Category Archives: SEC Regulations

Satisfying Regulation Fair Disclosure (RegFD): 8-K, newswire, websites, social media

With today’s one year anniversary of the SEC’s social media guidance added to RegFD, it seems a good a time as any to refresh the details of RegFD.

Issuers have considerable flexibility in determining how to satisfy the public disclosure requirements of RegFD. The public disclosure requirement can be satisfied by filing the information in a Form 8-K or by any other non-exclusionary method of disclosure that is reasonably designed to provide broad public access to the information.

RegFD was implemented October 2000 to address perceived abuses involving the selective disclosure of material nonpublic information to analysts, institutional shareholders and others with the opportunity to profit from such information. Prior to the adoption of RegFD, a number of public companies were disclosing earnings results and other nonpublic information to analysts and institutional investors before broadly disseminating that information to the general public. The SEC believed this informational disparity undermined the investing public’s confidence in the fairness and integrity of securities markets, since those who were privy to such information had the opportunity to profit at the expense of the uninformed.

BWO_038L

 

At the time RegFD was adopted, the SEC recognized the potential for using website disclosure as an acceptable means of satisfying the “public disclosure” requirement of RegFD, but stopped short of concluding that such disclosure would, by itself, suffice.

In August 2008, the SEC issued an Interpretative ReleaseCommission Guidance on the Use of Company Websites – in which it concluded that certain issuers could, subject to certain conditions, satisfy the public disclosure requirement under RegFD by posting information to their websites. To take advantage of this means of satisfying the disclosure requirement, an issuer must that its website is a recognized channel of distribution and that the disclosed information is posted and accessible on the website and has been “disseminated” for purposes of the regulation.

In this regard, the release noted that whether a company’s website is a “recognized channel of distribution” will depend on the steps the company has taken to alert the market to its website and its disclosure practices, as well as the use by investors and the market of the company’s website. Similarly, one of the factors to be considered in determining whether information on the website has been “disseminated” for purposes of RegFD is whether the company has made investors and the markets aware that it will post information on its website. While the release did not provide “bright-line” guidance as to when the public disclosure requirements of RegFD could be satisfied by an issuer’s website posting, it did provide a non-exclusive list of considerations that an issuer could use to make such a determination.

Questions regarding the legality and propriety of public disclosure through websites resurfaced when Netflix and its CEO, Reed Hastings, received Wells notices from the SEC staff communicating the staff’s intent to recommend an enforcement action against them for violation of RegFD. The staff’s action was in response to a July 2012 post on Mr. Hastings’ Facebook page, stating that in June 2012 monthly viewing of Netflix had exceeded a billion hours for the first time ever. Within two trading days of Mr. Hastings’ post, Netflix’s stock price had risen by nearly 20%, although it is not clear whether this rise was due to the Facebook post or other factors. The SEC ultimately determined not to bring an enforcement action against Netflix or Mr. Hastings. However, it released a 21A report of investigation to provide guidance to issuers regarding how RegFD and the earlier guidance in its 2008 Interpretive Release on the use of company websites apply to disclosures made through social media channels.

Click the image to request our free Corporate Governance Handbook.

Click the image to request our free Corporate Governance Handbook.

The April 3, 2013 report noted that in light of the direct and immediate communication made possible by social media channels, the SEC expected issuers to rigorously examine whether a particular channel is a “recognized channel of distribution” prior to disclosing any material information through it. To this end, the SEC emphasized that, as outlined in its 2008 Interpretive Release, the investing public should be alerted to the channels of distribution a company will use to disseminate material nonpublic information. The SEC suggested that a company could provide appropriate notice to the investing public by disclosing on its website the specific social media channels the company intends to use for the dissemination of material nonpublic information. The SEC cautioned that the disclosure of material nonpublic information on the personal social media site of an individual corporate officer – without advance notice to investors that the site could be used for such purpose – would likely be a violation of RegFD.

