Securities Attorney Laura Anthony, Author at Reverse-Merger.com

Florida Broker-Dealer Registration Exemption For M&A Brokers

Following the SEC’s lead, effective July 1, 2016, Florida has passed a statutory exemption from the broker-dealer registration requirements for entities effecting securities transactions in connection with the sale of equity control in private operating businesses (“M&A Broker”). As discussed further below, the new Florida statute, together with the SEC M&A Broker exemption, may have paved the way for Florida residents to act as an M&A broker in reverse or forward merger transactions involving OTCQX-traded public companies without broker-dealer registration.

Florida has historically had stringent broker-dealer registration requirements in connection with the offer and sale of securities. Moreover, Florida does not always mirror the federal registration requirements or exemptions. For example, see my blog HERE detailing some state blue sky concerns when dealing with Florida, including the lack of an issuer exemption from the broker-dealer registration requirements for public offerings.

However, in a move helpful to merger and acquisition (M&A) transactions in the state, Florida has now passed an M&A broker-dealer exemption and concurrent securities registration exemption for M&A transactions. The Florida exemption is similar but not identical to the federal exemption. For a review of the SEC exemption for M&A brokers, see my blog HERE and the summary at the end of this blog. The SEC exemption specifically limited itself to the federal broker-dealer registration requirements. In addition, to Florida, other states have passed similar M&A broker exemptions; however, as of the writing of this blog, I have not conducted a survey on same.

Florida M&A Broker Exemption

The sale of securities in Florida is regulated by the Florida Office of Financial Regulation, Division of Securities and is generally found in Chapter 517 Florida Statutes and corresponding rules adopted under the Florida Administrative Code (F.A.C.), Chapter 517, Florida Statutes – Securities and Investor Protection Act and Chapter 69W-100 through 69W-1000, Florida Administrative Code.

Any offer or sale of securities in Florida, which offer or sale is not pre-empted by federal law, must either be registered or exempted from registration in accordance with the state securities laws. The Florida registration exemptions can be found in Florida Statutes section 517.061. All sales of securities in Florida must be made by a properly registered dealer (Chapter 517.12(1), Florida Statutes) or by someone utilizing an exemption provided by Chapter 517.12, Florida Statutes.

The new M&A offer and sale exemption has been codified by adding a new securities registration exemption to Section 517.061 and a new broker-dealer registration exemption to Section 517.12.

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The Author

Laura Anthony, Esq.
Founding Partner
Legal & Compliance, LLC
Corporate, Securities and Going Public Attorneys
LAnthony@LegalAndCompliance.com

Securities attorney Laura Anthony and her experienced legal team provides ongoing corporate counsel to small and mid-size private companies, OTC and exchange traded issuers as well as private companies going public on the NASDAQ, NYSE MKT or over-the-counter market, such as the OTCQB and OTCQX. For nearly two decades Legal & Compliance, LLC has served clients providing fast, personalized, cutting-edge legal service. The firm’s reputation and relationships provide invaluable resources to clients including introductions to investment bankers, broker dealers, institutional investors and other strategic alliances. The firm’s focus includes, but is not limited to, compliance with the Securities Act of 1933 offer sale and registration requirements, including private placement transactions under Regulation D and Regulation S and PIPE Transactions as well as registration statements on Forms S-1, S-8 and S-4; compliance with the reporting requirements of the Securities Exchange Act of 1934, including registration on Form 10, reporting on Forms 10-Q, 10-K and 8-K, and 14C Information and 14A Proxy Statements; Regulation A/A+ offerings; all forms of going public transactions; mergers and acquisitions including both reverse mergers and forward mergers, ; applications to and compliance with the corporate governance requirements of securities exchanges including NASDAQ and NYSE MKT; crowdfunding; corporate; and general contract and business transactions. Moreover, Ms. Anthony and her firm represents both target and acquiring companies in reverse mergers and forward mergers, including the preparation of transaction documents such as merger agreements, share exchange agreements, stock purchase agreements, asset purchase agreements and reorganization agreements. Ms. Anthony’s legal team prepares the necessary documentation and assists in completing the requirements of federal and state securities laws and SROs such as FINRA and DTC for 15c2-11 applications, corporate name changes, reverse and forward splits and changes of domicile. Ms. Anthony is also the author of SecuritiesLawBlog.com, the OTC Market’s top source for industry news, and the producer and host of LawCast.com, the securities law network. In addition to many other major metropolitan areas, the firm currently represents clients in New York, Las Vegas, Los Angeles, Miami, Boca Raton, West Palm Beach, Atlanta, Phoenix, Scottsdale, Charlotte, Cincinnati, Cleveland, Washington, D.C., Denver, Tampa, Detroit and Dallas.

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« SEC Announces Enforcement Results For Fiscal Year-End 2016 SEC Issues New C&DI On Rule 701 »

SEC Announces Enforcement Results For Fiscal Year-End 2016

Posted by Securities Attorney Laura Anthony | October 18, 2016 Tags: Fiscal Year-End 2016, SEC, SEC Announces Enforcement Results For Fiscal Year-End 2016

On October 11, 2016, the SEC announced its enforcement results for fiscal year-end September 30, 2016 (FYE 2016). In FYE 2016 the SEC filed a record 868 enforcement actions, including against companies and executives for reporting violations, misconduct by companies and gatekeepers, fraud actions and more resulting in judgments and orders totaling more than $4 billion in disgorgement and penalties.

