Federal and State Securities Offer Exemptions for Tennessee Small Businesses

From Fortune 500 companies to technology and biotechnology start-ups to the smallest family businesses, Tennessee is home to some of the best companies in the world. The overwhelming majority of the business entities located in Tennessee are small, privately held companies, and many of these companies will, at some point in their existence, seek to raise capital by selling interests in the company, commonly referred to as "securities." While we most often think of securities as shares of stock issued by a corporation, the term "securities" may also include membership interests in limited liability companies, partnership interests, compensatory options and even some types of debt.

Under the Securities Act of 1933,[1] it is against the law for any company, or "issuer," to sell securities without either registering the securities with the Securities and Exchange Commission pursuant to Section 5 of the Securities Act or relying upon a valid exemption from the registration requirements. Similarly, pursuant to each individual state's "Blue Sky" laws, it is generally against the law to sell securities within a state without either registering the securities with the state's securities regulatory agency or relying upon a valid state exemption from registration.[2] If an issuer registers securities with the commission, it then becomes a "public company" subject to the periodic reporting requirements of the Securities Exchange Act of 1934[3] and the conduct rules of the exchange on which its securities are listed. Additionally, registering securities with the commission or with one or more states (even without a concurrent registration with the commission) requires an issuer to expend an enormous amount of time and expense that smaller companies simply cannot afford. As a result, the vast majority of issuers seeking to sell securities will rely upon an exemption from registration.

When advising clients who are seeking to sell securities, it is important that the attorney and client both understand that every sale of securities, no matter how large or how small, is subject to the registration or exemption requirement. Below are some of the federal and Tennessee exemptions most commonly used by smaller businesses seeking to sell securities in Tennessee.

I. Common Federal Exemptions

1. Regulation D
Regulation D is a series of rules promulgated by the commission that includes three nonexclusive exemptions from the registration requirements of Section 5 of the Securities Act.[4]   The Regulation D exemptions are the exemptions most commonly used by small businesses to avoid the federal registration requirements.

One of the key concepts under Regulation D is determination of whether a purchaser of securities qualifies as an "accredited investor." Under Rule 501 of Regulation D,[5] in order to qualify as an "accredited investor," the purchaser must be (i) a specified institutional investor; (ii) a private business development company under the Investment Advisors Act of 1940; (iii) a 501(c)(3) tax-exempt organization, corporation, business trust or partnership having $5 million in assets and not formed for the specific purpose of acquiring the securities offered; (iv) an officer, director or general partner of the issuer; (v) a natural person whose individual net worth, or joint net worth with that person's spouse, at the time of purchase exceeds $1 million; (vi) a natural person who had an individual income in excess of $200,000 in each of the two most recent years or joint income with that person's spouse in excess of $300,000 in each of those years and has a reasonable expectation of reaching the same income level in the current year; (vii) a trust having $5 million in assets, not formed for the specific purpose of acquiring the securities offered and whose investment is directed by a "sophisticated person"; or (viii) an entity in which all of the owners are accredited investors.

The recently enacted Restoring American Financial Stability Act,[6] more commonly referred to as the "Dodd-Frank Act" or the "Wall Street Reform Act," directs the commission to adjust the net worth standard for a natural person seeking to qualify as an accredited investor. Prior to the adoption of the Dodd-Frank Act, a natural person whose net worth, including the value of his primary residence, exceeded $1 million qualified as an accredited investor. The Dodd-Frank Act, however, revises the $1 million net worth standard so that the value of person's primary residence is specifically excluded from the calculation of net worth. Additionally, the Dodd-Frank Act permits the commission to conduct a review of the definition of accredited investor for natural persons in areas other than the $1 million net worth standard and to revise the definition "for the protection of investors, in the public interest, and in light of the economy."[7] Finally, upon the fourth anniversary of its enactment, and then at least every four years thereafter, the Dodd-Frank Act directs the commission to review the entire definition of accredited investor as applied to natural persons (including the $1 million net worth standard) and permits the commission to make appropriate adjustments to the definition.

