ISOs using Regulation S

What type of documentation is typically involved in a Regulation S offering of debt securities? 

What are the holding periods for the sale of Regulation S securities?

How is the distribution compliance period measured for different types of securities? How are Regulation S transactions structured?   What are the holding periods for the sale of Regulation S securities?  

What is the due diligence process for initial purchasers in a Regulation S offering? 

What type of documentation is typically involved in a Regulation S offering of debt securities? A Regulation S offering is often combined with a Rule 144A and/or a Rule 506(c) offering. The same disclosure package is used with debt and equity offerings, with or without Regulation S. Documents include:

The PPM or private placement memorandum for a Regulation D [Rule 144A and/or Rule 506(c] must stress restrictions on re-sales.

The SAFT (simple agreement for future tokens) documents the transaction and serves as a form of purchase agreement.

The Operating Agreement contains representations, warranties, and covenants specific to each offering. 

The Subscription Agreement commits the investor to the investment.

Practice Note: The Regulation S offering may be conducted using documents that are based on the country‐specific practices of the relevant non‐U.S. jurisdiction or jurisdictions.  

With equity securities offered by U.S. issuers, the legend must state that hedging transactions may not be conducted. The same legend must also be printed in any advertisement made or issued by the issuer, any distributor, and their respective affiliates or representatives. 

All investors must be given the same “disclosure package.” 

Only changes in the issuer’s business, financial condition, or other circumstances need to be reported to the SEC, following the initial Form D filing.

 What are the holding periods for the sale of Regulation S securities?

Securities cannot be offered or sold to a U.S. person during the distribution compliance period. But there is no distribution compliance period in connection with securities sold in a Category 1 transaction, and the distribution compliance period for Category 2 transactions for both equity and debt, and for Category 3 transactions involving debt securities, is only 40 days.  The distribution compliance period for Category 3 offerings of equity securities is six months if the issuer is a reporting company, and one year if not.

How is the distribution compliance period measured for different types of securities? i  Medium‐Term Notes. In the case of continuous offerings, the distribution compliance period is deemed to begin at the completion of the distribution. 

ü Warrants. Securities underlying warrants are considered to be subject to a continuous distribution as long as the warrants remain outstanding. 

A sample Rule 903 legend reads, “These securities will be offered only outside of the United States to non‐U.S. persons, pursuant to the provisions of Regulation S of the U.S. Securities Act of 1933, as amended.  These securities will not be registered under the Securities Act, and may not be offered or sold in the United States absent registration or an applicable exemption from the registration requirements.”   

 How are Regulation S transactions structured?

If there is no SUSMI in a foreign issuer’s debt securities, the issuer need only comply with the general Regulation S requirements (i.e., offshore transaction and no directed selling efforts).   

A SUSMI in debt securities exists if the issuer’s debt securities are held of record by 300 or more U.S. persons, and U.S. persons hold of record at least 20% and at least $1 billion or more of the principal amount of debt securities, plus the greater of 14 liquidation preference or par value of non‐participating preferred stock, and the principal amount or balance of asset‐backed securities.   

Foreign issuers of debt securities (and U.S. issuers of non‐convertible debt securities) may rely on the Category 1 safe harbor if the transaction qualifies as an overseas directed offering.  

An offering of non‐convertible debt securities of a U.S. issuer must be directed into a foreign country in accordance with that country’s local laws and customary practices, and the securities must be non‐U.S. dollar denominated or linked securities in order to qualify as an overseas directed offering. 

The provisions of the issuer safe harbor specific to offerings of equity securities are summarized below.

(A) Category 1 Safe Harbor   

The Category 1 safe harbor is available for equity offerings if a foreign issuer reasonably believes at the beginning of the offering that there is no SUSMI in the equity securities.  A SUSMI in equity securities exists if, during the shorter of the issuer’s prior fiscal year or the period since incorporation, either:

The U.S. securities exchanges and inter‐dealer quotation systems in the aggregate, constituted the single largest market for a class of the issuer’s securities; or

At least 20% of all trading in a class of the issuer’s securities occurred on the facilities of U.S. securities exchanges and inter‐dealer quotation systems, and less than 55% of such trading occurred on the facilities of the securities markets of a single foreign country. 

If there is no SUSMI in a foreign issuer’s equity securities, the issuer need only comply with the general Regulation S requirements to make offers and sales.

(B) Category 2 Safe Harbor   

The Category 2 safe harbor is only available for equity offerings by a reporting foreign issuer.  Even if there is a SUSMI in the securities, reporting foreign issuers who implement the Category 2 offering and transactional restrictions for the distribution compliance period may rely on the safe harbor.

This is the issuer safe harbor available to foreign issuers (both reporting and non‐reporting) and reporting U.S. issuers of debt securities.   

(C) Category 3 Safe Harbor   

The issuer safe harbor is available to non‐reporting U.S. issuers of debt securities, provided that the debt securities are not offered or sold to a U.S. person, other than a distributor, during the 40‐day distribution compliance period, except pursuant to the registration requirements of the Securities Act or an exemption from registration. Issuers must comply with the offering and transactional restrictions applicable to Category 2 offerings and Rule 903(b)(3)’s additional transactional restrictions during the distribution compliance period.

Only changes in the issuer’s business, financial condition, or other circumstances need to be reported to the SEC, following the initial Form D filing.

What is the due diligence process for initial purchasers in a Regulation S offering?

Modest due diligence is more acceptable in standalone Regulation S offerings that do not involve financial intermediaries.  Due diligence can be divided into financial, business and management due diligence, and into documentary or legal due diligence.  Necessary due diligence varies by whether the issuer is a new entity, whether the business of the issuer is risky, and based on the nature of the tokens or securities offered.

Practice tip: The PPM and other offering documents are not subject to SEC review. File the Form D, use it to “notice file” state regulators, and otherwise just follow rules

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