An SEC comment letter exchange recently made public serves as a helpful reminder to consider Section 5 of the Securities Act when structuring a PIPE (private investments in public equity) transaction.  In a PIPE, a public company issues securities to one or more accredited investors in a private placement exempt from registration pursuant to Section 4(a)(2) of the Securities Act of 1933, or the safe harbor thereunder provided by Regulation D.  Since the securities in a PIPE offering are initially “restricted securities” within the meaning of the Securities Act, investors cannot freely resell their securities until a holding period under Rule 144 has lapsed or a registration statement has been filed.

PIPE transactions often include registration rights whereby the issuer agrees to file a resale registration statement with the SEC within an agreed-upon period.  The crux of the Section 5 issue in PIPEs often hinges on the timing of the investment decision in the private offering, including whether commitments are in place from all investors, subject only to conditions outside their control so that there is no further investment decision after the filing of the registration statement, and the investors have market risk at the time that the resale registration statement is filed.   In other words, the “sale” in the private offering is completed prior to filing the registration statement.  As discussed in the comment letter exchange below, other related factors include whether the private offering closes prior to, or after, the filing of the registration statement and when the shares to be resold were actually issued to the purchaser.

Continue Reading How to Avoid Running a PIPE into Section 5 Problems: A Recent SEC Comment Letter Example

With the government partially shut down, the SEC is following its operations plan during a shutdown, which entails an extremely limited number of staff members available to respond to emergency situations involving market integrity and investor protection, including law enforcement.  While EDGAR will accept registration statements, offering statements and other filings during the shutdown, the SEC is neither screening nor reviewing filings during the shutdown.  This means the Staff is not be able to declare registration statements effective nor qualify Form 1-A offering statements.

Continue Reading Removing the Delaying Amendment – An Example

On December 19, 2018, the Delaware Chancery Court held that a business incorporated in Delaware could not use its corporate charter or bylaws to require that its shareholders bring any securities claims under the Securities Act of 1933 (the “1933 Act”) in federal court.  The 1933 Act requires that any person selling or offering securities make certain disclosures through a registration statement approved by the Securities and Exchange Commission and provides a private right of action to securities purchasers to enforce its provisions.

Earlier this year, in Cyan, Inc. v. Beaver Cty. Empls. Ret. Fund, the United States Supreme Court concluded that federal law did not bar state courts from adjudicating class actions alleging only 1933 Act claims.  Importantly, it also prohibited the removal of such class actions from state to federal court.  As a result of the Supreme Court’s decision in Cyan, if a securities purchaser brings a 1933 Act class action in state court, a defendant corporation will find it difficult to have those federal claims heard in federal court.

Continue Reading Delaware Chancery Court Closes Off Potential Route Around <i>Cyan</i>

On December 18, 2018, the SEC issued a request for public comment soliciting input on the nature, content and timing of earnings releases and quarterly reports of companies that are obligated to file reports with the SEC as well as the relationship between the periodic reports that reporting companies must provide and the earnings releases that they choose to distribute. With this request for comment, the SEC is seeking to continue the ongoing dialogue about whether the current reporting regime and practices of reporting companies is overly burdensome or contributing to “short-termism”.

Commenting on the matter, SEC Chairman, Jay Clayton, said “[t]here is ongoing public debate regarding the effects of mandated quarterly reports and the prevalence of optional quarterly guidance.”  “Our markets thirst for high-quality, timely information regarding company performance and material corporate events.  We recognize the importance of this information to well-functioning and fair capital markets.  We also recognize the need for companies and investors to plan for the long term.  Our rules should reflect these realities.  I look forward to receiving thoughtful comments as we think about ways to encourage long-term investment in our country.”

Continue Reading SEC Request for Comment on Earnings Releases and Periodic Reports

Generally speaking, the federal securities laws were drafted with the purpose of limiting the kind and amount of pre-offering publicity permitted in registered public offerings. Pursuant to Section 5(c) of the Securities Act of 1933, it is unlawful to offer to sell or offer to buy any security unless a registration statement has been filed. The term “offer” is defined and interpreted very broadly, with the effect that any pre-filing publicity constitutes gun jumping if it cannot be justified on the grounds that it was made for a permissible purpose, such as regularly released factual business information. As demonstrated by a recent SEC Staff comment letter repeated below, the Staff continues to consider gun jumping rules in connection with its filing reviews.

