Category Archives: SEC Regulations

SEC approves Mini-IPO for raising ~ dundundunnnn ~ 50 million dollars!

Yesterday, the SEC approved the final rules for the implementation of Title IV of the JOBS Act’s Regulation A+  which allows start-ups and emerging growth companies (EGC) to crowdfund a $50 million mini-IPO with the general public… not just raise funds from qualified (accredited) investors per Regulation D offerings.

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Until yesterday, EGCs could only raise $5 million in a public offering via Regulation A (no “+”). Reg A also had other roadblocks including most states requiring their own individual Blue Sky Law adherence.

Regulation A+ has increased the raise to $50 million and removed the necessity for individual state compliance. 

The “who” can invest is key. EGCs were locked to work with accredited investors – individuals who earn more than $200K per year or have a net worth over $1M. Regulation A+ allows anyone to invest 10 percent of their annual income or net worth – but no more. The SEC will be carefully monitoring for fraud and bad actors.

Read the SEC regulations here. 

Certainly, this increase in cash will help companies work and earn their way to a “regular-sized” IPO. Vintage will be ready to help guide that journey. 

No news on the SEC’s progress getting sharks with frikin’ laser beams attached to their heads.

Keep Notice & Access in check with the SEC

Much like the first crocus blooms, Spring also blooms an uncompromising reminder to public companies about the tactical requirements surrounding the shareholder communications of their annual report and proxy materials. Each year, we help our clients with some or all of the different parts of these requirements.

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Unless the issuer chooses to hardcopy print and mail the full annual report and proxy materials to all their shareholders by default, they can select to follow the SEC’s 2009 Notice of Internet Availability of Proxy Materials process. Generally called “Notice and Access,” this simply means an issuer can, 40 days prior to the annual shareholder meeting, ask investors – via a mailed card –  if they want to continue receiving hardcopy versions of the annual report and proxy materials or switch to online only. Public companies send a “notice” asking shareholders how they want “access” to the materials. 

Check these points each year:

  • All materials identified in the Notice of Internet Availability of Proxy Materials must be publicly accessible, free of charge, at the website address specified in the notice on or before the time that the notice is sent to the shareholder and all materials must remain available on that website through the conclusion of the annual shareholder meeting
  • All additional soliciting materials sent to shareholders, or made public after the Notice of Internet Availability of Proxy Materials has been sent, must be made publicly accessible at the specified website address no later than the day on which such materials are first sent to shareholders or made public.
  • The website address relied upon for compliance under this section can not be the SEC website
  • The issuer must provide shareholders with a means to execute a proxy as of the time the Notice of Internet Availability of Proxy Materials is first sent
  • The materials must be presented on the website in a format, or formats, convenient for both reading online and printing on paper

The Notice of Internet Availability of Proxy Materials must contain the following:

  • A prominent legend in bold-face type that states “Important Notice Regarding the Availability of Proxy Materials for the Shareholder Meeting To Be Held on [insert meeting date]” 
  • An indication that the communication is not a form for voting and presents only an overview of the more complete proxy materials, which contain important information and are available on the Internet or by mail, and encouraging a security holder to access and review the proxy materials before voting
  • The website address where the proxy materials are available
  • Instructions regarding how a security holder may request a paper or e-mail copy of the proxy materials at no charge, including the date by which they should make the request to facilitate timely delivery, and an indication that they will not otherwise receive a paper or e-mail copy
  • The date, time, and location of the meeting, or if corporate action is to be taken by written consent, the earliest date on which the corporate action may be effected
  • A clear and impartial identification of each separate matter intended to be acted on and the soliciting person’s recommendations, if any, regarding those matters, but no supporting statements
  • A list of the materials being made available at the specified website
  • A toll-free telephone number, an e-mail address, and an Internet Web site where the security holder can request a copy of the proxy statement, annual report to security holders, and form of proxy, relating to all of the registrant’s future security holder meetings and for the particular meeting to which the proxy materials being furnished relate
  • Any control/identification numbers that the security holder needs to access his or her form of proxy
  • Instructions on how to access the form of proxy, provided that such instructions do not enable a security holder to execute a proxy without having access to the proxy statement and, if required by Rule 14a-3(b), the annual report to security holders
  • Information on how to obtain directions to be able to attend the meeting and vote in person

Except for a pre-addressed, postage-paid reply card for requesting a copy of the proxy materials, the Notice of Internet Availability of Proxy Materials may not be incorporated into, or combined with, another document, except that it may be incorporated into, or combined with, a notice of security holder meeting required under state law, unless state law prohibits such incorporation or combination.

