JOBS Act: Rulemaking Status and Assessing Its First Year

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NY2 715833 NY2 715833 JOBS Act: Rulemaking Status and Assessing and Assessing its FirstYear Tymou Anna Pinedo Anna Participants: March 7, 2013

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 Enacted on April 5, 2012.  Title I (IPO On Ramp) and Titles V and VI (Exchange Act registration/deregistration thresholds) are effective.  Title II rules to lift the ban on general solicitation and general advertising in Rule 506 offerings were proposed on August 29, 2012 and have not yet been adopted.  Title III (crowdfunding) and Title IV (Regulation A+) require rulemaking, and rules have not yet been proposed or adopted.  Three required studies have been delivered.

This is MoFo. 2

IPO Market Trends

This is MoFo. 3 2013YTD Asset Class Performance & Fund Flows

Equities started 2013 strongly on better risk appetite – yet the rally & macro/political risks have led to a modest correction. Asset Class and Equity Sector Performance Actively-Managed Fund Flows (1) $bn Weekly US Equity Fund Flows 2012 4Q 2012 2013 YTD $6.0 ($51.4bn) ($30.6bn) +$11.1bn

4.0 The Beginning of 2.0 the “Great Rotation?”

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(6.0) Jun-12 Jul-12 Aug-12 Sep-12 Oct-12 Nov-12 Dec-12 Jan-13 Feb-13

$bn Weekly Bond Fund Flows 2012 4Q 2012 2013 YTD $6.0 +$129.0b +$35.3bn +$24.9bn n

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(2.0) Jun-12 Jul-12 Aug-12 Sep-12 Oct-12 Nov-12 Dec-12 Jan-13 Feb-13 Active equity funds have finally seen inflows as bond inflows wane & While “defensive” equities have performed best most recently, IPOs capital leaves money markets – potential seeds of the “Great & small-caps remain well higher for 2013YTD Rotation” ______Sources: FactSet, Bloomberg and AMG Data as of February 22, 2013. (1) Domestic weekly fund flows since June 1, 2012 excluding ETF activity. Bloomberg IPO Index is a market cap weighted index that consists of 110 recent IPOs. Light blue shading represents equity indices and S&P 500 equity subsectors.

This is MoFo. 4 2013YTD Equity Issuance Update 2013 equity issuance is off to a fast start – 104 deals for $33.2bn year-to-date, vs. 87 deals for $15.2bn in the same 2012 period 2013 IPO Pricings & Pipeline 2013 Add-On Pricings – 30 Most Recent Base Mkt Val Base Deal Aftermarket Base Deal Aftermarket Pricing Deal at Offer as % of % File / Offer / Offer / Green- Pricing Deal as % of File / Offer / Offer / Green- Date Issuer Date Issuer ($mm) ($mm) Mkt Val Sec. Offer 1 Day Current shoe? Industry ($mm) Mkt Val Offer 1 Day Current shoe? Deal Type Industry 02/21/13 Achillion Pharmaceuticals $126 16% (11.9%) -- 5.5% a Marketed Healthcare 02/14/13 Xoom Corp $101 $509 20% 17% 14.3% 59.3% 27.1% a FIG Tech 02/21/13 TAL International Group 175 11% (4.9%) (2.6%) (1.8%) Block Transportation 02/14/13 Orchid Island Capital 35 50 71% - 0.0% (1.3%) (1.7%) Finance 02/21/13 Kinder Morgan Energy Ptn. LP 345 2% (2.1%) -- 0.2% Overnight Utility & Energy 02/11/13 Connectone Bancorp 45 133 34% - 1.8% 5.9% 5.0% a Finance 02/21/13 Generac Holdings 350 14% (2.6%) (2.5%) (1.6%) Block Industrial

02/07/13 ZAIS Financial Corp 120 169 71% - NA (6.1%) (4.7%) Real Estate 02/21/13 TRW Automotive Holdings 593 8% (1.5%) (2.4%) (1.8%) Block Auto/Truck

02/07/13 New Source Energy Ptn. 80 147 54% - 0.0% (2.6%) 0.0% Oil & Gas 02/20/13 Terreno Realty Corp 83 26% (2.8%) 3.6% 4.3% a Overnight Real Estate

02/07/13 Health Insur. Innovations 65 187 35% - (6.7%) (2.1%) (10.5%) Finance 02/20/13 Oncolytics Biotech 32 8% (14.4%) (2.5%) (1.0%) Overnight Healthcare

02/06/13 ExOne 95 230 41% 6% 20.0% 47.3% 48.1% a Industrial 02/20/13 NorthStar Realty Finance Corp 252 15% (3.0%) 1.4% 0.5% Block Real Estate 02/20/13 Michael Kors Holdings 1,538 12% (5.2%) (4.1%) (3.9%) Marketed Retail 02/05/13 Boise Cascade 247 871 28% - 23.5% 24.5% 27.6% a Industrial 02/14/13 Kosmos Energy 330 8% (13.7%) (3.6%) (6.6%) Marketed Oil & Gas 01/31/13 Zoetis 2,239 13,000 17% 100% 10.6% 19.3% 25.3% a Healthcare 02/14/13 Cliffs Natural Resources 261 6% (20.8%) (0.5%) (8.7%) a Marketed Mining 01/31/13 KaloBios Pharmaceuticals 70 191 37% - (38.5%) 0.0% (11.0%) Healthcare 02/14/13 Armour Residential REIT 445 17% (3.5%) (2.1%) (2.9%) Block Real Estate 01/30/13 TRI Pointe Homes 233 537 43% 27% 13.3% 12.1% 6.2% a Industrial 02/14/13 Pioneer Natural Resources 1,152 7% 1.0% 2.0% (0.8%) a Marketed Oil & Gas

01/28/13 Gladstone Land Corp 50 91 55% - NA 0.0% 0.7% Real Estate 02/14/13 Nielsen Holdings 1,253 11% (3.5%) (0.5%) (0.9%) a Marketed Prof. Services

01/28/13 Stemline Therapeutics 33 69 48% - (16.7%) 18.0% 24.9% a Healthcare 02/14/13 LyondellBasell Industries 1,538 4% (1.3%) (0.5%) (3.5%) Block Chemicals

01/24/13 Bright Horizons Fam. Sol. 222 1,383 16% - 10.0% 28.7% 28.1% a Services 02/13/13 Limoneira Co 33 14% (15.7%) 0.5% 7.7% Marketed Agribusiness a 01/24/13 LipoScience Inc 45 125 36% - (35.7%) 16.1% 12.2% a Healthcare 02/13/13 CalAmp Corp 42 12% (1.3%) 10.6% 17.1% Marketed Technology 02/13/13 BioMed Realty Trust Inc 260 7% (2.1%) 2.3% 4.7% Overnight Real Estate 01/17/13 Norwegian Cruise Line 447 3,809 12% - 11.8% 30.5% 57.8% a Transport. 02/13/13 Sensata Technologies Holding 502 8% (0.7%) (0.6%) (2.8%) Block Technology 01/17/13 CyrusOne 314 1,178 27% - 11.8% 11.6% 15.4% a Real Estate 02/12/13 Atlas Financial Holdings Inc 24 35% (2.7%) 1.7% 1.7% Marketed Insurance 01/17/13 SunCoke Energy Ptn. LP 257 597 43% - (5.0%) (4.0%) 6.5% Oil & Gas 02/12/13 Newcastle Investment Corp 210 8% (2.5%) 2.6% 3.6% a Block Real Estate 01/16/13 CVR Refining LP 600 3,790 16% - 0.0% 0.2% 21.0% a Oil & Gas 02/12/13 HCA Holdings Inc 1,800 11% (1.8%) 1.3% (0.7%) Block Healthcare

