growing rapidly.
What is Rule 144A?
The following transactions are conducted under Rule 144A: a) offerings of debt or preferred securities by public companies; b) offerings by foreign issuers that do not want to become subject to U.S. reporting requirements; and c) offerings of common securities by non-reporting issuers (i.e., “backdoor IPOs”).
An issuer who intends to engage in multiple offerings often has a “Rule 144A program.” Rule 144A programs are programs established for offering debt securities on an ongoing basis. They are similar to “medium-term note programs,” but they are unregistered, and the securities are designed for sales to QIBs. Among the advantages of using Rule 144A programs are (1) no public disclosure of innovative structures or otherwise sensitive information; (2) fewer FINRA filing requirements; and (3) reduced liability exposure under the Securities Act.
Rule 144A is a non-exclusive safe harbor. A reseller may rely upon any applicable exemption from the registration requirements of the Securities Act in connection with the re-sale of restricted securities. In addition, Rule 144A offerings often are made side-by-side with a Regulation offering (targeted at foreign investors). This permits an issuer to do a multinational offering with a QIB tranche and a Regulation S tranche, and to sell to an initial purchaser outside the United States in reliance on Regulation S, even though the purchaser anticipates and intends immediate resale to QIBs, in reliance on Rule 144A.
Rule 144A provides that re-offers and re-sales of exempt offerings or private placements in compliance with the rule are not “distributions” and that the re-seller is therefore not an “underwriter” within the meaning of Section 2(a)(11) of the Securities Act. A re-seller who is not the issuer, an underwriter, or a dealer can rely on the exemption provided by Section 4(1) of the Securities Act. Re-sellers that are dealers can rely on the exemption provided by Section 4(3) of the Securities Act of 1933. Issuers must find another exemption for the offer and sale of unregistered securities. Typically they rely on Section 4(2), in reliance on Regulation, or on Regulation S. Affiliates of the issuer may rely on Rule 144A.
Re-sellers not eligible for the safe harbor under Rule 144A will want to rely on the Section 4(1½) exemption.
What is a Section 4(1/2) exemption?
If an accredited investor cannot qualify as a “QIB” under Rule 144A, it will seek to use the Section 4(1½) exemption for secondary sales. A Section 4(1½) exemption is a case law-derived exemption that allows private placement re-sales of private placement offerings. Re-sellers rely on Section 4(1), which provides an exemption for non-issuers, underwriters, and dealers, to avoid underwriter status by implementing restrictions that would be required in the case of a Section 4(2) offering by the issuer itself. The Section 4(1½) exemption typically applies to the resale of restricted securities to accredited investors who make appropriate representations.
Section 4(1½) also is sometimes used to extend a Rule 144A offering to institutional accredited investors. The Second Circuit, at least, has inferred that a person purchasing restricted securities from an issuer is not an underwriter for purposes of Section 4(1) if the purchaser resells the restricted securities to persons who qualify as purchasers under Section 4(2) as described by the U.S. Supreme Court in SEC v. Ralston Purina Co., 346 U.S. 119 (1953), and who acquire the restricted securities in a private offering of the type contemplated by Section 4(2).
Securities acquired in a Rule 144A transaction are deemed to be “restricted securities” within the meaning of Rule 144(a)(3) and remain restricted until the applicable holding period expires, and may only be publicly resold under Rule 144 pursuant to an effective registration statement or in reliance on another exemption. After a one- year holding period, re-sales of these securities by non- affiliates are not subject to any other conditions under Rule 144.
For a reporting issuer, compliance with the adequate current public information condition requires the issuer to have filed all required reports under Section 13 or Section 15(d) of the Exchange Act. For a non-reporting issuer, compliance with the adequate current public information condition requires the public availability of basic information about the issuer, including certain disclosure documents and financial statements. For affiliate holders of restricted securities, Rule 144 provides a safe harbor permitting re-sales of restricted securities, subject to the same six-month and one-year holding periods for non-affiliates and to other resale conditions of amended Rule 144. Other resale conditions include: (a) adequate current public information about the issuer, (b) volume limitations, (c) manner of sale requirements for equity securities, and (d) notice filings on Form 144.
What is a “QIB”?
