“I know I have to include financial statements when I file an Offering Statement under Regulation A. When should these statements be dated and what periods should they cover?”
“What ongoing reports do I have to file with the SEC after my Regulation A offering is qualified, and when do I have to file them?”
We hope to answer these questions below.
Types of Financial Statements in the Offering Statement
A Regulation A Offering Statement can require four kinds of financial statement:
- A balance sheet as of the end of a fiscal year
- An interim balance sheet
- A statement of income, cash flows, and changes in stockholders’ equity
- Interim statements of income, cash flows, and changes in stockholders’ equity
Requirements for Financial Statements
In general, the financial statements must be audited in a Tier 2 offering, but not in a Tier 1 offering. However, interim financial statements – balance sheets and statements of income and cash flows – never have to be audited, even in Tier 2.
Audits in Regulation A may be performed using U.S. Generally Accepted Audited Standards or the standards of the Public Company Accounting Oversight Board. The accounting firm that prepares the audit does not have to be registered with the PCAOB.
When Should the Financial Statements in the Offering Statement Be Dated?
This is tricky, because there are not one, but two important dates: the date the Offering Statement is filed with the SEC, and the date it is qualified by the SEC. By definition, the date of qualification is always after the date of filing, by a month in the best of circumstances and often by many months. That means that a financial statement that was timely when the Offering Statement was filed might be “stale” by the time it’s qualified. In that case, you’ll need to submit updated financial statements before qualification.
Thus, read the term “Reference Date” in the chart below to mean the date of filing, when you’re preparing your Offering Statement. But bear in mind that eventually the “Reference Date” will mean the date of qualification. So if you’re close, you might as well use a later date.
Ongoing Reporting under Regulation A
Questions? Let me know.