Category Archives: SEC Regulations

Update your EDGAR contact information by Jan. 30 to prevent deadline angst: step-by-step instructions

v-passphrase-blog-art

Our step-by-step guide will ease your pain!

On January 30th, 2017, the SEC is updating the security process for the EDGAR Passphrase reset. The Passphrase is essential for any filing entity – company or individual – to generate a new CCC, PMAC and Password.

It is essential that entities confirm and update their EDGAR contact information before the Jan 30th deadline.

After that date, if the contact information is not correct, the new Passphrase “security token” cannot be sent to the filer trying to reset their Passphrase.

  • Without this token, significant delays may occur – beyond 48 hours. Specifically, filers will need to provide authorization to have their codes reset, and in the case of a company, the request must be on company letterhead. If a Power of Attorney (POA) is provided, it must be manually signed. Clearly, this will affect a filer’s ability to timely submit their filings.
  • With the token, Passphrase updating should take just a few minutes.

To mitigate your risk of filing late due to misplaced codes and passwords, we have created this brief How to Update Your EDGAR Contact Information guide.

v-download-guiude
IMPORTANT: We can proactively manage the “Passphrase Update” and “Form ID” processes with you. It’s part of the client service support we offer at Vintage.

If you have any difficulty / are unable to log-in to confirm or edit your EDGAR contact information, please reach out to our client services team immediately BY CLICKING HERE to send an email to VintageCS@thevintagegroup.com.

Note: In line with the SEC’s processes for proposals, we are awaiting final acceptance of  this new rule. 

Section 16 filings are easy to DIY (a review of insider Forms 3, 4 and 5)

Prior the new year, we hold re-cap meetings with many clients. One of the most frequent topic is regarding Section 16 filings. 

There are three types of corporate insiders for purposes of Section 16: officers, directors and greater than 10% shareholders. We refer to these three types of corporate insiders collectively as Section 16 insiders.

The company officers subject to Section 16 are:

  • The president
  • The principal financial officer
  • The principal accounting officer (or, if there is no such accounting officer, the controller)
  • Any vice president in charge of a principal business unit, division or function (such as sales, administration or finance)
  • Any other officer who performs a significant policy-making function
  • Any other person who performs similar policy-making functions for the company

Section 16 insiders must file reports with the SEC disclosing their beneficial ownership of and transactions in a public company’s equity securities. The three forms on which Section 16 insiders must make these reports – Forms 3, 4 and 5.

Our DIY portal is very easy to learn and use.

Our DIY portal is very easy to learn and use.

Form 3: Initial Statement of Beneficial Ownership of Securities.

Section 16 insiders must file an initial report on Form 3 with the SEC within 10 days of becoming subject to Section 16. For a person who is elected an officer or director of a company that already has a class of equity securities registered under Section 12, the 10-day period begins when the person becomes an officer or director. Section 929R of the Dodd-Frank Act amended Section 16 of the Exchange Act to authorize the SEC to establish by rule a shorter time period within which a new Section 16 insider would be required to file a Form 3. As this handbook goes to publication, the SEC has not proposed any rule change that would shorten the current 10-day reporting window.

Persons who are officers, directors or greater than 10% shareholders of a company that registers a class of equity securities (and did not previously have a class of registered equity securities) are required to file a Form 3 on the effective date of the company’s registration statement. In any case, the Form 3 must disclose all equity securities of the company that the Section 16 insider beneficially owned on the date the person became subject to Section 16. Even if a director or officer owns no securities on the date he or she becomes a Section 16 insider, he or she is still required to file a Form 3.

In certain circumstances, the Section 16 insider should file an initial Form 3 earlier than is required. As discussed below, a Section 16 insider generally must report changes in his or her beneficial ownership of the company’s equity securities on Form 4 within two business days. If the Section 16 insider’s beneficial ownership of the company’s equity securities changes during the 10-day period before he or she must file a Form 3 (e.g., where a new director is granted restricted stock upon his or her appointment), the SEC recommends that the Section 16 insider file an initial Form 3 concurrently with a Form 4 reporting the change, notwithstanding that the rules permit the Form 3 to be filed at a later date.

