Publishes Concept Release to Explore Rule 701 and Form S-8 Reform

The Adopting Release

On June 18, 2018, the Securities and Exchange Commission (SEC) issued final rules to amend Securities Act Rule 701, which provides an exemption from registration for securities issued by private companies for compensatory arrangements. The amendment increases, from $5 million to $10 million[1], the amount of securities that a company can issue to employees and other service providers in reliance on Rule 701 in any consecutive 12-month period without triggering enhanced disclosure obligations.[2]

Practical Implications

Issuers that have commenced an offering in the current 12-month period will be able to apply the new $10 million disclosure threshold immediately. Many private companies rely on Rule 701 as an important tool to efficiently issue stock and options to recruit and retain talent. The increased threshold should encourage more private companies to use equity compensation by mitigating the burdens and concerns of the enhanced disclosure requirements, including the additional expense of making such information available and the desire to not disclose detailed financial information. Companies should continue to diligently track the aggregate value of securities granted (or expected to be granted) in any consecutive 12-month period in order to determine compliance with the offering limitations in Rule 701, as well as to determine if the enhanced disclosure obligation will be triggered. Failure to comply with the enhanced disclosure requirement subjects a company to the risk of SEC enforcement action.[3]

Importantly, we note that the new rule did not change the existing requirement that enhanced disclosure must be provided to any person who receives securities under Rule 701 at any point during the relevant 12-month period to the extent that the $10 million threshold is exceeded.[4] Even if a company has not yet exceeded the threshold at the time of a particular issuance, a company should consider providing the enhanced disclosure if it has a reasonable belief that its aggregate issuances within any 12-month period (including such issuance) would exceed the threshold. This requirement has been the subject of calls for reform as it imposes significant practical challenges for companies seeking to rely on Rule 701.

Concurrent Concept Release to Explore Further Reform

Concurrently with the issuance of the final rules amending Rule 701, the SEC also published a concept release seeking comments on possible ways to modernize rules pertaining to securities offerings attendant to compensatory arrangements (Rule 701 and Form S-8). The comment period will remain open for 60 days. Since the SEC last substantively amended these rules in 1999, the types of compensatory offerings in use and the composition of the workforce have both evolved. The concept release coupled with the Rule 701 amendment demonstrates the SEC’s focus on updating the regulatory framework to complement marketplace changes.