On November 3, 2016, the Second Circuit upheld the district court’s ruling involving the Facebook IPO that underwriters of the IPO are not required to disgorge short-swing profits made with their sales and purchases of shares in connection with the offering. Section 16(b) of the Securities Exchange Act of 1934 provides for the recovery by the issuer, in an action brought by the issuer or by a security holder of the issuer, of profits gained by a statutory insider (an officer, director, or more than ten percent “beneficial owner”) from any purchase or sale, or any sale and purchase, of the equity securities of the issuer within a six month period. Section 16(b) is intended to prevent such insiders from profiting from “short-swing” variations in share price. Although the lead underwriters alone did not meet the ten percent threshold, “beneficial owner” under Section 13(d) of the Exchange Act can include a “group.” The appellant argued that the lead underwriters and certain pre-IPO shareholders together formed a “group” under Section 13(d) due to the lock-up agreements between them prohibiting the shareholders from selling their stock for a specified period of time except as permitted by the lead underwriters. The court solicited the opinion of the SEC, as amicus curiae, which stated that a typical IPO lock-up agreement between shareholders and underwriters, standing alone, is not sufficient to establish a “group” under Section 13(d). The court agreed, stating that standard IPO lock-up agreements do not form a “group” of shareholders with respect to application of “short-swing” profit rules. The Second Circuit’s holding provides protection for underwriters entering into standard form lock-up agreements, which are standard for typical IPOs.
The SEC recently adopted rules implementing Title V and Title VI of the Jumpstart Our Business Startups Act (the “JOBS Act”) and Title LXXXV of the Fixing America’s Surface Transportation Act (the “FAST Act”). Title V and Title VI of the JOBS Act, in relevant part, amended Sections 12(g) and 15(d) of the Securities Exchange Act of 1934 (the “Exchange Act”) to adjust the thresholds for registration, termination of registration and suspension of reporting, while Title LXXXV of the FAST Act remedied the omission from the JOBS Act of savings and loan holding companies in the revised thresholds for registration, termination of registration and suspension of reporting. The SEC’s implementing rules under the JOBS Act were originally proposed in December 2014, and the SEC received 11 comments letters that generally supported the proposals. With the adoption of these rule changes, the SEC has completed all rulemaking mandated by the JOBS Act. The amended rules reflect the new, higher registration, termination of registration and suspension of reporting thresholds. The amendments also establish a non-exclusive safe harbor for issuers when determining if securities held by persons who received them pursuant to an employee compensation plan in transactions exempted from the registration requirements of Section 5 of the Securities Act may be excluded when determining whether they are required to register under Exchange Act Section 12(g)(1).
Read our client alert.
Yesterday, May 24, 2016, the Staff of the Securities and Exchange Commission published a Small Entity Compliance Guide that is intended to help issuers navigate the changes to the Exchange Act Section 12(g) threshold in light of the JOBS Act and the FAST Act and the adoption by the Commission on May 3, 2016 of rules implementing the mandates of those two acts.
The Small Entity Compliance Guide provides an overview of the new Section 12(g) thresholds triggering registration, the new “held of record” definition, and the rules related to termination of registration.
Here is a link to the guide: https://www.sec.gov/info/smallbus/secg/jobs-act-section-12g-small-business-compliance-guide.htm.
Today, the SEC Staff issued four additional C&DIs related to the FAST Act, which we have repeated here for convenience.
Question: How did the FAST Act affect Section 12(g) and Section 15(d) of the Exchange Act?
Answer: Section 85001 of the FAST Act amended Section 12(g) and Section 15(d) of the Exchange Act so that savings and loan holding companies are treated in a similar manner to bank holding companies for the purposes of registration, termination of registration or suspension of their Exchange Act reporting obligation. In particular, the FAST Act amends Section 12(g) and Section 15(d) of the Exchange Act as follows:
Savings and loan holding companies, as such term is defined in Section 10 of the Home Owners’ Loan Act, will have a Section 12(g) registration obligation as of any fiscal year-end after December 4, 2015 with respect to a class of equity security held of record by 2,000 or more persons.