A QIB is any entity included within one of the categories of “accredited investor” defined in Rule 501 of Regulation D, acting for its own account or the accounts of other QIBs, that in the aggregate owns and invests on a discretionary basis at least $100 million in securities of issuers not affiliated with the entity ($10 million for a broker-dealer). In addition to the qualifications above, banks and savings and loan associations must have a net worth of at least $25 million to be deemed QIBs.
QIBs can be foreign or domestic entities, but must be institutions. Individuals cannot be QIBs, no matter how wealthy or sophisticated. A broker-dealer acting as a risk-less principal for an identified QIB will itself be deemed a QIB.
Eligible purchasers under Rule 144A can be entities formed solely for the purpose of acquiring restricted securities if they satisfy the qualifying QIB tests.
A reseller of restricted securities can rely on information other than that enumerated in Rule 144A for its belief that the prospective purchaser is a QIB. The bases for reliance enumerated in Rule 144A are non-exclusive; resellers may have reasonable belief of eligibility based on any number of factors.
A reseller cannot rely on certifications that it knows, or is reckless in not knowing, are false. However, a seller has no duty of verification. In other words, unless the circumstances give a re-seller reason to question the veracity of the information relied on, the reseller does not have a duty to verify the information.
The seller must make the purchaser aware that it is acquiring restricted securities and that he securities may only be re-sold pursuant to an exemption from or registration under the Securities Act. The investor is entitled to know that the securities may be subject to reduced liquidity.
Usually the warning is given by placing a legend on the security itself. For example, the note or stock certificate representing securities re-sold under Rule 144A must include a legend (or a notation if using electronic record keeping) stating that the securities have not been registered and, therefore, they may not be re-sold or otherwise disposed of in the absence of such registration or unless such transaction is exempt from, or not subject to, registration. In addition, the PPM or other offering memorandum used in connection with the Rule 144A offering must include an appropriate notice to investors, such as the following: “Each purchaser of the securities will be deemed to have represented and agreed that it is acquiring the securities for its own account or for an account with respect to which it exercises sole investment discretion, and that it or such account is a QIB and is aware that the sale is being made to it in reliance on Rule 144A.”
The offering documents must inform the purchaser that the securities to be acquired can only be re-offered and re-sold pursuant to an exemption from, or registration under, the Securities Act, and that the resold securities have a restricted CUSIP number.
Securities offered under Rule 144A must not be “fungible” with, or substantially identical to, a class of securities listed on a national securities exchange or quoted in an automated inter-dealer quotation system (“listed securities”). Common stock is deemed to be of the “same class” if it is of substantially similar character and the holders enjoy substantially similar rights and privileges. American Depository Receipts (“ADRs”) are considered to be of the same class as the underlying equity security. Preferred stock is deemed to be of the same class if its terms relating to dividend rate, liquidation preference, voting rights, convertibility, call, redemption, and other similar material matters are substantially identical. Debt securities are deemed to be of the same class if the terms relating to interest rate, maturity, subordination, convertibility, call, redemption, and other material terms are substantially the same.
Information must be “reasonably current” in relation to the date of re-sale under Rule 144A. This delivery obligation can continue for some time. To be reasonably current the information must be as of a date within 12 months prior to the re-sale; the most recent balance sheet must be as of a date within 16 months prior to the re-sale; and the most recent profit and loss and retained earnings statements must be for the 12 months preceding the date of the balance sheet.
The issuer will prepare an offering memorandum with disclosures normally exceeding the disclosures required to be made available under Rule 144A -- because the offering memorandum often is used as a marketing document. Also, in general, robust disclosure of the issuer’s business and finances reduces liabilities of the issuer and the initial purchasers.
Broker-dealers re-offer and re-sell the securities using the exemption provided by Rule 144A. Rule 144A permits the broker-dealer to immediately re-offer and re-sell the restricted securities, even though it has purchased the securities with a view to their distribution.
The availability of Rule 144A does not depend on how much time has expired since the securities were issued or on whether the reseller had investment intent when it purchased the securities. Re-sales under Rule 144A are completely separated from the issuer’s original offering—no matter how quickly thereafter they occur.
