SEC Boosts Smaller Company Capital Raising with Regulation A+
Spurred by the Jumpstart Our Business Startups (JOBS) Act, the Securities and Exchange Commission has adopted final rules easing the way for smaller U.S. and Canadian companies to raise capital. These rules build on current Regulation A and are sometimes referred to colloquially as Regulation A+.
Regulation A, as revised by the SEC, includes significant limitations on its use by, among others, existing reporting companies under the U.S. Securities Exchange Act of 1934 (Exchange Act), blank check companies such as SPACs, and investment companies, including BDCs. In addition, while Regulation A provides simplified Exchange Act registration for Tier 2 offerings, it does not facilitate registration under the Exchange Act for Tier 1 offerings, so companies qualifying under Tier 1 of Regulation A must subsequently undertake a full Exchange Act registration in order to list on a national securities exchange. As a result, while Regulation A helpfully increases the size limitation on companies that elect to use it and provides an exemption from state-by-state registration under some circumstances, other limitations embedded in Regulation A are likely to limit its utility for many early-stage companies.
- Certain offerings eligible for SEC qualification process rather than SEC registration process
- Non-public SEC review permitted
- Issuers permitted to “test the waters”
- Tier 1 offerings:
- up to $20 million in a 12-month period
- 30% sublimit on secondary sales by all selling security-holders in the first year; $6 million sublimit on secondary sales by affiliates in any 12 month period thereafter
- no ongoing reporting obligations
- Tier 2 offerings:
- up to $50 million in a 12-month period
- 30% sublimit on secondary sales by all selling security-holders in the first year; $15 million sublimit on secondary sales by affiliates in any 12 month period thereafter
- exempt from state securities law registration and qualification
- subject to limits on the amounts non-accredited investors may invest
- limited ongoing reporting obligations