Chapter 11 Plan of Reorganization Summary
A Bankruptcy Chapter 11 Plan of Reorganization must meet certain standards before it can be approved by the court. Learn the elements that must be included in a plan of reorganization.
Introduction to Regulation A Offerings
Regulation A, often referred to as “Reg A,” provides an exemption from the registration requirements pursuant to the Securities Act of 1933 for issuers seeking to sell securities to the public. Opting for a Reg A offering allows an issuer to raise funds from the public without incurring the heightened expense and liability associated with the registration process of a full-blown public offering. In 2015, the Securities and Exchange Commission (SEC) introduced final rules to establish two tiers under Reg A—Tier 1 and Tier 2. While both tiers share some similarities, variations exist in their reporting obligations and offering limits.
Reg A Tier Comparison: Tier 1 vs Tier 2
Both Tier 1 and Tier 2 offerings require the submission of an offering statement, consisting of Form 1-A and supplemental information, to the Securities and Exchange Commission (SEC). Following the submission, Tier 1 and Tier 2 issuers must await qualification by the SEC before commencing sales in the offering.
Under Tier 1, issuers can raise a maximum of $20 million in a twelve-month period without the requirement for ongoing reporting from non-accredited and accredited investors. Issuers do not have ongoing reporting requirements but must submit a report on the final status of the offering to the SEC. Testing the waters is permissible either before or after filing the offering statement subject to state securities laws. One advantage of a Tier 1 offering over a Tier 2 offering is that Tier 1 financials do not need to be audited.
Securities sold under a Tier 1 offering are not considered Covered Securities, which means that issuers must still comply with each state securities commission by registering or qualifying the offering prior to selling. This process requires coordinated review and approval from each state.
Under Tier 2, issuers can raise a maximum of $75 million within a twelve-month period from non-accredited and accredited investors, but they are obligated to meet periodic reporting requirements. These include submitting annual reports, semi-annual reports, amendments to address changes in circumstances, and a report on the final status of the offering. Testing the waters is permissible either before or after filing the offering statement subject to state securities laws.
Securities sold under a Tier 2 offering are considered Covered Securities. As such, Tier 2 offerings are preempted from state review and qualification.
Despite the increased reporting requirements associated with a Tier 2 offering compared to a Tier 1 offering, Tier 2 accounted for 70% of Regulation A offerings from 2015 to 2019.
Regulation A, Tier 2 Issuer Eligibility
Any company formed in the United States or Canada is eligible to seek exemption under Regulation A, Tier 2, with the additional requirement that its principal place of business must be in the US or Canada.
Additional scenarios that would disqualify an issuer include:
- Investment companies required to register under the Investment Company Act of 1940, or a business development company defined in Section 2(a)(48).
- A blank check company
- An issuer disqualified under SEC “bad actor” qualification rules
Limitations exist on what kinds of securities can be offered under Reg A. For example, an issuer cannot issue fractional undivided interests in oil or gas rights, or similar interest in other mineral rights. They also cannot issue asset-backed securities as defined in Item 1101(c) of Regulation AB.
Regulation A, Tier 2 Federal Compliance Requirements
Form 1-A
Issuers undertaking a Regulation A offering are obligated to submit Form 1-A to the SEC, consisting of three parts: Part I (Notification), Part II (Information Required in an Offering Circular), and Part III (Exhibits).
Part I consists of general information about the issuer, the issuer’s eligibility, and general information about the offering, such as the type of securities being offered and the anticipated fees associated with the offering.
Part II outlines the information required in the offering circular. The offering circular is where the issuer furnishes comprehensive information about their offering for potential investors, including general information about the issuer and the offering, as well as risk factors for the investment, dilution, plan of distribution, financial information, management, and more. The structure of the offering circular is regulated to promote consistency and honesty. Once approved by the SEC, the offering circular must be provided to all potential investors participating in the Regulation A, Tier 2 offering.