What is Material Information? RegFD only prohibits the selective disclosure of material information. RegFD does not define materiality, but instead relies on the definition that has developed through case law. Based on the general principles established by the courts, information would be considered material if:

  • There is a substantial likelihood that a reasonable investor would consider it important in making an investment decision
  • It would be viewed by a reasonable investor as significantly altering the total mix of information available
  • It is reasonably certain to have a substantial effect on the market price of the issuer’s securities

Given the fact-dependent nature of the analysis, there is no bright-line rule as to what should be considered material for purposes of RegFD. In the adopting release for RegFD, however, the SEC provided a non-exclusive list of the types of information and events that issuers should carefully review to assess materiality:

  • Earnings information
  • Mergers, acquisitions, tender offers, joint ventures or changes in assets
  • New products or discoveries, or developments regarding customers or suppliers (e.g., the acquisition or loss of a contract)
  • Changes in control or in management
  • Change in auditors or auditor notification that the issuer may no longer rely on an auditor’s audit report
  • Events regarding the issuer’s securities — e.g., defaults on senior securities, calls of securities for redemption, repurchase plans, stock splits or changes in dividends, changes to the rights of security holders, public or private sales of additional securities
  • Bankruptcies or receiverships

The SEC has made clear that any communication between an issuer and analysts regarding earnings involves a high degree of risk under RegFD. As a result, any information that an issuer plans to disclose to an analyst should be carefully scrutinized to confirm that it is not material or has already been publicly disseminated. If those determinations cannot be made with certainty, the issuer should consider the information material and comply with the public disclosure requirements of RegFD.

What is required in an SEC 10-K file

In concert with the recent posts about printing annual reports and 10-Ks, an overall review of what is required in a 10-K seems appropriate.

All public companies other than foreign private issuers must file an Annual Report on Form 10-K following the end of each fiscal year. The Form 10-K includes four parts, the items of which are described below.

10k

Annual report and 10-K filing need not be daunting. Click the image to learn more about how we’ll help.

Part I of Form 10-K provides a general description of the business of the company and its properties along with the risk factors that investors should consider when investing in the company.

Part I also includes:

  • a description of any material legal proceedings other than routine litigation incidental to the business to which the company or any of its subsidiaries is a party or to which any of its property is subject, and any such proceedings that were terminated in the fourth quarter of its fiscal year (along with a description of the outcome)
  • for accelerated filers and large accelerated filers, a description of any material unresolved comments from the SEC staff regarding the company’s periodic and current reports that were received 180 days or more before the end of the fiscal year and…
  • if applicable, a statement that the information concerning mine safety violations or other regulatory matters required by Section 1503(a) of the Dodd-Frank Act and Item 104 of Regulation S-K (which are discussed in more detail in section of this handbook entitled “The Dodd-Frank Act”) is included in an exhibit to the Form 10-K

Part II of Form 10-K includes a comparative presentation of selected financial data for the last five fiscal years, management’s discussion and analysis of the company’s operating results and its liquidity and capital resources, and the audited consolidated financial statements of the company (which may also be filed in Part IV), along with certain supplementary quarterly financial data.

Part II also includes:

  • information relating to the company’s common stock, including the trading market, historical high and low sales prices, the number of registered holders, the payment of cash dividends, unregistered sales of securities, and company repurchases of its common stock during the fourth fiscal quarter
  • quantitative and qualitative disclosures relating to market sensitive instruments held by the company and other primary market risk exposures (smaller reporting companies do not need to provide the information required by this item)
  • if there has been a change in the principal accountants of the company, disclosure of:  1.) any disagreements with the accountants that the accountants would have been required to disclose; or  2.) any “reportable event” that had occurred, which was material and accounted for or disclosed in a manner different from what the former accountants would have apparently concluded was required (which disclosure is required with respect to disagreements or reportable events that occurred during the year in which the change in accountants took place or during the subsequent year)
  • the conclusion of the company’s principal executive and financial officers regarding the effectiveness of the company’s disclosure controls and procedures (which are discussed in more detail below in the “Disclosure Controls and Procedures” part of this section and in the section of this handbook entitled “The Sarbanes-Oxley Act”)
  • management’s assessment of the effectiveness of the company’s internal control over financial reporting, including disclosure of any material weakness in its internal controls
  • an attestation report of the independent auditors on the company’s control over financial reporting
  • any changes in the company’s internal control over financial reporting that have materially affected, or are reasonably likely to materially affect, such internal controls and…
  • any information required to be reported in a Form 8-K during the fourth quarter that was not reported

