United States: Impact Of The JOBS Act On Private Fund Managers

Executive Summary

The Jumpstart Our Business Startups Act (JOBS Act) has significant implications for managers of private funds. Some of the JOBS Act changes, such as permitting publicity in fund offerings where the only purchasers are accredited investors and a new broker-dealer exemption for ancillary services related to private placements, may make fundraising easier.

Other JOBS Act changes of benefit to private fund managers are a new confidential Securities and Exchange Commission (SEC) filing procedure that could be used in the sale process for portfolio companies and Emerging Growth Company (EMG) provisions that will make it easier to carry out primary and secondary public offerings of portfolio company stock. These changes may improve the ability of a fund to liquidate investments in portfolio companies.

Raising Capital

Rule 506

Both C1 (less than 100 holders) and C7 (qualified purchaser) funds are required to be offered in private placements, and by complying with Rule 506, funds will meet the private placement standard. Because Rule 506 also preempts state securities law regulation (other than notice filings), it is the preferred alternative for funds looking to raise capital. Rule 506 currently prohibits the use of "general solicitation," which includes communications in a newspaper, magazine or similar documents or broadcasts over television or radio and any seminar or meeting whose attendees have been invited by general solicitation or general advertising.

The JOBS Act requires that the SEC revise Rule 506 to eliminate the current "general solicitation" prohibition, so long as:

• all purchasers are "accredited" investors; and
• the issuer takes steps to verify the "accredited" status of the investor.

This provision could result in a significant change in the way private funds raise capital. This provision also involves a fundamentally different approach to the "private placement" concept. Implementation of this new approach will raise a number of legal and practical issues.

Verification of Accredited Investor Status

As noted earlier, the JOBS Act provides that only accredited investors can participate in a Rule 506 offering in which general solicitation is used, and that the SEC will establish by rule the procedure that an issuer needs to take to "verify" that investors are accredited. These steps are to be specified by the SEC in its rulemaking proceeding.

Currently, the most commonly used procedure to establish accredited status is a questionnaire that is included as part of the subscription documents. The degree of detail required by the questionnaire varies, as does the degree of care that prospective investors use in completing the questionnaire. It is possible that the SEC will require steps beyond review of an investor questionnaire in the revised Rule 506.

The SEC has until early July to propose and adopt this change. Until Rule 506 is amended, the existing rules continue to apply. As of the writing of this update, the SEC has not yet proposed the amended provision of Rule 506 in response to this requirement of the JOBS Act. The SEC has established a page on their website through which comments on JOBS Act changes can be submitted. As of June 3, 2012, this site included 21 comments on the elimination of the general solicitation restriction. These comments ranged from several very simple emails using the SEC's comment form to several relatively thorough comment letters.

Most of the comments received by the SEC have suggested the continuation of current market practice: the use of a questionnaire to establish accredited investor status. One commenter has suggested that the information supporting accredited investor status should be given "under penalties of perjury." Another has suggested that the investor questionnaire require that a third party (such as a lawyer or accountant) certify the status of the investor as accredited. Another comment letter suggests that a private fund be required to obtain a third party background check unless the fund uses a broker as a placement agent.

A few comment letters have suggested increasing the tests for accredited investor status and/or imposing a minimum investment size for transactions where general solicitation is used. One comment letter suggests that the SEC permit the use of third-party service providers to verify accredited investor status through the use of investor related information, which would be deposited with the service provider on a confidential basis.

Issues Raised by General Solicitation

The elimination of the general solicitation restriction reverses a long-standing administrative policy relating to the criteria for private placements and raises a number of issues that the SEC and issuers will need to consider.

Integration

The impact of this change on the application of the "integration" doctrine remains unclear. This doctrine treats more than one offering as if it were only one offering in determining compliance with the private placement provisions. However, many funds are continuously raising capital. Some funds raise capital for more than one fund at a time. As a result, general solicitation might be considered to blur the line between offerings, such as when offerings are made sequentially, or when more than one offering is being made at one time.

Integration can present an issue either under the Securities Act or the Investment Company Act. In the Securities Act context, integration of offerings is based on a fairly well-established five factor test (single plan of financing, class of securities, timing, consideration received, and purpose of the offering). Integration of offerings may lead to the loss of an exemption and "puts" in the hands of investors. Regulation D provides that offerings conducted more than six months apart are generally not integrated.

In the Investment Company Act context, integration treats two or more funds as one fund for compliance purposes. This analysis is usually based on different criteria than the Securities Act factors, but also can lead to the loss of an exemption.

Private funds especially can face integration issues in terms of the Securities Act or the Investment Company Act. Both C1 and C7 funds are required to be placed without engaging in a public offering, and many fund managers offer side-by-side C1 and C7 funds. For the purposes of the Investment Company Act, C1 funds and C7 funds are not integrated. Therefore, a simultaneous offering of these two types of funds should not present an issue under either the Securities Act or the Investment Company Act. Nor should the integration of multiple C7 funds present an issue, because C7 funds can have an unlimited number of investors, as long as they are all qualified purchases.

Accordingly, the main issue for private fund managers likely will be simultaneous offerings of C1 funds or sequential offerings of C1 funds, where the Regulation D six-month non integration period has not been satisfied.

In the case of offerings by issuers other than private funds, numerous other integration issues may be present.

