Given the shutdown of the SEC as part of the wider government shutdown, we are seeing many registration statements being filed with no delaying amendment language and with the language required by Rule 473 to allow automatic effectiveness in 20 days in accordance with Section 8(a) of the Securities Act. In the last two weeks, at least 30 such registration statements have been filed. In all of 2018, there were only three such registration statements, and in all of 2017, there were only two. Obviously, the deals must go on, and corporate issuers and their counsel have seen the Division of Corporation Finance’s FAQs regarding Actions During Government Shutdown and have heeded the answers set forth therein. (For now, the FAQs are posted on the Division of Corporation Finance’s homepage.)
The first of these “automatically effective” registration statements filed in 2019 was on Form S-4 in connection with the pending merger of BSB Bancorp and People’s United Financial, Inc. Since then, issuers have filed these registration statements on Forms S-1, S-3 and S-4 in connection with a variety of transactions. If the government shutdown continues, we should expect to see many more of these filings.
The Securities and Exchange Commission announced on December 19, 2018 that it has adopted final rules that will permit full SEC reporting companies to conduct public offerings utilizing the modern crowdfunding capabilities with Regulation A+. We are still awaiting the details of the new rules, but they will become effective immediately upon publication in the Federal Register, which typically happens within a few weeks of the announcement. The SEC was required to adopt these rules by the Economic Growth, Regulatory Relief and Consumer Protection Act, passed back in May.
Previously, the Reg A+ rules required that a company cannot use Reg A+ if it is subject to the SEC reporting requirements immediately prior to the offering. This includes, for example, every company listed on a national exchange such as Nasdaq or the NYSE and many companies that trade over-the-counter. The new law reversed that and now the SEC has changed the rules to permit reporting companies to utilize Reg A+.
While we await the details of the new rules, it is clear that this will benefit full reporting companies that trade over-the-counter, since they can now conduct a public offering preempted by state “blue sky” merit review of their offering. In addition, even listed companies may decide that accessing the ability to “test the waters” with any investor, not permitted with a traditional public offering, is attractive as they market a new public offering. This may also assist companies that are for some reason not eligible for short form registration of public offerings on Form S-3, such as those who went public within the last year or those who had a late SEC filing in the last year. Check this one off the list of desired changes to the already well-designed rules under Regulation A+.
On December 18, 2018, the SEC approved final rules requiring companies to disclose their practices or policies with respect to hedging transactions by officers and other employees as well as directors. The final rules have not yet been published, but the SEC issued a press release (https://www.sec.gov/news/press-release/2018-291) describing the rule it adopted. The new rule implements Section 955 of the Dodd-Frank Act.
New Item 407(i) of Regulation S-K will require a company to disclose in proxy or information statements for the election of directors its practices or policies for officers and other employees, as well as directors, relating to:
- purchasing securities or other financial instruments, or otherwise engaging in transactions,
- that hedge or offset, or are designed to hedge or offset,
- any decrease in the market value of equity securities granted as compensation or held, directly or indirectly, by the officer, other employee or director.
The new item has broad application for affiliated entities and will require disclosure of practices or policies on hedging activities with respect to equity securities of the company, any parent or subsidiary of the company or any subsidiary of any parent of the company.
Companies may either summarize their practices or policies for these types of hedging activities or, alternatively, disclose their practices or policies in full. If a company does not have a practice or policy with respect to hedging activities, it must disclose that fact or state that it permits hedging transactions generally.
Companies will be required to comply with the new disclosure requirements in proxy and information statements for the election of directors during fiscal years beginning on or after July 1, 2019. “Smaller reporting companies” and “emerging growth companies” will have an additional year to comply with the new disclosure requirements. Companies that have adopted policies on hedging may opt to provide the additional disclosure during the 2019 proxy season.
Reporting from the Practising Law Institute’s Annual Institute on Securities Regulation here in New York City. I was honored to serve on a panel next to Jennifer Zepralka, head of the SEC’s Office of Small Business Policy. Jennifer provided a very positive report on Regulation A+. Here are the highlights:
- Since the new Reg A+ rules went effective in June 2015 and through September 2018, 123 public offerings were completed raising a total of $1.3 billion. That’s an average of about $10 million raised per deal since 2015.
- These numbers compare to the report from a year ago that 69 deals had been completed by September 2017 raising an aggregate of $612 million or $8.8 million per deal. Doing the simple math, this means there were 54 new deals in the last year – close to double the number of deals compared to the two plus years before.
- Doing more math: total funding in the last year more than doubled the total amount raised though Reg A+ offerings from the two years before. In other words, $612 million raised between June 2015 and September 2017 and another $688 million raised just in the one year ended September 2018.
- Doing more more math: the average deal size increased notably to $12.7 million in the year ended September 2018 vs. $8.8 million in the two years ended September 2017. That’s a 44% increase in the average deal size.