Companies need not comply with disclosure requirements relating to disclosure controls and procedures and internal control over financial reporting until after they have filed an Annual Report on Form 10-K for a prior fiscal year. In addition, as codified in Section 989G of the Dodd-Frank Act, smaller reporting companies and non-accelerated filers are exempt from the requirement to include the attestation report of the independent auditors on the company’s internal control over financial reporting.

Part III of the Form 10-K includes disclosures relating to directors, executive officers, corporate governance, executive compensation, the beneficial ownership of management and certain large shareholders, related person transactions, director independence and accountant fees and services. Part III items may only be incorporated by reference if such proxy statement is filed within 120 days of the company’s fiscal year end. If the proxy statement is not filed within such 120-day period, the company must file an amendment to its Form 10-K prior to the end of such period that includes the Part III information.

Companies should list under Part IV of the Form 10-K their financial statements and the schedules required to be filed in Part II, along with all exhibits required to be filed by Item 601 of Regulation S-K.

The exhibits to the Form 10-K will generally include:

  1. all material contracts
  2. the company’s organizational documents
  3. all instruments defining the rights of security holders
  4. a list of the company’s significant subsidiaries
  5. any applicable consents of experts and counsel (namely, the consent of the independent auditors where the financial statements are incorporated by reference in one or more registration statements)
  6. certifications under the Sarbanes-Oxley Act, which are described in more detail below and…
  7. interactive data files with the company’s financial statements in XBRL. Most exhibits can be incorporated by reference to a previously filed document. Management contracts and compensatory plans and arrangements must be specifically identified.

Summary of Selected Items

Risk Factors. Item 503(c) of Regulation S-K requires public companies to disclose under the caption “Risk Factors” a discussion of the most significant factors that make investing in the securities of the company risky or speculative. The factors should be those risks that are specific to the company and should not include risks that apply to every public company. As a general rule, any fact or circumstance that could pose a risk to the company’s financial condition, results of operations or potential growth, or which could otherwise materially affect the performance of the company’s securities, may be a risk factor. In addition to identifying the risk factors, the company must discuss how each factor could affect the company or its securities. Companies should not include mitigating language in their risk factor disclosures.

In addition, the discussion of risk factors must be written in plain English. Smaller reporting companies are not required to provide the information required under this item. Many smaller reporting companies, however, will include risk factors in their Annual Reports to take advantage of a safe harbor defense for forward-looking statements.

Section 21E of the Exchange Act provides a safe harbor defense for companies in securities litigation for forward-looking statements that are made by the company in its Exchange Act reports. This defense is similar to the defense in Section 27A of the Securities Act and the “bespeaks caution” defense developed in securities case law. Forward-looking statements, which are commonly found in a company’s MD&A (defined below), are statements not of historical fact but of the expectations of the company with respect to its future performance or other predictions or expectations regarding future events.

To qualify for the safe harbor, companies must identify the forward-looking statements in the report with sufficient particularity and accompany the statements by cautionary language that identifies the significant factors that could cause actual results to materially differ from those contained in the forward-looking statements. The risk factors identified in the Form 10-K and other filings can provide the meaningful cautionary language required by the safe harbor.

CURTIS-HANDBOOK

Click the image to request our free Corporate Governance Handbook.

Management’s Discussion and Analysis (MD&A) of Financial Condition and Results of Operations.

Item 303 of Regulation S-K requires a discussion and analysis of the company’s operating results and its liquidity and capital resources. As articulated by the SEC, the purpose of this disclosure is to present the company’s financial condition and results of operations “through the eyes of management” and to provide the context for analysis of the financial information presented in the periodic report. A critical requirement of the Management’s Discussion and Analysis of Financial Condition and Results of Operations (better known as the MD&A) is to disclose any known trends, commitments, events or uncertainties that have had or are reasonably likely to have a material effect (positive or negative) on the company’s operating results or liquidity.

