The RAISE Act would allow holders of stock in private companies to more easily sell their shares. Sales of private company stock are known as “secondary transactions.” Secondary transactions are currently hard to do because of the securities law restrictions on sales of shares in private companies, and also because companies frequently impose a number of contractual limitations on share resales (such as rights of first refusal).
However, even though share resales are currently difficult does not mean that they do not occur. Facebook stockholders found a healthy secondary market for their shares before Facebook went public. But Facebook is the clear exception–for most private companies no secondary market exists. This is in part due to the law in this area.
The securities laws impose significant limitations on share issuances and share transfers. This makes sense in a lot of instances (when people are being scammed). In other circumstances, restricting share transfers doesn’t seem to have as sound a public policy rationale. Allowing workers to more easily transfer shares they received as part of their compensation makes the law more fair to them, for sure. The new law would require that the purchasers be accredited investors, and that certain information about the company be supplied to the purchaser.
The Raise Act was embedded in the highway bill that passed both the House and the Senate and is on the way to the President’s desk.
We will see how soon the President signs it. Unfortunately, as the end of 2015 nears, it does not appear that the 100% tax exclusion from qualified small business stock held for more than five years is not going to be retroactively renewed like last year.
Text of The Raise Act
(a) Exempted Transactions.—Section 4 of the Securities Act of 1933 (15 U.S.C. 77d) is amended—
(1) in subsection (a), by adding at the end the following new paragraph:
“(7) transactions meeting the requirements of subsection (d).”;
(2) by redesignating the second subsection (b) (relating to securities offered and sold in compliance with Rule 506 of Regulation D) as subsection (c); and
(3) by adding at the end the following:
“(d) Certain Accredited Investor Transactions.—The transactions referred to in subsection (a)(7) are transactions meeting the following requirements:
“(1) ACCREDITED INVESTOR REQUIREMENT.—Each purchaser is an accredited investor, as that term is defined in section 230.501(a) of title 17, Code of Federal Regulations (or any successor regulation).
“(2) PROHIBITION ON GENERAL SOLICITATION OR ADVERTISING.—Neither the seller, nor any person acting on the seller’s behalf, offers or sells securities by any form of general solicitation or general advertising.
“(3) INFORMATION REQUIREMENT.—In the case of a transaction involving the securities of an issuer that is neither subject to section 13 or 15(d) of the Securities Exchange Act of 1934 (15 U.S.C. 78m; 78o(d)), nor exempt from reporting pursuant to section 240.12g3–2(b) of title 17, Code of Federal Regulations, nor a foreign government (as defined in section 230.405 of title 17, Code of Federal Regulations) eligible to register securities under Schedule B, the seller and a prospective purchaser designated by the seller obtain from the issuer, upon request of the seller, and the seller in all cases makes available to a prospective purchaser, the following information (which shall be reasonably current in relation to the date of resale under this section):
“(A) The exact name of the issuer and the issuer’s predecessor (if any).
“(B) The address of the issuer’s principal executive offices.
“(C) The exact title and class of the security.
“(D) The par or stated value of the security.
“(E) The number of shares or total amount of the securities outstanding as of the end of the issuer’s most recent fiscal year.
“(F) The name and address of the transfer agent, corporate secretary, or other person responsible for transferring shares and stock certificates.
“(G) A statement of the nature of the business of the issuer and the products and services it offers, which shall be presumed reasonably current if the statement is as of 12 months before the transaction date.
“(H) The names of the officers and directors of the issuer.
“(I) The names of any persons registered as a broker, dealer, or agent that shall be paid or given, directly or indirectly, any commission or remuneration for such person’s participation in the offer or sale of the securities.
“(J) The issuer’s most recent balance sheet and profit and loss statement and similar financial statements, which shall—
“(i) be for such part of the 2 preceding fiscal years as the issuer has been in operation;
“(ii) be prepared in accordance with generally accepted accounting principles or, in the case of a foreign private issuer, be prepared in accordance with generally accepted accounting principles or the International Financial Reporting Standards issued by the International Accounting Standards Board;
“(iii) be presumed reasonably current if—
“(I) with respect to the balance sheet, the balance sheet is as of a date less than 16 months before the transaction date; and
“(II) with respect to the profit and loss statement, such statement is for the 12 months preceding the date of the issuer’s balance sheet; and
“(iv) if the balance sheet is not as of a date less than 6 months before the transaction date, be accompanied by additional statements of profit and loss for the period from the date of such balance sheet to a date less than 6 months before the transaction date.
“(K) To the extent that the seller is a control person with respect to the issuer, 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.
“(4) ISSUERS DISQUALIFIED.—The transaction is not for the sale of a security where the seller is an issuer or a subsidiary, either directly or indirectly, of the issuer.
“(5) BAD ACTOR PROHIBITION.—Neither the seller, nor any person that has been or will be paid (directly or indirectly) remuneration or a commission for their participation in the offer or sale of the securities, including solicitation of purchasers for the seller is subject to an event that would disqualify an issuer or other covered person under Rule 506(d)(1) of Regulation D (17 CFR 230.506(d)(1)) or is subject to a statutory disqualification described under section 3(a)(39) of the Securities Exchange Act of 1934.
“(6) BUSINESS REQUIREMENT.—The issuer is engaged in business, is not in the organizational stage or in bankruptcy or receivership, and is not a blank check, blind pool, or shell company that has no specific business plan or purpose or has indicated that the issuer’s primary business plan is to engage in a merger or combination of the business with, or an acquisition of, an unidentified person.
“(7) UNDERWRITER PROHIBITION.—The transaction is not with respect to a security that constitutes the whole or part of an unsold allotment to, or a subscription or participation by, a broker or dealer as an underwriter of the security or a redistribution.
“(8) OUTSTANDING CLASS REQUIREMENT.—The transaction is with respect to a security of a class that has been authorized and outstanding for at least 90 days prior to the date of the transaction.
“(e) Additional Requirements.—
“(1) IN GENERAL.—With respect to an exempted transaction described under subsection (a)(7):
“(A) Securities acquired in such transaction shall be deemed to have been acquired in a transaction not involving any public offering.
“(B) Such transaction shall be deemed not to be a distribution for purposes of section 2(a)(11).
“(C) Securities involved in such transaction shall be deemed to be restricted securities within the meaning of Rule 144 (17 CFR 230.144).
“(2) RULE OF CONSTRUCTION.—The exemption provided by subsection (a)(7) shall not be the exclusive means for establishing an exemption from the registration requirements of section 5.”.
(b) Exemption In Connection With Certain Exempt Offerings.—Section 18(b)(4) of the Securities Act of 1933 (15 U.S.C. 77r(b)(4)) is amended—
(1) by redesignating the second subparagraph (D) and subparagraph (E) as subparagraphs (E) and (F), respectively;
(2) in subparagraph (E), as so redesignated, by striking “; or” and inserting a semicolon;
(3) in subparagraph (F), as so redesignated, by striking the period and inserting “; or”; and
(4) by adding at the end the following new subparagraph:
“(G) section 4(a)(7).”.