01/14/13 USA Compression Ptn. LP 198 524 38% - (10.0%) (2.2%) 1.9% Utility 02/12/13 American Capital Mortgage Invst. 513 34% (3.5%) 0.2% (0.6%) a Block Real Estate

Average (20): 275 1,380 37% 8% 0.3% 12.8% 14.0% 12 of 20 02/12/13 Ocean Rig UDW Inc 126 5% (4.0%) (3.9%) (11.0%) Block Oil & Gas Median (20): 111 370 36% - 0.9% 8.7% 9.3% 02/12/13 Team Health Holdings Inc 322 14% (1.6%) (0.8%) (1.6%) Block Healthcare Deals on the Road 02/12/13 Primerica Inc 82 4% (1.5%) (1.1%) (2.6%) Block Insurance Expected Base Deal Base Deal % 02/11/13 WNS Holdings Ltd 161 23% (3.9%) 5.9% 10.6% a Marketed Prof. Services Date Issuer ($mm) % Mkt. Val Secondary Industry 02/11/13 Axis Capital Holdings Ltd 108 2% (2.0%) 1.0% 3.0% Block Insurance 02/11/13 Gulfport Energy Corp 295 10% (8.0%) 4.5% (2.9%) a Marketed Oil & Gas 03/05/13 Professional Diversity Netw ork 20 12.0% -- Prof. Services 02/07/13 BreitBurn Energy Partners LP 258 13% (3.7%) (1.2%) (1.5%) a Overnight Oil & Gas Marketed Average YTD (32): 333 15% (4.4%) 4.4% 5.0% 19 of 32 32 IPOs have seen a solid reception in 2013 amidst broader equity bullishness. While Overnight Average YTD (30): 151 12% (4.4%) 1.5% 5.4% 20 of 30 30 few datapoints are marketing currently, IPOs ex-biotech have priced 6.4% above the Block Average YTD (22): 465 11% (2.8%) (0.8%) (1.1%) 5 of 22 22 filed midpoints & 14/15 have priced in or above the range ______Source: Dealogic as of February 22, 2013. Includes SEC registered follow-on offerings greater than $20mm. Excludes BCC/SPACs, BDCs, rights offerings, and closed-end funds. Includes SEC registered IPOs greater than $20mm. Excludes BCC/SPACs, BDCs and closed-end funds.

This is MoFo. 5 2012 Asset Class Performance & Fund Flows

Asset Class and Equity Sector Performance Actively-Managed Fund Flows (1)

$bn Monthly US Equity Fund Flows Domestic: ($51bn) Global: ($90bn)

$bn Monthly Bond Fund Flows Domestic: +$129bn Global: +$256bn

______Sources: FactSet, Bloomberg and AMG Data as of December 31, 2012. (1) Domestic weekly fund flows since January 1, 2012 excluding ETF activity. Bloomberg IPO Index is a market cap weighted index that consists of 110 recent IPOs. Light blue shading represents equity indices and S&P 500 equity subsectors.

This is MoFo. 6 An Equity Strategist Perspective On 2012

 A persistent focus on the macro picture versus specific sector or company Key Equity Market Themes in the Year that Was fundamentals Large-Cap Equities Were King Return of Capital Was Rewarded  Broad periods of widespread “risk-on” The S&P 500 outperformed small-cap US equities, global Equities with a capital return strategy outperformed as or “risk-off” equities, corporate bonds, and government bonds investors pursued yield, garnering a 15.1% return  Equities were loved or loathed as a group, leaving little opportunity for individual outperformance

 Investors turned to larger, more stable domestic investment opportunities, preferably with yield

 A crowded fixed income market further encouraged allocations to skew towards income-surrogate equities

 The S&P 500’s performance illustrates this “default” behavior despite persistent uncertainty and a lack of conviction on Actively-Managed Portfolios Struggle Again behalf of equity buyers Portfolio managers continued to struggle to outperform their benchmarks as “alpha” remained elusive. Only 31% of large-cap active funds outperformed overall, including 40% for growth funds and 23% for value funds  Active Portfolio Managers faced stiff fund outflows all year and found it difficult to pick relative “winners”

 ETFs tracking broad market indexes continue to be the beneficiaries of equity investors’ preference for low-risk, low- cost equity exposure

______Source: BofA Merrill Lynch Strategy research, November 2012.

This is MoFo. 7 2012 IPO Issuance Levels in Context

 The IPO market has been open and IPO Market Has Struggled to Regain 2004-2007 Issuance Levels receptive to growth companies, but clearly 2012 less open to more moderate growth stories 25 # Deals VIX 30 $45.9bn Post Facebook IPO Proceeds  20 From 2004 to 2007, the US IPO market saw (May 17, 2012) 19 160 20 17 roughly 200 IPOs a year. Is 120 to 150 the 16 25

126 “new normal?” 120 15 39 11 11 20  Some of this change is related to periodic 80 10 8 event-related “closures” in each of the last 7 6 # Deals 4 4 4 15 40 87 three years 5  The “risk-on/risk-off” mentality has 0 0 10 contributed to a market that is only reliable 2012 Jan Feb Mar Apr May Jun Jul Aug Sep Oct Nov Dec Non-Tech Tech for the most attractive growth companies 2011  A confirmed rotation into equities should 25 Euro Sovereign Debt Crisis 50 $40.7bn # Deals VIX 21 create a more receptive environment for (Aug. 2011 – Nov. 2011) Proceeds 20 18 160 moderate growth, sponsor-backed 40

15 15 125 companies 15 14 120 42 10 10 30

10 8 8 80 # # Deals

20 40 83 5 4 2 0 0 0 10 Receptivity & Performance 2011 % of Total Issuance Jan Feb Mar Apr May Jun Jul Aug Sep Oct Nov Dec Non-Tech Tech 2010 2011 2012 2010 Tech Issuance: 29.6% 33.6% 31.0% 25 50 $43.7bn # Deals VIX Flash Crash Non-Tech Issuance: 70.4% 66.4% 69.0% 20 Proceeds (May 6, 2010) 19 Tech IPOs 20 18 160 152 2010 2011 2012 40

15 14 45 Midpoint / Offer: (4.9%) 7.7% 2.6% 15 120 % In/Above Range: 66.7% 76.2% 74.4% 12 10 11 10 30 Offer / 1 Month: 20.8% 12.7% 25.9% 10 80 10

7 # Deals Non-Tech IPOs 6 107 2010 2011 2012 20 40 5 Midpoint / Offer (11.1%) (7.1%) (10.1%) 0 % In/Above Range: 54.2% 60.2% 50.6% 0 10 Offer / 1 Month 7.7% 3.7% 12.8% 2010 ______Jan Feb Mar Apr May Jun Jul Aug Sep Oct Nov Dec Non-Tech Tech Source: Bloomberg and Dealogic as of December 31, 2012. Includes SEC registered IPOs greater than $20mm base deal. Excludes SPACs, BDCs and CLEFs.