The actions also included a record number of enforcement proceedings against investment advisors and investment companies, a trend I expect to continue in the coming year as the SEC continues to crack down on the failure to adequately disclose all fees associated with investments into and operations of funds, as well as related party transactions.

Consistent with prior speeches and messaging, SEC Chair Mary Jo White made the following quote in the release announcing the enforcement results: “By every measure the enforcement program continues to be a resounding success holding executives, companies and market participants accountable for their illegal actions. Over the last three years, we have changed the way we do business on the enforcement front by using new data analytics to uncover fraud, enhancing our ability to litigate tough cases, and expanding the playbook bringing novel and significant actions to better protect investors and our markets.”

In a speech in February of this year, Chair White focused on enforcement, stating that the SEC “needs to go beyond disclosure” in carrying out its mission. That mission, as articulated by Chair White, is the protection of investors, maintaining fair, orderly and efficient markets, and facilitating capital formation. In 2015 the SEC brought a record number of enforcement proceedings and secured an all-time high for penalty and disgorgement orders, which record has been bested in FYE 2016. The primary areas of focus included cybersecurity, market structure requirements, dark pools, micro-cap fraud, financial reporting failures, insider trading, disclosure deficiencies in municipal offerings and protection of retail investors and retiree savings.

The SEC Division of Enforcement likewise is pleased with their results. Andrew J. Ceresney, Director of the Division of Enforcement, stated, “Through their hard work and steadfast dedication to our mission, the Division’s committed staff have helped protect investors and made our markets fairer and more reliable.”

Highlights of FYE 2016 SEC Enforcement

The SEC notes that in FYE 2016 it brought several first-of-its-kind actions, including: (i) against a firm solely for failing to file Suspicious Activity Reports (SARs) (see my blogs HERE and HERE for more on SARs); (ii) against an audit firm for auditor independence failures based on personal relationships with audit clients; (iii) municipal advisors for violations of fiduciary and antifraud provisions created by Dodd-Frank; (iv) against a private equity advisor for acting as an unlicensed broker-dealer; (v) against an issuer for misstatements and omissions related to the issuance of structured notes.

In addition, in FYE 2016 the SEC won a jury trial against a municipality and one of its officers for violations of the federal securities laws. The SEC also continued its use of data and analytics to uncover market manipulation and insider trading violations. In FYE 2016, the SEC brought 78 insider trading cases.

Moreover, the SEC continues to crack down on attorneys, accountants and other gatekeepers. This is an extremely important aspect of the enforcement ecosystem, especially in the small- and micro-cap space. Attorneys, accountants, transfer agents, and broker-dealers that are active in the OTC Markets environment play an important role in improving and protecting the OTC Marketplace to the extent that they are reasonably capable in any given fact situation. In December 2015 the SEC issued an advance notice of proposed rulemaking and concept release on proposed new requirements for transfer agents. The proposal would add significant obligations on transfer agents, some of which I agreed with and others I did not. See my blogHERE on the subject. The SEC has not taken further action on this notice as of yet.

In its publication on FYE 2016 enforcement results, the SEC noted that it brought actions against gatekeepers for “failures to comply with professional standards.” A common theme in these actions is missing or ignoring clear indications of fraud or red flags. Examples of such actions include: (i) against auditors for ignoring red flags and fraud risks in conducting audits for annual reports to be filed with the SEC; (ii) violations of auditor independence rules; (iii) against a private fund administrator who missed or ignored clear indications of fraud in preparing and maintaining fund accounting records; (iv) against a consultant for improperly evaluating internal control deficiencies (this was a first-of-its-kind action as well); and (v) against EB-5 lawyers for acting as unregistered brokers.

In addition to enforcement matters I have written about such as HERE, micro-cap fraud and market manipulation continued to be a significant area of enforcement, as it always will. The SEC suspended tradingin 199 micro-cap issuers in FYE 2016. The SEC’s use of technology and data also helped uncover elaborate foreign market manipulation and trading schemes, including such as against a United Kingdom resident for intruding into online brokerage accounts of U.S. investors and making unauthorized trades.

Private offering fraud matters were also the target of multiple enforcement actions. Multiple private offering fraud actions were brought by the SEC in FYE 2016, including actions targeting certain population sectors such as seniors.

The SEC also brought action and collected record fines against market participants, including a $35 million penalty against Barclay’s and a $54 million penalty against Credit Suisse for violations in the operations of each of their alternative trading systems (ATSs). Merrill Lynch faced a $12.5 million fine for failure to have adequate risk controls in place before providing customers with access to the market, and Morgan Stanley was charged $1 million for inadequate written policies and procedures related to the protection of customer records and information.