Offshore Offerings/Regulation S

The JOBS Act does not change the rules for offshore offerings conducted under Regulation S. Regulation S provides a non-exclusive safe harbor exemption from the registration requirements of the Securities Act for offerings that take place outside the United States. Regulation S is not available if there are "directed selling efforts" in the United States, however. As a result, the prohibition on directed selling efforts continues to apply.

For funds that have used Regulation S for the offshore component of a simultaneous private placement and offshore offering, there may be a need to use Rule 506 for both the domestic and offshore components. Hopefully the SEC will provide guidance on this issue in the proposing and adopting releases for the change in 506 required by the JOBS Act, as several comments from the public have focused on this issue.

Private Offerings Generally

The elimination of the general solicitation provision in Regulation D may not result in a similar change for private offerings that do not rely on Rule 506. If there is general solicitation, but the offering fails to qualify under Rule 506, it may not be feasible to rely on the general private placement concepts. One commenter has suggested that the general solicitation restriction be eliminated in the context of private placements altogether.

Prior Substantive Relationship

The SEC has developed the concept of a "prior substantive relationship" to deal with the restriction on general solicitation. This concept, in effect, requires that the issuer have a relationship with the investor that provides the issuer with a reasonable basis to conclude that the investor is accredited.

A number of SEC no-action letters have dealt with the concept of the prior substantive relationship, and the ways in which this type of relationship can be established, including the use of third parties (such as brokers) to establish this relationship. The SEC has also provided guidance on the ways in which a password-protected website can be used without engaging in general solicitation.

The elimination of the prohibition on general solicitation should result in the elimination of the "prior substantive relationship" requirement in these types of offerings.

Content of Solicitation Material

Mutual Fund-Type Regulation?

The Investment Company Institute has suggested, in effect, that solicitation materials be subject to the same type of regulation as mutual fund advertisements.

Blackrock's comment letter suggests the opposite approach.

Impact of Investment Adviser Registration

Many fund managers have been required to register as investment advisers as a result of the Dodd-Frank Act. Since registered investment advisers are subject to various limitations on "advertising" materials, fund managers that are now registered as investment advisers will need to consider these advertising rules in connection with any solicitation materials.

Impact of CFTC Provisions

Many hedge fund managers rely on CFTC Rule 4.13(a)(4), which provides an exemption from registration for a commodity pool offered only to specified investors (certain "qualified eligible" persons and accredited investors). The CFTC has rescinded Rule 4.13(a)(4) effective in April 2012 for new funds, though existing funds can continue to rely on Rule 4.13(a)(4) through the end of this year.

The CFTC left in place Rule 4.13(a)(3), which provides a registration exemption for pool operators that use commodity interests on a limited basis, if the pool is offered only to accredited investors, knowledgeable employees and certain "qualified eligible" persons. However, Rule 4.13(a)(3) contains a restriction on "marketing to the public."

The elimination of Rule 4.13(a)(4) is a significant change in the regulatory landscape for hedge fund managers. It is unclear whether, as a practical matter, Rule 4.13(a)(3) is a viable alternative.

For hedge funds (and funds of funds) that have commodities interests in their portfolio, the changes in these CFTC provisions may impact the ability to take advantage of the elimination of the general solicitation provisions of Rule 506.

Absent further guidance, it is unclear whether general solicitation (even if limited to accredited investors as required by the JOBS Act) would be permitted under the CFTC Rule 4.13(a)(3).

New Broker-Dealer Exemption

The JOBS Act also provides a new exemption from broker-dealer status for persons who

• maintain a "platform or mechanism" to facilitate 506 offerings, or
• engage in general solicitation, advertising, co-invest or provide ancillary services in 506 offerings.

This exemption is available to persons who do not receive compensation in connection with the purchase or sale of securities and do not have possession of customer funds or securities.

Impact of JOBS Act on Sale of Portfolio Companies

Confidential SEC Filings

The JOBS Act allows confidential stock offering filings with the SEC, which could be useful to managers of private equity funds in the sale of portfolio companies. The confidential filing could be used as a backup in an auction process. This procedure would include the confidential filing of a registration statement relating to the portfolio company, which could be reviewed by the SEC on a confidential basis while the fund seeks to market the portfolio company in a private M&A transaction. By employing this method, the fund would have an alternative exit in place with the added possible benefit of creating more leverage with potential buyers of the portfolio company. A private fund could also use these new provisions to obtain liquidity with respect to some or all of its ownership position in a portfolio company.
For additional guidance on the procedure to be used for these confidential filings, please consult the SEC website or contact one of the authors.

EMGs

To qualify, an EMG needs to have annual gross revenue of less than $1 billion. The JOBS Act makes a number of changes in the registration process for an EMG such as reduced financial statements burdens and exemption from auditor certification of internal controls. In addition, the JOBS Act also reduces the cost of being a public company for an EMG by, among other things, eliminating the need for say on pay votes.

'34 Act Registration

Historically, C7 funds have been allowed an unlimited number of qualified purchasers as investors, and '34 Act registration has been required for these funds when they reached 500 investors. As with public companies, '34 Act registration involves the filing of periodic and current reports (10-Ks, 10-Qs, 8-K), which would be burdensome for most private funds.

The JOBS Act raises the 500-investor trigger to 2,000, allowing C7 funds to have significantly more investors before being required to register under the '34 Act. (The JOBS Act also requires '34 Act registration if an issuer has more than 499 shareholders who are not accredited. Because C7 funds are required to be composed of qualified purchasers, this provision should not impact C7 funds.)

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.