NASDAQ Private Markets and Morrison & Foerster recently discussed the conditions a private company must satisfy in order to rely on Rule 506 for a private placement.  In this video blog, Anna Pinedo highlighted general reminders related to conducting a private placement; general solicitation considerations; approaching accredited and non-accredited investors; bad actor requirements; and Form D filings.

To watch this video, visit the NASDAQ Private Markets Resource Center.

 

On November 14, 2017, SEC Chief Accountant Wesley R. Bricker gave remarks before the Financial Executives International 36th Annual Current Financial Reporting Issues Conference: Effective Financial Reporting in a Period of Change. Mr. Bricker began his speech by discussing the SEC’s focus on maintaining fair capital markets and the far reaching impact of the SEC’s reporting requirements. Highlights of the speech include the following:

  • New GAAP Standards: Mr. Bricker highlighted new GAAP standards in the area of revenue, leases and financial instruments, and he indicated that the SEC Staff is available for consultation on the new standards.
    • The new revenue standard was first released in 2014 but is now in the final stage of implementation. Mr. Bricker stressed the importance of effective internal controls during this transition period. He also suggested that applications of the new standard should be supported by proper documentation.
    • The new lease standard will be effective in 2019 for calendar-year companies and will result in assets and liabilities being recorded for most leases. Both the revenue and lease standards require reasonable judgment in certain areas and Mr. Bricker noted that while not required, a best practice is for companies to commence efforts to implement the new leases standard concurrently (or partially concurrently) with the new revenue standard.
    • Finally, with respect to the credit loss standard, FASB’s goal was to improve the usefulness of financial instrument reporting for users of financial statements. To do this, FASB developed a credit loss model that results in timelier reporting of credit losses. Bricker expressed his support for the review by U.S. prudential regulators, called upon by the U.S. Treasury, with a view towards harmonizing the application of the credit loss standard with regulators’ supervisory efforts.
  • The Auditor’s Reporting Model: Mr. Bricker next discussed the SEC’s recent approval of a new PCAOB standard which will result in substantial changes to the independent auditor’s report. He explained that these changes stem from input received over the last seven years and that the changes were unanimously approved by the SEC. One such change is that beginning with auditors of fiscal years ending on or after June 30, 2019, reports on large accelerated filers will include communication about critical audit matters. This requirement will cause the auditor to provide his or her perspective on matters that were communicated with the audit committee and involve subjective or challenging cases of judgment. Mr. Bricker encouraged auditors to update their methodologies, provide training, and, at the engagement team level, use the transition period for the implementation of the new standard to engage in dialogue with audit committees so that audit committees have time to understand the types of matters that may be communicated as critical audit matters in the audit reports. Bricker also indicated that during the phased effective dates (audit reports with communication of critical audit matters will be required for large accelerated filers 18 months before being required for all others) the SEC Staff will review carefully the results of the post-implementation procedures and work with the PCAOB as it considers whether additional changes to the requirements are needed, including to the implementation date for non-large accelerated filers.

A copy of the speech is available at: https://www.sec.gov/news/speech/speech-bricker-2017-11-14.

During the recent PLI Seminar on Securities Regulation that took place in New York City on November 8-10, 2017, panelists briefly discussed the recent decisions by major index providers to change their index eligibility rules and limit the inclusion of companies with multi-class capital structures. For example, in July 2017, S&P issued a press release announcing a methodology change for multi-class shares following its consultation published on April 2017 (see our prior blog post available here). The panel noted, among other things, the concern that such actions may discourage private companies from going public and may impose costs on retail investors that can be avoided by larger investors.

On November 9, 2017, BlackRock issued a statement expressing its disagreement with index providers’ decisions to exclude certain companies from broad market indices due to governance concerns.  BlackRock noted that the benchmark indices should be as expansive and diverse as the underlying industries and economics whose performance they seek to capture.  BlackRock further noted that such exclusions may limit BlackRock’s index-based clients’ access to the investable universe of public companies and deprive them of opportunities for returns.  BlackRock, like many other critics, believe that it should be the role of regulators or stock exchanges, rather than index providers, to address the issue of unequal voting structures, including non-voting shares.  A copy of BlackRock’s statement may be found here.

A few days earlier on November 2, 2017, MSCI announced that it planned to broaden the consultation on the treatment of shares with no voting rights within the MSCI Equity Indexes, to include a discussion on the treatment of all types of unequal voting structures (the “Consultation”).  The Consultation follows an earlier consultation on a proposal to exclude non-voting shares from the MSCI Global Investable Market Indexes (GIMI) and MSCI US Equity Indexes in cases where the company level voting power is less than 25%.

MSCI also announced that it will temporarily treat any securities of companies exhibiting unequal voting structures as ineligible for addition to the MSCI ACQI IMI and MSCI US Investable Market 2500 Index.  Specifically, a security will be temporarily ineligible if it belongs to a company that has multiple classes of equity securities and that exhibits any of the following characteristics:

  • Shareholder voting rights are not proportionate to their economic interest
  • Any share class has restrictions on voting on agenda items
  • Voting rights for any share class are conditional upon certain events

The temporary treatment does not affect any current index constituents, and only applies to the potential additions of securities during regular Index Reviews as well as early inclusion of securities.  A summary of the temporary treatment may be found here.