- Rule 504 " Exemption for Limited Offers and Sales of Securities Not Exceeding $1 Million. Rule 504 is an exemption promulgated under Section 3(b) of the Securities Act.[8] The Rule 504 exemption is available to any issuer except companies subject to Exchange Act reporting requirements, investment companies or "blank check" companies with no business plan. The maximum aggregate offering price for a Rule 504 offering is $1 million, less the aggregate offering price of all securities sold within 12 months before the start of the 504 offering in reliance upon a Section 3(b) exemption or sold in violation of Section 5 of the Securities Act. There is no limitation on the number of offerees or purchasers, and, unlike Rule 505 and Rule 506, there are no qualifications for purchasers (i.e., it does not matter if purchasers are accredited investors). There are also no express information delivery requirements to offerees or purchasers of securities pursuant to a Rule 504 offering. Except in some very limited circumstances, the issuer cannot engage in general solicitation or advertising of the offering, and any securities issued pursuant to Rule 504 are deemed to be "restricted" and can only be resold in connection with a registration or a valid exemption from registration. Finally, the issuer must electronically file a Form D with the SEC within 15 calendar days of the first sale of securities pursuant to the offering.

- Rule 505 " Exemption for Limited Offers and Sales of Securities Not Exceeding $5 Million. Rule 505 is another exemption promulgated under Section 3(b) of the Securities Act.[9] The Rule 505 exemption is available to any issuer except investment companies or issuers falling within the "bad boy" exclusions contained in Rule 262 of Regulation A under the Securities Act. The maximum aggregate offering price for a Rule 505 offering is $5 million, less the aggregate offering price of all securities sold within 12 months before the start of the 505 offering in reliance upon a Section 3(b) exemption or sold in violation of Section 5 of the Securities Act. There can be no more than 35 nonaccredited purchasers in connection with a Rule 505 offering. There are no express information delivery requirements for accredited investors, but for all other investors, the issuer must meet the express information delivery standards set forth in Rule 502. The information delivery requirements under Rule 502 are so onerous that most issuers will opt to offer securities under Rule 505 (or Rule 506) only to accredited investors.

Finally, the issuer cannot engage in general solicitation or advertising of the offering and must electronically file a Form D with the SEC within 15 calendar days of the first sale of securities pursuant to the offering. Any securities issued pursuant to Rule 505 are deemed to be restricted and can only be resold in connection with a registration or a valid exemption from registration.

- Rule 506 " Exemption for Limited Offers and Sales Without Regard to Dollar Amount of Offering. Rule 506 is a "safe harbor" exemption under Section 4(2) of the Securities Act.[10] Rule 506 is the most flexible of the Regulation D exemptions and has several significant advantages over the Rule 504 and Rule 505 exemptions. First, Rule 506 is available to any issuer. Second, there is no limit as to the amount of securities that may be offered and sold pursuant to Rule 506. Finally, the National Securities Markets Improvement Act of 1996 (NSMIA) amended Section 18 of the Securities Act so that offerings pursuant to Rule 506 are exempt from state "Blue Sky" securities laws,[11] except that the states can require an issuer to submit a filing fee, file a copy of the Form D and a consent to service of process.

In a Rule 506 offering, there can be no more than 35 nonaccredited purchasers and the issuer must have a "reasonable belief" that each non-accredited purchaser (alone or with a "purchaser representative") has such knowledge and experience in financial and business matters so as to be capable of evaluating the merits and risks of the investment. Accredited investors are presumed to meet such standards. There are no express information delivery requirements for accredited investors, but for all other investors, the issuer must meet the express information standards set forth in Rule 502. The issuer cannot engage in general solicitation or advertising of the offering and must electronically file a Form D with the SEC within 15 calendar days of the first sale of securities pursuant to the offering. Any securities issued pursuant to Rule 506 are deemed to be restricted and can only be resold in connection with a registration or a valid exemption from registration.

