On April 5, 2012, President Obama signed the Jumpstart Our Business Startups Act (“JOBS Act” or the “Act”) into law. While the Act and recent commentary have focused primarily on common equity issuances by “Emerging Growth Companies” (or “EGCs”), the JOBS Act also impacts companies that have issued only debt securities in registered transactions, typically pursuant to an “A/B” exchange for privately offered high-yield debt securities. Many of these companies subsequently become “voluntary filers” of SEC Exchange Act reports to comply with on-going debt covenants.

The attached chart summarizes how certain JOBS Act provisions apply to these debt-only issuers. As indicated in the chart, they may benefit from a number of JOBS Act provisions with regard to their Securities Act registration statements and Exchange Act reports, including:

• potentially indefinite EGC status, assuming the $1 billion revenue, $1 billion debt issuance every three years, and certain other thresholds are never crossed;
• the option to submit to the SEC confidential drafts of Securities Act registration statements for any offering prior to the issuer’s first sale of its common equity securities pursuant to an effective Securities Act registration statement;
• the option to comply with new accounting standards applicable to public companies on the schedule that is applicable to private issuers; and
• the option to provide scaled back executive compensation disclosure.

In addition, after the SEC adopts implementing rules, companies that issue debt securities privately will be permitted to engage in general solicitation and general advertising in connection with offerings made in reliance on Rule 506 of Regulation D and Rule 144A under the Securities Act, just as they will be able to do with respect to equity offerings.

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