Mastering Exempt Transactions On The Series 63 Exam Uniform Securities ExamOne of the keys to passing the Series 63 exam is to make sure that you have a complete understanding of how exempt transactions will be tested on the Series 63 Exam. This article which was produced from material contained in our Series 63 textbook and will help you master the material so that you pass the Series 63 exam. Show Exempt TransactionsSometimes a security that would otherwise have to register is exempt from state registration because of the type of transaction that is involved. The following are all exempt transactions: Private Placements/Regulation D OfferingsA private placement is a sale of securities that is made to a group of accredited investors and the securities are not offered to the general public. Accredited investors include institutional investors and individuals who:
Sales to non-accredited investors are limited to 10 in any 12-month period. No commission may be paid to Representatives who sell a private placement to a non-accredited investor. All investors in private placements must hold the securities fully paid for at least 1 year. Rule 147 Intrastate OfferingRule 147 pertains to offerings of securities that are limited to one state. Because the offering is being made only in one state, it is exempt from registration with the SEC and is subject to the jurisdiction of the state securities administrator. In order to qualify for an exemption from SEC registration the issue must meet the following criteria:
Regulation A OfferingsA regulation A offering is also known as a small business company offering and allows the issuer to raise up to $5,000,000 in any 12-month period. This exemption from full registration allows smaller companies access to the capital markets without having to go through the expense of filing a full registration statement with the SEC. The issuer will instead file an abbreviated notice of sale or offering circular with the SEC and purchasers of the issue will be given a copy of the offering circular rather than a final prospectus. The same 20-day cooling off period applies to Regulation A offerings. Transactions with Financial InstitutionsAll transactions with financial institutions are exempt. The Uniform Securities Act was designed to protect the individual investor not the sophisticated financial institution. Financial institutions include:
Transactions with FiduciariesAll transactions with fiduciaries are exempt from registration with the administrator. Transactions with any of the following are considered transactions with fiduciaries and are exempt:
Transactions with UnderwritersAll transactions with underwriters of securities are exempt from state registration. For example, if XYZ Corporation is selling 10,000,000 shares of its common stock to its investment bank under a firm commitment underwriting agreement, the transaction is exempt from state registration. Unsolicited OrdersAll orders that are executed through a broker dealer at the sole request of the customer are considered unsolicited orders and are exempt from registration. The administrator may require proof that the order was unsolicited and may require that the customer sign an acknowledgement to that fact. Are you an informed investor?Private Placement OfferingsThe COVID-19 pandemic has caused significant disruption and anxiety to individuals and the financial markets. Because fraudsters often try to capitalize on current issues and problems to promote their scams, NASAA is issuing this updated investor alert (published originally in 2013) on exempt securities offerings, also known as “private placements,” in light of the coronavirus pandemic. What is a Private Placement Offering? A private placement is a securities offering that is not required by law to be registered with federal or state securities regulators. Private placements allow companies to sell stocks, bonds or other securities to investors without completing the rigorous disclosures necessary in a registered offering. There are many potential ways in which a securities offering could properly be exempt from registration with the SEC and with state securities regulators. But the rules governing exempt offerings are very complex and navigating them generally requires the advice of legal counsel. Investors should never assume that just because a securities issuer is claiming to offer a security pursuant to a valid exemption from registration that this is actually true. Investors in private placements should do their own due diligence on the offering, including potentially consulting with their own legal counsel. Why do Issuers Sell Securities Through Private Placements? Issuers like to sell securities through private placements because it is generally easier, quicker, and less expensive for the issuer than conducting a registered securities offering. But what is good for an issuer is not necessarily good for investors. Investors in private placements cannot take advantage of the legal protections and disclosure obligations incident to the securities registration process. Investing in securities through a private placement is riskier than investing in the same securities issued through a registered offering. The most commonly relied upon exemptions from registration are Rules 506(b) and 506(c) of SEC Regulation D. Investors in private placements should be familiar with these rules so they know the ‘rules of the game’ the issuer is