The MD&A should identify and discuss the principal drivers that have impacted and will continue to impact the company’s operating results and financial condition, as well as key performance measures, including non-financial performance indicators, which are used by management and which would be material to investors, particularly where management refers to these measures in its earnings releases. In general, the MD&A should emphasize material information and de-emphasize or omit immaterial or duplicative information.

Among other material items, the MD&A should include an analysis of the following matters relating to the company:

  • changes in cash flows
  • debt instruments and certain related covenants, including covenants:  1.) the company has breached or is reasonably likely to breach; or  2.) that materially restrict the company’s ability to incur additional debt or to undertake an equity financing
  • critical accounting policies and estimates that require subjective judgments to account for uncertain matters or matters subject to change
  • any material tax contingencies or trends or uncertainties that could affect the company’s tax obligations or effective tax rate
  • commitments for capital expenditures
  • material contingencies arising from pending litigation and regulatory matters
  • commitments for environmental expenditures and…
  • any off-balance sheet arrangements

The MD&A should include a liquidity and capital resources section that provides a clear picture of the company’s ability to generate cash and to meet existing and known or likely future cash requirements. The discussion should focus on material changes and trends in operating, investing and financing cash flows and the reasons underlying those changes. The MD&A also must include quantitative tabular disclosure regarding the company’s contractual obligations.

Sarbanes-Oxley Certifications

The Sarbanes-Oxley Act created two certification requirements for the principal executive and principal financial officers of public companies. Section 302 of the Sarbanes-Oxley Act requires a certification that is filed with each quarterly and annual report and which states that the reports are accurate and complete and that the company has in place adequate disclosure controls and procedures and internal control over financial reporting. Section 906 of the Sarbanes-Oxley Act requires a certification that is furnished with any report containing financial statements and which states that the report fully complies with Section 13(a) or 15(d) of the Exchange Act and fairly presents, in all material respects, the financial condition and results of operations of the company. Although paragraph 3 of the Section 302 certification may be omitted in certain circumstances, and plural references to “certifying officers” in paragraphs 4 and 5 can be made singular, the certifications must otherwise strictly follow the language provided in SEC rules.The SEC has said that it will not accept an altered certification even if the alteration would appear to be inconsequential. If a filed certification is not correct and complete, the accompanying report may be considered by the SEC to be materially incomplete and deemed not filed (thus potentially affecting Form S-3 eligibility, among other things).

Signatures

The Form 10-K must be signed on behalf of the company by a duly authorized officer as well as by its principal executive officer(s), its principal financial officer(s), its controller or principal accounting officer, and by at least a majority of the members of the board of directors. When the form is filed by a limited partnership, it must be signed by at least a majority of the members of the board of directors of any corporate general partner that signs the report.

WYSIWYG* v. professional typesetting and composition (DIY S-1 filing: part two)

Quite a bit of interest from last week’s discussion regarding the forensic trail highlighted in the blog post DIY an S-1 filing? Brides should not bake their own wedding cake.

The prevailing question was why did the soon-to-be-public company restart their S-1 with a traditional IPO filing process (like Vintage Filings’ drafting sessions) from its humble DIY origin?  More to the point, why is an XBRL self-filing portal OK to use for 10-Qs, but not for the S-1?

The simple answer is scale of task. Look at the video below.

This is a typical prospectus.

Although the ink and paper may look blasé, this is a major publication for a company. Without exaggeration, their future depends on this document. That fact moves its creation from WYSIWYG word processing into professional typesetting and document composition. Compound this tactical task with the legal and contractual precision that an S-1 requires and… well, you get the idea. It is not a simple typing task for a generic (and often unfamiliar) word processing program like Google Docs.