Materials must be presented in plain English:

To enhance the readability of the Notice of Internet Availability of Proxy Materials, the registrant must use plain English principles in the organization, language, and design of the notice: at a minimum, it substantially complies with each of the following plain English writing principles:

  • Short sentences
  • Definite, concrete, everyday word
  • Active voice
  • Tabular presentation or bullet lists for complex material, whenever possible
  • No legal jargon or highly technical business terms
  • No multiple negatives
  • I2015_booksn designing the Notice of Internet Availability of Proxy Materials, the registrant may include pictures, logos, or similar design elements so long as the design is not misleading and the required information is clear.

FOR COMPLETE DETAILS ON THIS, I SUGGEST YOU REQUEST OUR 2015 SEC REPORTING RULES GUIDEBOOK SET > CLICK HERE. IT CONTAINS 300 PAGES ON PROXY STATEMENTS.  

The 2015 edition of the SEC Reporting Rules include Form SD – for guidance on conflict minerals

Timing is everything. Helping a client yesterday, the discussion of conflict minerals rose – followed by a discussion of needing a Form SD. The good karma of Saul Ewing LLP added a complete new section on Form SD into the 2015 SEC Reporting Rules books. It’s a great resource.

You can request a free set to be mailed to you here.

Certainly, conflict minerals is a messy political, ethical and business arena. The points to share now that were most germane from the conservation yesterday are the following, high-level definitions:

It's a complicated world. These guides can help.

It’s a complicated world. These guides can help.

  • Adjoining country: The term adjoining country means a country that shares an internationally recognized border with the Democratic Republic of the Congo.
  • Armed group: The term armed group means an armed group that is identified as a perpetrator of serious human rights abuses in annual  country Reports on Human Rights Practices under sections 116(d) and 502B(b) of the Foreign Assistance Act of 1961 relating to the Democratic Republic of the Congo or an adjoining country.
  • The term conflict mineral means:
    • Columbite-tantalite (coltan), cassiterite, gold, wolframite, or their derivatives, which are limited to tantalum, tin, and tungsten, unless the Secretary of State determines that additional derivatives are financing conflict in the Democratic Republic of the Congo or an adjoining country; or
    • Any other mineral or its derivatives determined by the Secretary of State to be financing conflict in the Democratic Republic of the Congo or an adjoining country.
  • DRC conflict free. The term DRC conflict free means that a product does not contain conflict minerals necessary to the functionality or production of that product that directly or indirectly finance or benefit armed groups in the Democratic Republic of the Congo or an adjoining country. Conflict minerals that a registrant obtains from recycled or scrap sources are considered DRC conflict free.
  • DRC conflict undeterminable. The term DRC conflict undeterminable means, with respect to any product manufactured or contracted to be manufactured by a registrant, that the registrant is unable to determine, after exercising due diligence, whether or not such product qualifies as DRC conflict free.
  • Conflict Minerals from Recycled or Scrap Sources. Conflict minerals are considered to be from recycled or scrap sources if they are from recycled metals, which are reclaimed end-user or post-consumer products, or scrap processed metals created during product manufacturing. Recycled metal includes excess, obsolete, defective, and scrap metal materials that contain refined or processed metals that are appropriate to recycle in the production of tin, tantalum, tungsten and/or gold. Minerals partially processed, unprocessed, or a bi-product from another ore will not be included in the definition of recycled metal.
  • Outside the Supply Chain. A conflict mineral is considered outside the supply chain after any columbite-tantalite, cassiterite,  and wolframite minerals, or their derivatives, have been smelted; any gold has been fully refined; or any conflict mineral, or its derivatives, that have not been smelted or fully refined are located outside of the Democratic Republic of the Congo or an adjoining country.
  • Nationally or internationally recognized due diligence framework. The term “nationally or internationally recognized due diligence framework” means a nationally or internationally recognized due diligence framework established following due-process procedures, including the broad distribution of the framework for public comment, and is consistent with the criteria standards in the Government Auditing Standards established by the Comptroller General of the United States.

