Publicity Guidelines Form
(Rule 144A and/or Regulation S Offering)

Summary

This publicity guidelines template may be used for a securities offering relying on Rule 144A (17 C.F.R. § 230.144A) and/or Regulation S (17 C.F.R. § 230.901 et seq.). Publicity guidelines set forth the restrictions on publicity and other forms of communication that all offering participants should adhere to in order to comply with the requirements of Rule 144A and Regulation S. This template contains practical guidance and drafting notes. An issuer must comply with certain offering restrictions to rely on Regulation S and Rule 144A. Regulation S, among other things, requires the offer and sale of securities to be made in an “offshore transaction” and prohibits “directed selling efforts” (as defined in Regulation S) in the United States. Prior to the enactment of the JOBS Act in 2012, it was widely understood that general solicitation and general advertising could not be used in a Rule 144A transaction. Pursuant to the JOBS Act, amended Rule 144A now expressly authorizes general solicitation, provided that sales are only made to qualified institutional buyers (QIBs) or persons that the seller and anyone acting on the seller’s behalf reasonably believe to be QIBs. Despite the change in the rules, market practice has largely not changed, and these publicity guidelines do not allow general solicitation or advertising within the United States. The laws of non-U.S. jurisdictions where the offering may be made may also have restrictions on publicity. Local counsel in the primary non-U.S. jurisdiction where the offering will be made should review and comment on the publicity guidelines. Often, local counsel will provide a separate appendix for any additional restrictions on publicity in their countries. You should consult with local counsel in other jurisdictions where the offering will be made as necessary. For a checklist setting forth the key issues that should be addressed in publicity guidelines, see Publicity Guidelines Drafting Checklist (Rule 144A and/or Regulation S Offering). For an overview of the resources available on Rule 144A / Regulation S offerings, see Rule 144A / Regulation S Offerings Resource Kit.