Investment advisers and investment companies faced an unprecedented level of scrutiny in FYE 2016. In addition to many highly publicized cases related to hidden fees and undisclosed related party transactions, the SEC brought actions for fraud, such as against Aequitas Management for hiding its rapidly deteriorating financing condition after raising $350 million from investors. Thirteen investment advisory firms were charged with repeating false claims made by an investment manager firm highlighting the importance of independent due diligence and responsibilities. Investment funds also faced violations related to improper trading activity, including prearranged trades favoring certain clients.

Other areas that the SEC specifically continued to target for enforcement proceedings include Whistleblower protections (see HERE) and Foreign Corrupt Practices Act violations.

The Author

Laura Anthony, Esq.
Founding Partner
Legal & Compliance, LLC
Corporate, Securities and Going Public Attorneys
LAnthony@LegalAndCompliance.com

Contact Legal & Compliance LLC. Technical inquiries are always encouraged.

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« NASDAQ Requires Disclosure Of Third-Party Director Compensation Florida Broker-Dealer Registration Exemption For M&A Brokers »

NASDAQ Requires Disclosure Of Third-Party Director Compensation

Posted by Securities Attorney Laura Anthony | October 11, 2016 Tags: Disclosure Of Third-Party Director Compensation, Golden Leash Disclosure Rule, NASDAQ, Third-Party Director Compensation

On July 1, 2016, the SEC approved NASDAQ’s new rule requiring listed companies to publicly disclose compensation or other payments by third parties to members of or nominees to the board of directors. The new rule, which went into effect in early August, is being dubbed the “Golden Leash Disclosure Rule.”

The Golden Leash Disclosure Rule

New NASDAQ Rule 5250(b)(3) requires each listed company to publicly disclose the material terms of all agreements or other arrangements between any director or director nominee and any other person or entity relating to compensation or any other payment in connection with the person’s position as director or candidacy as director. The disclosure does not include regular compensation from the company itself for director services. The disclosure must be included in any proxy or information statement issued underRegulation 14C or 14A for a shareholder’s meeting at which directors will be elected. A company can also include the disclosure on its website.

There are a few exemptions from the disclosure requirement, such as arrangements that (i) relate to the reimbursement of expenses in connection with a person’s candidacy as a director; (ii) existed prior to the nominee’s candidacy and the candidate’s relationship with the third party is disclosed in the proxy statements (such as existing employment). I note that in reading the entire rule, I would think expense reimbursement in relation to a candidate’s campaign for election could be material where the candidate is being funded by an activist shareholder and the candidate is objected to by current management.

The Golden Leash disclosure must be made at least annually, and updated if there are material changes that would otherwise require an update of the information. A company has an obligation to conduct a reasonable inquiry to determine any information that is required to be disclosed under the new Rule. Moreover, if information is discovered that should have been disclosed, but was not done so previously, an 8-K must be filed. As long as a company satisfies its obligation to conduct due diligence and remediates any omissions with a prompt 8-K, it will be considered in compliance with the Rule.

NASDAQ also amended Rule 5615, which allows foreign companies to follow their home country practice in certain circumstances, even when such practice differs from U.S. rules. New Rule 5250(b)(3) is included in Rule 5615 such that a foreign company would not have to make the Golden Leash disclosure as long as it is abiding by its home country rule and that it discloses in its annual filings that the home country rule is different and explains the difference.

Background

The Golden Leash Disclosure Rule appears to be a response to the increase in shareholder activism over the past few years. I’ve yet to write a full blog on shareholder activism, though it is on my very long list of future topics. However, this quote from a JP Morgan article published in January 2015 sums it up: “[N]o recent development has influenced firms’ strategic and financial decision-making as profoundly as the surge in shareholder activism following the global financial crisis. From a few activist funds managing less than a total of $12 billion in 2003, the activist asset class has ballooned to more than $112 billion in assets under management for activist hedge funds with most of that growth occurring since 2009.”

NASDAQ actually submitted its first iteration of the Rule to the SEC in March 2016, amended it on May 18, 2016, then withdrew that amendment and filed Amendment 2 on June 30, 2016, which was fast-tracked and approved by the SEC. The SEC received eight comment letters on the Rule.

Whether in support of the Rule or opposed, almost all the comment letters supported the disclosure. One comment letter in favor of the Rule stated, “the ability to keep both arrangement and the terms thereof secret provides ‘raiders’ and other types of activists an unfair tactical advantage over the incumbent board members,” and that “if an insurgent candidate is elected to the board, secrecy around that board member’s outside compensation can inhibit the effective functioning of the board of directors.”

Those opposed generally opposed on the grounds that the information may already be required by other rules and, as such, was duplicative. For example, Item 401(a) of Regulation S-K requires disclosure of any “arrangement or understanding between [the director] and any other person(s)” related to the selection or nomination as a director. Similarly, Item 402(k) requires disclosure of director compensation.

SEC Discussion

As with any proposed rule by an Exchange, the SEC must make a determination that the Exchange’s rules “be designed to prevent fraudulent and manipulative acts and practices, to promote just and equitable principles of trade, to remove impediments to and perfect the mechanism of a free and open market and a national market system, and in general, to protect investors and the public interest.”

The SEC continues with an acknowledgment of the critical importance of initial and continued listing standards for exchanges such that only qualifying companies are listed. These qualitative and quantitative standards help ensure fair and orderly markets.

