Result of Failure to Comply with Securities Registration
Failing to Register or Not Securing an Exemption
Written by Jason Gordon
Updated at September 25th, 2021
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Table of Contents
What is the effect of failing to register an offering or failing to perfect an exemption to registration?Discussion QuestionPractice QuestionAcademic ResearchWhat is the effect of failing to register an offering or failing to perfect an exemption to registration?
Violating Section 5 of the 33 Act by failing to register an issuance or failing to carry out an issuance in accordance with an applicable exemption can subject the issuer to liability to purchasers of the securities. Specifically, Section 12(a)(1) allows any purchaser to bring a lawsuit to rescind the purchase of the securities (along with interest on the purchase funds) or, if the securities have been sold, to receive the damages suffered from the purchase. Rescinding the purchase transaction is often referred to as buying a put, because the purchaser will have the right to force the seller to repurchase the security. The SEC may also have a civil cause of action against the issuer who sells securities in violation of Section 5.
The result of failing to comply with failing to comply with a relevant exemption can be detrimental to an issuer. Rule 508 provides some relief from these effects if an anticipated exemption under Rules 504 - 506 fail because of an insignificant reason. That is, the issuer may be able to defend an action for rescission by demonstrating the following:
- the issuers deviation from the exemption requirement was insignificant with regard to the overall offering;
- the requirements were not specifically imposed to protect this type of purchasers interest; and
- the issuer honestly (in good faith) attempted to comply with the exemption requirements.
An issuer who successfully demonstrates these elements may be relieved from liability to plaintiff investors or the SEC.
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Related Topics
- Registration Exemptions Securities Act of 1933
- What are Exempt Securities and Exempt Transactions?
- What are Restricted Securities?
- Section 3(a)?
- Section 3(b)?
- What is a Rule 147 Exemption?
- What is a Section 4(a) Exemption?
- Section 4(a)(5)?
- What is a Regulation A Exemption?
- What are Regulation D Exemptions?
- What is a Rule 504 Exemption?
- What is a Rule 505 Exemption?
- What is a Rule 506(b) Exemption?
- What is a Rule 506(c) Exemption?
- What is Rule 502(d) and the Rule 144 Safe Harbor?
- Rule 144a
- What are the disclosure requirements for companies employing an exemption?
- What is the requirement to file Form D?
- What is the effect of failing to register an offering under Section 5?
Discussion Question
How do you feel about the repercussions on an issuer for failure to comply with registration requirements or perfect an exemption? Is this provision overly advantageous to the purchaser or securities? Why or why not?
Practice Question
ABC Corp sells securities to a small group of investors in several states. ABC did not seek legal counsel and is unaware that its sale of securities is subject to regulation under the securities law?