The holders of record threshold for Section 12(g) deregistration for savings and loan holding companies has been increased from 300 to 1,200 persons.
The holders of record threshold for the suspension of reporting under Section 15(d) for savings and loan holding companies has been increased from 300 to 1,200 persons. [Dec. 21, 2015]
Question: How do the amendments to Section 12(g)(1)(B) affect the obligations of savings and loan holding companies to register a class of equity security under Section 12(g) where such obligations were triggered as of a fiscal year-end on or before December 4, 2015?
Answer: Under Section 12(g)(1)(B), a savings and loan holding company will have a Section 12(g) registration obligation if, as of any fiscal year-end after December 4, 2015, it has total assets of more than $10 million and a class of equity security held of record by 2,000 or more persons. We consider that the effect of this provision is to eliminate, for savings and loan holding companies, any Section 12(g) registration obligation with respect to a class of equity security as of a fiscal year-end on or before December 4, 2015. Therefore, if a savings and loan holding company has filed an Exchange Act registration statement and the registration statement is not yet effective, then it may withdraw the registration statement. If a savings and loan holding company has registered a class of equity security under Section 12(g), it would need to continue that registration unless it is eligible to deregister under Section 12(g) or current rules. [Dec. 21, 2015]
Question: On or after December 4, 2015, how can a savings and loan holding company terminate the registration of a class of equity security under Section 12(g)?
Answer: If the class of equity security is held of record by less than 1,200 persons, the savings and loan holding company may file a Form 15 to terminate the Section 12(g) registration of that class. Until rule amendments are made to reflect the change to Section 12(g)(4), the savings and loan holding company should include an explanatory note in its Form 15 indicating that it is relying on Exchange Act Section 12(g)(4) to terminate its duty to file reports with respect to that class of equity security.
Pursuant to Section 12(g)(4), the Section 12(g) registration will be terminated 90 days after the savings and loan holding company files a Form 15. Until that date of termination, the savings and loan holding company is required to file all reports required by Exchange Act Sections 13(a), 14 and 16.
Alternatively, a savings and loan holding company could rely on Exchange Act Rule 12g-4, which permits the immediate suspension of Section 13(a) reporting obligations upon filing a Form 15, if it meets the requirements of that rule. Note that Rule 12g-4 has not yet been amended to incorporate the new 1,200 holder deregistration threshold. [Dec. 21, 2015]
Question: On or after December 4, 2015, how can a savings and loan holding company suspend its reporting obligations under Section 15(d)?
Answer: In general, the Section 15(d) reporting obligation is suspended if, and for so long as, the issuer has a class of security registered under Section 12. When an issuer terminates Section 12 registration, it must address any Section 15(d) obligation that would apply once the Section 15(d) suspension is lifted.
For the current fiscal year, a savings and loan holding company can suspend its obligation to file reports under Section 15(d) with respect to a class of security that was sold pursuant to a Securities Act registration statement and that was held of record by less than 1,200 persons as of the first day of the current fiscal year. Such suspension would be deemed to have occurred as of the beginning of the fiscal year in accordance with Section 15(d) (as amended by the FAST Act). If, during the current fiscal year, a savings and loan holding company has a registration statement that becomes effective or is updated pursuant to Securities Act Section 10(a)(3), then it will have a Section 15(d) reporting obligation for the current fiscal year.
If a savings and loan holding company with a class of security held of record by less than 1,200 persons as of the first day of the current fiscal year has a registration statement that was updated during the current fiscal year pursuant to Securities Act Section 10(a)(3), but under which no sales have been made during the current fiscal year, the savings and loan holding company may suspend its Section 15(d) reporting obligation consistent with the guidance in Staff Legal Bulletin No. 18 (March 20, 2010) and GlenRose Instruments Inc. (July 16, 2012). [Dec. 21, 2015]
At today’s meeting of the American Bar Association’s Federal Regulation of Securities Committee meeting in Washington, DC, various representatives from the Securities and Exchange Commission provided some comments and updates.
