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.
Today, Sebastian Abero, the head of the SEC’s Office of Small Business Policy, had some very positive news for those interested in the new Regulation A+. He revealed that, since the Reg A+ rules were adopted by the SEC in June 2015, through September 2017, there have been 69 completed Reg A+ offerings raising a total of $611 million. That’s an average of $8.8 million per deal. As we also know, seven of those companies completed offerings that immediately commenced trading on national securities exchanges.
Abero was speaking at the annual SEC Government-Business Forum on Small Business Capital Formation, this year being held in Austin, TX. Other speakers included SEC Chairman Jay Clayton. Mr. Clayton’s remarks focused on helping what he called “Mr. and Ms. 401(k)” obtain opportunities to invest in growth companies. He acknowledged that a “one size fits all regulatory structure does not fit all” as he talked about the benefits of scaled disclosure for smaller issuers. He acknowledged there is room for improvement in the regulations to remove some of the “speed bumps” in the path to capital formation. He also hinted at expanding which companies can benefit from reduced disclosure as “smaller reporting companies.”
Investment banker Mark Elenowitz also spoke this morning at the Forum and pushed to increase the maximum that can be offered in Reg A+ deals to $75 million (a bill is working its way through Congress to do that). Nasdaq Vice President AnneMarie Tierney agreed with increasing the cap. She also talked about the challenges of best efforts underwritings in Reg A+ deals. The best efforts deals can garner less aftermarket support than in firm commitment underwritings. Panelists also suggested that the resales of Reg A+ securities should be exempt from SEC registration when trading in the over-the-counter markets. Currently issuers have to rely on certain somewhat cumbersome exemptions.
The Regulation A+ rules adopted by the SEC in 2015 included scaled reporting obligations to assist in reducing issuers’ offering costs as against a traditional IPO. However, if a company is seeking to become a full Securities Exchange Act reporting company, which is required if it is planning a national exchange listing, its disclosure must follow traditional IPO Form S-1 level disclosure, without the benefit of scaling. The one exception: even these companies may utilize financial statements that are up to nine months old. Normally in a Form S-1 your financials cannot be more than 135 days “stale.” Last month, the SEC and Nasdaq permitted Chicken Soup for the Soul Entertainment Inc. to go public, trade on Nasdaq and complete its Reg A+ offering with no financial information from 2017. The other three Reg A+ issuers that have completed IPOs onto national exchanges utilized financials that were no more than 135 days old.
The unanswered question, however, was this: is a company that does not have “current” financials in its Regulation A+ offering documents immediately out of compliance with reporting obligations right after it becomes a full reporting company upon completion of the IPO? The SEC answered this in a positive way last week with several Compliance and Disclosure Interpretations (C&DIs). The answer: if you have missing quarterly reports on Form 10-Q when you finish your IPO, you are given 45 days from then to file them. If you are missing an annual report on Form 10-K, you have 90 days to complete that.
This small piece of guidance adds another substantial cost-saving benefit to Reg A+. The ability to defer the preparation and reporting of four and one-half months of financial information beyond what Form S-1 would require allows a company to deal with that cost after it raises money in its IPO, if it is comfortable that the scaled disclosure will not impede the ability to complete the fundraising and IPO.
HR 2864, the “Improving Access to Capital Act,” passed the US House of Representatives on September 5, 2017 with a lopsided bipartisan vote of 403-3. The short bill directs the SEC to permit full Securities Exchange Act reporting companies to use Regulation A+ for a public offering. Previously, only non-reporting companies could utilize the new streamlined approach with unlimited testing the waters capabilities.
Some smaller companies trading in the over-the-counter markets have been contemplating suspending their SEC reporting obligations to be able to move forward with a Reg A+ offering. If this bill passes the Senate and is signed by Pres. Trump, that would no longer be necessary. The bill makes clear that the company would be deemed to satisfy the post-offering reporting obligations under Reg A+ so long as they continue with full quarterly and other reporting required of most Exchange Act reporting companies.
As a practical matter, this change would only help companies trading in the over-the-counter markets with under $75 million market capitalization, companies that went public in the last year or those that have not made recent filings on a timely basis, since all others have some ability to utilize short registration Form S-3, which is a very simple and quick process even compared with Reg A+. It also avoids the limits on the value of shares that can be registered on Form S-3 for smaller exchange listed companies. But help it would.
The House Financial Services Committee recently approved a bill that would permit full SEC reporting companies to use Tier 2 of Regulation A+ to effect a streamlined, lower cost public offering of their securities. The bill now moves to the full House. In implementing rules under the Jumpstart Our Business Startups (JOBS) Act in 2015, the SEC retained the historical restriction that only non-reporting companies could utilize Reg A. There was really no particular reason this could not have been changed.
Now that practitioners have witnessed the closing of well over 30 Reg A+ deals, three of which are now successfully trading on national exchanges, it would seem logical to expand the availability of Reg A+ to reporting companies. They would have a history of full disclosure, and could clearly benefit from utilizing a faster and cheaper option to raise money from the public. OTC Markets, Inc. had submitted a petition several years ago that encouraged this, and Duane Morris submitted a letter to the SEC in support of that petition. Presumably this would only benefit companies that are not eligible for short registration Form S-3, including companies with less than a $75 million market cap and trading over-the-counter.
As noted in Crowdfund Insider, the new Republican-led SEC could, on its own, simply implement this change and avoid the need for Congress to pass a bill. There are some questions to address, however, such as would the relaxed financial reporting requirements apply before the offering is approved by the SEC? Would the testing the waters rules be the same? It will be interesting to see if this develops further.
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.
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!!
I have now had a chance to read the 23-page, very well-written, clear and concise DC Circuit court opinion on the Reg A+ challenge brought by two states (see entry below). The ruling started with a brief history of securities law, how it started with the states but moved to add federal oversight after the 1929 market crash. Offerings exempt from full SEC registration for smaller companies have been around for a long time, and Reg A actually was first adopted in 1936. In 1996, Congress preempted state oversight of offerings involving “covered securities,” at first essentially those to trade on national exchanges such as Nasdaq or the NYSE. The JOBS Act in 2012 expanded covered securities to include those issued in Reg A+ offerings to “qualified purchasers,” a term the Act said was to be defined by the SEC. The SEC said everyone is qualified because of additional investor protections in the new rules.
To succeed in their challenge, the states would have had to prove 1) that the Act “unambiguously foreclosed” the opportunity for the SEC to write the rules the way they did or 2) that the rules were “arbitrary and capricious” and serving no valid economic purpose. The states actually tried to argue that the JOBS Act was not clear in preempting state review of Reg A+ offerings. The Court clearly and strongly disagreed and made clear it was Congress, not the SEC, preempting the states. They also stated firmly that the SEC was given very broad power in the Act to write the definition of qualified purchaser almost entirely as they wished, regardless of prior proposals on other matters and even regardless of the plain meaning of the words. And it also noted that they added further protections such as the limit on investments by non-accredited investors and the enhanced disclosure and reporting obligations, as well as clearly demonstrating the economic benefits of the new rules (um it’s called the JOBS Act!). So, said the Court, they were not foreclosed by the law to act as they did and they did not act in an arbitrary or capricious fashion.
There is a broader legal discussion about the breadth of powers of administrative agencies to implement statutory edicts, but that is for another day and probably a legal journal in any event. Let us hope that the states that brought this and their supporters accept the ruling, take their licks and move on. One assumes they would not want to appeal just to be even further rebuked by a full appeals panel. So….let’s do some deals!