Part III contains exhibits to provide further context or evidence to support the information shared in prior parts of Form 1-A. For example, an issuer should attach any voting agreements that impact the rights of the securities holders as an exhibit.
Form 1-A must be completed at least 21 days prior to the SEC’s qualification of the offering statement.
For further information, see the SEC’s guidance for completing Form 1-A.
A 'No Objection Letter'
The sale of Reg A securities cannot commence until the Financial Industry Regulatory Authority (FINRA) provides the issuer with a ‘No Objection Letter’. The ‘No Objection Letter’ indicates that FINRA has completed its review of the offering.
FINRA’s review consists of two rounds which take approximately 10 to 25 business days in total. After the review, FINRA will return one of three letters: a ‘No Objection Letter’, a ‘Defer Letter’, or an ‘Unreasonable Letter’. A ‘No Objection Letter’ signifies that the offering review is complete, and the issuer can proceed based off the information submitted. ‘A Defer Letter’ is granted if FINRA has concerns or questions and needs further documentation. An ‘Unreasonable Letter’ is given if FINRA deems that the terms of the offering do not comply with corporate financing rules.
Qualification
Once initial requirements are fulfilled, the SEC will provide a notice of qualification and the issuer will choose their qualification date. Issuers must wait until the SEC’s approved qualification date to begin official sales of the offering. The qualification date is reported in state securities filings.
Testing the Waters
Although the sale of Reg A securities cannot commence until FINRA provides the issuer with a ‘No Objection Letter’ and the SEC qualifies the offering, there is a process known as “Testing the Waters” in which the issuer can lawfully gauge investor interest prior to qualification. By testing the waters, issuers are permitted to solicit interest in a potential offering from the general public, even before the filing of the offering statement.
Ongoing Compliance
Adherence to federal securities laws extends beyond the initial requirements. Issuers must satisfy ongoing reporting requirements. The following reports are the most common forms of maintaining ongoing compliance. This list is not all-inclusive and issuers should do thorough investigation into additional reporting requirements for their specific circumstances.
1-K Annual Report
Issuers of Reg A, Tier 2 offerings are required to submit electronic annual reports through EDGAR within 120 days of the issuer’s fiscal year end. Through the 1-K, the issuer discloses business operations from the past 3 years (or, if established less for than 3 years, since inception) and provides updates to information submitted in Part I of Form 1-A.
1-SA Semiannual Report
Tier 2 issuers must electronically file Form 1-SA within 90 calendar days of the end of the first 6 months of the issuer’s fiscal year. In this report, the issuer discloses interim financial statements.
1-U Current Report
Reg A, Tier 2 issuers must submit 1-U reports within four business days of significant events.
Significant events include:
- Fundamental changes
- Bankruptcy or receivership
- Material modification to the rights of securityholders
- Changes in the issuer’s certifying accountant
- Non-reliance on previous financial statements or a related audited report or completed interim review
- Departure of the principal executive officer, principal financial officer, or principal accounting officer
- Unregistered sales of 10% or more of outstanding equity securities
1-Z Exit Report
The 1-Z is an exit report that is mandatory for all issuers involved in Tier 1 offerings, and it must be submitted within 30 calendar days following the conclusion of their Regulation A offering. Tier 2 issuers are only required to disclose termination of the offering if it was not disclosed previously in a 1-K annual report.
Regulation A, Tier 2 State Compliance Requirements
Introduction to Blue Sky Compliance
Blue sky laws are state regulations designed to prevent securities fraud. The term originates from the depiction of the unregulated securities industry as speculative, where offerings were deemed to have “no more basis than so many feet of blue sky.” Blue sky laws vary based on the state where the offering is sold.
Under Regulation A, Tier 1, the securities sold are not deemed Covered Securities. As such, issuers must still comply with each state securities regulations by either registering or qualifying the offering prior to selling. This process requires coordinated review and approval from each state.