Form 4: Statement of Changes in Beneficial Ownership.

After filing a Form 3, a Section 16 insider must report any subsequent change in beneficial ownership of the company’s equity securities by filing a Form 4 within two business days, unless the transaction is exempt from reporting or is eligible for deferred reporting.

Transactions that must be reported on Form 4 include, but are not limited to:

  • Non-exempt purchases and sales of equity securities held in the Section 16 insider’s name
  • Transactions involving equity securities held by others but that the Section 16 insider is deemed to beneficially own (i.e., equity securities in which the Section 16 insider has a “pecuniary interest,” as discussed above)
  • Exercises or conversions of derivative securities
  • Acquisitions and grants of any of the company’s equity awards (including options), even if not presently exercisable
  • Entry into various other derivative transactions, including equity swaps and similar hedges
  • Awards to non-employee directors made pursuant to equity incentive plans
  • Equity securities received from a non-exempt dividend reinvestment
  • Dispositions of equity securities to the company (e.g., the company’s retention of shares to pay the Section 16 insider’s tax withholding obligation upon the exercise of stock options)

Following an IPO, the directors and officers of the company before it became public may be required to report certain pre-IPO transactions in the company’s equity securities. Such a filing obligation may arise if the director or officer engages in a reportable transaction less than six months after the date that the company’s registration statement becomes effective. In such event, the director or officer is required to “look back” for a period of six months from the date of the reportable transaction and report on its first required Form 4 any transactions in the company’s equity securities that occurred during that period. Persons who are Section 16 insiders by virtue of being greater than 10% shareholders are not subject to six-month look-back periods. Likewise, a covered officer or director may be required to report transactions that occur after the company ceases to be a public company (i.e., because of termination of its Section 12 registration and reporting obligations). An otherwise reportable transaction occurring after the company is no longer public will be reportable on Form 4 if (and only if) the transaction is not exempt from Section 16(b) and occurs within six months of an “opposite way” transaction that was also subject to Section 16(b) and occurred while the company was public. For purposes of this rule, an acquisition and subsequent disposition (or vice versa) are considered “opposite way” transactions.

A covered officer or director may also be required to report transactions that occur after the termination of that person’s officer or director status. An otherwise reportable transaction occurring after the cessation of a person’s officer or director status will be reportable on Form 4 in the same circumstance as a transaction that occurs after a company ceases to be public (i.e., if (and only if) the transaction is not exempt from Section 16(b) and occurs within six months of an “opposite way” transaction that was also subject to Section 16(b) and occurred while the person was still a director or officer). A person who is a Section 16 insider solely by virtue of being a greater than 10% shareholder ceases to be subject to Section 16 reporting requirements once the person ceases to be a greater than 10% shareholder.

The SEC has adopted a variety of exemptions from the reporting requirements of Section 16(a) based upon the nature of the transaction. These exemptions apply to the following types of transactions:

  • Any increase or decrease in the number of equity securities held as a result of a stock split or a stock dividend applying equally to all securities of a class
  • The acquisition of rights, such as shareholder or preemptive rights, pursuant to a pro rata grant to all holders of the same class of registered equity securities
  • Transactions that effect only a change in the form of beneficial ownership without changing the person’s pecuniary interest in the subject equity securities (note, however, that this exemption does not cover the exercise and conversion of derivative securities or deposits to and withdrawals from voting trusts)
  • Certain transactions pursuant to tax-conditioned employee benefit plans
  • Acquisitions made pursuant to a dividend reinvestment plan, provided that the plan meets certain requirements specified in Rule 16a-11 under the Exchange Act
  • Acquisitions or dispositions of an equity security pursuant to a domestic relations order
  • The disposition or closing of a long derivative security position as a result of cancellation or expiration, provided that the Section 16 insider receives no value in exchange for the expiration or cancellation

In addition to the above exemptions, the SEC has adopted a number of exemptions based upon the status of the Section 16 insider. Depending on the circumstances, certain of these exemptions may be available to executors and other fiduciaries, odd-lot dealers, market makers, arbitrageurs, underwriters and other persons who participate in a distribution of the company’s equity securities.