supposed to be playing. The Definition of “Accredited Investor” and Why This Term is Important As a predicate to understanding Rules 506(b) and 506(c), it is first necessary to understand the legal term “accredited investor.” This term is defined by the SEC and largely governs which individuals can participate in a Regulation D offering. To qualify as accredited, an individual investor must have a net worth (excluding his or her primary residence) of at least $1 million dollars or an annual income of over $200,000 (or over $300,000 in joint income with a spouse) for the two most recently completed years with a reasonable expectation of achieving the same level of income in the current year. Meeting these financial thresholds thus generally opens the door to an individual’s participation in a Rule 506(b) or Rule 506(c) offering.* * NOTE: In December 2019, the SEC proposed to amend its definition of “accredited investor” in ways that would expand its scope significantly. The SEC has not yet acted on this proposal, though, and so the future scope of the accredited investor definition is as yet uncertain. Nevertheless, investors should keep in mind that the net worth and income standards discussed above may not in future be the only, nor even the most important, thresholds for qualifying as accredited. What is the Difference Between a 506(b) Offering and a 506(c) Offering? Issuers can use Rule 506(b) to sell an unlimited amount of securities to an unlimited number of accredited investors. Up to 35 non-accredited investors to participate in the offering (alongside any accredited investors) provided these non-accredited investors are sophisticated and receive information from the issuer as outlined in Regulation D Rule 502(b). An issuer cannot market the offering through a so-called general solicitation (i.e., through a broad public advertisement via a printed, audiovisual or electronic medium) but rather must rely on informal networks of broker-dealers and professional investors to ‘get the word out’ about the upcoming offering. Like Rule 506(b), Rule 506(c) permits an issuer to sell an unlimited amount of securities to an unlimited number of accredited investors, however non-accredited investors may not participate in the offering. In addition, the issuer must take reasonable steps to verify that all purchasers are indeed accredited. In exchange for taking on this verification burden, issuers are permitted to make general solicitations about the offering under Rule 506(c). Private Placements and the Risk of Fraud Businesses raising capital through private placement offerings often have limited operating histories and frequently have modest revenues compared to larger public companies. They are not required to provide as much information to investors as public companies are required to provide under federal securities laws. Private offerings made under Rule 506 are not reviewed by regulators and, as a result, there is an increased potential for fraud. The most recent enforcement statistics collected by the North American Securities Administrators Association identified private placements as one of the most frequent sources of enforcement actions by state securities regulators. Private placement offering risks frequently include:
How to Protect Yourself When Considering a Private Placement Offering
The Bottom Line If you are contacted by an investment professional or other individual who recommends that investment in a private placement offering under Rule 506 be sure to first confirm whether they are licensed to give advice or sell investments. You can verify the status of investment professionals and find out whether they have a history of customer harm by contacting your state securities regulator or use tools available for free from the SEC and FINRA. Updated: May 2020 NASAA has provided this information as a service to investors. It is neither a legal interpretation nor an indication of a policy position by NASAA or any of its members, the state and provincial securities regulators. If you have questions concerning the meaning or application of a particular state law or rule or regulation, or a NASAA model rule, statement of policy or other materials, please consult with an attorney who specializes in securities law.What is considered a private placement?What Is It? A private placement is an offering of unregistered securities to a limited pool of investors. In a private placement, a company sells shares of stock in the company or other interest in the company, such as warrants or bonds, in exchange for cash.
What is a private placement quizlet?Private Placement. In a private placement, an issuer offers securities to a select universe of potential buyers, often operating on a much smaller scale for cost savings and faster access to capital.
What is a private securities offering?A private stock offering—sometimes called a private placement—is when you sell securities in your business without an initial public offering—usually called an IPO. In other words, a private placement is when you sell your company's stocks or bonds to private investors.
What is the purpose of the Uniform Securities Act?The Uniform Securities Act (USA) provides basic investor protection from securities fraud, complementing the federal Securities and Exchange Act. The act only applies to securities not regulated by the Securities and Exchange Commission.
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