Under Regulation A, Tier 2, the securities sold are deemed Covered Securities. As such, states are preempted from requiring registration or qualification of offerings. However, states can, and often do, mandate notice filings.
In-Depth Blue Sky Compliance Resource
Understand more about state Blue Sky compliance for Reg A, Tier 2 offerings by downloading our resource, The Path to Blue Sky Compliance.
Understand more about state Blue Sky compliance for Reg A, Tier 2 offerings by downloading our resource, The Path to Blue Sky Compliance.
Reg A, Tier 2 Notice Filings
Submission of notice filings is the most common state compliance requirement for Reg A, Tier 2 offerings. A majority of states require notice filings, with only 12 states not mandating notice. Although the filing itself is similar between the states, variations exist in the timing, filing fee amount, issuer-dealer requirements, and method of filing from state to state.
For example, state filing fees could be a flat fee or variable based on the offering’s sales. The map below demonstrates the wide range in fees between the states, from $0 to $1,000+.
Ongoing Compliance
Adherence to state blue sky laws extends beyond the submission of initial notice filings. States often mandate annual renewal filings. In most states, the renewal is due one year from the date of the initial notice delivery to that state. However, Illinois requires a renewal filing one year from the qualification date. These nuances, while seemingly small, can affect whether an issuer complies with state securities laws.
In addition to meeting annual Reg A, Tier 2 renewal obligations, issuers must monitor their sales in each state to prevent “over selling.” This is crucial in states with variable fees, as these fees are contingent on the sales figures declared in the initial filing. If an issuer surpasses the sales initially reported in a specific state, they are required to amend their filing to reflect the updated projected sales amount.
Take for example Texas, where the filing fee for a state notice is 1/10 of 1% of an offering. When submitting an initial notice filing, an issuer could denote that they anticipate selling up to $75,000,000 in Texas, but that would land them with a $75,000 filing fee. This leads many issuers to try to provide a closer estimate of the amount they anticipate selling in Texas. If the issuer instead denotes that they anticipate selling $2,000,000 in Texas, they will have a $2,000 filing fee. However, if the offering goes well and it looks like there are investments totaling $3,000,000 in Texas, the issuer must amend their initial filing and pay an additional fee to avoid an over sale.
Navigating Compliance
While there is a lot of guidance available through the SEC, the nuances of compliance with federal and state securities laws are difficult for any issuer to navigate. Looking for assistance with launching and managing the compliance of your Regulation A, Tier 2 offering? Don’t hesitate to reach out to our team for assistance.
A Bankruptcy Chapter 11 Plan of Reorganization must meet certain standards before it can be approved by the court. Some of the required elements that must be included in a Chapter 11 plan of reorganization are:
- A clear designation of the classes of creditors’ claims that will be affected by the plan (a plan proponent (the party who proposes the plan) can only classify claims together if they are “substantially similar” (§ 1122);
- An overview of the unimpaired and impaired classes of creditors (“Impaired” classes get to vote on the plan. Essentially, if a plan alters the rights of a party in any way (negatively or positively), that party is considered impaired and is allowed to vote. (§ 1124));
- An explanation of how impaired creditors will be treated; and
- An adequate, viable means for implementation of the plan.