Form 5: Annual Statement of Changes in Beneficial Ownership

A Section 16 insider must report certain transactions on a year-end report on Form 5within 45 days after the end of the company’s fiscal year. Some transactions, most notably gifts, are not required to be reported on Form 4, but must be reported on Form 5. A Section 16 insider is required to file a year-end Form 5 to report any transaction that the person should have reported during the fiscal year on Form 3 or Form 4, but did not. Transactions reportable on Form 5 are limited to the following:

  • Certain transactions occurring during the most recent fiscal year that are exempt from short-swing profit liability under Section 16(b), such as bona fide gifts of the company’s equity securities, but excluding exempt transactions which involve the company
  • Qualifying de minimis acquisitions of the company’s equity securities
  • Transactions that the Section 16 insider should have reported on Form 3 or Form 4 during the most recent fiscal year, but did not

Disclosure of Reporting Delinquencies; Compliance Programs. Item 405 of Regulation S-K requires a company to disclose in its annual proxy statement and annual report on Form 10-K certain information regarding the failure of any Section 16 insider to timely file a Section 16 report during the previous fiscal year or prior fiscal years. For each such delinquent Section 16 insider, the company is required to set forth the number of late reports, the number of transactions that were not reported on a timely basis, and any known failure to file a required Form 3, 4 or 5. Although there is no official sanction placed upon the company as a result of the filing delinquencies of its insiders, such disclosures are potentially embarrassing.

Accordingly, every public company should develop and implement a strong compliance program to ensure that its directors and officers timely file all required reports. In addition to minimizing the potential for embarrassing disclosures of the type described above, a strong compliance program will assist the company’s directors and officers in avoiding both short-swing liability under Section 16(b) and SEC enforcement actions to enforce Section 16(a)’s reporting requirements.

Filing Procedures and Website Posting.

All Section 16(a) reports must be filed with the SEC electronically using the SEC’s EDGAR filing system, and all reports become publicly available immediately upon filing.

a

2017 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 2017 SEC filing calendar.

ppushpin2017

*Pushpin not actual size

Video: a “Main Street” perspective on (safely) investing in Reg A+ companies

Admittedly, we spend a lot of time discussing the company-side of the “Mini-IPO” coin. That’s probably why Vintage is #1 (click here).

But what happens after we (perfectly) create and (assuredly) zoom the Form 1-A to the SEC? How do investors identify an opportunity to take a position in an Emerging Growth Company? How can investors mitigate risk from bad ideas and straight-up fraud?

We invited three experts to explain exactly that.

Mini-IPOs: Mechanics and Safeguards for Investing

  • Sara Hanks, CEO, CrowdCheck
  • Ryan Feit, CEO, SeedInvest
  • Yoel Goldfeder, CEO VStock

Here’s a snippet: Log in and watch the complete video here.

.

Not many individual investors (um… none) visit this blog, however, the webinar replay is VERY educational for any law firm or corporation working on a Reg A+ registration.

Understanding how investors can find you – as well as their due diligence process – is an essential aspect for setting realistic corporate expectations, financial goals and marketing measurements for success.

Non-GAAP is not a non-issue at the SEC

This week, two SEC officials took to the pulpit at the American Institute of Certified Public Accountants Conference in Washington, DC – both discussing the mis-use of Non-GAAP reporting.

nongapp

Michael Maloney, chief accountant of the SEC’s enforcement division is looking into violations of rules governing non-GAAP metrics. “It is a focus in within the division, we are looking closely at it. If we think there’s enough there to open an investigation, we will. It’s going to be the fact and circumstances that we will look at, and that will lead to the enforcement action.”

Maloney’s talk was a clear warning to issuers that use non-GAAP metrics in their financial reporting will come under greater scrutiny. The SEC offered new compliance guidelines back in May.

