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Software Club 210: Light Red
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1997-01-01
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@198 CHAP 11
┌─────────────────────────────────────┐
│ SECURITIES LAW CONSIDERATIONS │
└─────────────────────────────────────┘
Yet another factor to take into account in choosing the
legal form of a business is the potential application of
federal and state securities laws if the new business is
to have more than one owner or should it become necessary
to raise capital for an existing business. Because of the
potentially dire consequences of violating federal or state
securities laws, it is important to consult with a business
attorney as early as possible when considering issuing or
transferring a security. Note that corporate stock and
limited partnership interests are generally considered
securities, and even a general partnership interest can be
a security in appropriate circumstances, as can certain
kinds of debt instruments.
@IF901xx]Since your business is not yet in existence, you may need to
@IF901xx]comply with state or federal securities laws if you need to
@IF901xx]sell ownership interests in @NAME.
@IF901xx]
@IF125xx](NOTE: So long as you are the sole owner of the business,
@IF125xx]you are unlikely to have to be concerned with securities
@IF125xx]law problems. SEC and state "blue sky" laws will only
@IF125xx]become a consideration if or when you should decide to take
@IF125xx]in other investors who buy an interest in your business,
@IF125xx]generally speaking.)
@IF125xx]
Since the Securities Act of 1933, federal law has required
registration as a prior condition to the issuance or transfer
of securities. The law exempts various types of securities
and certain types of transactions. The most important of
these exemptions for small or new businesses have been the
exemptions for securities sold to persons residing within a
single state and transactions by an issuer not deemed to
involve any public offering. The Securities and Exchange
Commission (the SEC) from time to time has issued regulations
exempting small securities issues, attempting to balance the
needs of small businesses to raise capital against the public
policy of protecting investors. In 1982, the SEC adopted
Regulation D as its primary method of regulation of
securities offerings by small businesses (although not to
the exclusion of other exemptions which might apply in a
given case). These regulations were revised in April 1988
and again in April, 1989.
RULE 504:
--------
Rule 504 under Regulation D exempts the issuance of
securities by an entity if the aggregate offering price of
all exempt securities sold by the entity during a 12-month
period does not exceed $1,000,000. (Limited to $500,000 if
the securities are not registered under any state securities
law.) The securities cannot be offered or sold by any form
of general solicitation or general advertising, and the
securities so acquired cannot be resold (generally) without
registration or an exemption from registration.
This rule does not require any specific information to be
given to the purchasers of the securities. However, since
the anti-fraud provisions of the securities laws apply even
though the transaction is exempt from registration, it is
helpful to memorialize in writing the material information
regarding the offering.
RULE 505:
--------
Rule 505 exempts offers and sales of securities if the
offering price for all exempt securities sold over a
12-month period does not exceed $5,000,000. To obtain
this exemption, the issuer must reasonably believe that
there are not more than 35 purchasers, other than certain
"accredited investors."
Examples of "accredited investors" include banks, insurance
companies, a natural person whose net worth (or joint net
worth, counting spouse) at the time of purchase is in excess
of $1,000,000 or who has individual income in excess of
$200,000 (or joint income, with a spouse, in excess of
$300,000) in each of the two most recent years and expects
the same in the current year, or corporations, partnerships
or business trusts having total assets in excess of $5
million (unless formed for the specific purpose of acquiring
the securities).
For purposes of Rule 505, the issuer must furnish extensive
information and certified financial statements to the
investors, unless securities are sold only to accredited
investors. The prohibition against advertising and
solicitation applies to this rule, as do the anti-fraud
provisions of the securities laws.
RULE 506:
--------
Rule 506 is similar to the exemptions provided by Rule 505,
except that the five million dollar limitation does not
apply. The 35 purchaser limitation does apply (with the
exception for accredited investors), but a separate
limitation requires that the issuer must reasonably believe
immediately prior to making any sale to a non-accredited
investor that such investor, either alone or with a
representative, has such knowledge and experience in
financial and business matters that he is capable of
evaluating the merits and risks of the prospective
investment. The prohibitions against advertising and
solicitation also apply under this rule, as do anti-fraud
provisions of the securities laws.
FILING OF NOTICE UNDER REG. D:
------------------------------
An issuer that relies upon any of the above Regulation D
exemptions must file Form D with the SEC, generally not
later than 15 days after the first sale of securities and
at other specified times thereafter. (However, failure to
file Form D will no longer disqualify an issuance of
securities, in general, that otherwise meets the Rule 504,
Rule 505 or Rule 506 requirements, unless the issuer has
been enjoined by a court for violating the filing
obligation. -- Rule 507, as interpreted in SEC's Securities
Act Release No. 6825, March 14, 1989.)
Regulation D is not the sole federal securities exemption.
Other major federal exemptions are described below.
RULE 147 (Intrastate Offering Exemption):
----------------------------------------
Rule 147, under the Securities Act of 1933, exempts from
registration a sale of securities solely to persons resident
in one state, where the issuer has at least 80% of its
assets in that state, and uses at least 80% of the proceeds
of the sale within the state. Resales of such securities
may be made only to persons within the state during the
period of the offering and for 9 months thereafter. No SEC
filing is required under a Rule 147 offering.
REGULATION A EXEMPTION:
----------------------
Yet another possible exemption is under Regulation A,
which allows an issuer (which is not a "public" company
immediately before the offering) to sell up to $5 million
of securities within a one year period without registration.
No limits are placed on the number of offerees, nor is any
minimum degree of financial sophistication required of the
offerees. However, purchasers must be given an offering
circular and a copy of the offering circular must also be
filed with the SEC.
Financial statements included in the offering circular
need not be audited statements. However, a Form 1-A
offering statement must be filed with the SEC, followed
by a 20 day waiting period, before sales may commence.
SEC REQUIREMENTS FOR "PUBLIC" COMPANIES:
---------------------------------------
A company whose equity securities are considered to be
publicly traded must be registered with the SEC under the
Securities Exchange Act of 1934. Any such "public"
companies will be subject to a host of costly reporting
requirements, including:
. Filing an annual report (Form 10-K), which includes
audited financial statements;
. Quarterly (unaudited) Form 10-Q reports; and
. Form 8-K monthly reports that must be filed when a
"material event" occurs.
Issuers who must register their securities under the '34
Act include:
. A company that has any security (stock, bonds, or other)
which is traded on a national security exchange; or
. A company with total assets in excess of $5 milli