Evolution of Gun Jumping Laws

The rules related to gun jumping have evolved over time, and in 2005 the SEC substantially modernized many of the offering communication rules in its Securities Offering Reform release. Other recent updates to the offering communication rules include the following examples from the JOBS Act of 2012 and related SEC rules:

  • No Quiet Period in Regulation A+ Offerings: An issuer may “test the waters” with all potential investors before and after the filing of the offering statement to determine whether there is any interest in the contemplated securities offering, subject to certain conditions.
  • Limited Quiet Period for Emerging Growth Companies (EGCs): EGCs may “test the waters” with certain institutional investors before and after filing a registration statement to determine whether such investors might have an interest in the contemplated securities offering.
  • Rule 506(c) Private Placements Permit General Solicitation: Issuers may broadly solicit and generally advertise an offering, provided that all purchasers in the offering are accredited investors, the issuer takes reasonable steps to verify purchasers’ accredited investor status, and certain other conditions in Regulation D are satisfied.

Continue Reading The Rumors of the Death of Gun Jumping Have Been Greatly Exaggerated

Although the life of a securities lawyer can be routine and mechanical at times, it doesn’t always have to be this way!  Last year, around this time, my wife Missy saw on Facebook that the Property Brothers: Buying and Selling television show (an HGTV show for those not familiar) was going to be filming in Nashville during the summer, and the post invited those interested in being on the show to submit an application.  Our family had watched the show before and liked the renovations they did, and we thought it would be a fun experience for our family, so we decided to go for it and submit an application to see what might happen.  Well, after some interviews and waiting, we learned in the spring that we had been selected to be on the show.

Continue Reading A Completely Non-Securities Law Post: My Family Did The Property Brothers Show!

As equity valuations of public companies remain high in comparison to recent historical norms, the use of public company stock as an acquisition currency by SEC registrants in acquisitions of private companies will continue, particularly if interest rates continue to rise, thus increasing the costs associated with leveraged transactions. This blog explores legal considerations associated with the issuance of stock by a public company in connection with its acquisition of a private company. Continue Reading Complexities of Issuing Public Company Stock in Acquisitions of Private Companies

In monitoring SEC comment letters, we came across this SEC comment letter recently made public.  While we acknowledge the term “pro forma” is often used by registrants when adjusting their GAAP results to provide additional meaningful information to investors, this comment by the Staff serves as a reminder to registrants that the Staff generally dislikes non-GAAP measures titled as “pro forma” when the information is not presented in compliance with the pro forma rules in Article 11 of Regulation S-X.  In this situation, the registrant agreed to delete the words “pro forma” and instead use the words “as adjusted.”

Continue Reading SEC Staff Says Avoid Titling Non-GAAP Measures with “Pro Forma” Unless S-X Article 11 Compliant

We previously blogged here about the recent SEC disclosure simplification rules.  As the rules have now been published in the Federal Register and are set to go effective on November 5, 2018, set forth below are some FAQs on the new rules to help answer some common questions.

Continue Reading FAQs on the SEC’s New Disclosure Simplification Rules

On October 16, 2018, the SEC issued a 21(a) report announcing that it had investigated whether certain public companies that were victims of oftentimes unsophisticated, cyber-related frauds had violated federal securities laws by failing to have a sufficient system of internal accounting controls in place to detect these events.

Focus of SEC Report

The report focused on two common cyber frauds involving spoofed or otherwise compromised electronic communications. The first involved emails that purported to be from senior executives within the company (typically, the CEO) but in fact were from spoofed email domains. The second involved emails from fake vendors.  This form of scam was more technologically sophisticated than the fake executive emails as in certain instances it involved intrusions into the email accounts of the companies’ foreign vendors. Each of the nine companies referenced in the report lost at least $1 million as a result of these scams and two lost more than $30 million.  In total, the companies lost nearly $100 million to the thieves, almost all of which was never recovered.

Continue Reading SEC Issues Report Warning about Fake Email Scams