The SEC sees the Golden Leash Disclosure Rule as a corporate governance-related rule providing “greater transparency into the governance processes of listed issuers and enhance investor confidence in the securities markets.”

The SEC acknowledged the potential for duplicative disclosure, which I note was just the topic of a sweeping proposed rule change to eliminate duplication, among other things (see my blog HERE). However, the SEC notes that the Golden Leash Rule is a NASDAQ rule and not an SEC rule and that exchanges often have duplicative rules. The SEC supports such exchange reinforcement, stating, “[T]hese and other disclosure-related listing standards help to ensure that listed companies maintain compliance with the disclosure requirements under the federal securities laws…” Likewise, the SEC notes, “we believe that it is within the purview of a national securities exchange to impose heightened governance requirements…”

The Author

Laura Anthony, Esq.
Founding Partner
Legal & Compliance, LLC
Corporate, Securities and Going Public Attorneys
LAnthony@LegalAndCompliance.com

Securities attorney Laura Anthony and her experienced legal team provides ongoing corporate counsel to small and mid-size private companies, OTC and exchange traded issuers as well as private companies going public on the NASDAQ, NYSE MKT or over-the-counter market, such as the OTCQB and OTCQX. For nearly two decades Legal & Compliance, LLC has served clients providing fast, personalized, cutting-edge legal service. The firm’s reputation and relationships provide invaluable resources to clients including introductions to investment bankers, broker dealers, institutional investors and other strategic alliances. The firm’s focus includes, but is not limited to, compliance with the Securities Act of 1933 offer sale and registration requirements, including private placement transactions under Regulation D and Regulation S and PIPE Transactions as well as registration statements on Forms S-1, S-8 and S-4; compliance with the reporting requirements of the Securities Exchange Act of 1934, including registration on Form 10, reporting on Forms 10-Q, 10-K and 8-K, and 14C Information and 14A Proxy Statements; Regulation A/A+ offerings; all forms of going public transactions; mergers and acquisitions including both reverse mergers and forward mergers, ; applications to and compliance with the corporate governance requirements of securities exchanges including NASDAQ and NYSE MKT; crowdfunding; corporate; and general contract and business transactions. Moreover, Ms. Anthony and her firm represents both target and acquiring companies in reverse mergers and forward mergers, including the preparation of transaction documents such as merger agreements, share exchange agreements, stock purchase agreements, asset purchase agreements and reorganization agreements. Ms. Anthony’s legal team prepares the necessary documentation and assists in completing the requirements of federal and state securities laws and SROs such as FINRA and DTC for 15c2-11 applications, corporate name changes, reverse and forward splits and changes of domicile. Ms. Anthony is also the author of SecuritiesLawBlog.com, the OTC Market’s top source for industry news, and the producer and host ofLawCast.com, the securities law network. In addition to many other major metropolitan areas, the firm currently represents clients in New York, Las Vegas, Los Angeles, Miami, Boca Raton, West Palm Beach, Atlanta, Phoenix, Scottsdale, Charlotte, Cincinnati, Cleveland, Washington, D.C., Denver, Tampa, Detroit and Dallas.

Contact Legal & Compliance LLC. Technical inquiries are always encouraged.

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« House Continues To Push For Reduced Securities Regulation SEC Announces Enforcement Results For Fiscal Year-End 2016 »

House Continues To Push For Reduced Securities Regulation

Posted by Securities Attorney Laura Anthony | October 4, 2016 Tags: Dodd-Frank, Financial Choice Act, House Appropriations Bill, House Financial Services Committee, House regulatory activity, qualified institutional buyers, REINS Act, The Financial Choice Act

House Appropriations Bill

The House continues its busy activity of passing legislation designed to reduce securities and market regulations. In early July, the House passed H.R. 2995, an appropriations bill for the federal budget for the fiscal year beginning October 1st. No further action has been taken. The 259-page bill, which is described as “making appropriations for financing services and general government for the fiscal year ending September 30, 2017, and for other purposes” (“House Appropriation Bill”), contains numerous provisions reducing or eliminating funding for key aspects of SEC enforcement and regulatory provisions.

Earlier this year, I wrote this BLOG about three House bills that will likely never be passed into law. The 3 bills include: (i) H.R. 1675 – the Capital Markets Improvement Act of 2016, which has 5 smaller acts imbedded therein; (ii) H.R. 3784, establishing the Advocate for Small Business Capital Formation and Small Business Capital Formation Advisory Committee within the SEC; and (iii) H.R. 2187, proposing an amendment to the definition of accredited investor. None of the bills have been passed by the Senate as of yet.

The new House Appropriations Bill also contains the text of H.R. 3784, establishing the Advocate for Small Business Capital Formation and Small Business Capital Formation Advisory Committee within the SEC. The Bill prohibits the SEC from expending any funds under the Dodd-Frank act or to finalize, issue or implement any rule related to the disclosure of political contributions, contributions to tax-exempt organizations, or dues paid to trade associations.

The Bill also requires the Director of the Office of Management and Budget to submit a report to the Committees on Appropriations for both the House and Senate detailing the costs of implementing the Dodd-Frank Wall Street Reform and Consumer Protection Act (“Dodd-Frank”).