Section 1123(a) of the Bankruptcy Code specifies what a plan must include. This section should be used as a checklist to confirm that a Chapter 11 Plan of Reorganization contains everything it should. Specifically, section 1123(a) provides that a plan must:
- designate classes of claims and classes of interests;
- specify any class that is not impaired under the plan;
- specify the treatment of any class that is impaired under the plan;
- provide the same treatment for each claim or interest of a particular class, unless the holder of a particular claim or interest agrees to a less favorable treatment;
- provide adequate means for the plan’s implementation, such as—
- retention by the debtor of all or any part of the property of the estate;
- transfer of all or any part of the property of the estate to one or more entities, whether organized before or after the confirmation of such plan;
- merger or consolidation of the debtor with one or more persons;
- sale of all or any part of the property of the estate, either subject to or free of any lien, or the distribution of all or any part of the property of the estate among those having an interest in such property of the estate;
- satisfaction or modification of any lien;
- cancellation or modification of any indenture or similar instrument;
- curing or waiving of any default;
- extension of a maturity date or a change in an interest rate or other term of outstanding securities;
- amendment of the debtor’s charter; or
- issuance of securities for cash, for property, for existing securities, or in exchange for claims or interests, or for any other appropriate purpose;
- provide for the inclusion of certain provisions regarding voting in the charter of the debtor if it is a corporation; and
- contain only provisions that are consistent with the interests of creditors and equity security holders and with public policy with respect to the manner of selection of any officer, director, or trustee under the plan and any successor to such officer, director, or trustee
Section 1123(b) of the Bankruptcy Code provides that a plan may:
- impair or leave unimpaired any class of claims, secured or unsecured, or of interests;
- provide for the assumption, rejection, or assignment of any executory contract or unexpired lease of the debtor not previously rejected;
- provide for—
- the settlement or adjustment of any claim or interest belonging to the debtor or to the estate; or
- the retention and enforcement by the debtor, by the trustee, or by a representative of the estate appointed for such purpose, of any such claim or interest;
- provide for the sale of all or substantially all of the property of the estate, and the distribution of the proceeds of such sale among holders of claims or interests;
- modify the rights of holders of secured claims, other than a claim secured only by a security interest in real property that is the debtor’s principal residence, or of holders of unsecured claims, or leave unaffected the rights of holders of any class of claims; and
- include any other appropriate provision not inconsistent with the applicable provisions of this title.
Disclosure Statement
Before a debtor can solicit votes from creditors on a Chapter 11 Plan of Reorganization, the debtor must file a Disclosure Statement and have it approved by the bankruptcy court after a hearing. The Disclosure Statement is a lengthy document, similar to an SEC registration statement, and must contain information sufficient for the holders of claims and equity interests to make an informed judgment about the plan and how they would vote on it. Once the Disclosure Statement is approved, the debtor can then solicit votes on the plan through the balloting process.
Voting on the Chapter 11 Plan
All impaired classes are entitled to vote on the plan of reorganization. In order for a plan to be confirmed, an affirmative vote of at least two-thirds in dollar amount of claims and more than one-half in number of the creditors in a class that submit votes is required for the acceptance of the plan of reorganization by that class. For equity interest holders, the affirmative vote of holders holding at least two-thirds in amount of the equity interests in a class is required from the class voting on the plan of reorganization. Classes of claims and equity interests that will not receive any distribution under the plan of reorganization are deemed to have rejected the plan of reorganization and, therefore, do not vote.
Confirmation of the Chapter 11 Plan
All impaired classes are entitled to vote on the plan of reorganization. In order for a plan to be confirmed, an affirmative vote of at least two-thirds in dollar amount of claims and more than one-half in number of the creditors in a class that submit votes is required for the acceptance of the plan of reorganization by that class. For equity interest holders, the affirmative vote of holders holding at least two-thirds in amount of the equity interests in a class is required from the class voting on the plan of reorganization. Classes of claims and equity interests that will not receive any distribution under the plan of reorganization are deemed to have rejected the plan of reorganization and, therefore, do not vote. Upon completion of the voting process, the plan of reorganization is submitted to the bankruptcy court for review and confirmation, and the Confirmation Hearing will be held. The bankruptcy court must be satisfied that the plan is feasible prior to confirming it. In determining the plan’s feasibility, the bankruptcy court will analyze whether the debtor will be able to meet all of its obligations under the plan. Once the bankruptcy court approves the plan and enters the Confirmation Order, all interests (including the interests of those creditors or equity interest holders that voted against the plan of reorganization) are bound by its terms and all debts of the debtor that arose before the date of confirmation are discharged, provided that the debtor continues to engage in business.
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