Our advice is the right tool for the right job: Use professional** typesetting and document composition for transactions. These documents are really really really large contracts. You must have the precision. If you want to tag and submit your own XBRL files with the SEC, use our MS Word and MS Excel based DIY platform (via fleXBRL).

Our sales pitch: all our solutions are perfectly priced, a key driver for our continuing success working with mid to microcap issuers. Our forensic speculation is that the DIY mis-start doubled the fee… not to mention the serious time wasted fussing around with tabs, margins, page numbers and financial tables.

Have a great day.

*What You See Is What You Get

** preferably ours at Vintage Filings

DIY an S-1 filing? Brides should not bake their own wedding cake.

Last week, a few conversational planets aligned here on the topic of a company’s self-filing of their IPO. To be exact, in this blog post, the definition of self-filing is the use of a DIY XBRL platform (what our fleXBRL offers- click here) to create and work an S-1 file completely through to final public offering.

If you are not familiar with the workflow of an S-1 with the SEC, this whitepaper – click here – will guide you to understand. We execute hundreds of transactions each year.

bridesOne conversation came about in context to our being a NYSE-approved provider of shareholder communications services to their IPOs. The question arose… should we / could we help a soon-to-be-NYSE company DIY their S-1 as they can with their quarterly XBRL? Fair question, but to date, no one had worked in our fleXBRL program for an S-1. Why would they? Regardless, we needed an example.

The next task was to identify any S-1 that self-filed via an XBRL portal. (This identification can be done by researching the publicly filed SEC records.) A single, recent example was brought to my attention, however as it was not our account, the details of the workflow are backwards forensics from the public record.

The conversation next went to why was the openly published S-1 filing fee to the client so high for a DIY portal? What also stood out was that the price was too high even for a traditional S-1: almost twice what we generally bill a micro/small-cap company for full service IPO drafting and registration.

The forensics tell a story:  I have changed all identifiers.

DATE FORM FILING AGENT
July 22, 2013 Form D Law Firm
Sept 10, 2013 S-1 Corporation themselves via DIY portal
Sept 15, 2013 S-1/A Corporation themselves via DIY portal
Sept 24, 2013 S-1/A Corporation themselves via DIY portal
Oct 4, 2013 S-1/A Traditional S-1 filing provider
Oct 8, 2013 8-A12B Corporation themselves via DIY portal
Oct 11, 2013 S-1/A Traditional S-1 filing provider
Oct 12, 2013 FWP Traditional S-1 filing provider
Oct 13, 2013 CERTNAS (SEC posting)
Oct 13, 2013 S-1MEF Traditional S-1 filing provider
Oct 14, 2013 EFFECT (SEC posting)
Oct 14, 2013 424B1 Traditional S-1 filing provider
Oct 19, 2013 8-K Corporation themselves via DIY portal

It seems they started the S-1 themselves, but after two amendments, called in “a pro.”

Why the October 4th switch to a traditional S-1 filing provider – like Vintage Filings?  Another “SEC Filings CSI” data point we uncovered is the company filed as a JOBS Act Confidential IPO.

Our professional speculation is that once the company publicly declared their intent to IPO on Oct 4th, their Confidential IPO 21-day disclosure window came into play. Safe to assume that the added burden, public scrutiny and needed attention to detail – plus perhaps pressure from their banks and lawyers – advocated the issuers’ management team hand-off the S-1 to an experienced filer. Going public is VERY stressful…senior executives need to focus on the business, not on typesetting.

AKA: Brides should not bake their own wedding cake. (this video demonstrates what a drafting session looks like – phew)

Fiscal forensics: The S-1 file hand-off may have caused the dramatic fee increase. The company paid for both DIY and traditional service. Even if Vintage Filings was given the hand-off, we’d also have to re-key the entire S-1 into our filing (typesetting/editing/filing) workflow platform. In this exact case, had the company worked with us from the initial S-1 to pricing, they would have cut their costs in half and more importantly, not burned their valuable time.

XBRL portals are excellent for filing XBRL. XBRL portals are especially excellent for companies who have in-house accounting experts. We have dozens of clients who work as such via our fleXBRL. We also have clients who prefer (need) full service.