The recently enacted Dodd-Frank Act directs the commission to issue rules, not later than one year after its enactment, regarding the availability of Rule 506 to certain issuers. The new rules must disqualify offers or sales of securities under Rule 506 for issuers (i) falling within the "bad boy" exclusions contained in Rule 262 of Regulation A under the Securities Act or (ii) subject to a final order of a state securities commission (or an agency or officer of a state performing like functions), a state authority that supervises or examines banks, savings associations, or credit unions, a state insurance commission (or an agency or officer of a state performing like functions), an appropriate Federal banking agency, or the National Credit Union Administration, that (a) bars the person from (1) associating with an entity regulated by such commission, authority, agency, or officer, (2) engaging in the business of securities, insurance, or banking, or (3) engaging in savings association or credit union activities, or (b) constitutes a final order based on a violation of any law or regulation that prohibits fraudulent, manipulative, or deceptive conduct within the 10-year period ending on the date of the filing of the offer or sale of securities.

2. Section 4(2) of the Securities Act " The Private Placement Exemption
Section 4(2) of the Securities Act is the general statutory exemption from the Section 5 registration requirements for "transactions by an issuer not involving a public offering."[12] Whether a particular offering is exempt from registration pursuant to Section 4(2) is highly dependent upon the particular facts surrounding the offering. Generally, an offering will be exempt from registration pursuant to Section 4(2) only if all of the offerees are sophisticated investors who can fend for themselves, are not the type of investors that the registration requirements of the Securities Act were designed to protect, and have the ability to bear the risk of purchasing the securities.[13] Another consideration in determining whether an issuer can rely upon the Section 4(2) exemption is whether the potential investors have access to information about the issuer, either through their positions with the issuer as an insider or through adequate disclosure (usually a private placement memorandum).[14] Other key elements of a valid Section 4(2) offering include an absence of any general solicitation or advertising and a relatively discreet number of offerees.[15] Given that the existence of a valid Section 4(2) exemption is dependent upon so many fact-specific elements, securities practitioners will generally rely upon the Section 4(2) exemption only when the offering is to a very small number of offerees who are all insiders or there is no other federal exemption available to the issuer.

3. Section 3(a)(11) of the Securities Act/Rule 147 under the Securities Act " The Intrastate Exemption
Section 3(a)(11) of the Securities Act is the so-called "intrastate exemption." Section 3(a)(11) provides that "[a]ny security which is a part of an issue offered and sold only to persons resident within a single State or Territory, where the issuer of such security is a person resident and doing business within or, if a corporation, incorporated by and doing business within, such State or Territory" is exempt from registration under the Securities Act.[16] Rule 147 provides a safe harbor under Section 3(a)(11) of the Securities Act.[17] Rule 147 sets forth guidelines for determining whether an issuer is a resident of, or doing business in, a state and whether the offerees and purchasers are all residents of the same state. Rule 147(b) also provides that any offering made six months immediately prior to, or six months immediately after, an offering under Rule 147 will not be deemed to be a part of the Rule 147 offering.

Additionally, Rule 147 contains several specific requirements for a valid exemption. Rule 147 restricts the resale of any securities issued pursuant to Rule 147 to persons resident within the state for nine months following the last sale of the securities by the issuer. A legend stating that the securities have not been registered under the Securities Act and are subject to resale limitations must be placed on the certificate or other document evidencing the security. The issuer must either deliver stop transfer instructions to its transfer agent, if applicable, with respect to the securities, or note such restrictions in its records. Finally, Rule 147 requires the issuer to disclose to prospective purchasers in writing the existence of the resale restrictions and legend requirements and to obtain a written representation from each purchaser confirming its residence.

4. Rule 701 " Exemption for Offers and Sales of Securities Pursuant to Certain Compensatory Benefit Plans and Contracts Relating to Compensation
Rule 701 under the Securities Act is an exemption that allows eligible issuers to issue stock or grant stock options or other similar securities to their employees as part of the employees' compensation.[18] The Rule 701 exemption is available to any issuer except for issuers subject to Exchange Act reporting requirements or investment companies registered or required to be registered under the Investment Company Act of 1940. The securities must be offered pursuant to a written compensatory benefit plan or a written compensation contract, a copy of which must be delivered to the offeree of the securities. Rule 701 exempts offers and sales of an issuer's securities to its employees, directors, general partners, trustees (where the issuer is a business trust), officers, consultants and advisors. There is no limitation on the amount of securities offered pursuant to 701; however, the aggregate sales price or amount of securities sold in reliance upon Rule 701 during any consecutive 12-month period cannot exceed the greatest of
(1) $1 million;
(2) 15 percent of the issuer's total assets as of the issuer's most recent annual balance sheet date; or
(3) 15 percent of the outstanding amount of the class of securities being offered and sold in reliance upon Rule 701, determined as of the issuer's most recent annual balance sheet date.