The Financial Choice Act

The House Financial Services Committee has also drafted The Financial Choice Act, which has not yet been passed by the House. This Act is as extreme as the current presidential election and likely will never go further than its publication by the House Financial Services Committee. The Executive Summary for the Financial Choice Act lists the following seven key principles of the Act:

Economic growth must be revitalized through competitive, transparent, and innovative capital markets;

Every American, regardless of their circumstances, must have the opportunity to achieve financial independence;

Consumers must be vigorously protected from fraud and deception as well as the loss of economic liberty;

Taxpayer bailouts of financial institutions must end and no company can remain too big to fail;

Systemic risk must be managed in a market with profit and loss;

Simplicity must replace complexity, because complexity can be gamed by the well-connected and abused by the Washington powerful; and

Both Wall Street and Washington must be held accountable.

The Act focuses on dismantling Dodd-Frank. On the bank-specific side, the Act would eliminate bank prohibitions on capital distributions and limitations on mergers, consolidations, or acquisitions of assets or control to the extent these limitations relate to capital or liquidity standards or concentrations of deposits or assets.

Related to bailouts, the Act would in summary:

Repeal the authority of the Financial Stability Oversight Council to designate firms as systematically important financial institutions (i.e., too big to fail).

Repeal Title II of Dodd-Frank and replace it with new bankruptcy code provisions specifically designed to accommodate large, complex financial institutions. Title II of Dodd-Frank is the orderly liquidation authority, granting authority to the federal government to obtain receivership control over large financial institutions; and

Repeal Title VIII of Dodd-Frank, which gives the Financial Stability Oversight Council access to the Federal Reserve discount window for systematically important financial institutions (i.e., gives the federal government the money to bail out financial institutions) as well as the authority to conduct examinations and enforcement related to risk management;

Related to accountability from financial regulators, the Act would:

Make all financial regulatory agencies subject to the REINS Act related to appropriations and place all such agencies on an appropriations process subject to bipartisan control;

Require all financial regulators to conduct a detailed cost-benefit analysis for all proposed regulations (provisions analogous to this are already required, but this would be more extreme);

Reauthorize the SEC for a period of 5 years with funding, structural and enforcement reforms (i.e., dismantle the current SEC and replace it with a watered-down version);

“Institute significant due-process reforms for every American who feels that they have been the victim of a government shakedown.”

Repeal the Chevron Deference doctrine. Under this doctrine, a court must defer to an agency’s interpretation of statues and rules.

Demand greater accountability and transparency from the Federal Reserve; and

Abolish the Office of Financial Research.

Under the heading “[U]leash opportunities for small businesses, innovators, and job creators by facilitating capital formation”, the Act would:

Repeal multiple sections of Dodd-Frank, including the Volker Rule (which restricts U.S. banks from making speculative investments, including proprietary trading, venture capital and merchant bank activities);

Repeal the SEC’s authority to either prospectively or retroactively eliminate or restrict securities arbitration;

Repeal non-material specialized disclosure; and

Incorporate more than two dozen committee- or House-passed capital formation bills, including H.R. 1090 – Retail Investor Protection Act (prohibiting certain restrictions on investment advisors), H.R. 4168 – Small Business Capital Formation Enhancement Act (requiring prompt SEC action on finding of the annual SEC government business forum), H.R. 4498 – Helping Angels Lead Our Startups Act (directing the SEC to amend Regulation D expanding the allowable use of solicitation and advertising), and H.R. 5019 – Fair Access to Investment Research Act (expanding exclusion of research reports from the definition of an offer for or to sell securities under the Securities Act).

Thoughts

The House regulatory activity gives insight into the behind-the-scenes political pressure facing the SEC in recent years. We have seen the most dramatic changes in capital formation regulations and technological developments in the past 30 years, if not longer. Significant capital-formation changes include: (i) the creation of Rule 506(c), which came into effect on September 23, 2013, and allows for general solicitation and advertising in private offerings where the purchasers are limited to accredited investors; (ii) the overhaul of Regulation A, creating two tiers of offerings which came into effect on June 19, 2015, and allows for both pre-filing and post-filing marketing of an offering, called “testing the waters”; (iii) the addition of Section 5(d) of the Securities Act, which came into effect in April 2012, permitting emerging-growth companies to test the waters by engaging in pre- and post-filing communications with qualified institutional buyers or institutions that are accredited investors; and (iv) Title III crowdfunding, which came into effect May 19, 2016, and allows for the use of Internet-based marketing and sales of securities offerings.

At the same time, we have faced economic stagnation since the recession, a 7-year period of near-zero U.S. interest rates and negative interest rates in some foreign nations, nominal inflation and a near elimination of traditional bank financing for start-ups and emerging companies. If bank credit was available for small and emerging-growth companies, it would be inexpensive financing, but it is not and I do believe that Dodd-Frank and over-regulation are directly responsible for this particular problem.

Small companies and start-ups are the backbone of the American economy, and without investment in these companies, our economy will continue to be stagnant or worse: we could have another recession. These companies are relying almost exclusively on the sale of securities to investors (both private and public, debt and equity) for financing, all of which is under the supervision of the SEC.