This month, Deloitte & Touche LLP released its annual study on the Securities and Exchange’s (“SEC”) recent comment letters.  The 2017 study notes a decline in the overall number of SEC reviews with comment letters and in the number of SEC comments issued over the past several years.  In 2017, 1,491 comment letters were issued by the SEC, a 13% decline from 2016 and 54% decline over the prior five-year period.  The SEC has attributed this trend to the effectiveness and transparency of the review process and improved financial reporting by issuers.  The number of comments per review has also declined steadily over the five-year period, with 1.33 comments received on average by registrants, and only 20% of issuers receiving two or more comments in a review.

In the report, Deloitte identified the most frequently addressed areas in SEC comment letters:

  • Non-GAAP financial measures overtook MD&A as the top topic addressed in reviews with comment letters and overall comment letters issued by the SEC. 474 reviews with comment letters relating to non-GAAP measures accounted for 43% all reviews in 2017.  The number of comment letters on this topic represented a decline from the prior year, however, as registrants have revised annual disclosures to address prior SEC comments.
  • MD&A disclosures have continued to be a leading source of SEC comments (18% of all reviews in the past year), with a particular focus on uncertainties affecting results of operations, estimates in critical accounting policies, liquidity and capital resources, disclosure of contractual obligations, early-warning disclosures and income tax disclosure.
  • Additional topics heavily represented in SEC comment letters issued in 2017 include disclosures relating to fair value, segment reporting and revenue recognition.

Last, the report offered an analysis of the specific filing status and revenues of issuers who received SEC comment letters in recent years:

  • While large accelerated filers have consistently been subject to the most reviews with comment letters since 2013 (56%), large accelerated filers have only accounted for 29% of the filed 10-Ks over the same five year period.

Companies that have generated more revenue have received a disproportionately higher number of reviews with comment letters than companies generating less revenue.  Since 2013, on average, issuers generating $1 billion or more revenue accounted for 44% of the reviews with comment letters, although they only represented 21% of the filed Form 10-Ks eligible for review.

Monday, November 20, 2017
10:30 a.m. – 2:00 p.m.

The Fairmont Royal York
100 Front Street West
Toronto, ON M5J 1E3
Canada

Please join us for one (or both) of our sessions.

During the first session, our speakers will provide an overview of debt capital market trends in 2017 and what to expect in the months ahead. We will discuss some of the regulatory developments that are, and will continue to, impact issuances by financial institutions, including the Canadian banks. In particular, we will discuss issuance trends for financial institutions in the United States, the prospects for regulatory burden relief and tax reform, and related matters. We will also discuss the bail-in regime in Canada and the proposed TLAC requirement. Lastly, we will discuss recent NVCC issuances in the United States by Canadian banks, as well as other funding activity, including covered bonds.

During the second session, our speakers will discuss the application of blockchain in financial services, payments and financial products with a focus on use cases. In particular, we will discuss the applicable regulatory and tax considerations in the United States and conclude with some tips to assist the audience in navigating these regimes.

Session 1: Debt Capital Markets, Regulatory Developments & Market Outlook
10:30 a.m. – 12:00 p.m.

  • Overview of the debt capital markets;
  • Issuance levels and trends;
  • What to expect in the months ahead;
  • U.S. regulatory developments;
  • Canadian regulatory developments;
  • NVCC issuances; and
  • Modifying issuance programs for the bail-in regime.

Speakers:

  • Tom Connell
    Managing Director, Standard & Poor’s
  • Bryan Farris
    Associate Director, UBS Investment Bank
  • Peter Hamilton
    Partner, Stikeman Elliott LLP
  • Ahmet Yetis
    Americas Head of Capital Solutions, UBS Investment Bank
  • Oliver Ireland
    Partner, Morrison & Foerster LLP
  • Anna Pinedo
    Partner, Morrison & Foerster LLP

Lunch: 12:00 p.m. – 12:30 p.m.

Session 2: Blocked? Navigating the U.S. Regulatory and Tax Regimes Applicable to Blockchain
12:30 p.m. – 2:00 p.m.

  • What is blockchain and how does it work?;
  • Which laws apply?;
  • Timing, finality, and enforceability;
  • System accountability and responsibility;
  • Use cases;
  • Digital tokens, token sales, and U.S. regulation;
  • IRS Notice 2014-21;
  • Case study: Department of Justice Coinbase summons; and
  • Interesting issues relating to taxation of financial instruments and crypto.

Speakers:

To register for this program, or for more information, please click here.

