Late last year, Congress passed legislation that substantially improved the legal landscape for startups, early-stage companies and the stakeholders in the ecosystem. You might have read about, for example, Congress making permanent the 100 percent tax exclusion for sales of qualified small business stock held for more than five years (up to $10 million). This is great news for company founders, workers and investors. But there was another significant legislative improvement that hasn’t been as widely written about:
Congress passed a new securities law exemption that changes the liquidity game for stockholders in early-stage companies.
Already effective, the new law, Section 4(a)(7) of the Securities Act of 1933, makes it substantially easier for stockholders, such as early employees, investors and consultants, to sell their stock.
If you are not already aware, every private sale of stock needs to either be “registered” with securities regulatory agencies (which is super expensive) or be “exempt” (in other words, excused) from registration. Prior to this new law, the exemptions available to stockholders were subject to a range of limitations, restrictions and requirements, making resales of private company stock difficult and infrequent.
The new Section 4(a)(7) provides a much easier exemption to access, and empowers early stockholders to get liquidity for compensation that’s been paid to them in stock or stock options. Access to this previously illiquid asset has prevented early stockholders from financing the purchase of a new home or the education of their children.
With new rules that enable more liquidity, the options for early stockholders are improved dramatically; however, there are still requirements that must be met before you can run out and sell some of your shares.
Early employees, consultants and investors need to keep these requirements in mind when making decisions to work with or invest in a company to make sure they’ll be able to exercise their sale rights.
What’s in the new exemption?
The new exemption is designed to simplify private sales of stock in privately held companies to accredited investors. Provided the transaction meets basic requirements, such as the company is a going concern and the buyer isn’t a broker buying for the purpose of distributing the shares, you can sell shares under this new exemption as long as:
- You have a reasonable belief the buyer is an accredited investor;
- You’re selling shares that are included in a class of shares that has been authorized and outstanding at least 90 days. This should not be a difficult requirement to meet;
- You’re not publicly soliciting buyers;
- You aren’t considered a “bad actor” by the Securities and Exchange Commission; and
- The buyer can obtain basic relevant information from the company that issued the shares.
With new rules that enable more liquidity, the options for early stockholders are improved dramatically.
That last one requires a little more explanation. The buyer isn’t required to obtain all the relevant information, but they must be able to obtain it if they want it. Relevant information includes things that are easy to collect, such as the nature of the business, products and services and the names of its officers and directors, or, if the seller has control over the company, a statement about that affiliation is needed. It also includes information that may be more difficult to come by, such as the most recent GAAP- or IFRS-compliant balance sheet and profit and loss statements for up to two prior years.
As a seller, you’ll need the cooperation of the company to acquire the balance sheet or profit and loss statements.
What about the other resale laws?
All the other resale exemptions are still in place and still available to use. If you aren’t familiar with the law regarding the resale of securities, in general, a security cannot be offered for sale or sold unless it is registered with the SEC or state securities authorities, or an exemption from registration is available.
The new exemption provided by Section 4(a)(7) is non-exclusive. It also doesn’t supersede or undo the Section 4(a)(1½) exemption or any other pre-existing exemptions on resales. There are a number of exemptions for resales of securities. The problem is they all contain limitations that make them impractical for private company stock resales.
For example, Section 4(a)(1) allows resales of non-restricted securities by a person other than an issuer (the company), underwriter or dealer. This is the exemption that allows you to resell a security you bought in a registered public offering.
The trouble with 4(a)(1) is that the definition of “underwriter” is broadly defined to include any person who purchases a security from an issuer or affiliate of an issuer with a view to or in connection with a distribution. And then the term “distribution” is broadly defined, as well. These broad and uncertain definitions limit the ability to resell restricted securities. The 4(a)(1) exemption also does not preempt state law, whereas the new Section 4(a)(7) does (see below).
There are also resale exemptions under Rule 144 and Rule 144A, and there is the 4(a)(1½) exemption. But again, the trouble with all of these resale exemptions is they aren’t easily and readily available. The new Section 4(a)(7) exemption is a substantial improvement in the law.
Why did we get this new exemption?
The largest problem with the other resale laws is the lack of an easy way for stockholders who also control the company to sell shares. Affiliates, or persons who control an issuer, are subject to stricter scrutiny than investors under the Securities Act of 1933. In theory, a company could issue stock to its founders, who could then sell the stock without registering it and use some or all of the proceeds to fund the company, bypassing all of the regulation in place for companies to sell stock to investors.