Jennifer also reported on the SEC’s Congressional mandate, under the Improving Access to Capital Act, to adopt rules to allow full SEC reporting companies to utilize Reg A+. She said the SEC is “taking steps” toward that regulatory initiative but offered no timeline on when it would be completed. She also made clear that current SEC reporting companies cannot go ahead and use Reg A+ until those rules are fully adopted.
Despite some of the reports (and my own commentary at times), Reg A+ is achieving its purpose – to help smaller companies raise capital and create jobs. And the fact that the number of deals, total funding and average deal size are all strongly increasing also is very encouraging. The “shakedown cruise” continues for exchange-listed Reg A+ issuers, but many believe this ship has many more years of successful dealmaking ahead.
California has become the first state in the nation to require public companies to put female directors on their boards. On September 30, 2018, Governor Jerry Brown signed a bill mandating that by the end of 2019 certain publicly traded companies with headquarters in the state appoint at least one woman to their boards. Further, by 2021, companies subject to the law with at least five directors will need to appoint at least two female directors to their boards, and those with at least six directors will need to appoint at least three female directors to their boards. Companies subject to the law that do not comply with the mandates will face financial penalties.
Whether the law is constitutional is questionable. Governor Brown acknowledged as much after he signed the bill, stating, “I don’t minimize the potential flaws that may indeed prove fatal to its ultimate implementation,” but he justified the law, stating that “recent events in Washington, D.C.—and beyond—make it crystal clear that many aren’t getting the message.” Opponents argue that the mandate violates both the California and U.S. Constitutions because it imposes impermissible gender quotas and requires companies to reject or replace men seeking to serve on boards. In addition, opponents claim that the law violates constitutional principles because it applies to companies headquartered in California even if they are incorporated in another state, creating an inherent conflict between California law and the corporate law of every other state.
Regardless of whether the California law is ultimately enforceable, there is no question that proxy advisory firms and some institutional investors like BlackRock remain focused on board diversity, including gender diversity, and there will continue to be pressure on public company boards to increase their diversity. Action by shareholders seeking to increase board diversity, rather than state governments mandating quotas, is likely to be more enduring and ultimately more successful.
A few weeks ago the President renewed discussion of the possibility of eliminating quarterly reporting by US public companies and moving back to semi-annual reports. In a tweet on August 17, he said, “In speaking with some of the world’s top business leaders I asked what it is that would make business (jobs) even better in the U.S. ‘Stop quarterly reporting & go to a six-month system,’ said one. That would allow greater flexibility & save money. I have asked the SEC to study!” He later indicated the idea came primarily from the CEO of Pepsi. Later that day SEC Chairman Jay Clayton said that the SEC “continues to study public company reporting requirements, including the frequency of reporting.”
This is not a new drumbeat. It was reported about 3 years ago that some leading attorneys, including Marty Lipton of M&A law firm Wachtell Lipton, were making just such an argument. Why is less reporting potentially good? As was noted in 2015, because it allows companies to focus less on short-term results, which can help encourage capital investment and strategic thinking, especially in this era of activist investing. Who else agrees? Al Gore. The European Union eliminated mandatory quarterly reporting for listed companies in 2013. It is only since 1970 that the SEC required quarterly reporting for US public companies.
Those who counter this argument believe six months is too long to spot trends that are developing. They also argue that shareholder activists help shine a light on bad managers. Interestingly, Clayton’s response to the President’s tweet did not seem to suggest he considered the tweet a mandate requiring him to commence a formal review of the issue. Under recent legislation, the SEC currently is examining a variety of steps to simplify and update disclosure requirements. It will be interesting to see if the Commission takes a more serious look at reducing compliance obligations and pressure to beat quarterly earnings expectations.
The SEC Commissioners voted unanimously on June 28, 2018 to expand the definition of “smaller reporting company.” This change has been requested as a key recommendation for a number of years at the annual SEC small business conference. Companies with SRC status have somewhat relaxed disclosure and reporting obligations, such as providing two rather than three years of financial information, as well as relief from some of the more costly aspects of the Sarbanes-Oxley Act of 2002. The change is effective 60 days after publication in the Federal Register, which should happen fairly soon.
The revised definition raises the value of a company’s public float to qualify as an SRC from $75 million to $250 million. If a company does not have public float (such as at the time of its IPO), it previously was an SRC unless revenues exceeded $50 million. The new rule says any company is an SRC if it has less than $100 million in revenues and either no public float or a public float of less than $700 million.
Many of the benefits of SRC status also are available if the company is an “emerging growth company” under the Jumpstart our Business Startups (JOBS) Act of 2012. Those are generally companies with less than $1.07 billion in revenues who had not completed an SEC registration of securities prior to passing the JOBS Act. EGC status, however, is terminated over time.