During his presentation, the Director of the Division of Corporation Finance, Keith Higgins, reviewed the Staff’s current priorities, which also had been identified by Chair White in her Congressional testimony earlier in the week. Mr. Higgins noted that the Division continues its work with FASB regarding the types of information required by FASB in notes to financial statements included in registration statements and the requirements under Regulation S-K and Regulation S-X for certain accounting policy related disclosures in order to identify, among other things, possible areas of repetition that could be addressed in connection with the ongoing disclosure simplification review. He noted that work continues in order to address the three remaining executive compensation related rulemakings under the Dodd-Frank Act. Mr. Higgins noted that the accredited investor review is expected to be completed soon (within the next 90 to 120 days). Also, it is anticipated that the Commission will complete the actions required by the JOBS Act relating to the Exchange Act Section 12(g) threshold. Mr. Higgins also briefly reviewed the proposed amendments to Rule 147. He noted that many questions had been received regarding the process or level of Staff review of Regulation A offering statements and noted that the process for review is substantially similar to the process for review of IPO registration statements. Mr. Higgins noted that the Staff always takes into account in its review a sense of scale that is informed by the type of issuer, sophistication of the issuer, risks presented and other similar factors.
David Frederickson, Chief Counsel in the Division of Corporation Finance, reviewed the recent guidance on general solicitation and pre-existing substantive relationships. In this context, he noted that most of the guidance was in the nature of a restatement or clarification of prior Staff guidance and positions. Mr. Frederickson noted that, as a baseline, if an issuer is using the internet and providing information about an offering without password protection, such that the information is generally available, that would be viewed as a general solicitation. However, as noted in the C&DIs (and prior Staff guidance), there are many types of communications, such as ordinary course business communications, that would not be viewed as constituting a “general solicitation.” The guidance regarding pre-existing substantive relationships, he noted, refocuses the analysis on the nature of the relationship. A relationship is substantive if the issuer or an agent acting on its behalf have enough information to evaluate and do in fact evaluate a prospective investor’s financial situation and sophistication. He noted that there is no “magic” period of time that would be viewed as necessary to establish that a relationship is pre-existing (other than a reference in the Lamp Technologies no-action letter). The relationship must have been formed before the offering has commenced as to the individual (when the individual was contacted about the offering). Mr. Frederickson also commented on the recent CitizensVC no-action letter, which extends to an investment adviser the ability to establish a pre-existing substantive relationship. Mr. Frederickson noted that a new issue addressed in the recent C&DIs is a framework for thinking about contact with established networks, such as angel networks. To this end, if the issuer can form a reasonable belief that members of an angel network have the appropriate level of sophistication, communications to the members would not constitute a general solicitation. Of course, these matters are always based on the particular facts and circumstances and a determination as to whether a communication is a general solicitation would be influenced by various factors, including, among others, the number of people contacted, the financial sophistication of offerees, and the nature of the outreach (whether a communication is directed and bilateral or general, not targeted and impersonal). Similarly, depending on the facts and circumstances, communications at demo days may be an offering of securities if such details are discussed.
As is customary for similar public appearances, the regulators reminded audience members that the views expressed reflected those of the individual participants, and not necessarily those of the Commission.
Today, the SEC voted to adopt final rules permitting crowdfunding. Regulation Crowdfunding allows issuers to engage in securities-based crowdfunding through the internet pursuant to Section 4(a)(6) of the Securities Act. The final rules reflect an effort to address some of the concerns raised during the comment process, and appear to provide some greater flexibility for issuers.