The SEC is then balancing its ability to support the U.S. economy by facilitating capital formation for small and emerging companies while at the same time protecting investors from fraud and dealing with the pressure of extreme divergent political views. Something has to give, and I suspect that we will continue to see dramatic changes in the regulatory environment for the foreseeable future while this economic revolution plays out.

The Author

Laura Anthony, Esq.
Founding Partner
Legal & Compliance, LLC
Corporate, Securities and Going Public Attorneys
LAnthony@LegalAndCompliance.com

Securities attorney Laura Anthony and her experienced legal team provides ongoing corporate counsel to small and mid-size private companies, OTC and exchange traded issuers as well as private companies going public on the NASDAQ, NYSE MKT or over-the-counter market, such as the OTCQB and OTCQX. For nearly two decades Legal & Compliance, LLC has served clients providing fast, personalized, cutting-edge legal service. The firm’s reputation and relationships provide invaluable resources to clients including introductions to investment bankers, broker dealers, institutional investors and other strategic alliances. The firm’s focus includes, but is not limited to, compliance with the Securities Act of 1933 offer sale and registration requirements, including private placement transactions under Regulation D and Regulation S and PIPE Transactions as well as registration statements on Forms S-1, S-8 and S-4; compliance with the reporting requirements of the Securities Exchange Act of 1934, including registration on Form 10, reporting on Forms 10-Q, 10-K and 8-K, and 14C Information and 14A Proxy Statements; Regulation A/A+ offerings; all forms of going public transactions; mergers and acquisitions including both reverse mergers and forward mergers, ; applications to and compliance with the corporate governance requirements of securities exchanges including NASDAQ and NYSE MKT; crowdfunding; corporate; and general contract and business transactions. Moreover, Ms. Anthony and her firm represents both target and acquiring companies in reverse mergers and forward mergers, including the preparation of transaction documents such as merger agreements, share exchange agreements, stock purchase agreements, asset purchase agreements and reorganization agreements. Ms. Anthony’s legal team prepares the necessary documentation and assists in completing the requirements of federal and state securities laws and SROs such as FINRA and DTC for 15c2-11 applications, corporate name changes, reverse and forward splits and changes of domicile. Ms. Anthony is also the author of SecuritiesLawBlog.com, the OTC Market’s top source for industry news, and the producer and host ofLawCast.com, the securities law network. In addition to many other major metropolitan areas, the firm currently represents clients in New York, Las Vegas, Los Angeles, Miami, Boca Raton, West Palm Beach, Atlanta, Phoenix, Scottsdale, Charlotte, Cincinnati, Cleveland, Washington, D.C., Denver, Tampa, Detroit and Dallas.

Contact Legal & Compliance LLC. Technical inquiries are always encouraged.

Follow me on Facebook, LinkedIn, YouTube, Google+, Pinterest and Twitter.

Download our mobile app at iTunes.

« SEC Whistleblower Awards Pass $100 Million As It Continues To Crack Down On Confidentiality Provisions In Employment Agreements NASDAQ Requires Disclosure Of Third-Party Director Compensation »

SEC Whistleblower Awards Pass $100 Million As It Continues To Crack Down On Confidentiality Provisions In Employment Agreements

Posted by Securities Attorney Laura Anthony | September 27, 2016 Tags: Rule 21F-2, Rules 21F-1, SEC Enforcement Proceedings, Section 21F, The Dodd-Frank Act Whistleblower Statute, whistleblower regulations, whistleblower statute

The SEC has proudly announced that including a $22 million award on August 30, 2016, its whistleblower awards have surpassed $100 million. The news comes in the wake of two recent SEC enforcement proceedings against companies based on confidentiality and waiver language in employee severance agreements. Like two prior similar actions, the SEC has taken the position that restrictive language in confidentiality, waiver or settlement agreements with employees violates the anti-whistleblower rules adopted under Dodd-Frank.

Background – The Dodd-Frank Act Whistleblower Statute

The Dodd-Frank Act, enacted in July 2010, added Section 21F, “Whistleblower Incentives and Protection,” to the Securities Exchange Act of 1934 (“Exchange Act”). As stated in the original rule release, the purpose of the rule was “to encourage whistleblowers to report possible violations of the securities laws by providing financial incentives, prohibiting employment related retaliation, and providing various confidentiality guarantees.” Upon enactment of Section 21F, the SEC established the Office of the Whistleblower and created the SEC Whistleblower Program (“Whistleblower Program”).

The whistleblower regulations are comprised of Section 21F of the Exchange Act and Rules 21F-1 through 21F-17 promulgated thereunder. The bulk of the whistleblower regulations relate to the submission of original information leading to successful enforcement actions, and the eligibility, calculation and payment of awards to the whistleblower. The regulations also implement measures to protect the whistleblower from retaliatory actions.

Rule 21F-2, “Whistleblower status and retaliation protection,” defines a whistleblower as follows:

(a)(1) “You are a whistleblower if, alone or jointly with others, you provide the Commission with information pursuant to the procedures set forth in § 240.21F-9(a) of this chapter, and the information relates to a possible violation of the Federal securities laws (including any rules or regulations thereunder) that has occurred, is ongoing, or is about to occur. A whistleblower must be an individual. A company or another entity is not eligible to be a whistleblower.”

