Form 1-A Filing

LawCast; Attorney Laura Anthony Talks Form 1-A Filing- In a Regulation A+ offering, companies can use “test-the-waters” solicitation materials both before and after the initial filing of the Form 1-A registration statement. After the filing of the Form 1-A, the test the waters materials must include a link to the Form 1-A filing itself on the EDGAR database.

Solicitation material used before qualification of the Form 1-A must contain a legend stating that no money or consideration is being solicited and none will be accepted, no offer to buy securities can be accepted and any offer can be withdrawn before qualification, and a person’s indication of interest does not create a commitment to purchase securities.

Generally a test-the-waters legend appears on the bottom of a webpage or on the first page of a PowerPoint or other investor deck. An example of a disclosure utilized prior to the filing of a Form 1-A would be:

No money or other consideration is being solicited for our Regulation A+ offering at this time and if sent in to Acme, Inc. will not be accepted. No offer to buy securities in a Regulation A+ offering of Acme can be accepted and no part of the purchase price can be received until Acme’s offering statement is qualified with the SEC. Any such offer to buy securities may be withdrawn or revoked, without obligation or commitment of any kind, at any time before notice of its acceptance given after the qualification date. Any indications of interest in Acme’s offering involves no obligation or commitment of any kind.

In addition to the above pre-filing disclosure, I often see and use an added disclosure similar to the following:

Acme Inc. is testing the waters under Regulation A of the Securities Act of 1933, as amended. This process allows companies to determine whether there may be interest in an eventual offering of its securities. Acme is not under any obligation to make an offering under Regulation A. Acme may choose to make an offering to some, but not all, of the people who indicate an interest in investing, and that offering may not be made under Regulation A. For example, Acme may determine to proceed with an offering under Rule 506(c) of Regulation D, in which case we will only offer our securities to accredited investors as defined by Rule 501(a) of Regulation D. If Acme does go ahead with an offering under Regulation A, it will only be able to make sales after it has filed an offering statement with the Securities and Exchange Commission (“SEC”) and only after the SEC has qualified such offering statement. The information in the offering statement will be more complete than the test-the-waters materials and could differ in important ways. You must read the offering statement filed with the SEC. #LawCast

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