On January 18, 2018, the Small Business Credit Availability Act was introduced in the U.S. Senate and referred to the Committee on Banking, Housing, and Urban Affairs.  The Act would amend the Investment Company Act of 1940 to change certain requirements relating to the capital structure of business development companies (BDCs) and direct the Securities and Exchange Commission (SEC) to revise certain rules to allow BDCs to take advantage of securities offering and communication exemptions currently available to other companies.

In particular, the Act would decrease the asset coverage requirement applicable to BDCs from 200% to 150%.  BDCs would be permitted to employ leverage up to two-thirds of their total equity.  Increasing the leverage limit may allow BDCs, which are a significant source of capital for small and medium-sized businesses, to deploy additional lower risk senior capital to borrowers and potentially increase their total returns without needing to deploy higher risk junior capital in order to obtain higher yields due to the lower leverage limit.

The Act would also direct the SEC to remove the application of various securities law administrative burdens on BDCs to align with reforms currently available to other companies.  Specifically, BDCs would be included in the SEC’s definition of “well-known seasoned issuer” and permitted to file automatic shelf registration statements to expedite the securities offering process.  Additionally, BDCs that would otherwise meet the requirements of Form S-3 would be permitted to incorporate by reference their publicly filed periodic reports into the BDC’s Form N-2 registration statement.

The Act will be considered by the Committee before it is possibly sent to the full Senate for review.  A companion bill that would similarly update rules governing BDCs was advanced with bipartisan support by the U.S. House Financial Services Committee in November 2017.

As we have previously discussed on our blog, the securities exchanges impose shareholder vote requirements in connection with certain financing transactions.  These rules are often referred to as the “20% Rule,” since, for Nasdaq, for example, a shareholder vote is required to be obtained by a listed company that intends to complete certain private placement transactions that will result in the issuance of 20% or more of the total pre-transaction voting shares outstanding.   We discuss these rules in our recently updated FAQs (see: https://goo.gl/aagwaA).

Recently, Nasdaq filed with the SEC an amendment that would update certain of these rules.  Nasdaq had solicited comments on these changes (see our prior post from the summer (available here: https://goo.gl/i156t5).  The proposal would, among other things:

  • amend the measure of “market value” in connection with assessing whether a transaction is being completed at a discount from the closing bid price to the lower of:  the closing price as reflected by Nasdaq, or the average closing price of the common stock for the five trading days preceding the definitive agreement date;
  • refer to the above price as the “Minimum Price,” and existing references to “book value” and “market value” used in Rule 5635(d) will be eliminated; and
  • eliminate the references to “book value” for purposes of the shareholder vote requirement.

See the full text of the amendments here: https://goo.gl/vswnxc.

On February 2, 2018, the SEC approved on an accelerated basis the NYSE’s proposal, as modified by Amendment No. 3, to change its listing qualifications to facilitate listings for certain non-IPO offerings.  Section 102.01B of the NYSE Listed Company Manual (“Section 102.01B”) currently recognizes that some companies that have not previously registered their common equity securities under the Exchange Act, but which have sold common equity securities in a private placement, may wish to list those common equity securities on the NYSE at the time of effectiveness of a resale registration statement filed solely for the resale of the securities held by selling stockholders.  Footnote (E) of Section 102.01B (“Footnote (E)”) currently provides that the NYSE will exercise its discretion to list these companies by determining that a company has met the $100 million aggregate market value of publicly-held shares requirement based on a combination of both (1) an independent third-party valuation of the company and (2) the most recent trading price for the company’s common stock in a trading system for unregistered securities operated by a national securities exchange or a registered broker-dealer (a “Private Placement Market”).

The proposal, as modified by Amendment No. 3 filed on December 8, 2017: (i) eliminates the requirement in Footnote (E) to have a private placement market trading price if there is a valuation from an independent third-party of $250 million in market value of publicly-held shares; (ii) sets forth several factors indicating when the independent third party providing the valuation would not be deemed “independent” under Footnote (E); (iii) amends NYSE Rule 15 to add a reference price for when a security is listed under Footnote (E); (iv) amends NYSE Rule 104 to specify Designated Market Maker (“DMM”) requirements when facilitating the opening of a security listed under Footnote (E) when there has been no sustained history of trading in a private placement trading market for such security; and (v) amends NYSE Rule 123D to specify that the NYSE may declare a regulatory halt prior to opening on a security that is the subject of an initial pricing upon NYSE listing and that has not, immediately prior to such initial pricing, traded on another national securities exchange or in the over-the-counter market.

However, Amendment No. 3 notably revises the proposal, as amended by Amendment No. 2 filed on August 16, 2017, to eliminate proposed changes to Footnote (E) that would have allowed a company to undertake a direct listing (i.e., listing immediately upon effectiveness of an Exchange Act registration statement only, such as Form 10 or Form 20-F, without any concurrent IPO or Securities Act registration).  This means that a direct listing will now require a company to either (1) file a resale registration statement for the resale from time to time of securities held by existing securityholders or (2) undertake a primary offering.  Although this may limit the efficiency of a direct listing, the rationale for the change might be to ensure that there is a basis for Securities Act Section 11 liability to attach to the direct listing.  In contrast, Nasdaq allows a direct listing without a concurrent IPO or Securities Act registration.

