CHAPTER 24 CHAPTER 24 Public and Private Offerings of Securities

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<ul><li><p>CHAPTER 24 Public and Private Offerings of Securities </p></li><li><p>INTRODUCTION This chapter explores security regulations, registration and reporting requirements, and violations of the requirements.*</p></li><li><p>FEDERAL STATUTORY SCHEME 1933 Act.Covers original distribution of securities.Requires promoters to register securities with the SEC, and a prospectus to be given to prospective purchasers. Investors are not protected from highly speculative investmentsonly advised of all material facts.1934 Act.Builds upon 1933 Act with continuous disclosure for publicly traded securities.Contains the first anti-fraud provisions.Requires regular reporting to SEC.</p><p>*</p></li><li><p>FEDERAL STATUTORY SCHEME Private Securities Litigation Reform Act of 1995.Designed to correct perceived abuses in private securities litigation, particularly in class actions that coerced settlements thereby increasing the costs raising capital and correct the chilling of corporate disclosures to investors.Limited fishing expeditions during discovery.Generally eliminates joint and several liability.SEC Rules and Regulations.Blue Sky Laws state regulatory statues.</p><p>*</p></li><li><p>DEFINITION OF TERMS Security - very broad definition; not just stocks, bonds and investment contracts; but not real estate. Investment Contract: investment of money in common enterprise with profits to come solely form the efforts of others.Family Resemblance Test - promissory notes may be a security, depending on the circumstances.</p><p>*</p></li><li><p>DEFINITION OF TERMS Offer - the 1933 Act definition is every attempt to dispose of, or solicitation of an offer to buy, a security or interest in a security, for value. Much broader than contract law.Sale - every contract for sale or its disposition of a security or interest in a security, for value (cash, property or compensation for past services).</p></li><li><p>INVESTMENT CONTRACT Case 24.1 Synopsis. SEC v. W. J. Howey Co.Howey owned large tracts of citrus groves in Florida, financed in part by the sale of strips of land containing citrus trees to people throughout the United States. Along with the sale of the land came an optional service contract to care for the trees and fruit. ISSUE: Does the offer and sale of parcels of land bearing citrus trees, coupled with optional management contracts pursuant to which the promoter cares for the trees, constitute an investment contract and hence a security under Section 2(1) of the 1933 Act? HELD: YES. The Supreme Court held that this transaction clearly was an investment contract (a security) because the person invested money in a common enterprise and expected profits solely from the efforts of the promoter or third party.</p><p>*</p></li><li><p>FAMILY RESEMBLANCE TEST Case 24.2 Synopsis. Reves v. Ernst &amp; YoungA farmers co-op with about 23,000 members raised money to support its general business operations by selling demand notes. The notes were not collateralized and were uninsured, and paid a variable interest rate that was higher than financial institutions. The co-op offered these notes to members and non-members of the co-op as an investment program. ISSUE: Are demand notes issued by a farmers cooperative to its members securities? HELD:Yes. The Supreme Court ruled that these demand notes were securities.*</p></li><li><p>PUBLIC OFFERING Assuming investment is a security, it must be registered. Registration of Securities - Section 5 of the 1933 Act requires registration of all securities with SEC offered and sold in the United States unless exempt.*</p></li><li><p>PUBLIC OFFERING Role of the Underwriter - public offerings usually underwritten by one or more broker-dealer(s) or investment banker(s).Firm Commitment Underwriting - underwriter buys the entire offering and re-sells.Best-Efforts Underwriting - underwriters do not buy the offering, but use their best efforts to find buyers.</p></li><li><p>PUBLIC OFFERING The Registration Statement - Sections 7 and 10 contain the guidelines.Forms - initial public offerings use Form S-1; Form S-2 allows previous filers a streamlined form and a way to incorporate previous filings by reference; Form S-3 is for previous filers with a widespread following in the marketplace; the SEC also has adopted two forms for small business (SB-1 and SB-2).</p><p>*</p></li><li><p>PUBLIC OFFERING Prospectus - disclosure and marketing tool to prospective purchasers.Due Diligence - company has to be able to back up every claim in the registration statement.</p></li><li><p>*PUBLIC OFFERING </p><p>Sheet1</p><p>Form S1 OfferingForm SB1 OfferingForm SB2 Offering</p><p>Amount of offeringNo limitUp to $10 million in any fiscal yearNo limit</p><p>Type of issuerAny issuerMust be a nonreporting or a transitional small business issuerMust be a small business issuer</p><p>Type of offeringNo limitationsNo limitationsNo limitations</p><p>Type of disclosure requiredS1 basic registration form for most offerings. S1 items referenced in Regulation SK.Offering statement with three models: 1. Q&amp;A, Form U7 2. Form 1A, old form 3. Form SB2, part I.Simplified Form SB2. SB2 items referenced in Regulation SB, a simplified version of Regulation SK.