Our view? Don’t self-file an S-1. Too many steps. Too many cooks. If you are organized, the cost can be very contained. At least with Vintage Fillings.  

Have a great day.

How long is the Confidential IPO and SEC ping-pong match? 74 days

pingpongAs they posted today, the Wall Street Journal reports that the average time period that companies spend in the confidential phase working out their IPO registration with the SEC is just 74 days.

Why is it a ping-pong match? Download our white paper (click here) and you’ll graphically understand.

Important note: unlike a true game of ping-pong, this Confidential IPOs and SEC game is not a competition. It’s really about working, checking and amending to assure complete transparency toward shareholders when the final offer is public.  As we’ve commented before, the term “confidential” infers spies and secrets. That’s not the case. These emerging Growth Companies are being cautious (in a very competitive and fickle marketplace) for many sound reasons.

From the WSJ

The Wall Street Journal analyzed the previously confidential IPO filings of 209 U.S. companies submitted to the SEC since Oct. 15, 2012.

Agios Pharmaceuticals Inc. had the shortest consultation period, at 18 days, while fast-food chain Potbelly Corp. had the longest of the group, at 289 days. Agios and Potbelly confirmed the findings.

If you have access to the WSJ, the full article is here.

To lean about our S-1 and transactions team, watch this brief video now.

Have a great day.

Dammit, how many times do I have to tell you? It’s a Cautious IPO, not stealth or secret

An excellent article in yesterday’s NYT DealBook regarding companies taking advantage of the JOBS Act’s “confidential IPO” process. Or as we like to describe this S-1 registration… a cautious IPO.

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What I liked most about the piece is the position that the process is becoming the new normal for emerging growth tech companies.

From the article:

It’s not just technology companies. Roughly 70 to 80 percent of all I.P.O.s in the United States that priced last year began as confidential filings, according to the research firm Renaissance Capital.

“It wasn’t really a hard decision,” said Robert Chesnut, the general counsel of Chegg, an education start-up that filed confidentially before it went public last fall. “There were lots of advantages and not much in the way of a downside.”

You can read the full article here.

I also recommend you download our recent whitepaper that compares the workflow of a confidential IPO against a traditional IPO. I think the comparison will surprise you.  Click here for the whitepaper.

Our Transactions team frequently works (S-1 registration drafting sessions) with cautious IPOs.  I’d tell you more, but then that would NOT be very confidential of me.

Have a great day

The SEC just announced 255 reasons why microcap companies need an IR website

hammerThe SEC announced a major action today against 255 pump-and-dump companies.

From the SEC news release:

SEC Continues Microcap Fraud Crackdown, Proactively Suspends Trading in 255 Dormant Shell Companies.

The Securities and Exchange Commission today announced the latest actions in its microcap fraud-fighting initiative known as Operation Shell-Expel, suspending trading in 255 dormant shell companies ripe for abuse in the over-the-counter market. 

Since Operation Shell-Expel began in 2012, the SEC Enforcement Division’s Office of Market Intelligence has been cleaning up the microcap marketplace by scrutinizing penny stocks nationwide and identifying clearly inactive companies.  This has enabled the SEC to proactively suspend trading in several hundred dormant shell companies before fraudsters have an opportunity to manipulate them. 

Remarkably, the SEC published a handy alphabetical list of the names of all 255 companies.

Why these companies are 255 reasons to create an IR website:

OTC Markets is a viable, important market – not only for Emerging Growth Companies but for international corporations’ ADR listing, like Heineken N.V. (OTCQX: HEINY) that just listed on the OTC markets last week. (awesome!)

Unfortunately, the fraudulent pump-and-dump schemes can taint the entire microcap brethren. Ethical corporations, on ALL EXCHANGES, need to demonstrate their commitment to transparency – and an investor relations website is the easiest media to do that. In fact, only 27% of investors reported they would invest in a company that did not show its transparency via an IR website.  ( see report here )

Helping microcaps is a specialty for us… beginning with their S-1, right through into the shareholder communications. We actively turn away business from stock-promoters and rant against pumpers often here on this blog.

