Additional JOBS Act Guidance

On April 11, 2012, the Practicing Law Institute hosted the webcast "The JOBS Act: A Dialogue with Senior Staff from the SEC Division of Corporation Finance and Private Practitioners" with members of the senior staff of the Division of Corporation Finance of the Securities and Exchange Commission1 to discuss various interpretive issues arising in connection with the Jumpstart Our Business Startups Act (the "JOBS Act"). The Division already has addressed many of the most immediate concerns relating to the JOBS Act by issuing a statement relating to the process for confidential submissions of registration statements by issuers that qualify as emerging growth companies ("EGCs")2, as well as by releasing a set of Frequently Asked Questions ("FAQs") addressing the confidential submission process3 and a set of FAQs addressing the Exchange Act reporting threshold.4 During the PLI webcast, the Staff provided additional perspective on these FAQs and addressed a number of other timely issues.

The panel discussed the Exchange Act reporting threshold, and provided some additional guidance relating to the Staff's FAQs on this topic, which we have recently addressed.5 The Staff noted that the guidance contained in the FAQs reflect a pragmatic approach that is intended to permit issuers that would have been subject to Exchange Act reporting at their fiscal year end, but relieved of that obligation by virtue of the passage of the JOBS Act, to avoid Exchange Act registration.6

In response to a question regarding how a company should ascertain the accredited investor status of its existing security holders (in order to assess its potential registration obligations), the Staff indicated that an issuer would be presumed to know its security holders and be able to ascertain their status, but noted that the Staff had not determined whether further guidance would be required in this area. In the near term, the Staff will be considering the process for issuer verification of accredited investor status for purposes of Rule 506, which may shed some light on the Exchange Act question.

In connection with counting "holders of record", the Staff noted that while the JOBS Act made clear that an issuer need not count purchasers in crowdfunding offerings nor employees who received their stock pursuant to employee compensation programs in transactions exempt from the Section 5 registration requirements, transferees would generally count as "holders of record." As directed by...