</p><p>Sheet2</p><p>Sheet3</p></li><li><p>PUBLIC OFFERING Registration Procedure - Section 8 of the 1933 act provides registration automatically becomes effective on the 20th day after filing; each amendment starts a new 20-day period.*</p></li><li><p>PUBLIC OFFERING Review - first time registrants receive a complete SEC review. Comments from SEC in a Letter of Comment.Waiting Period (or quiet period) - the time between the filing of the registration statement and its becoming effective. Red Herring preliminary prospectus.Going Effective - once an offering is declared effective, sales of securities may be made.</p></li><li><p>*PUBLIC OFFERING </p><p>Sheet1</p><p>Day 1Decide upon a public offering of securities to raise capital, and choose a securities underwriting firm</p><p>Day 30-60With the aid of the underwriter, prepare the forms and prospectus for the registration statement.</p><p>Day 60-90File the registration statement with the SEC for review, and submit any amendments to the filing.</p><p>Day 90-120During the quiet period, the underwriter can assemble selling groups, distribute copies of the preliminary prospectus, and solicit offers to sell the securities.</p><p>Day 120 +Once the offering is declared effective and the pricing amendment is filed, sales of the companys securities may begin.</p><p>Sheet2</p><p>Sheet3</p></li><li><p>PUBLIC OFFERING Shelf Registration - Rule 415 of the 1933 act allows registration of a number of shares at one time for later issuance.Reorganizations and Combinations - certain types fall under Rule 145 and are filed on Form S-4.Secondary Offerings - subsequent offering by a person other than the issuer; must be registered with the SEC or be exempt.</p><p>*</p></li><li><p>EXEMPTIONS FOR OFFERINGS BY THE ISSUERDifference between exempt securities (such as federal and state issues) and exempt transactions (such as private offerings). Private Offerings - non-public offering to selected qualified investors.</p><p>*</p></li><li><p>EXEMPTIONS FOR OFFERINGS BY THE ISSUERRegulation D: Safe-Harbor Exemptions for Private Offerings.Accredited Investors - Rule 501 exempts sophisticated investors.Integration of Sales - successive sales within a limited time period.Rule 504 - offerings of up to one million dollars within twelve months to an unlimited number of purchasers.Rule 505 - offerings up to five million dollars within twelve months to 35 or fewer unaccredited investors.Rule 506 - offerings to no more than 35 unaccredited investors and an unlimited number of accredited investors.</p></li><li><p>EXEMPTIONS FOR OFFERINGS BY THE ISSUERCase 24.3 Synopsis. SEC v. Ralston Purina Co.Ralston Purina offered stock for market prices to its employees, regardless of job classification. Between 1947 and 1951 Ralston Purina sold $2 million worth of stock to 2,000 employees throughout the United States. ISSUE: Does the determination of whether a transaction is public or private offering depend primarily on the number of offerees or the sophistication of the offerees? HELD: NO. The Supreme Court ruled that these sales were not exempt from registration as a private sale. It is not merely numbers of employees, but the sophistication of them due to access to information.</p></li><li><p>EXEMPTIONS FOR OFFERINGS BY THE ISSUERSection 4(6) Exemption - from the 1933 act - like Regulation D requirements.Regulation A - testing the waters provisions which permits issuers to solicit indications of interest before filing.Size of Offering and Eligible Companies.Testing the Waters - checking interest in the proposed offering pre-offer.</p></li><li><p>EXEMPTIONS FOR OFFERINGS BY THE ISSUEROfferings to Employees - Rule 701 exemption of certain offers and sales of securities.The Private Placement Memorandum - private offering counterpart to the prospectus. Both selling and disclosure document.</p></li><li><p>EXEMPTIONS FOR SECONDARY OFFERINGS</p><p>Section 4(1) Exemption - 1933 Act; secondary offerings are exempt.Rule 144 - criteria deciding if someone is an underwriter </p><p>*</p></li><li><p>RULE 144A AND REG S Rule 144A - permits resale of unregistered securities to qualified institutional buyers, i.e., institutional investors holding and managing $100 million or more of securities, if the securities are not of the same class as any listed securities.Regulation S - offers and sales must be made offshore so they are not subject to U.S. federal registration requirements.</p><p>*</p></li><li><p>VIEW FROM CYBERSPACE: OFFERINGS ON THE INTERNET *SECs position is that offerings on the net violate the general solicitation ban unless the offering materials are restricted to pre-qualified investors, usually only done by password protected files after completing of a questionnaire. NETROADSHOW.COM. SEC has ruled that any hyper-linked information contained in an on-line prospectus becomes part of the prospectus itself.</p></li><li><p>REPORTING REQUIREMENTS OF PUBLIC COMPANIES Section 12 - issuers in interstate commerce and having total assets exceeding $5 million must register with the SEC each non-exempt class of security that is listed on a national exchange or is an equity security held by at least 500 persons.