The President today signed the Economic Growth, Regulatory Relief and Consumer Protection Act. Most of the bill is centered around easing some Dodd-Frank restrictions as they apply to smaller banks. But buried in Section 508, called “Improving Access to Capital,” Congress adopted a major change to Regulation A+. Previously, the Reg A+ rules required, in Section 251(b)(2), that a company cannot use Reg A+ if it is subject to the SEC reporting requirements under Section 13 or 15(d) of the Securities Exchange Act immediately prior to the offering. This includes, for example, every company listed on a national exchange such as Nasdaq or the NYSE and many companies that trade over-the-counter. The new law reverses that and orders the SEC to change the rules to permit reporting companies to utilize Reg A+.
In addition, currently, Rule 257 of Reg A+ requires companies completing Tier 2 (raising any amount up to $50 million) offerings to file specified periodic and current reports under what has become known as “light reporting” if they do not become full reporting companies. The new law directs the SEC to amend that to say that a reporting company that conducts a Tier 2 offering going forward will be deemed to have met the periodic and current reporting requirements under that rule if they file what is required of a full permanent SEC reporting company.
What are the implications of this change? Allowing already public and reporting companies to use Reg A+ will provide them access to the unique benefits of this streamlined public offering process. Over-the-counter companies can conduct a Tier 2 public offering free of state blue sky merit review. All companies can use broad “testing the waters” with online or broadcast promotion of their public offering to anyone – this is limited to institutional investors otherwise. The SEC also has been giving much more limited review to these filings, which are completed quickly.
While this is a very positive change it has somewhat limited benefit. Companies trading on national exchanges, as well as over-the-counter companies with market capitalizations in excess of $75 million, can use short registration Form S-3 after they have been public for a year, so long as they have filed all their quarterly filings on time for the prior year. Using S-3 is generally much quicker, cheaper and simpler than even a Reg A+ offering. So as a practical matter this is only likely to help over-the-counter companies with market capitalizations below $75 million, companies that went public less than a year ago and listed companies who missed a filing deadline in the last year. But it is a positive development nonetheless.
The recent spate of high-profile cybersecurity breaches has not spared public companies, as demonstrated by large data breaches in recent years involving Equifax Inc. (NYSE: EFX) and a multitude of other companies. In response to the proliferation of cybersecurity threats to public companies, on February 21, 2018, the SEC released interpretive guidance to assist companies in preparing disclosures about cybersecurity risks and incidents. The release, which expands upon the staff’s 2011 guidance and addresses several new topics, was adopted unanimously by the full SEC and, therefore, carries significant weight.
As the SEC release makes clear, in order to meet their ongoing disclosure requirements, public companies should adequately and timely disclose any and all material cybersecurity risks and incidents in their registration statements and in their periodic and current reports. Public companies must weigh the potential materiality and likelihood of identified risks and, in the case of cybersecurity incidents, the importance of any compromised information and the impact on their operations. Further, the SEC encourages the use of Forms 8-K and 6-K to promptly disclose cybersecurity risks and incidents, as it will help to reduce the risks of selective disclosure and insider trading. The SEC guidance indicates that, although some time may be needed to discern the scope and implications of a cybersecurity incident, an ongoing internal or external investigation would not, on its own, provide a basis for avoiding disclosures of a material cybersecurity incident. The release includes specific guidance on a number of disclosure elements required by Regulation S-K and Regulation S-X, including risk factors, management discussion and analysis, description of the business, legal proceedings, financial statements and board risk oversight. Continue reading SEC Releases New Guidance on Cybersecurity Disclosures for Public Companies
On Wednesday, February 21, 2018, the United States Supreme Court held, 9-0, in the case of Digital Realty Trust, Inc. v. Somers that the term “whistleblower” under the Dodd-Frank Wall Street Reform and Consumer Protection Act does not include individuals who report violations of securities laws internally to their companies but not to the United States Securities and Exchange Commission.
In Digital Realty Trust, Paul Somers sued his former employer, Digital Realty Trust, alleging that his employment was terminated because he reported certain suspected securities laws violations to Digital Realty Trust’s senior management and that such termination constituted an unlawful retaliation against a whistleblower under the Dodd-Frank Act. The Court held in favor of Digital Realty Trust, stating that the whistleblower anti-retaliation provision under the Dodd-Frank Act does not protect individuals who have reported alleged misconduct internally to their employer, but not to the SEC.
In reaching its conclusion, the Court focused on the actual text of the anti-retaliation provision of the Dodd-Frank Act as well as the Dodd-Frank Act’s purpose. The Court noted that the Dodd-Frank Act defines a “whistleblower” as “any individual who provides…information relating to a violation of the securities laws to the Commission, in a manner established, by rule or regulation, by the Commission.” Further, the Court stated that the purpose of the Dodd-Frank Act was to aid the SEC’s enforcement efforts by motivating people who know of securities law violations to tell the SEC.
The Court’s ruling overturned the Ninth Circuit’s March 2017 ruling and resolved a split between the Ninth and Fifth Circuits. In March 2017, the Ninth Circuit found that Mr. Somers was entitled to protection under Dodd-Frank Act. In July 2013, the Fifth Circuit ruled in the case of Asadi v. G.E. Energy that whistleblowers must take their complaints to the SEC to be eligible for protection under the Dodd-Frank Act.