Press Release
(Rule 144A/Regulation S Debt Offering; including Related Disclosure on Form 8-K)

Summary

This template press release may be adapted for the launch, pricing, or closing of a concurrent unregistered offering of debt securities made (1) within the United States in reliance on Rule 144A (17 C.F.R. § 230.144A) under the Securities Act of 1933, as amended (Securities Act) and (2) outside of the United States in reliance on Regulation S (17 C.F.R. § 230.901 et seq.). Guidance on special considerations regarding the timing and content of a press release for concurrent Rule 144A/Regulation S debt offerings is included. Sample language for related disclosure on Form 8-K is also included for reporting issuers that may elect to assure compliance with Regulation FD by filing the press release with the Securities and Exchange Commission (SEC) as an exhibit to the Form 8-K. This template includes practical guidance, drafting notes, and optional clauses. Note that prior to the enactment of the JOBS Act, industry practice regarding Rule 144A offering press releases was to comply with Rule 135c (17 C.F.R. § 230.135c) under the Securities Act, which limited the information that could be provided regarding the offering. Press releases compliant with Rule 135c are not considered an “offer” to the general public (which was restricted under the previous version of Rule 144A) and are not “directed selling efforts” resulting in the loss of the Regulation S safe harbor. As of September 2013, however, Section 201(a)(2) of the JOBS Act amended Rule 144A to allow general solicitation and general advertising, as long as the securities are sold only to qualified institutional buyers (QIBs). This amendment to Rule 144A changed industry practice regarding press releases related to Rule 144A offerings, expanding the scope of information that issuers may include in such press releases without jeopardizing the Rule 144A exemption. In addition, the use of general solicitation in a Rule 144A offering does not constitute directed selling efforts with respect to the concurrent Regulation S offering. Counsel should also note that press releases related to concurrent Rule 144A/Regulation S Debt Offerings must comply with the anti-fraud liability provisions of Rule 10b-5 (17 C.F.R. § 240.10b-5) promulgated under the Securities Exchange Act of 1934, as amended (Exchange Act), and thus should be consistent with the disclosure in the offering memorandum. Further, to assure compliance with Regulation FD, reporting issuers typically will file the following press release on Form 8-K simultaneously with its release. Reporting non-U.S. issuers, although not subject to Regulation FD, may elect to furnish the press release on Form 6-K. For an overview of the resources available on Rule 144A and Regulation S offerings, see Rule 144A / Regulation S Offerings Resource Kit.