This is MoFo. 8 A look at IPOs That Impacted Sentiment in 2012 Value Creation, Destruction, and Investor Impact

2012 IPO Performance by Market Cap Change 2011 IPOs – Performance in 2012

 "Winners” and “Losers" are often assessed Current Δ Mkt Cap Current Δ Mkt Cap on % movement, but market cap Pricing Deal Val Mkt Cap Since IPO IPO to Pricing Deal Val Mkt Cap in 2012 2012 % IPO to expansion / contraction is more reflective Date Issuer ($mm) ($mm) ($mm) Current Industry Date Issuer ($mm) ($mm) ($mm) Change Current Industry of sentiment and impact on portfolio 10/11/12 Workday 732.6 9,055.9 4,567.7 94.6% Technology 02/10/11 Kinder Morgan Inc 3,293.6 40,021.0 13,980.5 9.8% 17.8% Energy returns 10/10/12 Realogy Holding 1,242.0 5,876.2 2,362.1 55.4% Real Estate 05/18/11 LinkedIn 405.7 12,337.2 6,107.6 82.2% 155.2% Technology  Market cap change is a valuable proxy, 12/06/12 Western Gas Eq. Partners LP 434.7 6,555.9 1,920.2 36.1% Energy 11/16/11 Delphi Automotive plc 529.7 12,146.4 5,076.1 77.6% 73.9% Auto/Truck but constrained IPO floats mean that public investors do not experience all of 06/28/12 ServiceNow 241.2 3,754.4 1,589.2 66.8% Technology 12/14/11 Michael Kors Holdings Ltd 1,085.6 10,193.0 4,993.9 87.3% 155.2% Retail the profit or loss 03/07/12 Nationstar Mortgage Holdings 268.3 2,800.9 1,587.6 121.3% Finance 03/09/11 HCA Holdings Inc 4,353.9 13,362.8 3,745.5 36.9% 0.6% Healthcare  The largest 2012 IPO value creators were 07/25/12 Northern Tier Energy LP 261.6 2,338.3 1,308.9 81.7% Energy 03/29/11 Apollo Global Management LLC 565.4 6,421.0 1,931.1 39.9% (8.6%) Finance comprised of a broad make-up of sectors, led by Tech but also with finance, real 04/18/12 Splunk 263.9 2,861.8 1,288.8 70.7% Technology 03/29/11 Qihoo 360 Technology Co Ltd 201.9 3,543.5 1,703.2 89.2% 104.8% Technology estate, energy, & retail 05/02/12 Carlyle Group LP 671.0 7,913.6 1,214.6 18.3% Finance 05/23/11 Yandex NV 1,434.8 7,243.7 880.7 9.3% (13.8%) Technology  Notably, the 3 best-performing Tech IPOs were software issuers 01/24/12 Guidewire Software 132.3 1,646.6 1,011.0 128.6% Technology 11/03/11 Rentech Nitrogen Partners LP 300.0 1,462.4 837.0 130.5% 88.5% Chemicals

 Deals that lost shareholder value are led 04/04/12 Retail Properties of America 292.6 2,761.7 953.5 49.6% Real Estate 01/27/11 InterXion Holding NV 304.6 1,614.5 731.9 76.7% 82.8% Technology by Facebook, which shed ~$23bn in market cap and ~$4.5bn in public float 05/17/12 Facebook 16,006.9 57,669.6 (23,577.6) (29.9%) Technology 11/03/11 Groupon Inc 805.0 3,186.8 (10,079.4) (76.4%) (75.7%) Technology

(equal to ~15% of the non-FB IPO issuance 05/03/12 PetroLogistics LP 595.0 1,889.8 (473.2) (20.4%) Energy 12/15/11 Zynga Inc 1,000.0 1,850.2 (4,730.9) (74.9%) (76.4%) Technology for all of 2012) 03/14/12 Allison Transmission Holdings 690.3 3,730.1 (441.6) (11.2%) Auto/Truck 04/13/11 Arcos Dorados Holdings Inc 1,436.6 2,506.0 (1,795.7) (41.7%) (29.6%) Consumer  Class of 2011 IPO performance during 2012 also had a substantial impact on 04/19/12 Midstates Petroleum Company 358.8 458.9 (394.3) (47.0%) Energy 06/16/11 Bankrate Inc 344.9 1,245.6 (904.3) (42.1%) (17.0%) Technology

receptivity to new deals, especially within 10/25/12 WhiteWave Foods Co 391.0 2,688.4 (252.6) (8.6%) Consumer 03/24/11 ServiceSource International Inc 137.3 442.0 (672.1) (62.7%) (41.5%) Technology Tech 04/17/12 SandRidge Mississippian Trust II 627.9 809.0 (225.2) (22.5%) Energy 10/13/11 Ubiquiti Networks Inc 121.4 1,074.9 (592.9) (33.4%) (19.1%) Technology  Of the top 10 value decliners this year from 2011’s IPO crop, 7 were Tech issuers 03/28/12 CafePress Inc 85.5 98.7 (223.9) (69.6%) Technology 12/14/11 Laredo Petroleum Holdings Inc 342.1 2,328.9 (517.1) (18.6%) 6.8% Energy (4 from internet) 02/21/12 Ceres Inc 74.8 112.6 (202.6) (65.1%) Cleantech 05/25/11 Lone Pine Resources Inc 195.0 104.7 (491.3) (82.5%) (90.5%) Energy  Groupon and Zynga highlight the list, 02/01/12 Matador Resources Co 178.6 455.7 (201.0) (31.7%) Energy 05/24/11 Active Network Inc 189.8 297.4 (440.6) (63.9%) (67.3%) Technology with the 2012 struggles of each sapping demand for new stories 04/24/12 Envivio Inc 69.8 45.8 (194.1) (81.1%) Technology 05/25/11 Freescale Semiconductor 883.2 2,733.2 (372.8) (13.0%) (38.8%) Technology

______Source: Dealogic and Bloomberg as December 31, 2012. Includes SEC registered IPOs greater than $20mm since January 1, 2011. Excludes SPACs and CLEFs. Dark shading represents Tech IPO.

