A qualified institutional buyer (QIB), in United States law and finance, is a purchaser of securities that is deemed financially sophisticated and is legally recognized by securities market regulators to need less protection from issuers than most public investors. Typically, the qualifications for this designation are based on an investor’s total assets under management and specific legal conditions in the country where the fund is located. Rule 144A requires an institution to manage at least $100 million in securities from issuers not affiliated with the institution to be considered a QIB. If the institution is a bank or savings and loans thrift they must have a net worth of at least $25 million. If the institution is a registered dealer acting for its own account it must in the aggregate own and invest on a discretionary basis at least $10 million of securities of issuers not affiliated with the dealer. Certain private placements of stocks and bonds are made available only to qualified institutional buyers to limit regulatory restrictions and public filing requirements.
Understanding Qualified Institutional Buyer (QIB)
In general, a QIB is any entity included within one of the categories of accredited investor defined in Rule 501 of Regulation D, acting for its own account or the accounts of other QIBs, that in the aggregate owns and invests on a discretionary basis at least $100 million in securities of issuers not affiliated with the entity ($10 million for a broker-dealer). In addition to the qualifications above, banks and savings and loan associations must have a net worth of at least $25 million to be deemed QIBs. QIBs can be foreign or domestic entities, but must be institutions. Individuals cannot be QIBs, no matter how wealthy or sophisticated they are. A broker-dealer acting as a riskless principal for an identified QIB would itself be deemed a QIB. To qualify as a riskless principal, the broker-dealer must have a commitment from the QIB that it will simultaneously purchase the securities from the broker-dealer.
The commitment from the QIB must be effective at the time of purchase in the Rule 144A transaction. A QIB may be formed merely for the purpose of investing in a Rule 144A transaction. The qualified institutional buyer designation is often conferred upon entities comprised of sophisticated investors. Essentially these individuals or entities, due to their experience, assets under management (AUM), and/or net worth, are considered not to require the type of regulatory oversight when purchasing securities that unsophisticated, regular investors often need. Typically, a QIB is a company that manages a minimum investment of $100 million in securities on a discretionary basis or is a registered broker-dealer with at least a $10 million investment in non-affiliated securities. The range of entities deemed qualified institutional buyers (QIB’s) include savings and loans associations (which must have a net worth of $25 million), banks, investment and insurance companies, employee benefit plans and entities completely owned by accredited investors. Under Rule 144A, QIB’s are allowed to trade securities on the market, which increases the liquidity for these securities. This rule provides a safe harbour exemption against the SEC’s registration requirements for securities. Typically, transactions conducted under Rule 144A include offerings by foreign investors looking to avoid U.S. reporting requirements, private placements of debt, and preferred securities of public issuers and common stock offerings from issuers that do not report.
What Is Rule 144?
Rule 144 is a regulation enforced by the U.S. Securities and Exchange Commission that sets the conditions under which restricted, unregistered, and control securities can be sold or resold. Rule 144 provides an exemption from registration requirements to sell the securities through public markets if a number of specific conditions are met. The regulation applies to all types of sellers, in addition to issuers of securities, underwriters, and dealers.
Understanding Rule 144
Rule 144 regulates transactions with restricted, unregistered and control securities. These type of securities are typically acquired in unregistered, private sales or constitute a controlling stake in an issuing company. Investors may acquire restricted securities through private placements or other stock benefit plans offered to a company’s employees.
Securities Act Rule 144 Under the SEC
This rule governs the sales of controlled and restricted securities in the marketplace. This rule protects the interests of issuing companies, because the sales are so close to their interests. Section 5 of the Securities Act of 1933 governs all offers and sales and requires them to be registered with the SEC or to qualify for an exemption from registration requirements. Rule 144 offers an exemption, allowing the public resale of controlled and restricted securities, if certain conditions are met. This includes the length of time securities are held, the method used to sell them and the number that are sold in any one sale. Even if all requirements have been met, sellers are not permitted to conduct sales of restricted securities to the public until a transfer agent has been secured.
What Is SEC Form 144: Notice of Proposed Sale of Securities?
An executive officer, director, or affiliate of a company must file SEC Form 144: Notice of Proposed Sale of Securities with the Securities and Exchange Commission or SEC when placing an order to sell that company’s stock during any three-month period in which the sale exceeds 5,000 shares or units or has an aggregate sales price greater than $50,000. This is also known as Rule 144.
Who Can File SEC Form 144: Notice of Proposed Sale of Securities?
According to the SEC’s website, the party filing Form 144 must have a bona fide intention to sell the securities referred to in the Form 144 within a reasonable time frame after filling. Since sales covered under Form 144 are often very close to the interests of the issuing company, at times filers must register the securities under Section 5 of the Securities Act of 1933. If the correct conditions are met, Rule 144 can provide an exemption and permit the public resale of restricted or control securities. Still, all parties must obtain a transfer agent to remove the securities’ legend prior to sale.
Notice of Proposed Sale of Securities
Form 144 must be filed with the SEC by an affiliate of the issuer as a notice of the proposed sale of securities in reliance on Rule 144, when the amount to be sold under Rule 144 by the affiliate during any three-month period exceeds 5,000 shares or units or has an aggregate sales price in excess of $50,000. A person filing a Form 144 must have a bona fide intention to sell the securities referred to in the Form within a reasonable time after the filing of the Form. While the SEC does not require the form to be sent electronically to the SEC’s EDGAR database, some filers choose to do so.