Finally, any securities issued pursuant to Rule 701 are deemed to be restricted and can only be resold in connection with a registration or a valid exemption from registration.

II. Common Tennessee Exemptions

Just as federal law requires all issuers of securities to either register their securities or ensure that their issued securities fall within an exemption from registration, so does Tennessee law. The Tennessee Securities Act of 1980[19] governs the sale and registration of securities within the state, and the Securities Division of the Tennessee Department of Commerce and Insurance (Tennessee Securities Commission) is charged with the administration of the securities law within the state. The state exemptions discussed below largely mirror the previously discussed federal exemptions.

1. Covered Securities: Tenn. Code. Ann.  § 48-2-125 and Rule 0780-4-2.12
Tenn. Code Ann.  § 48-2-125 is the Tennessee counterpart to federal Rule 506 and exempts offers and sales of "covered securities" in Tennessee. A "covered security" is one that enjoys a federally imposed exemption from state securities registration,[20] including offerings exempt under federal Rule 506. NSMIA prevents states from imposing additional disclosure standards on such offerings; requiring registration or qualification of such securities or transactions involving such securities; or prohibiting or limiting the use of any offering document prepared by or on behalf of any issuer of such securities.[21]

In accordance with NSMIA, Tennessee requires issuers of covered securities under federal Rule 506 to file with the Tennessee Securities Commission, no later than 15 days after the first sale of covered securities in the state, a notice filing consisting of a paper copy of the electronically filed Form D filed with the commission; a nonrefundable filing fee of $500; and a statement noting the date of the first sale, if any, of such securities in Tennessee. Notice filings expire annually and may be renewed by making a filing and paying a fee as provided in the statute. Failure to comply with the registration requirements can have severe consequences, including the imposition of a "stop order" to suspend the offer and sale of securities.[22]

2. Offerings to Accredited Investors: Tenn. Code. Ann.  §48-2-103(b)(14) and Rule 0780-4-2.14
Another common exemption to registration in Tennessee is the Accredited Investor Exemption. To fall within this exemption, the offer or sale of securities must meet the following requirements: the sales are made only to persons who are, or who the issuer reasonably believes are, "accredited investors," and the issuer reasonably believes that all purchasers are purchasing for investment and not with a view toward resale in connection with a distribution of the security.[23] An issuer's belief that an investor is accredited is deemed reasonable if the issuer obtains from such investor a written certification that the investor meets the definition of accredited investor in Section 48-2-102(1) of the Tenn. Code Ann. and the issuer maintains this written confirmation for a period of not less than three years from the date of the sale. For purposes of this exemption, any resale of a security sold in reliance on this exemption within 12 months of sale will be presumed to be with a view toward distribution and not for investment, except for a resale to which one of the listed exceptions applies.

The accredited investor exemption is not available to an issuer that is in the development stage and that either has no specific business plan or purpose or has indicated that its business plan is to engage in a merger or acquisition with an unidentified company, entity or person. The exemption is also not available if the issuer or any of its related persons has, within the past five years, filed a registration statement that is the subject of a currently effective stop order or any such similar order or has been convicted of any criminal offense in connection with the offer, purchase or sale of any security, or involving fraud or deceit. Additionally, the exemption is not available if the issuer or any of its related persons is currently subject to any state or federal administrative enforcement order, or any other order, judgment or decree of any court of competent jurisdiction, entered within the last five years, finding fraud or deceit in connection with the purchase or sale of any security.

A general announcement of the proposed offering may be made by any means but can include only limited information unless otherwise specifically permitted by the Tennessee Securities Commission. No later than 15 days after the first sale in Tennessee, the issuer must file with the Tennessee Securities Commission (1) a copy of the form "Notice of Sale of Securities Pursuant to Accredited Investor Exemption"; (2) a Form U-2 Uniform Consent to Service of Process, if applicable; (3) a copy of the general announcement, if one is made, regarding the proposed offering; (4) a nonrefundable filing fee of $500; and (5) a statement noting the date of the first sale, if any, of such security in Tennessee.

