David N. Feldman

NYSE Withdraws Proposal to Permit Listing Without an IPO – 7/8/17 Update – Refiled!

On June 19, 2017, the New York Stock Exchange withdrew its proposal, originally submitted in March, to allow companies to list on the big board through a so-called “self-filing” without an IPO. In a self-filing, a company seeks for previously issued shares of stock to be registered with the SEC so that they can be publicly resold, and this is the method by which the company goes public. No new money is raised in the process.

Shortly after the SEC’s proposal, online music provider Spotify said it might consider a self-filing. The company is flush with cash and does not need to raise money currently, but sees the benefit of being public and in avoiding an expensive underwriting firm.

The NYSE did not indicate why it decided to change its mind. Did they fear the SEC would not approve it for some reason? Did they receive resistance from the investment banking community? One can only speculate. It is disappointing that this legitimate alternative to an IPO will not be available – at least in the near term – to companies seeking the advantages of a public trading stock on the world’s largest stock exchange.

Update: On July 6, 2017, an NYSE representative confirmed, according to www.law360.com, that the proposal was re-submitted in mid-June and is now awaiting SEC approval. The exchange is also seeking accelerated approval from the SEC since their original request was filed in March and received no public comments. This is good news!

David N. Feldman

SEC Reopens the Front Door for Small Cap Listings as First Regulation A+ IPO Trades on National Exchange

Duane Morris client Myomo Inc., a medical robotics company, completed its initial public offering on June 9, 2017 under SEC Regulation A+ created under the Jumpstart Our Business Startups (JOBS) Act of 2012. The historic deal is the first Reg A+ IPO to be listed on a national exchange. In the IPO, Myomo raised a total of approximately $8 million between the public offering and a contemporaneous private offering of investment units. The stock commenced trading with the symbol “MYO” on the NYSE MKT on Monday, June 12, 2017.

For various reasons that have been studied extensively, smaller company IPOs, which proliferated in the 1990s, nearly disappeared starting around 2000. Other alternatives, including reverse mergers, often called “back door listings” because they are completed without advance SEC review, took their place until 2011 when the SEC added significant regulatory burdens to these transactions. A movement to update Regulation A to “reopen the front door” at the SEC started at the annual SEC small business conference in 2010.

Regulation A reforms were then included in Title IV of the JOBS Act. The law significantly increased the amount which a company can raise under what we now call Reg A+ from $5 million to $50 million and fully preempted all state “blue sky” review of those offerings, relieving significant regulatory and cost burdens. The final Reg A+ rules passed by the SEC under the JOBS Act also broadened the ability of Reg A+ issuers to “test the waters” with all potential investors both before and after filing their offering statement with the SEC. In addition, non-listed companies have somewhat scaled disclosure in their IPO as compared to a traditional registration.

The Reg A+ rules also permit non-listed companies a “light reporting” option after their IPO, further reducing costs and burdens as a public company while retaining strong investor protections. The SEC also has given extremely limited review to these filings, and has reported an average of 74 days from initial filing to SEC approval or “qualification.” As a result, companies are reporting a speedier, more cost-efficient and simpler process in completing their Reg A+ offerings than with traditional IPOs.

To date, the SEC has reported that dozens of Reg A+ deals have been consummated and hundreds of millions of dollars raised since the SEC’s final rules were implemented in 2015. Only a handful of these companies, however, have commenced trading their stock. To have completed the first Reg A+ deal to trade on a national exchange, therefore, is a very significant development for those working to redevelop a strong new IPO market for smaller companies.

David N. Feldman

Financial CHOICE Act Would Broaden Form S-3 Availability

On May 4, 2017, the House Financial Services Committee, by a vote of 34-26, passed the Financial CHOICE Act of 2017, which now moves to the full House. Most of the bill relates to rollbacks of Dodd-Frank provisions that relate primarily to issues affecting large financial institutions. Among other things it would repeal the Volcker Rule which prohibits banks from doing proprietary trading and sponsoring hedge and private equity funds.

One small section of the summary of the bill is called “Capital Formation.” The Committee’s summary of the bill praises the ideas that come out of the annual SEC small business conference and criticizes the SEC for its slow implementation of the Jumpstart Our Business Startups (JOBS) Act of 2012. But they noted tremendous benefit coming out of the JOBS Act rollout and added more goodies to the bill to enhance capital formation opportunities.

Most important, the bill would allow all SEC reporting companies to use short registration Form S-3, which could be a tremendous help for over-the-counter issuers current in their filings. It also would exempt emerging growth and smaller reporting companies from burdensome XBRL financial reporting rules.