This is MoFo. 9 2013 Outlook from the Research Community

Strategists Are Estimating a ~7% Increase in the S&P 500 in 2013  Street equity strategists currently forecast a constructive equity 2013-End Implied Implied 2013 market in 2013, with returns in Bank Strategist S&P 500 2013 Return 2013 EPS EPS Growth the ~7% area supported by ~5% BofA Merrill Lynch Savita Subramanian 1,600 12.2% $110.00 7.8% EPS growth Bank of Montreal Brian Belski 1,575 10.4% $106.25 7.3%  Only 2 of 13 analysts publishing Barclays Barry Knapp 1,525 6.9% $105.00 4.0% S&P forecasts predict a down 2013 market Citigroup Tobias Levkovich 1,615 13.2% $108.00 4.9% Credit Suisse Andrew Garthwaite 1,550 8.7% $104.90 4.8%  Meanwhile 12 of 13 analysts forecast 2013 EPS growth of at Deutsche Bank David Bianco NA NA $108.00 4.9% least 3% Goldman Sachs David Kostin 1,575 10.4% $107.00 7.0%

 Clearly, US fiscal/budget HSBC Garry Evans 1,560 9.4% NA NA negotiations and European JPMorgan Thomas Lee 1,580 10.8% $110.00 4.8% developments will ultimately Morgan Stanley Adam Parker 1,434 0.5% $98.71 (1.3%) drive 2013 results Oppenheimer John Stoltzfus 1,585 11.1% $108.00 5.9%  Other key drivers cited by RBC Myles Zyblock NA NA $104.00 4.0% analysts include: Stifel Nicolaus Barry Bannister 1,500 5.2% $115.00 NA  Momentum in US housing UBS Jonathan Golub 1,425 (0.1%) $108.00 3.8% market Wells Fargo Gina Martin Adams 1,390 (2.5%) $103.00 3.0%  China slowdown / recovery Mean (15): 1,532 7.4% $106.85 4.7%  Commodity price declines Median (15): 1,560 9.4% $107.50 4.8%  Middle East geopolitical Min (15): 1,390 (2.5%) $98.71 (1.3%) tension Max (15): 1,615 13.2% $115.00 7.8%

______Source: Bloomberg.

This is MoFo. 10 Could 2013 Mark the Start of the “Great Rotation?”

 Fixed income markets have seen All-Time Low Bond Yields Set the Stage for Equity Bullishness unprecedented demand and With bond yields at record lows, the outperformance in fixed performance in recent years, leading 18 income has likely come to an end. Assuming positive global to all-time low bond yields 18 macro developments, 2013 could be the year to start the 15 “Great Rotation” from bonds back to equities  Fund flows have consistently been coming out of equities in favor of the 12 safe-haven fixed income markets 9

6  If a confluence of macroeconomic events unfolds favorably, street 3 10 Year US Treasury Yield equity strategists expect a paradigm 0 shift in investment strategy, with '80 '82 '84 '86 '88 '90 '92 '94 '96 '98 '00 '02 '04 '06 '08 '10 '12 aggressive re-allocation to equities  Bond yields should rise dramatically Tech Stands to Disproportionately Benefit from the Rotation in concert with a rally in equities to new all-time highs (S&P above 1500) Global Exposure?  Secular Growth?   Tech stands to benefit more than Tech is the most globally exposed industry Secular growth is a longer-term strategy vs most (overweight along with sector; as global growth recovers in 2013 that cyclical; many of the most exciting secular growth Industrials and Energy) due to exposure should be a major tailwind for Tech stories are directly or indirectly related to Tech, equity flows and performance favorable sector fundamentals creating a long-term investment thesis

 Moderate growth stories that have been out of favor during the early Balance Sheet Strength? Attractive Valuation? recovery stand to gain the most favor   Tech is the only sector with net cash, but also While Tech has historically traded at a 20% has the third-lowest dividend payout ratio (29%). premium to the market, it currently trades at a While Tech dividends are growing faster than any discount despite its numerous growth themes. other sector, its large cash balances and Relative to the sector’s historical average forward substantial financial flexibility mean there is P/E multiple, there is more than 30% upside plenty of scope to put capital to work potential for Tech equities

______Source: Bloomberg.

This is MoFo. 11

Title I: The On-Ramp

This is MoFo. 12

EGC Status

This is MoFo. 13 Title I: EGCs

 An “emerging growth company” (an “EGC”) is defined as an issuer (including a foreign private issuer) with total annual gross revenues of less than $1 billion (subject to inflationary adjustment by the SEC every five years) during its most recently completed fiscal year.  An issuer can qualify as an EGC if it first sold its common stock in a registered offering on or after December 9, 2011.

This is MoFo. 14 Title I: EGCs (cont’d)

 The SEC Staff has noted that an issuer can take advantage of the benefits of EGC status, even though its initial public offering of common equity securities occurred on or before December 8, 2011. In this regard, the SEC Staff notes that if an issuer would otherwise qualify as an EGC but for the fact that its initial public offering of common equity securities occurred on or before December 8, 2011, and such issuer was once an Exchange Act reporting company but is not currently required to file Exchange Act reports, then the SEC Staff would not object if such issuer takes advantage of all of the benefits of EGC status for its next registered offering and thereafter, until it triggers one of the disqualification provisions. This position is not available to an issuer that has had the registration of a class of its securities revoked pursuant to Exchange Act Section 12(j).  The SEC Staff notes that, based on the particular facts and circumstances, the EGC status of an issuer may be questioned if it appears that the issuer ceased to be a reporting company for the purpose of conducting a registered offering as an EGC.

This is MoFo. 15 Title I: EGCs (cont’d)

 In Question 53 of the September 28, 2012 FAQs, the SEC Staff addresses EGC status in the context of certain spin-offs, focusing the analysis on whether the issuer, and not its parent, meets the EGC requirements.  The SEC Staff notes that, based on the particular facts and circumstances, the EGC status of an issuer may be questioned if it appears that the issuer or its parent is engaging in a transaction for the purpose of converting a non-EGC into an EGC, or for the purpose of obtaining the benefits of EGC status indirectly when it is not entitled to do so directly.

This is MoFo. 16 Title I: EGCs (cont’d)

 The SEC Staff indicated in its May 3, 2012 FAQs that asset-backed issuers and registered investment companies do not qualify as EGCs; however, business development companies could qualify as EGCs.  Whether an issuer is an EGC seems to be determined at this point on somewhat of a sliding scale. For example, with issuers that are not operating companies, such as royalty trusts, the Staff seems inclined to say that those cannot be EGCs, because they are really not the type of issuer contemplated by the Title I “on-ramp” for EGCs.

This is MoFo. 17 Title I: EGCs (cont’d)

 The SEC Staff has provided guidance through its FAQs confirming that an EGC should be able to rely on certain of Title I’s disclosure, communications and confidential submission benefits in the context of an exchange offer or a merger.  This guidance notes that even if EGCs are availing themselves of the JOBS Act provisions in the context of an exchange offer or a merger, they will still have to comply with all of the applicable rules for tender offers and proxy solicitations at the same time.