3. Uniform Limited Offering Exception: Tenn. Code. Ann.  § 48-2-103(b)(11) and Rule 0780-4-2.08
The Tennessee Uniform Limited Offering Exemption is used in conjunction with an offering exempt under federal Rule 505.[24] In general, the exemption applies if the offering is less than $5 million and there are not more than 35 non-accredited investors. The Tennessee Securities Commission requires that all sales to nonaccredited investors meet certain suitability standards. Further requirements are that no commissions or fees are paid to unregistered persons for soliciting prospective purchasers, the issuer and any related parties are not disqualified, and there is no general advertising or general solicitation. No later than 15 days after the earlier of the first payment of consideration or the delivery of a signed subscription agreement by a Tennessee investor, the issuer must file with the Tennessee Securities Commission (1) a printed copy of the electronically filed Form D filed with the commission; (2) a copy of all written information furnished to offerees; (3) if the issuer is a corporation, a Form U-2A Uniform Form of Corporate Resolution; (4) a nonrefundable filing fee of $300; and (5) a statement noting the date of the first sale, if any, of such security in Tennessee. As with other exemptions, resale restrictions apply to the securities sold under the Uniform Limited Offering Exemption.

4. The De Minimis Exemption: Tenn. Code. Ann.  § 48-2-103(b)(4)
The Tennessee De Minimis Exemption applies if the following conditions are met: (1) the offering consists of 15 or fewer purchasers in Tennessee during the 12-month period ending on the date of such sale; (2) the securities are not offered for sale by means of publicly disseminated advertisements or sales literature; and (3) all purchasers in Tennessee obtain the securities with the intent of holding the securities for investment for their own account and without intent of participating in a distribution of such securities.[25] For purposes of this exemption, any person who holds such securities for a period of two years or more from the date such securities have been fully paid for by such person shall be presumed to have purchased such securities for investment. There are no filing requirements for securities offered pursuant to this exemption.

5. Offerings Not to Exceed $250,000: Tenn. Code. Ann.  §48-2-103(b)(6) Another Tennessee exemption applies if the aggregate amount of securities sold in Tennessee in the offering by a Tennessee issuer does not exceed $250,000 during any 12-month period, and no commission or other remuneration is paid or given directly or indirectly for soliciting any purchaser in Tennessee.[26] This exemption is not available for any offering of certificates of interest or participation in an oil, gas or mining title or lease or in payments out of production under such a title or lease. There are no filing requirements in connection with securities offered pursuant to this exemption.

6. Exempt Employee Plans: Tenn. Code. Ann.  §48-2-103(b)(9) and Rule 0780-4-2.13
The Employee Plan Exemption applies to any transaction involving the issuance of securities in connection with: a stock bonus plan requiring payment of no consideration other than services; a stock bonus, pension, profit sharing, savings, thrift, retirement plan for employees or self-employed individuals qualified under  § 401 of the Internal Revenue Code of 1954, as amended; or individual retirement accounts qualified under  § 408 of the Internal Revenue Code of 1954, as amended.[27] The exemption also applies in connection with a transaction that meets the following requirements: (1) the offering meets the requirements of federal Rule 701 of the Securities Act; (2) the offering is exempt from the provisions of Section 5 of the Securities Act; and (3) no commission, discount, or other remuneration is paid or given unless paid or given to a Tennessee broker-dealer or agent registered under the Tennessee Securities Act. The issuer must file with the Tennessee Securities Commission no later than 15 days after the first sale (1) a copy of the form "Notice of Sale of Securities Pursuant to Employee Stock Purchase/ Option Plan Exemption"; (2) a Form U-2 Uniform Consent to Service of Process; (3) if the issuer is a corporation, a Form U-2A Uniform Form of Corporate Resolution; (4) a nonrefundable filing fee of $500; and (5) a statement noting the date of the first sale, if any, of such security in Tennessee.