Another chief accountant, Wesley R. Bricker, was less Draconian is his presentation to audit committee members – identifying them as the “critical gatekeepers” to certify credible, reliable financial reporting and compliance with the C&DIs.  He reminded the audience that board members sitting on the audit committees should not underestimate the importance of their role overseeing the external auditor as these third-party auditors are 100% accountable to the audit committee…not to management.

Bricker also suggested auditors are critical for shareholder protection and asked board members to use these fours questions as a directional “do-the-right-thing” guide:

  • If you as the auditor were in management’s shoes and solely responsible for preparation of the company’s financial statements, would they have in any way been prepared differently?
  • If you as the auditor were in an investor’s shoes, would you believe that you have received the information essential to understanding the company’s financial position and performance?
  • If the company following the same internal control over financial reporting and internal audit procedures that would be followed if you were in the CEO’s shoes?
  • Are there any recommendations that you as the auditor have made and management has not followed?

Lastly, he emphasized that good reporting practices place a premium on audit committee member understanding of the company’s non-GAAP policies, procedures, and controls and that audit committee members should seek to understand management’s judgments in the design, preparation and presentation of non-GAAP measures and how those measures might differ from approaches followed by other companies.

This comparison is another area where investor relations can bring their sector expertise into the boardroom – as we discussed earlier this week here.

Pre-order your 2017 SEC Reporting Rules guidebooks

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

request

FREE! Ships late December!

These books are incredible resources to have on your bookshelf. Yes, tangible books you can hold, yellow highlight mark-up, dog-ear the corners and write annotations in. You can also throw them at your CEO* when he suggests changes to the 10-Q twenty minutes before the filing deadline.

v-2017_ewing_books-700

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.

  • 680 pages
  • Up-to-date for 2017
  • Detailed table-of-contents for quick reference

*Not an official recommendation.

SEC universal proxy card proposal allows voters to cross the aisle

btonLast week, the SEC voted 2-1 regarding new (proposed) amendments to the proxy rules that would require the conflicting players in contested director elections to use a single, universal proxy card.

Currently, in contested “proxy fights” the issuer and the activist (dissident) separately mail proxy card to shareholders – and those individual cards list only their own director nominees.

And that’s the root of this underlying concern. Voting shareholders can only use either the issuer-provided proxy card or the activist-provided proxy card… but not both. They can’t split their vote between the two cards. They cannot vote for Director A on the issuer card and Director B on the dissident card.

Shareholders who physically attended the annual shareholder meeting can (in most cases) cross “party lines” and vote for candidates from either side of a contested election. In context to THIS November think #TrumpKaine or #ClintonPence. This proposal levels the ballot box.

The areas of the new proposal of most practical interest to Vintage (as a proxy production/printer) is the mailing deadlines of the cards and the design points. Per the SEC…”To help ensure that universal proxies clearly and fairly present information so that shareholders can effectively exercise their voting rights, the proposed rule would include the following presentation and formatting requirements for all universal proxy cards used in contested elections:

  • The proxy card must clearly distinguish between registrant nominees, dissident nominees, and any proxy access nominees
  • Within each group of nominees, the nominees must be listed in alphabetical order by last name on the proxy card
  • The same font type, style and size must be used to present all nominees on the proxy card
  • The proxy card must prominently disclose the maximum number of nominees for which authority to vote can be granted
  • The proxy card must indicate in bold-face type whether or not it is solicited on behalf of the registrant’s board of directors or, if solicited on behalf of some other person, the identity of such person”

Click here to read the SEC’s full proposed amendments. As with most SEC proposals, the amendment is now open for a 60-day comment period. As you will read, the SEC has 105 question units ranging from the tactical vocabulary to presentation format

Currently, there is no consensus among lawmakers or proxy pundits as to whether this will increase or decrease the possibility of proxy fights or favor the issuer or the activist in those fights.