This is MoFo. 18 Title I: EGCs (cont’d)

 On November 14, 2012, The Wall Street Journal published a story highlighting how a number of companies going public have not availed themselves of the looser requirements contemplated by the “IPO on-ramp” provisions in Title I of the JOBS Act, suggesting a stigma associated with being identified as an EGC.  Initial trends suggest that marketing considerations may play the most significant role for an EGC in deciding whether to utilize the benefits of Title I, and that, at least at this point, there is little appetite for straying too far from market norms, even if some cost savings can be achieved.  Changes to the IPO market and more familiarity with the on-ramp provisions may ultimately result in an evolving view of EGC status.

This is MoFo. 19 Benefits Afforded To EGCs

This is MoFo. 20 Title I: EGCs

 On December 17, 2012, the SEC approved the PCAOB’s Auditing Standard No. 16, “Communications with Audit Committees.”  The approval of Auditing Standard No. 16 represents the first time that the SEC has used its authority under the JOBS Act to determine that a new auditing standard applies to audits of EGCs.  Section 103(a)(3)(C) of the Sarbanes-Oxley Act, as amended by Section 104 of the JOBS Act, provides that any additional rules adopted by the PCAOB subsequent to April 5, 2012 do not apply to the audits of EGCs, unless the Commission determines that the application of such additional requirements is necessary or appropriate in the public interest, after considering the protection of investors and whether the action will promote efficiency, competition, and capital formation.

This is MoFo. 21 Title I: Confidential Submission

 Title I provides that the SEC Staff must review all EGC initial public offering registration statements confidentially. An EGC may confidentially submit a draft registration statement for an initial public offering for nonpublic review, provided that the initial confidential submission and all amendments are publicly filed with the SEC no later than 21 days prior to the issuer’s commencement of a “road show” (as defined in Securities Act Rule 433(h)(4)).  EGCs have been taking advantage of the confidential review process. Consideration of the impact on a “dual-track” strategy. Possible to use a press release Possible to share the confidential submission with a limited number of investors Adverse effects on the visibility of the IPO pipeline. Timing considerations relative to the marketing of the offering.

This is MoFo. 22 Title I: Confidential Submission (cont’d)

 Draft registration statements are submitted via EDGAR using submission form types DRS and DRS/A.  While some have commented on how the confidential submissions process has reduced visibility into the IPO pipeline, the Staff is not planning to make information available about the submissions.  In practice, EGCs have been availing themselves of the confidential submission process  When to flip from confidential to public Must publicly file at least 21 days before commencing a road show For these purposes, what is a “road show”? Many issuers are choosing to flip from confidential to public earlier in the process Timing should be discussed with the working group

This is MoFo. 23 Title I: Test-the-Waters

 Title I of the JOBS Act provides EGCs, or any other person that they authorize, the flexibility to engage in oral or written communications with QIBs and institutional accredited investors in order to gauge their interest in a proposed offering, whether prior to or following the first filing of any registration statement, subject to the requirement that no security may be sold unless accompanied or preceded by a Section 10(a) prospectus.  There are no form or content restrictions on these communications, and there is no requirement to file written communications with the SEC, however the SEC has asked for written test-the-waters communications in connection with their review.

This is MoFo. 24 Title I: Test-the-Waters (cont’d)

 In August 22, 2012 FAQs, the SEC Staff addressed the requirements of Rule 15c2-8(e) in the context of test-the-waters communications.  The FAQ notes that while the JOBS Act does not amend Rule 15c2- 8(e), an EGC or a financial intermediary acting on the EGC’s behalf may engage in discussions with institutional investors to gauge their interest in purchasing EGC securities before the EGC has filed its registration statement with the SEC and after the EGC has filed its registration statement. During this period, the underwriter may discuss price, volume and market demand and solicit non-binding indications of interest from customers. Soliciting such a non-binding indication of interest, in the absence of other factors, would not constitute a “solicitation” for purposes of Rule 15c2-8(e).

This is MoFo. 25 Title I: Test-the-Waters (cont’d)

 The form and content of test-the-waters communications will vary based on the issuer, the issuer’s industry, the underwriters and the nature of buy-side interest in the offering.  Underwriting agreements for an emerging growth company offering will typically include a representation that the issuer has not engaged in any communications in reliance on Section 5(d), other than as disclosed as an exception to the representation. There is a concern on the part of the underwriters about limiting the manner in which these types of communications occur.  The SEC Staff has been asking to review written test the waters materials.

This is MoFo. 26 Title I: Disclosure Requirements

PRIOR TO JOBS ACT UNDER THE JOBS ACT

Financial  3 years of audited financial statements  2 years of audited financial statements Information in  2 years of audited financial statements for  Not required to present selected financial SEC Filings smaller reporting companies data for any period prior to the earliest  Selected financial data for each of 5 years audited period presented in connection with (or for life of issuer, if shorter) and any an IPO interim period included in the financial  Within 1 year of IPO, EGC would report 3 statements years of audited financial statements

Confidential  No confidential filing for U.S. issuers EGCs (including FPIs that are EGCs) may Submissions of  Confidential filing for FPIs only in specified submit a draft IPO registration statement for Draft IPO circumstances confidential review prior to public filing, Registration provided that such submission and any Statement amendments are publicly filed with the SEC not later than 21 days before the EGC conducts a “road show.” This supersedes the SEC’s December 2011 position on confidential submissions by FPIs.

This is MoFo. 27 Title I: Disclosure Requirements (cont’d)

PRIOR TO JOBS ACT UNDER THE JOBS ACT Communications Limited ability to “test-the-waters” EGCs, either prior to or after filing a Before and During registration statement, may “test-the-waters” The Offering by engaging in oral or written communications Process with QIBs and institutional accredited investors to determine interest in an offering Auditor  Auditor attestation on effectiveness of Transition period for compliance of up to 5 Attestation on internal controls over financial reporting years Internal Controls required in second annual report after IPO  Non-accelerated filers not required to comply Accounting Must comply with applicable new or revised  Not required to comply with any new or Standards financial accounting standards revised financial accounting standard until such standard applies to companies that are not subject to Exchange Act public company reporting  EGCs may choose to comply with non-EGC accounting standards but may not selectively comply

This is MoFo. 28 Title I: Disclosure Requirements (cont’d)

PRIOR TO JOBS ACT UNDER THE JOBS ACT Executive  Must comply with executive compensation  May comply with executive compensation Compensation disclosure requirements, unless a smaller disclosure requirements by complying with Disclosure reporting company (which is subject to the reduced disclosure requirements reduced disclosure requirements) generally available to smaller reporting  Upon adoption of SEC rules under Dodd- companies Frank will be required to calculate and  Exempt from requirement to calculate and disclose the median compensation of all disclose the median compensation of all employees compared to the CEO employees compared to the CEO  FPIs entitled to rely on other executive compensation disclosure requirements Say on Pay  Must hold non-binding advisory Exempt from requirement to hold non-binding stockholder votes on executive advisory stockholder votes on executive compensation arrangements compensation arrangements for 1 to 3 years  Smaller reporting companies are currently after no longer an EGC exempt from say on pay until 2013