Now offered as a webinar

Tuesday, November 14, 2017
8:30 a.m. – 9:30 a.m. Eastern

Our speakers will review and discuss SEC and FASB developments that registrants and directors should consider as they prepare their Forms 10-K, including the following:

  • Use of Non-GAAP financial measures;
  • Comment letter trends;
  • Updating your MD&A;
  • New revenue recognition standard;
  • Developments in derivatives/hedge accounting;
  • New lease accounting rules; and
  • New credit impairment rules.

Speakers:

NY and CA CLE credit is pending.

To register, please click here.

The SEC’s Investor Advisory Committee announced its next meeting on December 7, 2017, beginning at 9.30 am.  The agenda for the meeting includes a discussion of a recommendation of the Investor as Purchaser Subcommittee regarding electronic delivery of information to retail investors;  a discussion regarding retail investor protections and transparency in municipal and corporate bond markets; a discussion regarding cybersecurity risk disclosures; a discussion regarding dual-class share structures; and a discussion regarding retail investor disclosure.  The meeting is open to the public and will also be webcast on the SEC’s website.

On November 9, 2017, the House of Representatives passed H.R. 2201, the Micro Offering Safe Harbor Act, by a vote of 232-188.  The bill proposes to amend the Securities Act of 1933 to exempt certain micro offerings from state regulation of securities offerings and federal limitations relating to interstate solicitation.  In order to qualify for the exemption, a micro offering must have a purchaser that has a substantive preexisting relationship with the issuer; no more than 35 purchasers relying on the exemption during the 12-month period preceding the transaction; and the amount of all securities sold by the issuer does not exceed $500,000, during the 12-month period preceding the transaction.  House Financial Services Committee Chairman Jeb Hensarling noted that this “…bill will help unlock seed capital for small businesses and startup companies.”

Below, a continuation of our bibliography of thought-provoking articles on issues related to right-sizing regulation, staying private versus going public, and related topics:

The Decline in IPOs and the Private Equity Market

In their piece, “The Evolution of the Private Equity Market and the Decline in IPOs,” Michael Ewens and Joan Farre-Mensa discuss the decline in the number of initial public offerings in the United States in recent years and how it has impacted the ability of startups to finance.  The authors focus on venture-backed startups.  Interestingly, the paper notes that the percentage of M&A exits has remained fairly constant since the early 1990s.  Many commentators in the popular press have suggested that the number of M&A exits had increased, therefore negatively affecting the number of U.S. IPOs.  Prior to 1997, approximately 87% of startups with over 200 employees went public and of those with over $40 million in sales 67% undertook IPOs.  Since 2000, the fractions have declined to 29% and 30% respectively.  Private capital has filled the breach and as a result the decline in the number of IPOs has not negatively affected the ability of companies to raise capital.  In part, the authors attribute the change to a reduction in the costs associated with remaining a private company.  The authors also discuss changes in the private markets.  For example, the paper shows that VCs have changed how they deploy their capital, with a greater percentage of their investments being devoted to late-stage investments (as opposed to earlier stage companies).  Non-VC investors have provided a very significant percentage of financing in late-stage rounds.  These investors include private equity funds, corporations making minority investments, mutual funds and hedge funds and investment banks.

Up-C IPOs

A blog reader recently shared with us a paper titled “Private Benefits in Public Offerings:  Tax Receivable Agreements in IPOs,” written by Gladriel Shobe.  The paper considers some of the criticisms of up-C IPOs as a result of the tax receivable agreements put in place in these transactions.  For background on up-C IPOs, see our Practice Pointers.  The paper notes that in recent years, 5% of IPOs included use of tax receivable agreements (“TRAs”).  The author identifies three “generations” of TRAs.  The first generation from the early to mid-1990s involved companies that were taking additional steps in connection with their IPOs to create additional tax assets, or new basis.  The second generation TRAs appeared in 2007 with a Duff & Phelps IPO.  The paper identifies a third generation TRA that came about in 2010.  Finally, the paper notes some recent up-C IPOs that have not used TRAs.  After analyzing the various types of TRAs and the rationales for their use, the paper considers whether in the case of TRAs in up-C IPOs pre-IPO owners receive benefits that may not be properly valued or understood by IPO participants.

Dual-Class Structures

In his paper, “Sunrise, Sunset:  An Empirical and Theoretical Assessment of Dual-Class Stock Structures,” author Andrew Winden presents an analysis of initial and sunset dual-stock provisions based on over 100 companies, including pre-2000 and post-2000 structures excluding up-C IPOs.  The paper notes that among the sample set there are many different sunset provisions and provides very useful analysis of these.  The types of sunset provisions include passage of a specified period of time, dilution of high vote shares or controller ownership of such shares down to a low percentage of the aggregate number of outstanding shares, a reduction in the number of high vote shares or the number of high vote shares held by the controller as a percentage of the controller’s original ownership, death or incapacity of certain control persons or the departure of the founder, or conversion upon transfers of the high vote shares to persons that are not permitted holders.  Of course, a significant percentage of companies with dual-class structures, approximately 39% of those that went public after 2000, did not have sunset provisions.  The paper then offers an assessment of the utility of each of the particular approaches to implementing a sunset provision.