The documentation used in a Rule 144A transaction is similar to that used in registered offerings, including an offering memorandum and a purchase agreement between the issuer and the initial purchasers (i.e., broker-dealers). The offering memorandum will contain a detailed description of the issuer, including its financial statements, and the securities to be offered. The form, organization, and content of a purchase agreement for a Rule 144A offering often resembles an underwriting agreement for a public offering but is modified to reflect the manner of offering. In the case of a Rule 144A offering that is combined with a Regulation S offering, the Regulation S offering may be conducted using documents that are based on the country-specific practices of the relevant non-U.S. jurisdiction or jurisdictions. However, the disclosure documents in such a case generally will contain the same substantive information so that investors have the same “disclosure package.” In connection with offers of debt securities, it is very common to have a Rule 144A tranche offered to QIBs, and a Regulation S tranche offered to non-U.S. persons. However, while Rule 144A securities generally have a restricted period of six months to one year, Regulation S debt securities have a restricted period of only 40 days. Therefore, these tranches are represented by separate certificates to ensure their lawful transfer in the secondary market. The Rule 144A global certificate with a Rule 144A restrictive legend is deposited with DTC, while the Regulation S global certificate with a Regulation S restrictive legend is deposited with a European clearing system. These two securities have different CUSIP numbers and other security identification numbers.
The Rule 144A securities can be re-sold to non-U.S. persons if the buyer certifies that it is not a U.S. person, and the sale otherwise complies with Regulation S. The Regulation S securities can be re-sold in the United States to QIBs if the re-sale complies with Rule 144A. A registration rights agreement would only be applicable to Rule 144A transactions in which the issuer has agreed to register under the Securities Act the securities re-sold in the Rule 144A transaction.
The Rule 144A offering process is often similar to the public offering process. The features of this process typically include: solicitation of orders using a “red herring” or preliminary offering memorandum; preparation and delivery of a working term sheet; confirmation of terms with a final offering memorandum; execution of the purchase agreement at pricing; delivery of a comfort letter (if any) from the issuer’s auditing firm at pricing; and closing three to five days after pricing.
Rule 144A offerings do not subject the issuer and the initial purchasers to liability under Section 11 of the Securities Act. Accordingly, the initial purchasers are not entitled to the “due diligence” defense that may be established under Section 11.
Liquidity is the primary benefit that comes from holding freely tradable securities rather than restricted securities. Plus some states prohibit some mutual funds and insurance companies from investing more than a certain percentage of their assets in restricted securities. Some investment partnerships and similar entities are subject to comparable restrictions under their organizational documents. Absent an issuer’s agreement to register Rule 144A securities, these entities are limited in their ability to purchase securities in Rule 144A transactions.
Exxon Capital versus Shelf Registrations
The two principal methods to register Rule 144A securities under the Securities Act are “Exxon Capital” exchange offers and Shelf registrations under Rule 415 of the Securities Act. An Exxon Capital exchange offering is a procedure under which securities are privately placed pursuant to Rule 144A and then promptly exchanged for similar securities that have been registered under the Securities Act. This is the preferred means for providing holders of Rule 144A securities with freely tradable securities. It eliminates the need to continuously update a shelf registration statement over its lifetime if any of the investors in the Rule 144A offering are affiliates of the issuer. However, affiliates of the issuer may not participate in an Exxon Capital exchange offer, and broker-dealers also may not participate in these exchange offers. In addition, all exchanging holders will be required to represent that they acquired the securities in the ordinary course of their business and have no arrangements or understandings with respect to the distribution of the security that is the subject of the exchange offer.
Under Rule 415(a)(1)(i), issuers of Rule 144A securities may register the resale of the restricted securities that were sold in the Rule 144A transaction. Registered offerings under Rule 415 are known as shelf registrations. Rule 415(a)(1)(i) permits either a delayed or continuous offering of securities “which are to be offered or sold solely by or on behalf of a person or persons other than the registrant . . . .” The persons covered by this rule include re-sellers holding Rule 144A securities.
Although shelf registrations offer potential liquidity to buyers of Rule 144A securities, the securities remain restricted until they are re-sold under the shelf registration statement. In shelf registrations, the issuer must covenant to keep the shelf registration statement continuously effective for no less than one year in order to ensure the holder liquidity until the resale exemption under Rule 144 becomes available without any limitations on non-affiliates.
“Exxon Capital” exchange offers are the preferred means for providing holders of Rule 144A securities with freely tradable securities.