This is MoFo. 29 Title I: Disclosure Requirements (cont’d)

 Market practice in terms of EGC disclosure accommodations is still developing Financial information: more EGCs have elected to present financial information for a longer period – general three years Executive compensation: most EGCs are availing themselves of the reduced disclosure requirements Auditor attestation: most EGCs are affirmatively choosing to avail themselves of the delayed implementation

This is MoFo. 30 Title I: Disclosures

 The SEC staff expects to see: Cover page disclosure regarding EGC status Summary box disclosures Risk factors that specifically address the issuer’s decision to rely on EGC accommodations MD&A discussion to the extent that the issuer is electing to delay adoption of new accounting standards and/or defer auditor attestation

This is MoFo. 31 Title I: Research  The JOBS Act permits a broker-dealer to publish or distribute a research report about an EGC that proposes to register an offering under the Securities Act or has a registration statement pending, and the research report will not be deemed an “offer” under the Securities Act, even if the broker-dealer will participate or is participating in the offering.  The JOBS Act also prohibits any self-regulatory organization such as FINRA and the SEC from adopting any rule or regulation that would restrict a broker-dealer from participating in certain meetings relating to EGCs.

This is MoFo. 32 Title I: Research (cont’d)

 No SRO or the SEC may adopt or maintain any rule or regulation prohibiting a broker-dealer from publishing or distributing a research report or making a public appearance with respect to the securities of an EGC following an offering or in a period prior to (although notably not after) expiration of a lock-up.  The JOBS Act removes restrictions on who within an investment bank can arrange for communications between research analysts and prospective investors in connection with an EGC IPO, permitting investment bankers to be involved in those arrangements.  Further, a research analyst is permitted to engage in any communications with an EGC’s management when other employees of the investment bank, including the investment bankers, are present.

This is MoFo. 33 Title I: Research (cont’d)

 On August 22, 2012, the SEC’s Division of Trading and Markets published a highly anticipated series of JOBS Act FAQs entitled “About Research Analysts and Underwriters,” which addressed various research-related matters.  The FAQs reiterate that Section 105 of the JOBS Act is intended to permit research analysts to participate in meetings with issuer management, but research analysts cannot engage in efforts to solicit banking business.

This is MoFo. 34 Title I: Research (cont’d)

 The FAQs note that a research analyst attending a meeting with investment banking colleagues could outline the firm’s research program and factors considered in the analysis of a company and ask follow-up questions of management. After an investment banking firm has been retained, the research analyst could participate in sales force discussions along with company management in order to educate the sales force about trends in the industry and research’s views.  The FAQs emphasize that the objective of the JOBS Act was to eliminate burdens on the management of emerging growth companies resulting from having to take part in separate meeting with banking and with research personnel, but not to weaken any of the safeguards intended to mitigate conflicts of interest. In this respect, the FAQs confirm that Regulation AC is not affected by the JOBS Act.

This is MoFo. 35 Title I: Research (cont’d)

 The FAQs clarify that the JOBS Act should be understood to apply to NYSE Rule 472 to the same extent as it applies to NASD Rule 2711.  Further, the FAQs explain that the Staff views the prohibition on quiet period rules contained in Section 105(d)(2) as applying to the quiet periods on research at the termination, waiver, modification, etc. of a lock-up agreement (in connection with an emerging growth company IPO or a follow-on offering) regardless of the means by which the lock-up period comes to a close.

This is MoFo. 36 Title I: Research (cont’d)  FINRA implemented a series of rule changes to modify NASD Rule 2711 and NYSE Rule 472, including: An exception to Rule 2711(c)(4) that permits research analysts to attend meetings with issuer management that are also attended by investment banking personnel, including pitch meetings, provided that the research analysts do not engage in any prohibited conduct, such as soliciting investment banking business. (Rule 472 includes a similar exception). An amendment to NASD 2711 to eliminate the following quiet periods with respect to an IPO of an EGC: NASD Rule 2711(f)(1)(A) which imposes a 40-day quiet period after an IPO on a member that acts as a manager or co-manager of the IPO; NASD Rule 2711(f)(2) which imposes a 25-day quiet period after an IPO on a member that participates as an underwriter or dealer (other than manager or co- manager) of the IPO; and NASD Rule 2711(f)(4) with respect to the 15-day quiet period applicable to IPO managers and co-managers prior to the expiration, waiver or termination of a lock-up agreement. An amendment to NASD Rule 2711(f)(4) to eliminate the 10-day quiet period on managers and co-managers following a secondary offering and the quiet periods after the expiration, waiver or termination of a lock-up agreement for such an offering.

This is MoFo. 37 SEC Report on Decimalization  On July 20, 2012, the SEC delivered to Congress the report required by Section 106 of the JOBS Act, which directed the SEC to examine the impact of decimalization on IPOs and the impact of this decade- old change on liquidity for small- and mid-cap securities. If the SEC determines that securities of emerging growth companies should be quoted or traded using a minimum increment higher than $0.01, then the SEC may, by rule, not later than 180 days following enactment of the JOBS Act, designate a higher minimum increment between $0.01 and $0.10.  Not surprisingly, the Staff concluded that decimalization may have been one of a number of factors that have influenced the IPO market.  The Staff recommends that the Commission should not proceed with specific rulemaking to increase tick sizes, but should gather more information.

This is MoFo. 38 SEC Roundtable on Decimalization

 The SEC held a roundtable on decimalization on February 5, 2012.  The roundtable included various panel discussions on issues affecting smaller or emerging companies and raised many questions on implementation of tick size  Recommendation: that a pilot program be implemented that would permit an assessment of the impact on smaller companies

This is MoFo. 39 Study on Regulation S-K

 Under Title I the SEC was required to present to Congress its findings and recommendations following a review of Regulation S-K that is intended to analyze current registration requirements and determine whether these requirements can be updated, modified or simplified in order to reduce costs and other burdens on emerging growth companies.  The study was required within 180 days of enactment.  The SEC Staff is continuing to work on the study.

This is MoFo. 40

Title II

This is MoFo. 41 Title II: Rule 506 Changes

 Title II directs the SEC to eliminate the ban on general solicitation and general advertising for certain offerings under Rule 506 of Regulation D, provided that the securities are sold only to accredited investors, and under Rule 144A offerings, provided that the securities are sold only to persons who the seller (and any person acting on behalf of the seller) reasonably believes is a QIB.  Rule 506 is the most popular means for conducting a private offering, because it permits issuers to raise an unlimited amount of money and preempts state securities laws.

This is MoFo. 42 Title II: SEC Proposal

 On August 29, 2012, the SEC proposed amendments to Rule 506 of Regulation D and Rule 144A under the Securities Act to implement Section 201(a) of the JOBS Act.  Public comments were due on the proposed rules by October 5, 2012.  The SEC has not yet adopted final rules, so the Title II provisions are not currently in effect.