As required by statute, the Regulation allows an issuer to raise up to $1 million in any 12-month period. An individual who invests in crowdfunded offerings is subject to an investment limitation; if the individual’s annual income or net worth is less than $100,000, then the greater of $2000 or 5% of the lesser of their annual income or net worth, but not to exceed $100,000. If both annual income and net worth are over $100,000, then 10% of the lesser of the individual’s annual income or net worth. This limit applies to crowdfunded offerings generally, not a specific crowdfunded offering.
An issuer is required to use an intermediary, which is registered as either a broker-dealer or a funding portal, as discussed below.
As noted above, although the final rules are quite complex, the final rules do appear to have taken into account some of the issues raised by commenters. An issuer must prepare certain disclosures in connection with any crowdfunded offering. There will be a new optional Q&A option for disclosure requirements, which may help reduce costs for an issuer and perhaps may be easier to navigate for a first-time issuer.
The final rules also appear to provide some relief with respect to the financial statement requirement, which had been a concern raised by commenters. The final rules would require financial statements prepared in accordance with US GAAP for the issuer’s two most recently completed fiscal years (assuming the issuer has been in operation for such period). The financial statement requirements are phased depending on the amount being raised. If the issuer proposes to offer $100,000 or less, then the financial statements must be reviewed and certified by the issuer’s chief financial officer. If the issuer is raising more than $100,000 and less than $500,000, the financial statements must be reviewed by an independent accountant. For amounts in excess of $500,000, financial statements must be audited. There will also be an accommodation for first-time issuers allowing financial statements to be reviewed rather than audited (unless audited statements are otherwise available). The financial statement requirement for the annual report also appears to have been revised from the proposed rule.
The final rules also appear to provide some relief in relation to the requirement to file annual reports following the completion of a crowdfunded offering.
The securities sold in a crowdfunded offering will be transfer-restricted for one year and will be exempt from the Exchange Act 12(g) threshold provided that the issuer satisfies certain conditions, including, among other things, a requirement to retain a registered transfer agent and not exceed $25 million in assets.
Final rules also are adopted relating to the registration and regulation of intermediaries. A funding portal must file a Form Funding Portal with the SEC and become a FINRA member firm. Our earlier post discussed FINRA’s rule filing for the final rules regulating funding portals. The intermediary in a crowdfunded offering serves an important gatekeeper and educational function. An intermediary must, among other things, open an account for each investor before an investor makes an investment commitment, provide educational materials to prospective investors, make issuer information available throughout offering period and for the required 21-day public offering period, and obtain information from each investor sufficient to provide a reasonable basis for compliance with the individual investor investment limitation.
Effective date: the new rules and the forms will become effective 180 days following Federal Register publication. Forms permitting registration with the SEC by funding portals will be effective January 29, 2016.
We will be supplementing this very preliminary summary with the materials released by the SEC, as well as by a detailed client alert detailing and analyzing the final rules.
Chair Mary Jo White’s statement may be accessed here:
Commissioner Stein’s remarks on the proposed amendments to Rule 147 and Rule 504:
Commissioner Stein’s statement on final crowdfunding rules:
Commissioner Aguilar’s comments on final crowdfunding rules and on the proposed amendments to Rule 147 and Rule 504:
Following the House Financial Services Committee mark-up session, HR 701 and HR 801 were both approved by voice vote. Yesterday, a bill was introduced in the Senate by Senator Toomey, S.872, to amend the Securities Exchange Act of 1934, to make the shareholder threshold for registration of savings and loan holding companies the same as for bank holding companies.