To avoid this potential loophole, Section 4(a)(1) is not available to affiliates. Section 4(a)(2) is also closed to affiliates who may want to conduct a private placement. That section is reserved for the company itself. Since the law’s inception in 1933, there has been no statutory exemption for resales of restricted stock for an affiliate of the issuer. In a series of court cases over the years, judges crafted an extra-statutory exemption that has been aptly named Section 4(a)(1½) to allow affiliates in certain circumstances to conduct what amounts to a private placement so they could resell some of their stock.
Without a clear method of determining who is and who isn’t a control person, the previous exemptions limit many stockholders from being able to resell shares at all. In trying to address the problem left by the original drafters, Congress was aware it couldn’t create a safe-harbor defining who is and who isn’t an affiliate. A clear definition like that would open the loophole the statute so desperately seeks to avoid.
For founders or executives at privately held companies, now is a good time to consider your policy around resales.
That leaves a bunch of folks in a difficult situation. Large stockholders such as founders, venture capital firms or directors and officers of the company all might be persons who can control what the company does. In the situation where a person might be an affiliate, but really isn’t, things get tricky. Persons who may or may not be affiliates desperately need a safe way to get some liquidity if there are potential purchasers out there. If these potential purchasers are accredited investors, the law has long reasoned they can take care of themselves and bear the risks of buying unregistered shares in startup companies.
The potential purchasers need to know a few things about the company, as discussed above. The one thing they need to know specifically about the seller is whether or not the seller is an affiliate. Section 4(a)(7) states: “To the extent that the seller is a control person with respect to the issuer, [they shall include] a brief statement regarding the nature of the affiliation, and a statement certified by such seller that they have no reasonable grounds to believe that the issuer is in violation of the securities laws or regulations.”
This is an elegant and powerful provision. Instead of keeping the loophole closed and placing a burden on large stockholders, directors and officers, Congress has given them the option to resell shares under this new exemption. They’ve paved a clear path for sellers to certify they’re not helping the issuer exploit a loophole to sell stock in a private placement that should have been registered.
For all the honest folks who seek some liquidity, this is an easy statement to certify. For the crooks out there, should they falsely certify to a clean slate, the SEC will have grounds to enforce the law against both the seller and the company. In theory, the purchaser will also have the ability to sue the seller and the company, but that will be costly. But then again, they are an accredited investor and presumed to be able to take care of themselves.
What about state law?
A great thing about the new Section 4(a)(7) exemption is that securities sold pursuant to the exemption are “covered securities,” thereby preempting state law registration requirements. You might be aware that securities sold by companies in Rule 506 offerings (almost all angel and venture capital financings are Rule 506 offerings) are also “covered securities.”
This is why in an angel or venture financing, you don’t have to obtain pre-approval from state securities regulators before you can raise money from angels and VCs.
How can you take advantage of the new exemption?
For tech workers at startups with a portion of their compensation locked up in private, illiquid stock, the new rules are effective today. If you have an interest in selling a portion of your holdings, you could sell stock today under this new exemption. Here are some recommendations on how to get started:
- Ensure you’re able to meet all the requirements outlined above, including having a method for providing the relevant financial data that buyers may request.
- Review your agreements with the company to determine what contractual restrictions you have on the transfer of shares. You very well may find another restriction that prevents you from selling the shares.
- Remember you cannot generally solicit your desire to sell your shares.
If you’re just starting with a new company, look for restrictions on transfers or sales of stock that are included as a part of your compensation package. Speak with the company about the potential for resales and how the company may or may not be willing to support you in a resale transaction.
For investors with investments in privately held companies, you will want a covenant that the company will provide the information you need, such as the financial statements, so that you can use the exemption. In addition, the general restrictions on transfers found in most securities purchase agreements can now be amended to allow resales pursuant to the new Section 4(a)(7) exemption.
For founders or executives at privately held companies, now is a good time to consider your policy around resales. Many tech workers and investors are looking at these transactions as a means to access a portion of the value they’ve helped create in your company.
In the widely covered resale transaction architected by Twitter in 2011, employees sold only a portion of their shares, holding the majority for the eventual exit. At the same time, $400 million worth of value was unlocked for early stockholders, enabling those employees, consultants and investors to use a portion of the value created in the company while still contributing significantly to the eventual IPO.