Mini-IPOs out number conventional IPOs, YTD

Today, the WSJ published a piece headlined Wall Street’s IPO Business: The Worst in 20 Years that chirpily reminded us that 2016 has been a dour year for IPOs.

“As of last Friday, just 68 companies had gone public on U.S. exchanges this year, raising $13.7 billion, according to Dealogic. At this point in 2015, 138 companies had listed on U.S. exchanges, raising $27.3 billion—a 62% drop from the same period in 2014.”

I propose another headline. Wall Street’s Mini-IPO Business: The Best in 20 Years.

68 companies via conventional IPOs… compared to 81 mini-IPOs via the Regulation A+ process. Agreeably, from the perspective of the WSJ article (impact on investment banks), it’s an apples to orange comparison, however from corporate quest for capital perspective – as well as the tangible “filing paperwork” perspective… a comparison can be made. (We know a lot about Reg A+)

In fact, many comparisons can be made.

bbna-reg-a-ppt-final-bhs_4

As you see, above, Reg A+ is not without costs.   

  • Expense: Upfront legal and accounting costs to prepare filings and secure SEC approval and infrastructure for ongoing SEC reporting obligations.
  • Time consuming: Process of preparing (SEC estimates 750 hours) to prep Form 1-A and offering circular; SEC review and approval may take several months.
  • Disclosure tasks of being public company: Under Reg A+ Tier 2, issuer is a quasi-public company and required to publicly disclose its financial results on a semi-annual basis and file current reports to disclose material events. Under Tier 1 offering, financial statements must be publicly available on SEC website at offering.

Also, the SEC is watching the filings carefully. Just last week the SEC, in the first action of its kind, has temporarily suspended a Tier 2 Regulation A+ offering because the registrant had not filed its annual report.

We held an expert’s webinar that details out the differences, both pro and con. You can watch it here.

 

PS: Yes, I know, Reg A+ has only been with us since June 2015, well within my 20-year data-point.

Video webinar: Using Regulation A+ to list on a stock exchange

As detailed in our Bloomberg / Vintage educational webcast on the similarities and differences between the Reg A+ and time-tested IPO processes, Reg A+ can be a vehicle (Elio Motors pun intended) to list onto a national exchange.

.

So far, Elio Motors is the only Reg A+ issuers to execute that. It’s also interesting to learn of how an underwriter can participate in the process. 

duttonssss


Our experts on the webinar:

GARY EMMANUEL, PARTNER, MCDERMOTT WILL & EMERY

Mr.Gary Emmanuel focuses his practice on corporate securities matters.  With over 15 years of experience, Mr. Emmanuel represents both domestic and foreign companies that are navigating the process of capital raising, including initial public offerings, registered direct offerings, follow-on offerings, private placements, private investment in public equities (PIPEs) and bridge financings. He has worked extensively with biotechnology and other life science companies, both as company counsel and as underwriter’s counsel.  He advises companies on issues relating to disclosure, periodic reporting, corporate governance, American Depositary Receipt (ADR) programs, and the rules of the NYSE MKT, NYSE and NASDAQ. He also counsels companies in a wide variety of corporate transactions including licensing, reverse mergers, acquisitions and joint ventures.  Mr. Emmanuel previously served in the Military Court of Appeals of the Israel Defense Forces during his army service and holds the military rank of legal officer.

Mr.Emmanuel is admitted to practice in New York and Israel.  He earned his LLB, with honors, from Queen Mary University of London and his LLM from Yeshiva University – Benjamin N. Cardozo School of Law.

DAVID ETHRIDGE, MANAGING DIRECTOR, DEALS & U.S. IPO SERVICES LEADER, PWC

Mr.David Ethridge is the Managing Director in the firm’s Deals practice and U.S. IPO Services leader. He helps PwC clients prepare for accessing the equity capital markets through an IPO, advising them throughout the life of the IPO process, from pre-IPO readiness assessment to planning, the offering process, potential pitfalls and challenges and beyond.