Today, May 7, 2013, the House Committee on Financial Services will mark up two JOBS Act related bills, HR 701 and HR 801. HR 701 would require that the SEC take action to implement rules under Title IV of the JOBS Act (the provisions related to Section 3(b)(2) or “Regulation A+”) by October 31, 2013. HR 801 would address an omission in the JOBS Act and make clear that Title VI of the JOBS Act is to raise the Exchange Act threshold for savings and loan companies from 500 shareholders of record to 2,000 shareholders of record (with no limitation on the number of non-accredited investors) and to raise the threshold for a savings and loan company to terminate its SEC registration from 300 shareholders of record to 1,200 shareholders of record. See the memo here: http://financialservices.house.gov/calendar/eventsingle.aspx?EventID=332411
Any milestone, such as an anniversary, provides an opportunity for reflection and evaluation. At the one-year anniversary of the JOBS Act, preliminary experience gives reason for some optimism. The centerpiece of the JOBS Act, the “IPO on-ramp” provisions contained in Title I, have proven quite useful. The SEC Staff’s guidance in the form of Frequently Asked Questions (or FAQs) promptly filled the gaps in the legislation and helped facilitate prompt reliance on these new provisions. It would be too soon to draw conclusions regarding the impact of the on ramp on IPOs in general, and smaller IPOs in particular. The provisions relating to the Exchange Act threshold, which also were immediately effective, have already been relied upon by many smaller banks to suspend their ongoing reporting. Most of the other provisions of the JOBS Act await further SEC rulemaking. Below we provide a very brief “cheat sheet” of the status of the various provisions. We believe that it is fair to say though that the JOBS Act has already had a profound effect on capital formation by restarting an important dialogue on SEC disclosure requirements and permissible communications that seemed to come to an end just after the Securities Offering Reform in 2005, when attention turned to executive compensation disclosures, corporate governance concerns, and ultimately the financial crisis. The JOBS Act also has served to bring greater general awareness of the important changes that have taken place in the last decade in the way that promising companies choose to finance their growth. Finally, even for the non-securities lawyers among us, the JOBS Act has focused attention on the divide between public and private offerings—challenging all of us to think more closely about the appropriateness of certain existing regulations that seem more and more “artificial” in the face of social media and other developments.
Title I (the IPO on-ramp)
- This Title was immediately effective, so no SEC rules were required for this title to take effect.
- The “IPO on-ramp” provisions generally have proven helpful for companies undertaking IPOs:
- The SEC Staff immediately put out guidance in the form of FAQs.
- Market participants have been cautious in relying on some of the accommodations available to EGCs; however, over time, market practice may shift.
- Most EGCs are still presenting three years of financial information (instead of the permissible two years).
- Most EGCs are taking advantage of the ability to present abbreviated executive compensation disclosures.
- Most EGCs are taking advantage of the ability to submit their IPO registration statements for confidential review by the SEC, and relying on the confidential process for at least one or two rounds of SEC comments, before the first public filing.
- EGCs also are benefiting from the delayed phase-in of other costly compliance requirements, like the Sarbanes 404 attestation requirement.
- Now, at the one-year anniversary, a fair number (just over 100) of EGC IPOs have been completed.
- Statistics indicate an increase in smaller IPOs, which, in part, was one of the desired outcomes of the JOBS Act.
- In addition to providing a new approach for EGC IPOs, Title I also addresses analyst research issues, and requires that the SEC undertake several studies.
- Even after the JOBS Act, the unlevel playing field remains as to research, as a result of the Attorney General Settlement, the terms of which have not been modified.
- FINRA modified its rules in accordance with the JOBS Act.
- Most investment banks now have settled (informally) on a 25-day post IPO quiet period before publishing research following completion of an IPO.
- There is no evidence that investment banks are interested in releasing pre-deal research reports for EGCs.
- Additional regulatory changes would be needed in order to promote additional research coverage for EGCs.
- The SEC published the required decimalization study and held a decimalization roundtable; a consensus has formed that a pilot program should be initiated for larger tick sizes.
- The required study on Regulation S-K has not been delivered.
Title II (Private placements)
- The SEC proposed rules in August 2012 to carry out the JOBS Act mandate to relax the ban on general solicitation
- The comment period closed in October 2012; however, the rules have not been finalized.