(b) Prohibition against retaliation. (1) “[F]or purposes of the anti-retaliation protections…, you are a whistleblower if: (i) you possess a reasonable belief that the information you are providing relates to a possible securities law violation… that has occurred, is ongoing, or is about to occur, and; (ii) you provide that information in a manner described in Section 21F(h)(1)(A); (iii) The anti-retaliation protections apply whether or not you satisfy the requirements, procedures and conditions to qualify for an award.”

Rule 21F-17, “Staff communications with individuals reporting possible securities law violations,” which is the subject of the enforcement actions, provides:

(a) “No person may take any action to impede an individual from communicating directly with the Commission staff about a possible securities law violation, including enforcing, or threatening to enforce, a confidentiality agreement… with respect to such communications.”

Enforcement Proceedings

The SEC brought two enforcement proceedings against companies during the month of August based on restrictive language in confidentiality and waiver provisions in employee severance agreements. The two new proceedings are similar to two prior proceedings based on the same issue. The SEC enforcement proceedings claim that the restrictive language acts as a method to stifle or retaliate against whistleblowers.

In early 2016, the SEC began issuing requests to companies for copies of confidentiality agreements, non-disclosure agreements, employment agreements, severance agreements and settlement agreements entered into with employees and former employees of the companies. The initiative specifically requested copies of documents since the enactment of the Dodd-Frank provisions that grant awards and protections for whistleblowers. The SEC was also asking for copies of company human resource policies, employee memos, training guides and any and all documents that discuss “whistleblowers” either directly or indirectly.

The SEC’s concern is that corporations are retaliating against potential whistleblowers and attempting to curb the whistleblowing incentives in the Dodd-Frank Act by providing detriments to employment in contracts and policies veiled as confidentiality protections. The Dodd-Frank Act directly prohibits retaliatory conduct by companies.

In the action filed on April 1, the SEC charged KBR, Inc., with violating Rule 21F-17 under the Dodd-Frank Act. In this case, KBR required employees participating in internal investigations related to potential securities law violations, to sign confidentiality agreements that prohibited the employee from discussing the matter with outside parties without KBR approval with a consequence of discipline or termination in the event of a violation of such confidentiality agreement. As the investigations included allegations of securities law violations, the terms in the agreement were found to violate Rule 21F-17 of the Dodd-Frank Act, which specifically prohibits companies from taking any action to impede whistleblowers from reporting possible securities law violations to the SEC. KBR agreed to pay a penalty of $130,000 and to amend its confidentiality statement to make it clear that employees are free to report possible violations to the SEC and other federal agencies without KBR approval or fear of retaliation.

In its press release on the matter, Andrew J. Ceresney, SEC Director of the Division of Enforcement, was quoted as saying, “By requiring its employees and former employees to sign confidentiality agreements imposing pre-notification requirements before contacting the SEC, KBR potentially discouraged employees from reporting securities violations to us. SEC rules prohibit employers from taking measures through confidentiality, employment, severance, or other type of agreements that may silence potential whistleblowers before they can reach out to the SEC. We will vigorously enforce this provision.”

The SEC enforcement action came despite the factual conclusion that no employee had actually been prevented from reporting a violation to the SEC or had sought to do so.

On August 10, 2016, the SEC brought a settled administrative proceeding against BlueLinx Holdings, Inc., ordering a $265,000 penalty for a violation of Rule 21F-17 by illegally using severance agreements requiring outgoing employees to waive their rights to seek monetary compensation under the SEC Whistleblower Program. A violation of the agreement would result in a loss of severance payments and other post-employment benefits. Similarly, in a settled administrative proceeding on August 16, 2016, the SEC ordered Health Net, Inc., to pay a $340,000 penalty for violating Rule 21F-17 with a similar provision.

In both cases, the agreements specifically did not preclude a former employee from participating in an investigation, communicating with or cooperating with investigators or reporting wrongdoing, but it did prevent the employee from seeking monetary compensation for doing so. Like the earlier KBT case, there was no evidence that an employee had actually been deterred from taking action as a result of the provision in the severance agreements. However, the SEC notes that the financial incentive portion of the Whistleblower Program is “a critical component of the Whistleblower Program… that any individual could look towards in determining whether to take the enormous risk of blowing the whistle in calling attention to fraud.”

The SEC is sending a clear message that any efforts to chill whistleblowers will be considered a violation of the rules.

Success of Whistleblower Program

As indicated, the Whistleblower Program has been a resounding success since its inception, resulting in over $500 million in financial remedies against wrongdoers and the payout of $111 million in awards to 34 whistleblowers. On August 30, 2016, the second-largest award, at $22 million, was granted to a whistleblower. On September 20, 2016 a $4 million dollar award was announced. The funds to pay out the awards come from an investor protection fund entirely financed through monetary sanctions paid to the SEC from securities law violators.

