Tag Archives: David Feldman attorney

David N. Feldman

New Law Orders SEC to Allow Reporting Companies to use Regulation A+

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.

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.