- There was vigorous comment on the SEC’s proposed rules, with some commenters advocating the adoption of a safe harbor relating to the measures that would be deemed “reasonable” to verify the status of investors; the adoption of content restrictions or guidelines for materials used in general solicitation; and a reexamination of the “accredited investor” threshold.
- We anticipate that the SEC will seek to finalize the rules in the spring, and seek to finalize the “bad actor” provisions (required to be adopted for Rule 506 offerings by the Dodd-Frank Act) contemporaneously
- Matchmaking sites
- There were no rules needed in respect of the broker-dealer registration exemption for matchmaking sites
- The SEC Staff put out guidance in the form of FAQs addressing various matters relating to the types of entities that might engage in these activities without subjecting themselves to broker-dealer registration.
- The SEC Staff issued two no-action letters addressing the applicability of the exemption in the context of VC platforms.
Title III (crowdfunding)
- No SEC rule proposal as yet (SEC missed deadline)
- The SEC Staff published FAQs regarding the crowdfunding exemption.
- FINRA has provided a form for collecting information about funding portals.
- Concerns remain about the extent to which the crowdfunding exemption as contemplated by the JOBS Act could be used by ventures to raise small amounts of capital in a cost-efficient manner.
Title IV (Regulation A+ or Section 3(b)(2))
- No SEC rule proposal as yet.
- Now, pending legislation would mandate that the SEC take action by a date certain.
Titles V & VI (Exchange Act threshold)
- These provisions relating to the Exchange Act threshold were immediately effective; SEC rulemaking was not required.
- Many banks (over 100, according to published reports) have taken advantage of these provisions to suspend their SEC filings.
- The SEC is expected to provide guidance regarding various “holder of record” issues.
What should you expect in the coming months? We anticipate that the SEC will move ahead with finalizing the rules required under Title II to address general solicitation in certain Rule 506 and Rule 144A offerings. We expect that this will be accompanied by the final “bad actor” rules required under the Dodd-Frank Act. The discussion about general solicitation is likely to cause the SEC to revisit the “accredited investor” definition—perhaps resurrecting parts of the SEC’s 2007 “larger accredited investor” standard. Given the complexities to be addressed by the SEC and FINRA in connection with creating a framework for crowdfunded offerings and funding portals, we anticipate that a proposal relating to crowdfunding may not be released until the second half of 2013. As we have already seen from meetings of various advisory committees, more attention likely will continue to be focused on rationalizing the disclosure requirements and the communications rules applicable to smaller public companies and companies that might have qualified for EGC status (but for the date of their initial offering of equity securities). Given the higher registration thresholds under the Exchange Act, we may continue to see the development of a trend toward staying private longer, and the growth of markets designed to provide liquidity to investors in those companies. Given the press of other business under both the JOBS Act and the Dodd-Frank Act, we may not see a proposal for exempt public offerings under Title IV in 2013. Lastly, we would hope that the momentum toward encouraging capital formation that was created by the JOBS Act will not be lost in its second year of existence, and we will instead see continued dialogue—coupled with regulatory and market action—that is oriented toward creating opportunities to put capital to work companies of all sizes.
On November 28, 2012, Representatives Steve Womack (R-Ark.) and Jim Himes (D-Conn.) asked SEC Chairman Schapiro to extend to savings and loan holding companies (SLHCs) the benefits of the JOBS Act increase in the Exchange Act shareholder registration threshold from 500 to 2,000 for banks and bank holding companies. Similarly, the JOBS Act-mandated increase in the deregistration threshold for banks and bank holding companies from 300 to 1,200 should also be made available to SLHCs. They noted that, as sponsors of the original bill, they had not intended to treat SLHCs differently from banks and bank holding companies. While these JOBS Act changes were effective on enactment, the letter stated their hope that the SEC, when it updated its rules to reflect the JOBS Act changes, would, consistent with the intent and purpose of the JOBS Act, treat SLHCs in the same manner as bank holding companies.