The Difference between 144A and Regulation S
Rule 144A, often referred to as a 144A offering, is an SEC rule issued in 1990 that modified a two-year holding period requirement on privately placed securities by permitting QIBs to trade these positions among themselves. Prior to this the holding period for such private stock was different. A 144A offering is a U.S. based offering, and typically is considered an alternative to the timely and costly initial public offering. Regulation S often referred to as Reg S, are bonds or stocks that may not be offered, sold or delivered within the U.S. Additionally, they may not be on behalf or for the account or benefit of U.S. citizens, unless pursuant to an exemption from, or in a transaction not subject to the registration requirements of the Securities Act. Reg S has many restrictions, as can be seen, for United States residents. The US SEC 144A and REG S restrictions are related to markets in the US. 144A is restricted to QIBs (Qualified Institutional Buyers) in the US and REG S cannot be held by holders in the US. Additionally, before, bonds sold under Regulation S (Reg S), can only be offered in the U.S. to qualified institutional buyers (QIBs) in reliance on Rule 144A. QIBs are in fact one of the only groups permitted to invest in Reg S offerings. Regulation S and Rule 144A are sections of the US Securities Act of 1933 governing an offer or sale of securities by a non-US issuer. As a general rule, securities of a non-US company may only be offered for sale within the United States pursuant to the registration of those securities with the US Securities and Exchange Commission or pursuant to an exemption from registration. An exempt offering of securities of an non-US issuer into the United States may be effected under Rule 144A (a restricted offering). A restricted offering into the States is often combined with an unrestricted placement of securities offshore (i.e. outside of the US) under the provisions of Regulation S. The difference between Reg S and 144A is that 144A can only be held by Qualified Institutional Buyers (QIBs) in the US. Reg S can be held by holders in the rest of the world outside the US. They are therefore usually referred to as the US and European portions of a GDR. Non-US issuers can apply for an exemption from the Securities Act 1933 under Rule 144A. This means the stock can only be held by QIBs. Regulation S of the Securities Act 1933 is applicable to transactions outside the US (Offshore Offerings). They are prohibited from being sold in the US and cannot be integrated with the 144A offering. Again, it exempts the issuer from certain SEC reporting requirements.
Requirements to qualify as a QIB
The U.S. Securities and Exchange Commission (SEC) requires that an entity meet one of the following requirements to qualify as a QIB:
• Any of the following entities, acting for its own account or the accounts of other QIBs, that in the aggregate owns and invests on a discretionary basis at least $100 million in securities of issuers that are not affiliated with the entity:
• An insurance company
• An investment company registered under the Investment Company Act of 1940
• A Small Business Investment Company licensed by the US Small Business Administration under the Small Business Investment Act of 1958
• A plan established and maintained by a state, its political subdivisions, or state agency, for the benefit of its employees
• An employee benefit plan falling under the Employee Retirement Income Security Act of 1974
• A trust fund whose trustee is a bank or trust company and whose participants are exclusively plans established for the benefit of state employees or employee benefit plans, except trust funds that include as participant’s individual retirement accounts or H.R. 10 plans
• A business development company as defined in section 202(a)(22) of the Investment Advisers Act of 1940.
• A 501(c)(3) charitable organization, corporation (other than a bank or a savings and loan association), partnership, or Massachusetts or similar business trust; and
• An investment adviser registered under the Investment Advisers Act of 1940.
• Any registered dealer, acting for its own account or the accounts of other QIBs, that in the aggregate owns and invests on a discretionary basis at least $10 million of securities of issuers that are not affiliated with the dealer.
• Any registered dealer acting in a riskless principal transaction on behalf of a qualified institutional buyer.
• Any investment company registered under the Investment Company Act, acting for its own account or for the accounts of other QIBs, that is part of a family of investment companies which own in the aggregate at least $100 million in securities of issuers, other than issuers that are affiliated with the investment company or are part of such family of investment companies.
• Any entity, all of the equity owners of which are QIBs, acting for its own account or the accounts of other QIBs.
• Any bank or any savings and loan association or other institution, acting for its own account or the accounts of other QIBs, that in the aggregate owns and invests on a discretionary basis at least $100 million in securities of issuers that are not affiliated with it and that has an audited net worth of at least $25 million as demonstrated in its latest annual financial statements, as of a date not more than 16 months preceding the date of sale under Rule 144A in the case of a US bank or savings and loan association, and not more than 18 months preceding the date of sale for a foreign bank or savings and loan association or equivalent institution.
How Does a Qualified Institutional Buyer (QIB) Work?
A QIB can be an insurance company, a bank, a 401(k) plan, an employee benefit plan, a trust fund, a business development company (BDC), a charity, or even an entity owned by qualified investors. QIBs are regarded as highly sophisticated entities that do not need as much protection as less sophisticated investors or entities.
Why Does a Qualified Institutional Buyer (QIB) Matter?
QIBs are allowed to buy private placements under SEC Rule 144A. These offerings are generally not registered with the SEC, and therefore they are only available to those whom the courts have found able to fend for themselves. Foreign issuers can also make limited offerings to American QIBs, as legally permissible.
Securities Lawyer
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West Jordan, Utah
84088 United States
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