We invite microcap companies to speak with us about using transparency as differentiation.  We have special microcap solutions, realistically priced-tiered. Use this form.

Have a great day.

Whitepaper illustrates the simple difference between traditional IPOs and confidential IPOs

Click the image to download the whitepaper

Click the image to download the whitepaper

When Twitter announced their confidential IPO last year, many pundits took this as a negative move. “Something is up over there…” Bah. As blogged here, the word “cautious” is a better word to describe the motives of the confidential IPO process.

What is a confidential IPO? The JOBS Act allows firms with less than $1 billion in annual revenue (emerging-growth companies or EGCs) to keep their IPO filings confidential up until just three weeks before they roadshow and market their shares. This is in contrast to the typical S-1 file which is openly filed months before the roadshow giving potential investors, media, peers and competitors a longer time window to consider an investment.

So the questions are… what are investors missing? Is there material information they are not seeing? What is held confidential? What is the SEC doing? Are investors going to “get screwed” from this clock-and-dagger filing?

  • No information is held back from potential investors.
  • The SEC is doing the exact same work they always do with a “traditional” S-1 (IPO) filing.

As you will read in the whitepaper, the single workflow difference is when the S-1 file is released to the public. The confidential IPO process only alters the timeline of the S-1 disclosure, not the material information within the S-1. Traditional or confidential IPO – the same amount of information is disclosed. 

Why file confidential? The confidential filing gives EGCs some elbow room to discover different options to access required capital… including a public offering, a complete sale or some other capital-raising path. The confidential option is very useful for companies in a market that is demonstrating shorter pricing windows due to volatility. They can begin the regulatory review process quietly and if “The Market” environment becomes unfavorable, they can peacefully stop the process without facing any market backlash for “pulling their IPO.”

Lastly, in situations like Twitter perhaps, a confidential filing lessons the intense media spotlight – allowing the executive team to focus.

____________________________________________________________________

Vintage Filings has worked with hundreds of companies for their transactions. Here is one of our confidential IPO clients interviewed in Forbes.

Download the whitepaper here.

Have a great day.

No D-cision on SEC Form D yet

With the JOBS Acts’ lift on solicitation and general advertising (Rule 506) – the once benign SEC Form D filing is now under the regulatory and Congressional microscope.

formdCurrently, a Form D is not required to be filed until 15 days after a Rule 506(c) offering has commenced. The SEC is considering that an advance Form D be filed 15 days before the general solicitation offering commences. This is suggested as a protective balance against fraud towards the newly advertised general public.

The first wave of comments submitted to the SEC leaned against the Advanced Form D, citing more regulatory burden and assumedly sophisticated, experienced investors who were in the dealflow… pre-general solicitation. The advance file may effectively take away their “edge.”

However, last week, several Senators penned a letter to SEC Chair Mary Jo White warning on the side of caution: they want the advance Form D. They acknowledge that the Rule 506 exemption is used by many genuine issuers, they are concerned about protecting investors before they invest. The advance filing will also give state securities regulators the chance to assure the issuer is not advertising an unregistered, non-exempt offering.

Regardless of the final outcome, please contact Vintage Filings for assistance with your Form D.

Happy New Year!

SEC closed for Christmas Holiday: Wednesday, December 25th

In honor of Christmas, the SEC is closed on Wednesday, December 25, 2013. No files can be received.

Files submitted after 5:30 pm ET, Tuesday, December 24, 2013 will receive a filing date of Thursday, December 26, 2013 and will be posted to the public on December 26.

SECCOOKIES

 

As with other holiday closings, the following file types will receive a Tuesday, December 24, 2013 filing date if filed by 10:00 pm ET on Tuesday:

  • Form 13H filings
  • Section 16 filings (3, 3/A, 4, 4/A, 5, 5/A)

For any filing with a due date of Wednesday, December 25, 2013, the SEC will move the due date to the next business day.

Have a great day.