This is MoFo. 43 Title II: SEC Proposal (cont’d)

 The SEC’s proposed rules implement a bifurcated approach to Rule 506 offerings. As proposed, an issuer may still choose to conduct a private offering in reliance on Rule 506 without using general solicitation.  In order to implement this approach, the SEC proposed new paragraph (c) in Rule 506, which would permit the use of general solicitation, subject to the following conditions: the issuer must take reasonable steps to verify that the purchasers of the securities are accredited investors; all purchasers of securities must be accredited investors, either because they come within one of the enumerated categories of persons that qualify as accredited investors or the issuer reasonably believes that they qualify as accredited investors, at the time of the sale of the securities; and the conditions of Rule 501 and Rules 502(a) and 502(d) are satisfied.

This is MoFo. 44 Title II: SEC Proposal (cont’d)  “Reasonable efforts” to verify investor status may differ depending on the facts and circumstances, and the SEC provides the following non-exhaustive list of factors that may be appropriate to consider: The nature of the purchaser. The SEC describes the different types of accredited investors, including broker-dealers, investment companies or business development companies, employee benefit plans, and wealthy individuals and charities. The nature and amount of information about the purchaser. Simply put, the SEC states that “the more information an issuer has indicating that a prospective purchaser is an accredited investor, the fewer steps it would have to take, and vice versa.” The nature of the offering. The nature of the offering may be relevant in determining the reasonableness of steps taken to verify status, i.e., issuers may be required to take additional verification steps to the extent that solicitations are made broadly, such as through a website accessible to the general public, or through the use of social media or email. By contrast, less intrusive verification steps may be required to the extent that solicitations are directed at investors that are pre-screened by a reliable third party.  This is MoFo. 45

Title II: SEC Proposal (cont’d)

 The SEC confirmed the view that Congress did not intend to eliminate the existing “reasonable belief” standard in Rule 501(a) of the Securities Act or for Rule 506 offerings. It confirmed that if a person were to supply false information to an issuer claiming status as an accredited investor, the issuer would not lose the ability to rely on the proposed Rule 506(c) exemption for that offering, provided the issuer “took reasonable steps to verify that the purchaser was an accredited investor and had a reasonable belief that such purchaser was an accredited investor.”  The SEC also proposed to add a separate check box for issuers to indicate whether they are claiming an exemption under Rule 506(c).  The SEC confirmed that privately offered funds can make a general solicitation under amended Rule 506 without losing the ability to rely on the exclusions from the definition of an “investment company” available under Section 3(c)(1) and 3(c)(7) of the Investment Company Act.

This is MoFo. 46 Title II: SEC Proposal (cont’d)

 In addition to the proposed changes to Rule 506, the SEC proposed to amend Rule 144A to eliminate references to “offer” and “offeree,” and thus require only that the securities are sold to a QIB or to a purchaser that the seller and any person acting on behalf of the seller reasonably believe is a QIB.  Under this proposed amendment, resales of securities pursuant to Rule 144A could be conducted using general solicitation, so long as the purchasers are limited in this manner.

This is MoFo. 47 Title II: SEC Proposal (cont’d)

 Some of the comments which have been submitted call on the Commission to, among other things, adopt the Dodd-Frank – mandated bad actor rules at the same time the changes to Rule 506 are adopted, impose restrictions on the form and content of general solicitation materials, and establish a non-exclusive safe harbor with respect to the reasonable steps to verify requirement.  Other commenters have suggested that the SEC should review the definition of “accredited investor” and consider an investments held standard, or a financial literacy standard.

This is MoFo. 48 Likely Impacts of Title II Changes

 Assessing the impact of the changes: Rule 506 rulemaking may have the most significant impact on private offerings by funds Private offerings by private companies likely to be affected Private offerings by already public companies, or PIPE transactions, unlikely to be affected Rule 144A offerings unlikely to be impacted

This is MoFo. 49 Matching Platforms

 Title II clarifies that persons who maintain certain online or other platforms to conduct Rule 506 offerings that will use general advertising or general solicitation will not, by virtue of this activity, be required to register as a broker or a dealer pursuant to Section 15 of the Exchange Act, provided that certain specified conditions are satisfied.  In order not to be subject to registration as a broker-dealer, these matching services or platforms must not receive transaction–based compensation, take possession of customer funds or securities, or participate in documentation.

This is MoFo. 50 Title II: FAQs

 On February 5, 2013, the SEC Division of Trading & Markets published a FAQs to address the matchmaking site provisions  Provides clarifications: A platform cannot permit an issuer to conduct a general solicitation in a Rule 506 offering until the SEC rules are finalized SEC staff interprets “compensation” broadly (not just transaction-based compensation) Co-investment in securities is permitted A venture fund may operate a matchmaking site

This is MoFo. 51

Title III

This is MoFo. 52 JOBS Act - Crowdfunding

Crowdfunding The “Crowd” Entrepreneur Funding Portal or Broker

$$$ $$$

• An “all or none” offering. • No limits on the number or sophistication of investors. • Issuer information (including financial information) required. • All offering activities must be conducted through an intermediary.

This is MoFo. 53 Crowdfunding

 Title III provides an exemption that could apply to crowdfunding offerings, to be implemented by SEC rules adopted within 270 days.  The aggregate amount sold to all investors by the issuer, including any amount sold in reliance on the exemption during the 12-month period preceding the date of the transaction, is not more than $1,000,000.  The aggregate amount sold to any investor by the issuer, including any amount sold in reliance on the exemption during the 12-month period preceding the date of the transaction, does not exceed: The greater of $2,000 or 5 percent of the annual income or net worth of the investor, as applicable, if either the annual income or the net worth of the investor is less than $100,000; or 10 percent of the annual income or net worth of an investor, as applicable, not to exceed a maximum aggregate amount sold of $100,000, if either the annual income or net worth of the investor is equal to or more than $100,000.

This is MoFo. 54 Crowdfunding (cont’d)

 The transaction must be conducted through a broker or “funding portal.”  Information will be filed and provided to investors regarding the issuer and offering, including financial information based on the target amount offered.  The provision would prohibit issuers from advertising the terms of the exempt offering, other than to provide notices directing investors to the funding portal or broker, and would require disclosure of amounts paid to compensate solicitors promoting the offering through the channels of the broker or funding portal.

This is MoFo. 55 Crowdfunding (cont’d)

 Issuers relying on the exemption would need to file with the SEC and provide to investors, no less than annually, reports of the results of operations and financial statements.  A purchaser in a crowdfunding offering could bring an action against an issuer for rescission in accordance with Section 12(b) and Section 13 of the Securities Act, as if liability were created under Section 12(a)(2) of the Securities Act, in the event that there are material misstatements or omissions in connection with the offering.  Securities sold on an exempt basis under this provision would not be transferrable by the purchaser for a one-year period beginning on the date of purchase, except in certain limited circumstances.

