Relief in Criteria for Individual Classified Investors in Connection with Private Offering of Securities in Israel

• On February 24, 2016 the Minister of Finance issued an order amending the criteria for qualifying as an individual sophisticated investor for the purpose of private placement/offering of securities under the Israeli Securities Law, 1968. The amendment will become effective within 30 days from the date of its publication.
• The amendment consists of relief in these criteria, principally the cancellation of the criteria requiring experience or expertise in the capital markets and a minimum number of transactions, a decrease in the required threshold of liquid assets from NIS 12 million to NIS 8 million, and the addition of an alternative criteria of annual income or a combination of liquid assets and annual income with lower thresholds.
• The offeror must verify the existence of the conditions in accordance with the Israel Securities Authority (ISA) position of the ISA as previously published by the ISA.
• The criteria for an individual eligible client under the Regulation of Investment Advice, Investment Marketing and Portfolio Management Law, 1995 remain unchanged, resulting in a difference between the definition of an individual sophisticated investor for purposes of private placements/offerings under the securities law and the definition of an individual eligible client under the Advice law for the purposes of exemption from the licensing requirements in providing investment advice, investment marketing or portfolio management services.

General

The Israeli Securities Law, 1968 (the “Law“) establishes rules for the public offering of securities in Israel. Among others, the Law provides that the offer or sale of securities to the public in Israel requires publication of a prospectus approved by the Israel Securities Authority (“ISA“). The Law further states that an offer or sale of securities made to “sophisticated investors” listed in the first supplement to the Law (the “Classified Investors“) does not constitute a public offering – such offer is also known as private placement or offering.

Among the “Classified Investors” listed in the first supplement to the Law, item 12 to the supplement refers to an individual (natural person) investor who meets certain criteria. On February 24, 2016, the Securities Order (amendment of the first Addendum to the law), 2016 was published. The Order provides relief to such criteria and will become effective 30 days following its publication.

The Former Criteria for Individual “Classified Investors”

Before the Order becomes effective, in order for an individual to be considered as a Classified Investor, at least two of the three following criteria[1] (the “Former Criteria“) must be satisfied:

• the total value of liquid assets (deposits, financial assets and securities) he/she owns is more than NIS 12 million (currently approximately USD 3 million);

• he/she has expertise and skills in the capital market or was employed for at least one year in a professional position that requires expertise in the capital markets; and

• he/she made at least 30 trades, on average, in each of the previous four quarters.

The New Criteria for Individual “Classified Investors”

The Order amends the criteria for individual Classified Investors in two ways: (a) by cancelling the second criterion of expertise or experience and the third criterion of performance and minimum transactions; and (b) by lowering the threshold of liquid assets (in the first criterion) and adding two other alternatives – (i) minimum annual income and (ii) minimum annual income and minimum liquid assets with lower thresholds.

Accordingly, item 12 to the first supplement to the Law was amended to provide that an individual will be considered as Classified Investor for purposes of the private placement/offering of securities if he/she meets at least one of three new criteria:

• the total value of its liquid assets[2] exceeds NIS 8 million (currently approximately USD 2 million);

• its income in each of the last two years exceeds NIS 1.2 million (currently approximately USD 308 thousand) or the income of its family unit[3] exceeds NIS 1.8 million (currently approximately USD 462 thousand); or

• the total value of its liquid assets exceeds NIS 5 million (currently approximately USD 1.3 million) and either its income in each of the last two years exceeds NIS 600,000 (currently approximately USD 154 thousand) or such income of its family unit exceeds NIS 900,000 (currently approximately USD 231 thousand).

Method for Verifying the Compliance of an individual with the Classified Investor Criteria

In accordance with the first supplement to the Law, for purposes of private placements/offerings to Classified Investors, it required to receive from each such investor, including individual investors, prior to any purchase of securities its written consent that he/she meets the conditions listed above and that he/she is aware and agrees to the consequences of being such investor.

With respect to an individual Classified Investor (as well as certain corporations), the ISA has previously published its position[4] (the “ISA Position“) concerning the method of verifying compliance by an individual Classified Investor with the eligibility criteria.  Currently, this position remains unchanged (although it may be adapted to the wording of the Order) and was strengthened in light of the requirement in the Order that the offeror of the securities will examine the Classified Investors.

According to the ISA Position, in order to verify compliance of an individual with the eligibility criteria regarding liquid assets, the offeror has two alternatives:

• obtain written approval of an accountant, lawyer, or in appropriate circumstances other external body, which the offeror has reasonable grounds to rely on, certifying that it took reasonable measures (apart from the investor’s declaration) to verify that the investor complies with the definition, and specifying those measures; or

• carry out the examination of the investor compliance independently, while relying on external evidence and information presented to it by the investor.

We assume that it is possible to implement those verification methods also regarding the income alternative (or the alternative which combines income and liquid assets).

According to the ISA Position, the verification of the offerees eligibility criteria listed above must be performed on the date of the sale (prior to the sale), while on the date of the offer it is sufficient to obtain the offeree’s declaration with respect to its compliance with the eligibility criteria.

The ISA Position also states that if a sale is made to the same Classified Investor within a period of one year from the date on which its compliance was verified in the manner described above, it is sufficient to obtain its declaration that it still meets the eligibility criteria (provided the offeror does not know otherwise and believed in good faith that the investor is still Classified Investor).

The Regulatory Difference between the Advice Law and the Securities Law

The Advice Law stipulates that investment advice, investment marketing or portfolio management services require a license, except in circumstance determined under the law. One exception relates to the provision of such services to eligible clients, including individual who meets the Former Criteria.

As noted above, the Order amended the criteria for individual Classified Investors for purposes of the Securities Law. However, no similar amendment was made to the criteria for eligible clients under the Advice Law, although originally the ISA proposed to apply the amendment also to the Advice Law.

Because the Order modifies the first supplement to the Securities Law without any corresponding change in the Advice Law, it created a regulatory difference between the exemption from the licensing requirement under the Advice Law and the exemption for private placements/offerings under the Securities Law. This gap is particularly relevant to anyone who provides investment advice services, investment marketing or portfolio management services to eligible clients in Israel without a license (such as certain foreign banks and asset managers) because even if apparently it can offer in Israel securities or financial assets without a prospectus to individual investors who meets the new criteria prescribed in the Order, practically it will not be able to provide them with advisory services in connection with the products if the investors do not meet the Former Criteria pursuant to the Advice Law.

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[1] Item 12 of the first supplement to the Securities Law refers to item 9 in the definition of “eligible client” in the first supplement to the Regulation of Investment Advice and Investment Portfolio Management Law, 1995 (the “Advice Law“).

[2] The term “liquid assets” is defined in the Order as cash, deposits, financial assets (units or shares in registered funds, options, futures contracts, structures and professional training funds), and traded securities.

[3] The term “family unit” is defined in the Order as an individual and his/her family members who live with him or whose livelihoods are dependent on each other.

[4] Legal staff position number 103-35: “Private offering to sophisticated investors”.

For further information regarding this newsletter, please contact via phone or email to Ofer Hanoh, Adv., head of our banking, insurance and financial services department (at Ofer@gkh-law.com or 03-6074510) or to Yigal Binyamini, Adv., partner in our banking, insurance and financial services department (Yigalb@gkh-law.com or 03-6074510).

This alert is prepared as an informational service to clients and colleagues of Gross, Kleinhendler, Hodak, Halevy, Greenberg & Co. (GKH) and the information presented is not intended to provide legal opinions or advice. Readers should seek professional legal advice regarding the matters about which they are particularly concerned.