*</p></li><li><p>REPORTING REQUIREMENTS OF PUBLIC COMPANIES Other Sections of the 1934 Act.Proxy Solicitations - Section 14.Insider Trading - must disclose securities holdings of officers, directors, and 10% or more shareholders of the issuers equity securities and any changes in the holdings.Tender Offers - Section 14 rules.Schedule 13D - acquirers of 5% or more of shares must file one within ten days of acquisition.</p></li><li><p>SELECTIVE DISCLOSURE AND REGULATION FD (FAIR DISCLOSURE) *In October, 2000, SEC adopted prohibition of selective disclosure of material information to analysts before making it available to the general public </p></li><li><p>VIOLATION OF THE REGISTRATION AND PROSPECTUS-DELIVERY REQUIREMENTS OF THE 1933 ACT: SECTION 12(1) Elements of Liability - strict liability for sale or offered securities without effective registration statement, or non-complying prospectus, through the use of interstate transportation or communication.Damages - if the plaintiff has not sold - rescind the sale; if sold - damages.Who May Be Sued - definitely the insurer.Who May Sue - anyone who purchased shares issued in violation of the registration requirements*</p></li><li><p>*Case 24.4 Synopsis. Pinter v. Dahl (1988).Dahl purchased unregistered securities in the form of oil and gas interests from Pinter, an oil and gas producer and registered securities dealer in Texas. Dahl got his friends and family to also purchase securities from Pinter. When the investment failed, they all sued Pinter for a violation of Section 12(1) of the 1933 Act. Pinter claimed Dahl was a seller under Section 12(1) because he substantially encouraged his friends and family to purchase the shares. ISSUE: Is a person with no financial interests in an offering of unregistered securities a seller under Section 12(1) of the 1933 Act? HELD: The Supreme Court remanded the case to determine if Dahl made the recommendations to further a goal of Dahl or Pinter, or for the benefit of the friends and family who were the buyers. The Court said that Congress did not intend to impose liability on one who gave advice solely for the benefit of the buyer.VIOLATION OF THE REGISTRATION AND PROSPECTUS-DELIVERY REQUIREMENTS OF THE 1933 ACT: SECTION 12(1) </p></li><li><p>SECTION 11 OF THE 1933 ACTSale pursuant to a misleading registration statement.Who May Sue - anyone who acquired a registered security.Tracing Requirements - tie purchase to misleading statement.Class Actions - typically done.</p></li><li><p>SECTION 11 OF THE 1933 ACTWho May Be Sued - Section 11 lists who may be sued.Controlling Persons - Section 15 imposes liability on anyone who controls any person under Section 11 or 12; control is not defined in the 1933 Act.Elements of Liability - plaintiff must show when the registration statement became effective it contained a false or misleading statement concerning a material term.</p></li><li><p>SECTION 11 OF THE 1933 ACTDefensesNo Reliance - investor knew of misstatement or omission.No Causation - plaintiff suffered no loss.Due Diligence - defendant conducted a reasonable investigation and it reasonably believed the statements made were true and there were no omissions which made the statements misleading.</p><p>*</p></li><li><p>SECTION 11 OF THE 1933 ACTBespeaks Caution Doctrine - can negate misrepresentations and omissions in prospectus.Reform Act Safe Harbor for Forward-Looking Statements.Damages - for sale and no sale of the securities.</p></li><li><p>DUE DILIGENCECase 24.5 Synopsis. Escott v. BarChris Construction Corp. (1968). BarChris built bowling alleys with capital raised through public offerings. It obtained money in May 1961, but due to financial problems, filed for bankruptcy protection in October of 1962. A class action suit was filed alleging Section 11 claims against the company, its officers and directors, and underwriters. The court found that only the outside directors could rely on the due diligence defense because of their knowledge of the company. The defendants were held liable for misleading statements on the registration statements.</p><p>*</p></li><li><p>SECTION 12(2) OF THE 1933 ACT Remedy for purchaser of any security by means of a misleading prospectus or oral communication.Who May Be Sued - anyone who offers or sells a security by means of a misleading prospectus.Reasonable Care Defense - defendant is not liable if the defendant can show he or she did not know and could not have known (using due care) about the misrepresentation and omissions.</p><p>*</p></li><li><p>SECTION 12(2) OF THE 1933 ACT Case 24.6 Synopsis. Gustafson v. Alloyd Co.Three individuals own all the stock in Alloyd, a manufacturing corporation. They all agreed to enter a stock purchase agreement to sell their shares to Wind Point, an investment partnership. The individuals made a misrepresentation about the value of the company based on the inventory and financial statements. </p></li><li><p>SECTION 12(2) OF THE 1933 ACT When a year-end audit disclosed this difference, Wind Point sued, alleging a material misrepresentation in the purchase agreement, which Wind Point characterized as a prospectus. ISSUE: Does Section 12(2) apply to misrepresentations in a stock-purchase agreement in connection with a private of...</p></li></ul>