The bill also requires the SEC to formally respond to each recommendation from the small business conference and disclose what action, if any, it is taking in response. It also eliminates the requirement of a broker-dealer or funding portal in JOBS Act Title III crowdfunding under certain circumstances. It is not yet clear whether the bill is likely to pass; we will continue to monitor its progress.

SEC Issues Updated Guidance Regarding Conflict Mineral Rules

 

On April 7, 2017, the SEC Division of Corporate Finance issued updated guidance regarding the SEC’s conflict minerals rules, stating that, in light of uncertainties regarding how the SEC will resolve issues relating to its conflict mineral rules, the SEC will not recommend enforcement action with respect to a company – even if it is subject to Item 1.01(c) of Form SD – to comply with the disclosure obligations under the SEC’s conflict minerals rules by only including in its Form SD the disclosures required by Items 1.01(a) and (b) of Form SD.

The SEC was prompted to update its guidance by the April 3, 2017 final judgment of the U.S. District Court for the District of Columbia in National Association of Manufacturers, et al. v. Securities and Exchange Commission,[1] in which the court held that the provisions of Item 1.01(c) of Form SD that require companies to report to the SEC and state on their websites that a product has “not been found to be ‘DRC conflict free’” violates the First Amendment of the U.S. Constitution.

Continue reading SEC Issues Updated Guidance Regarding Conflict Mineral Rules

David N. Feldman

Spotify May Go Public With “Self-Filing”

IPO alternatives appear to be alive and well as we learn from press reports that unicorn music service Spotify may go public through a “self-filing,” also known as a “direct listing.” In my first book, over 10 years ago, I talked at length about the potential value of this very straightforward technique. Assuming you otherwise qualify for an exchange listing, you simply file to register some already outstanding shares for trading, without raising new money, and off you go. Recent self-filers include Coronado Biosciences.

What is the main benefit of most IPOs? Raising money. Apparently Spotify, having raised $1 billion, is good on that front. Then why do they want to go public? We can only speculate as to Spotify’s reasons, but the most common reasons are to raise more money in the future, to make acquisitions easier using public stock as currency, to reward executives with valuable stock options, and to create a path to liquidity for those who have founded and built the company.

Through this process, Spotify saves dilution from IPO investors and the cost of underwriters. Why raise money you don’t need? Since reverse mergers, which also can be used in the “no need to raise money” scenario, are much more difficult to do these days, self-filings deserve some attention.

David N. Feldman

“T+2” Trade Settlement Arrives

If you don’t know what the headline means, maybe just skip this one. Otherwise read on! Last week, the SEC approved a rule change that shortens the typical settlement period for public trading through brokers (known as “T+” for “trading plus”) to two business days from three. The SEC believes this will reduce trading risks. The rule comes into effect officially in September.

Does this matter to investors? Well, if you are selling stock it means the money will now be in your account in two business days. The prior rule for most trades was three business days. But be careful because some trades, like in mutual funds, settle more quickly. So if you’re buying one and selling another make sure the settlement times match or there is enough money in your account to cover. Some brokerage firms let all trades go through as long as they are made on the same day even if they settle differently.

What’s the bigger picture? In the olden days when horses had to bring stock certificates from place to place, settlement periods were typically 14 days. Then in the 70s and 80s with computerized trading it went to T+5, then T+3, and now T+2. The speed with which everything happens in the stock markets continues to accelerate thanks to everything being computerized at this point. So everything, including money, moves faster than ever. So when will it be T+one millisecond? Maybe not that far away.

David N. Feldman

Just a Snap to Huge IPO

It appears the initial public offering market is indeed waking up. Last Thursday, Snap Inc. raised $3.4 billion in its IPO onto the New York Stock Exchange. OK not the biggest ever, since Alibaba raised almost $22 billion in 2014. But it’s the biggest tech IPO since the Amazon of China smashed the records. Snap, which of course owns the wildly popular app Snapchat, sold IPO shares at $17 and closed up over 40% on the first day. It rode up a little the next few days and is now back to where it closed on Thursday. Still pretty good. The company is valued now at roughly $24 billion.  Three years ago Facebook offered to buy the company for $3 billion.

In a funny side story, several other companies with “Snap” in their name also shot up on Thursday in apparent investor confusion. That includes Snap Interactive, another app company, and Snap-On, the well-known tool company. Will we see trademark infringement cases? Not likely.

Another interesting sidenote was the detailed disclosure in the Snap IPO filing about cybersecurity. They admitted that the supposedly “disappearing” posts on Snapchat remain on their servers, and they admitted they have been hacked in the past. They further acknowledged that they collect a bunch of data on how people use the site, who they communicate with and the like. They have also been required by regulators to work harder to ensure that children under 13 don’t have Snapchat accounts.