Conclusion

Even in a challenging economic environment, small businesses may need to raise additional capital by selling securities. As every sale of securities, no matter the size of the offering, is subject to the registration or exemption requirement, attorneys should be mindful of both federal and state exemptions when advising clients who seek to sell securities. A thorough knowledge of federal and state securities law is essential for any attorney who counsels small businesses.

Notes

  1. Securities Act of 1933, 15 U.S.C.  § § 77a " 77bbbbb (2010).
  2. For example, registrations and exemptions from registration in Tennessee are governed by the Tennessee Securities Act of 1980. Tenn. Code Ann.  § § 48-2-101-201 (2010).
  3. Securities Exchange Act of 1934, 15 U.S.C.  § § 78a " 78nn (2010).
  4. 17 C.F.R.  § § 230.501-508 (2010).
  5. 17 C.F.R.  §230.501 (2010).
  6. H.R. Res. 4173, 111th Congress (2010)(enacted).
  7. See Id.  § 413.
  8. 17 C.F.R.  § 230.504 (2010).
  9. Id.  § 230.505. Beginning March 16, 2009, all issuers are required to file Form D electronically with the commission. See Securities Act Release No. 33-8891 (Feb. 6, 2008).
  10. Id.  § 230.506.
  11. National Securities Market Improvement Act of 1996 ("NSMIA"), Pub. L. No 104-290, 110 Stat. 3416 (codified as amended in scattered sections of 15 U.S.C.).
  12. 15 U.S.C.  § 77d (2010).
  13. SEC v. Ralston Purina Co., 346 U.S. 119, 124 " 25 (1953).
  14. Doran v. Petroleum Mgmt. Corp., 545 F.2d 893, 904 " 06 (5th Cir. 1977).
  15. Ralston Purina, 346 U.S. at 125; Doran, 545 F.2d at 901 (citing Hill York Corp. v. Am. Int'l Franchises Inc., 448 F.2d 680, 688 (5th Cir. 1971)).
  16. 15 U.S.C.  § 77c (2010).
  17. 17 C.F.R.  § 230.147 (2010). Under this rule, "[o]ffers, offers to sell, offers for sale and sales by an issuer of its securities made in accordance with all of the terms and conditions of this rule shall be deemed to be part of an issue offered and sold only to persons resident within a single state or territory where the issuer is a person resident and doing business within such state or territory, within the meaning of section 3(a)(11) of the Act." Id.  § 230.147(a).
  18. Id.  § 230.701.
  19. Tenn. Code Ann.  § § 48-2-101"201(2010).
  20. Id.  § 48-2-102(8).
  21. See supra note 11 and accompanying text.
  22. Tenn. Code Ann.  § 48-2-125(d) (2010).
  23. Id.  § 48-2-103(b)(14)(A)-(B).
  24. Tenn. Comp. R. & Regs. 0780-4-2-.08(2) (2009).
  25. Tenn. Code Ann.  § 48-2-103(b)(4) (2010).
  26. Id.  § 48-2-103(b)(6).
  27. Id.  § 48-2-103(b)(9)(A)-(B).

Joseph E. Dudek Jr. JOSEPH E. DUDEK is a member of Butler, Snow, O’Mara, Stevens & Cannada PLLC. His practice focuses on public and private securities offerings, securities regulation, and mergers and acquisitions. Dudek received his law degree in 1999 from the University of Mississippi School of Law, graduating magna cum laude and receiving the Harry L. Case Award for Excellence in the Study of Business Law. While in law school, he served as associate articles editor of the Mississippi Law Journal, earning the Robert C. Khayat Award for outstanding member of the Mississippi Law Journal

 

Lane R. Belisomo LANE R. BELISOMO is an associate at Butler, Snow, O’Mara, Stevens & Cannada PLLC. Her practice areas include corporate services and intellectual property. Belisomo received her law degree in 2008 from the University of Mississippi School of Law, graduating magna cum laude. While in law school, she served on the Mississippi Law Journal and clerked for the Hon. Edwin H. Roberts. She received her bachelor’s from the University of Notre Dame in 2002, graduating summa cum laude.