This is MoFo. 56 Crowdfunding (cont’d)

 The exemption would only be available for domestic issuers that are not reporting companies under the Exchange Act and that are not investment companies, or as the SEC otherwise determines is appropriate.  Bad actor disqualification provisions similar to those required under Regulation A would also be required for exempt crowdfunding offerings.  Funding portals would not be subject to registration as a broker- dealer, but would be subject to an alternative regulatory regime, subject to SEC and SRO authority, to be determined by rulemaking by the SEC and SRO.

This is MoFo. 57 Crowdfunding (cont’d)

 A funding portal is defined as an intermediary for exempt crowdfunding offerings that does not: offer investment advice or recommendations; solicit purchases, sales, or offers to buy securities offered or displayed on its website or portal; compensate employees, agents, or other persons for such solicitation or based on the sale securities displayed or referenced on its website or portal; hold, manage, possess, or otherwise handle investor funds or securities; or engage in other activities as the SEC may determine by rulemaking.  The provision preempts state securities laws by making exempt crowdfunding securities “covered securities,” however, some state enforcement authority and notice filing requirements would be retained.  State regulation of funding portals would also be preempted, subject to limited enforcement and examination authority.

This is MoFo. 58 Intermediary Comparison

Broker-Dealer Funding Portal Regulatory Environment Well-established SEC and To be-established SEC FINRA rules regarding and FINRA rules regarding registration and ongoing registration and ongoing obligations obligations. Conduct of Business Handling customer funds Restrictions on activities and securities, making traditionally considered to recommendations, be those of a broker- compensating for sales of dealer. securities, etc. Costs Significant registration Expected to be less costs, as well as ongoing ongoing obligations, thus compliance costs less costs involved. Availability of Available for issuers using Available for issuers using Crowdfunding Exemption broker-dealer’s platform. funding portal’s platform.

This is MoFo. 59

Title IV

This is MoFo. 60 Title IV: Offering Exemption

 The JOBS Act establishes a new offering exemption similar to Regulation A.  Under the exemption, an issuer will be able to offer and sell up to $50 million in securities within a 12-month period without Securities Act registration. The issuer may offer equity securities, debt securities, and debt securities convertible or exchangeable for equity interests, including any guarantees of such securities.  The SEC Staff is working on proposed rules, although there is no deadline in the JOBS Act for these rules.  Legislation has been introduced that would set an implementation deadline for SEC action

This is MoFo. 61 Comparative Overview

REGULATION A SECTION 3(B)(2) EXEMPT PUBLIC OFFERING EXEMPT PUBLIC OFFERING

Offering Limit Up to $5 million within the prior 12- Up to $50 million within the prior 12- month period. month period.

SEC Filing Must file with the SEC a Form 1-A, Must file with the SEC and distribute Requirements which is reviewed by the SEC Staff. to investors an offering statement, which will likely be reviewed by the SEC Staff. Blue Sky Blue sky law compliance is required, Blue sky law compliance is Requirements without in many cases the possibility for required, except when the securities a more streamlined “registration by are offered and sold on a national coordination” process. securities exchange, or the securities are offered or sold to a qualified purchaser.

This is MoFo. 62 Comparative Overview (cont’d)

REGULATION A SECTION 3(B)(2) EXEMPT PUBLIC OFFERING EXEMPT PUBLIC OFFERING

Limitations on No limits on investors, except to the No limits on investors, except to the Investors extent imposed under state laws. extent imposed under state laws.

Restrictions on No restrictions on the resale of No restrictions on the resale of Resale of securities, except to the extent that the securities, except to the extent that Securities securities are held by affiliates. the securities are held by affiliates.

Offering An issuer may “test the waters” to An issuer may “test the waters” to Communications determine if there is interest in a determine if there is interest in a proposed offering prior to filing the proposed offering prior to filing an Form 1-A. Sales literature may be offering statement. used before the filing of the Form 1-A, after filing, and following qualification.

This is MoFo. 63 Comparative Overview (cont’d)

REGULATION A SECTION 3(B)(2) EXEMPT PUBLIC OFFERING EXEMPT PUBLIC OFFERING

Financial A current balance sheet, as well as Audited financial statements must Statement income statements for a period of two be included in the offering Requirements years, as well as any interim period. statement, as determined by the Financial statements must be prepared SEC. in accordance with GAAP but do not have to conform to Regulation S-X and, in most cases, do not have to be audited. Disqualification Felons and bad actors disqualified from Felons and bad actors disqualified Provisions the offering in accordance with from the offering in accordance with Securities Act Rule 262. rules adopted under Section 926 of the Dodd-Frank Act. Periodic No reporting required after the offering, Audited financial statement must be Reporting other than to disclose the use of filed and provided to investors proceeds. annually, and the SEC may require other periodic disclosures.

This is MoFo. 64 Titles IV: Section 3(b)(2) offerings

 Likely that the SEC staff will incorporate the existing Regulation A framework into Section 3(b)(2)  Section 3(b)(2) offerings may be used: By private issuers who seek to remain non-reporting, or By private issuers as a smaller IPO, in conjunction with an exchange listing

This is MoFo. 65 GAO Study of Regulation A

 The JOBS Act directed the GAO to undertake a study concerning the factors impeding greater use of currently Regulation A.  The GAO study examines trends in Regulation A offerings, noting that the number of offerings increased from 1992 through 1997.  Since 1997, however, the number of Regulation A offerings has declined.  The study notes that issuers have tended to favor Regulation D offerings.  Unless the SEC’s rules, and the approach implemented by state regulators, are clear and practical, issuers may continue to favor Regulation D.

This is MoFo. 66

Title V and VI

This is MoFo. 67 Titles V and VI: Thresholds

 The SEC’s April 11, 2012 FAQs provided that these provisions were immediately effective, so issuers were able to avail themselves of the higher thresholds for registration and deregistration (only for banks and bank holding companies) upon effectiveness of the Act.  The SEC has provided no-action relief to banks seeking to exit the reporting system given the higher holder of record level specifically applicable to banks and bank holding companies.  The Staff has indicated that it is actively working on recommendations for a rule that would establish when securities obtained in an employee benefit plan can be excluded when counting the number of holders of record.  Legislation proposed to correct inadvertent omission of savings and loan associations in the JOBS Act provisions

This is MoFo. 68 SEC Report on Rule 12g5-1(b)(3)

 On October 16, 2012 the Staff of the SEC published a study assessing whether the SEC has sufficient tools to enforce the anti- evasion provisions of Section 12g5-1(b)(3).  The study concludes that the statutes, rules and procedures as currently formulated provide the Division of Enforcement with sufficient tools to investigate and bring a case for Section 12(g) violations based on Rule 12g5-1(b)(3).

This is MoFo. 69

Next Steps

This is MoFo. 70 Looking ahead

 SEC to finalize Rule 506 rulemaking, likely in conjunction with finalizing the bad actor provisions  SEC to propose crowdfunding rules  Continued discussion regarding the “accredited investor” standard  Discussion of disclosure accommodations for smaller public companies and potentially revamping S-K  Reporting for companies that are OTCBB or that have securities traded in a private secondary market

This is MoFo. 71