Mr.Ethridge is a veteran IPO professional with more than 25 years of experience built around the equity capital markets, advising clients to globally on their plans to access the U.S. equity markets via IPOs, follow-on offerings, Convertibles, registered direct, and PIPEs. Prior to his role at PwC, he led the New York Stock Exchange (NYSE) Capital Markets practice for five years, a role which follows 20 years of experience in investment banking. Under his leadership, the NYSE became the overall leader both in the U.S. and globally for IPOs, most notably in the technology sector. Throughout his career, he has advised and executed over 100 IPOs; including helping execute the largest IPO in history when he was leading the NYSE team.

Mr.Ethridge received a M.B.A from Harvard Business School and a B.A. in economics from Davidson College.

GORDON RUCKDESCHEL, VICE PRESIDENT, OPERATIONS,  VINTAGE, A DIVISION OF PR NEWSWIRE

Mr. Gordon Ruckdeschel has over twenty years of experience in the mutual fund and EDGAR/financial services industry.  He currently manages Operations for Vintage (a division of PR Newswire), including the full service EDGAR, XBRL, typesetting and print capabilities across Vintage’s three practice areas (Capital Markets, Corporate Services and Funds & Institutional Services).  Previously, Mr. Ruckdeschel headed up the organization’s Investment and Structured Finance account team.  He is continually learning and managing new projects, most recently working with staff and clients on Regulation A+ filings.

The success of the Confidential S-1 filing process is not confidential

On July 21, we celebrated the sixth birthday (anniversary?) of Dodd-Frank, and although some of the ruling’s initiatives are less than beloved by many, aka Volcker Rule, the “confidential IPO” bucketed under the JOBS Act has been an undisputed success.

Untitleipoood-1

I was reminded of this when reviewing last week’s list of companies who officially became “issuers.” All three were Emerging Growth Companies (EGC) and all three filed as a confidential IPO.

  • Airgain (wireless telecommunication equipment) filed confidentially as an EGC in Aug 2014, filed publicly in Jul 2016, raised $12m – priced below the range – traded on the NASDAQ on Aug 12
  • Protagonist Therapeutics (biopharmaceuticals) filed confidentially as an EGC in May 2016, filed publicly in Jul 2016, raised $90m – priced within the range – traded on the NASDAQ on Aug 11 and finished the day down 3%
  • Medpace (clinical contract research company) filed confidentially as an EGC in Mar 2016, filed publicly in Jun 2016, raised $161m – priced within the range – traded on the NASDAQ on Aug 11 and finished the day up 21%

What is: Emerging Growth Company 

An Emerging Growth Company (EGC) is an issuer that has total annual gross revenues of less than $1 billion during its most recently completed fiscal year. 

What is: Confidential filing process 

An Emerging Growth Company can submit a confidential draft IPO registration to the SEC for review in advance of its initial public offering. This allows the company to hone their message and offering – especially with the SEC.It allows the company to change their mind about going public without anyone knowing. Publicly “pulling their IPO” is often viewed as a failure.

DOWNLOAD THE WORKFLOW WHITEPAPER HERE

V-700_email-banner-workflow

The EGC and SEC are prohibited from publicly disclosing the confidential filing, comments, and amendments during this review process. As the EGC moves closer toward its IPO, the JOBS Act requires that these filings be made available to the public.

The EGC would be required to publicly file their draft registration and amendments, with the SEC no later than 15 days before its roadshow. Plus the SEC staff will publicly release its comment letter and responses to staff comment letters on confidential draft submissions after the registration statement for the IPO becomes effective but no sooner than 20 days after the effective date.

As you see in the three companies above, confidential does not equate to simple. Airgain needed two years to get into position.

What is: IPO Compliance Requirements

IPO requirement Traditional IPO registrant ECG JOBS Act
Registration process Public Confidential
Audited financial statements 3 Years 2 Years
Selected financial data 5 Years 2 Years
Executive compensation disclosures Full Equal to smaller reporting companies disclosures

 What about: XBRL

The JOBS Act does not exempt EGCs from complying with the tagging requirements established by the XBRL requirements applicable to SEC registrants.