As we have previously posted on, the NYSE originally issued its proposal on March 13, 2017, which was later withdrawn on July 19, 2017 and then amended by Amendment No. 1 on July 31, 2017.  The SEC has solicited comments on the proposal, as amended by Amendment No. 3, for submission within 21 days of publication in the Federal Register.

The SEC order is available here.

The proposal, as amended by Amendment No. 3, is available here.

Citibank’s recently released year-end report on depositary receipts (DR) reported that in 2017, $15.6 billion of DR capital was raised across 65 deals, which was a 126% year-over-year change in total capital raised versus 2016 and a 91% year-over-year change in number of capital raisings. The European, Middle East and Africa region saw a total of 28 deals, raising $4.4 billion; the Asia-Pacific region raised $7.0 billion across 29 deals; and the Latin America region raised $4.2 billion across 8 deals.

The report also notes that DR IPOs raised $9.4 billion in 2017, which was a 145% change from 2016.  24 issuers were able to take advantage of JOBS Act accommodations to complete their IPOs.  There was also $6.2 billion of DR follow-on activity in 2017, which was a 101% change from 2016.  $12.8 billion was raised in American depositary receipts (ADR) and $2.8 billion was raised in global depositary receipts (GDR).

The energy, software and services and the financial services sectors were the top three sectors for DR IPOs in 2017 raising $1.57 billion, $1.54 billion and $1.48 billion respectively.  For follow-on offerings, the top three sectors included financial services, raising $1.87 billion, pharmaceuticals/biotech, raising $1.43 billion, and software and services, raising $681 million.

For additional 2017 DR trends, see Citi’s annual report: https://depositaryreceipts.citi.com/adr/common/file.aspx?idf=4354

The Securities and Exchange Committee announced the agenda for the March 8, 2018 meeting of its Investor Advisory Committee, which will include, among other things, a discussion of dual class share structures and cybersecurity risk disclosures.  See the full agenda here:  https://www.sec.gov/spotlight/investor-advisory-committee-2012/iac030818-agenda.htm.

Wednesday, February 7, 14 and 21, 2018
1:00 p.m. – 2:00 p.m. EST

Morrison & Foerster and Wolters Kluwer Webinar Series

The Tax Cuts and Jobs Act of 2017 (H.R.1), signed into law by President Trump on December 22, 2017, is the most sweeping change to the U.S. tax code in decades. This historic bill impacts every taxpayer, and calls for lowering the individual and corporate tax rates, repealing the ACA’s shared responsibility requirement, enhancing the child tax credit, and more.

Morrison & Foerster and Wolters Kluwer will host a complimentary three-part webinar series focusing on three of the most impactful areas within the tax overhaul:

Session 1: Tax Changes Affecting Holders of Pass-Through Vehicles
Wednesday, February 7, 2018; 1:00 p.m.–2:00 p.m. EST

Session 2: Corporate Taxation — Domestic Tax Law Changes
Wednesday, February 14, 2018; 1:00 p.m.–2:00 p.m. EST

Session 3: Corporate Taxation — International Tax Changes
Wednesday, February 21, 2018; 1:00 p.m.–2:00 p.m. EST

Speakers:

Wolters Kluwer will provide CLE credit.

For more information, or to register, please click here.

Many successful privately held companies are able to raise funds from institutional investors at attractive valuations and defer their IPOs.  Almost $49 billion was raised in late stage private placements (also referred to as “mezzanine” private placements or “pre-IPO” private placements) in 2017, an 18% year-over-year increase.  As in prior years, tech companies benefited most from this trend and accounted for 42% of dollars raised in these transactions.  It is difficult to predict whether this year will mark a turning point in which we see some unicorns undertake IPOs.  Our infographic provides a snapshot of the market for these transactions in the United States.

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 Unicorn Governance Trap

In her paper, “The Unicorn Governance Trap,” Renee Jones discusses how changes in the start-up and private financing markets have resulted in privately held companies deferring the adoption of more sophisticated corporate governance policies.  Whereas, in years past, venture capital may have been the predominant source of capital for these companies, and VCs may have taken an active interest in governance policies, particularly in preparation for IPOs, the rubric has changed.  Many companies defer their IPOs for longer than their predecessors.  New sources of private capital have emerged and these investors are not interested in taking a role in governance.  Jones considers a number of possible approaches to addressing the unicorn governance structures.

In his remarks today, in addition to addressing initial coin offerings and blockchain related matters, Chair Clayton discussed the Securities and Exchange Commission’s remaining Dodd-Frank Act rulemaking mandates.  Chair Clayton identified four categories of rulemaking.  He noted that, with respect to the remaining security-based swap rules, the remaining rules are being considered holistically and harmonization with CFTC rules is under review.  The second category relates to executive compensation rules.  Chair Clayton notes that the Commission is likely to take a serial approach to completing the rest of the mandatory executive compensation rules.  The third category relates to specialized disclosure rules, and Chair Clayton focused his remarks on the resource extraction rules and the need to navigate the Congressional Review Act limitations.  The fourth category he identified relates to measures, such as clawbacks, which, Chair Clayton notes some companies already have taken steps to address.  Here is a link to the full transcript of the remarks:  https://www.sec.gov/news/speech/speech-clayton-012218.