Work with your counsel if this is a topic that affects your organization. The list above is merely the vocabulary you will need to know. 

Have a great day.

2015 SEC Reporting Rules Guidebooks are in: Forms 10-K, 10-Q, 8-K, SD and Proxy Statements

We are pleased to provide you with our annual updated editions of the SEC Reporting Rules for Forms 10-K, 10-Q, 8-K, SD and SEC Reporting Rules for Proxy Statements.

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These publications are an excellent reference source for legal and accounting professionals and corporate executives.

  • FREE
  • 680 pages
  • Up-to-date for 2015 including in-depth information on Form SD
  • Detailed table-of-contents for quick reference

In addition to outlining the applicable laws, regulations and rules, these guidebooks seek to provide practical guidance reflecting, among other things, interpretive guidance issued by the Securities and Exchange Commission, general industry practice and the authors’ experience. In addition, we eliminate many cumbersome citations and provide “plain English” rule references.

CLICK HERE: These are printed guidebooks. There are no fees to receive these resources. Please expect a call to confirm your shipping address.  

Thank you and have a nice weekend.

2015 SEC filing calendar – don’t miss a deadline or holiday closing

This is the shortest post you’ll ever read hereClick here to download our 2015 SEC filing calendar. 

You don’t need to log-in, but if you are so inclined, there is a sign-in to receive news and updates from us.

Vintage_2015-SEC_Calendar_image_blog

Top SEC transactions law firms: Q1 – Q3 2014

In plain English, a capital markets transaction is an extremely important contract. For a soon-to-be public company, an S-1 is thee most important contract. However, as discussed last week, (read here) there are many types of transactions – across all three main exchanges: OTC Markets, Nasdaq and NYSE.

Total transactions count for the first two-thirds of 2014 is 1,858… and all of these transactions needed a law firm – if not two or more. In fact, the 1,858  transactions counted listed 450 different law firms. Below is a graph of the top twelve, by transaction count.

We carefully track all capital markets transactions as Vintage executes the drafting sessions for law firms. We have become the intelligent value for transactions: in-house, at a corporate or law office and now more increasing, 100% virtual. You can see an in-house drafting session in this video.

CLICK TO ENLARGE

Top twelve, in order of Q3 ranking. Click to enlarge.

If you are interested in this topic, please click here and opt-in to receive a weekly (Monday) update of transactions and law firms via email.

We also have a whitepaper that explains the ping-pong match an S-1 file plays between an issuer and the SEC. Click here to download it.

Have a great week

Emerging Growth Company Qualification

Confidential IPO filings have become the new normal for a large percentage of our S-1 clients in 2014. The JOBS Act gave this “elbow room” to any company defined as an Emerging Growth Company. Recently, we had a client that was not actually sure IF they qualified as an EGC. 

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A corporate issuer qualifies as an emerging growth company if its total gross revenues were less than $1 billion (or the foreign currency equivalent, calculated on the basis of U.S. GAAP or IFRS) during its most recently completed fiscal year. Qualification as an emerging growth company is available to both U.S. issuers and foreign private issuers.

An issuer will maintain its emerging growth company status until the earliest of:

  • The end of the fiscal year during which its total gross revenues exceed $1 billion
  • The end of the first fiscal year after the fifth anniversary of its IPO
  • The date on which it will have issued more than $1 billion in non-convertible debt during the previous three-year period
  • The date on which it becomes a “large accelerated filer,” which generally refers to an issuer that: a.) had an aggregate worldwide market value of voting and non-voting common equity held by its non-affiliates of $700 million or more, as of the last business day of its most recently completed second fiscal quarter; b.) has been subject to the requirements of Section 13(a) or 15(d) of the Exchange Act for a period of at least 12 calendar months; c.) has filed at least one annual report pursuant to Section 13(a) or 15(d) of the Exchange Act; and d.) is not eligible to use the requirements for “smaller reporting companies” for its annual and quarterly reports.