So let’s give an attaboy to the Snap folks, their underwriters and the market as this huge offering hopefully will further strengthen the rebounding IPO market.

David N. Feldman

Trump’s Order on Reducing Regulations Does Not Apply to the SEC

On January 30, Pres. Trump issued an executive order that for every new regulation proposed, an agency must eliminate two old regulations. The order also requires the net cost of a new regulation to be zero after taking into account cost savings from regulations eliminated. Military and national security regulations are exempt from the order. The head of the Office of Management and Budget also is allowed to make exceptions. In signing the order, the President was surrounded by small business leaders, and said, “We’re cutting regulations massively for small business … that’s what this is about today.”

Many in the capital markets space feared this could hamper the SEC’s rulemaking process, as some “new regulations” can actually reduce regulatory burdens. For example, many have sought to convince the SEC to expand the use of short form registration on Form S-3 to all reporting companies – which would enhance opportunities for capital formation but would require a new regulation. Thankfully, last week the White House issued interim guidance on the order. Among other things, it said the order does not apply to “independent agencies” (ie those that are outside the federal executive departments), which includes the SEC.

A number of liberal groups filed a lawsuit last week to challenge the order, saying it forces agencies to be arbitrary, and that the order was outside the President’s powers. They are seeking an injunction to kill the order. Many, frankly, are scratching their heads over this order. Even those who strongly support easing business regulation are not sure this is the best way to do it. At least the SEC (and most of the finance-related agencies) may move forward in its usual manner.

 

David N. Feldman

First Cannabis Company is Exchange-Listed Amid Uncertainty

In a major positive step for the cannabis industry, the New York Stock Exchange last month listed a new real estate investment trust called Innovative Industrial Properties (NYSE:IIPR), the first cannabis company to be listed on a US national exchange. The company plans to invest solely in real estate intended to be leased out to cannabis growers. In the IPO they raised $67 million, much less than expected. The price has not moved above the IPO price, but it has moved steadily up recently after an initial drop on its first few days of trading.

Other challenges analysts cite: the concentration of investment in one industry, management not experienced in cannabis, and the high uncertainty of the future of federal oversight under President-elect Trump. Trump has said he is fully behind medical marijuana, not a fan of recreational use but believes it should be up to the states, has been against the war on drugs for years and is certainly pro-jobs and pro-taxes coming in. But many are concerned about his nomination of Alabama Senator Jeff Sessions to be the next US Attorney General. As recently as this April, Sessions said, “Good people don’t smoke marijuana” and that it’s “not the kind of thing that ought to be legalized.”

Congress has kept the feds from using money to go after those properly complying with state cannabis laws. But those actions, in appropriation bills, have to be renewed each year, and recent parliamentary changes may make that more difficult. The key question will be whether Trump allows Sessions free rein on the issue. That’s the unknown. But this new listing is still very big for the industry, especially after Nasdaq’s very strong refusal to list MassRoots earlier this year.

David N. Feldman

SEC Issues Encouraging White Paper on Regulation A+ Performance

Following up on positive statements by senior SEC staffers at the recent PLI Securities Law seminar and the SEC small business forum in November, the Commission also recently issued a white paper on how things are going under updated Regulation A, now known as Regulation A+. The white paper can be viewed at http://bit.ly/2ihfssS.

As we have known, the big headline was that, through October 31, just 16 months after the new Reg A+ rules took effect, 20 issuers completed financings raising a total of $189.7 million. That’s an average of $9.485 million raised per deal. The SEC believes this number is understated due to the time frames tested. And the amount per deal is skewed somewhat by some very small financings that we know were completed. But still. As comedian Larry David might say, “Pretty pretty pretty pretty cool.”

Other interesting tidbits: of the 84 Reg A offerings qualified by the SEC since June 2015, a majority, 49, were Tier II and the rest were the smaller Tier I offerings. Probably more important, 85% of the funds sought to be raised in those qualified offerings were in Tier II deals. Issuers are still working to get more of these closed Tier II deals trading on an exchange, and that is expected in the months ahead. Also, equity deals rule, comprising 85% of the Reg A+ offerings. As we also knew, most of the offerings and closed deals were best efforts or self-underwritten.

But my favorite quote from the SEC: “Early signs indicate that Regulation A+ may offer a potentially viable public offering on-ramp for smaller issuers—an alternative to a traditional registered IPO—and either an alternative or a complement to other securities offering methods that are exempt from Securities Act registration.” Here comes 2017!!