Accommodations for Emerging Growth Companies

The JOBS Act provides emerging growth companies with various accommodations, including relaxed disclosure, corporate governance, accounting and auditing requirements. The following summarizes the key JOBS Act accommodations for emerging growth companies.

Disclosure Requirements

In an IPO, an emerging growth company is only required to present two years (instead of three years) of audited financial statements in its IPO registration statement. Furthermore, for later registration statements or periodic reports filed under the Exchange Act, an emerging growth company will not be required to present selected financial data as required by Item 301 of Regulation S-K for any period prior to the earliest audited period presented in its IPO registration statement.

Significantly, emerging growth companies are only required to comply with the scaled executive compensation disclosure requirements that apply to smaller reporting companies under Item 402 of Regulation S-K. For example, an emerging growth company is not required to include a Compensation Discussion and Analysis in its proxy statements. In addition, emerging growth companies will not have to comply with the “pay-for-performance” and “CEO pay ratio” disclosure rules required to be adopted by the SEC under Section 953 of the Dodd-Frank Act.

Although the JOBS Act exempts emerging growth companies from providing the disclosures listed above, emerging growth companies may nevertheless wish to include such disclosures for commercial or competitive reasons, or to ensure that the absence of such disclosures does not render existing disclosure misleading.

Corporate Governance

An emerging growth company is not required to have its independent registered public accounting firm provide an attestation report on the company’s internal control over financial reporting, as required by Section 404(b) of the Sarbanes-Oxley Act. Emerging growth companies are also exempt from the requirement to hold a shareholder advisory vote on executive compensation (say-on-pay) or shareholder advisory vote on golden parachute compensation at any shareholders’ meeting to approve a merger or similar transaction.

Accounting and Auditing Requirements

Emerging growth companies are not required to comply with any new or revised financial accounting standard until a private company would be required to comply with the standard. Emerging growth companies also will not be required to comply with PCAOB rules adopted after the enactment of the JOBS Act, unless the SEC determines otherwise.

On December 17, 2012, the SEC determined that new PCAOB rules for improving communications between auditors and audit committees should apply to emerging growth companies. In its approval order, the first to address application of new PCAOB rules to emerging growth companies, the SEC stressed that the JOBS Act did not establish a “presumption” that new PCAOB rules should not apply to emerging growth companies. Rather, the SEC may require an emerging growth company to comply with a new PCAOB rule whenever the SEC finds that compliance is necessary or appropriate in the public interest, after considering the protection of investors and whether the rule will promote efficiency, competition and capital formation.

Shareholder Communications

The JOBS Act softens restrictions on communications between securities analysts and potential investors and between securities analysts and the management of an emerging growth company. Emerging growth companies are allowed greater flexibility to communicate with potential institutional investors about a securities offering both before and after the filing of the registration statement so that the company can “test the waters” to determine investor interest in the securities offering. These “test the waters” communications must be limited to institutional investors that are either “qualified institutional buyers” or “accredited investors.” Qualified institutional buyers or “QIBs” are defined generally as institutions that own and invest at least $100 million in securities on a discretionary basis. In general, for an entity to be considered an accredited investor, it must have total assets in excess of $5 million.

Research Coverage

The JOBS Act makes it easier for brokers and dealers to provide research coverage of an emerging growth company, even if participating in the company’s registered equity offering, by allowing the broker or dealer to publish and distribute research reports about the emerging growth company and its securities both before and after the filing of the registration statement without violating the gun-jumping rules under Section 5 of the Securities Act.

Confidential Treatment

In an IPO, an emerging growth company is permitted to submit drafts of its IPO registration statement and amendments confidentially to the SEC so long as they are filed publicly 21 days before the company conducts a road show. Confidential treatment extends to all correspondence related to the SEC’s review of the IPO registration statement and amendments.

In addition to the emerging growth company accommodations described above, Title I of the JOBS Act directs the SEC to review Regulation S-K to determine how to modernize and simplify the registration process and reduce the burdens on emerging growth companies. The JOBS Act directs the SEC to provide a report to Congress by October 2, 2012 containing its specific recommendations on improving the registration process. As this handbook goes to publication, the SEC had not yet provided this report to Congress.

Have a great day.