Whistleblowers may be eligible to receive an award when they voluntarily provide unique and useful information to the SEC that results in an enforcement action and monetary penalty against a wrongdoer. The awards range from 10% to 30% of the amount collected when sanctions ordered are in excess of $1 million.

In an August 30, 2016 press release, SEC Chair Mary Jo White stated, “[T]he SEC’s whistleblower program has proven to be a game changer for the agency in its short time of existence, providing a source of valuable information to the SEC to further its mission of protecting investors while providing whistleblowers with protections and financial rewards.”

The same press release contains some interesting facts, including that the Whistleblower Office has received more than 14,000 tips. Moreover, to help ensure that employees continue to utilize the statute without fear of repercussions, the SEC has now brought a total of 5 enforcement actions against companies related to retaliation. One of these actions was for actual retaliatory conduct, and the other 4 related to confidentiality and severance agreements as discussed herein.

Conclusion

The SEC has found the whistleblower statute to be extremely beneficial in uncovering and prosecuting large-scale securities fraud. In essence, the whistleblower statute, and potential monetary awards for successful prosecutions, provides the SEC with an army of investigators well beyond what the agency could afford using its own resources. Several states have taken notice of the success of the program and enacted their own version of the . Recently the State of Indiana awarded $95,000 to a whistleblower for helping bring an enforcement action against JP Morgan Chase for failing to disclose certain conflicts of interest to RIA clients.

When the SEC filed its first action back in April 2016, this firm made particular modifications to its forms of confidentiality agreements, non-disclosure agreements, employment agreements, severance agreements and employee settlement agreements. We urge all companies to seek the advice of competent counsel prior to entering into any such contracts, and of course, when conducting internal investigations which include allegations of potential securities law violations. Additional enforcement actions are expected as the SEC continues to review documents requested and provided by various employer companies.

The Author

Laura Anthony, Esq.
Founding Partner
Legal & Compliance, LLC
Corporate, Securities and Going Public Attorneys
LAnthony@LegalAndCompliance.com

Contact Legal & Compliance LLC. Technical inquiries are always encouraged.

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« SEC Issues Proposed Amendments To Item 601 Of Regulation S-K Related To Exhibits House Continues To Push For Reduced Securities Regulation »

SEC Issues Proposed Amendments To Item 601 Of Regulation S-K Related To Exhibits

Posted by Securities Attorney Laura Anthony | September 20, 2016 Tags: Item 601 Of Regulation S-K, Regulation S-K, SEC

On August 31, 2016, the SEC issued proposed amendments to Item 601 of Regulation S-K to require hyperlinks to exhibits in filings made with the SEC. The proposed amendments would require any company filing registration statements or reports with the SEC to include a hyperlink to all exhibits listed on the exhibit list. In addition, because ASCII cannot support hyperlinks, the proposed amendment would also require that all exhibits be filed in HTML format.

This newest proposed rule change to Regulation S-K is part of the SEC Division of Corporation Finance’s Disclosure Effectiveness Initiative. At the end of this blog, I include an up-to-date summary of the proposals and request for comment related to the ongoing Disclosure Effectiveness Initiative.

Background

On April 15, 2016, the SEC issued a 341-page concept release and request for public comment on sweeping changes to certain business and financial disclosure requirements in Regulation S-K (“S-K Concept Release”). The S-K Concept Release contained a discussion and request for comment on exhibit filing requirements. Item 601 of Regulation S-K specifies the exhibits that must be filed with registration statements and SEC reports. Item 601 requires the filing of certain material contracts, corporate documents, and other information as exhibits to registration statements and reports.

A particular area of discussion recently has been the need to file schedules to contracts. These schedules can be lengthy and lack materiality. Likewise, a recent area of discussion has been the necessity of filing an immaterial amendment to a material exhibit. The S-K Concept Release contains a lengthy discussion on exhibits, including drilling down on specific filing requirements. Many of the exhibit filing requirements are principle-based, including, for example, quantitative thresholds for contracts. Consistent with the rest of the S-K Concept Release, the SEC discusses whether these standards should be changed to a straight materiality approach. The SEC also discusses eliminating some exhibit filing requirements altogether, such as where the information is otherwise fleshed out in financial statements or other disclosures (for example, a list of subsidiaries).

Companies are allowed to reference exhibits filed in prior filings as opposed to refiling the exhibit with the SEC. The current proposed rule amendment is limited to the presentation of such information and, in particular, including a hyperlink to the actual filed exhibit. I suspect the SEC shall issue further amendments related to exhibits as it continues its initiative and rule changes related to Regulation S-K.

Proposed Amendments

In addition to the filing of exhibits and schedules, Item 601 of Regulation S-K requires each company to include an exhibit index list that lists each exhibit included as part of the filing. Once an exhibit has been filed once, the company can incorporate by reference by including a footnote as to which filing the original exhibit can be found in. Unfortunately, I find that companies often will indicate that an exhibit has been previously filed, without giving a specific reference as to which filing or when, leaving an investor or reviewer to go fish. The SEC rightfully asserts that requiring companies to include hyperlinks from the exhibit index to the actual exhibits filed would allow much easier access to these filings.

The proposed rule change would require companies to include a hyperlink to each filed exhibit on the exhibit index for virtually all filings made with the SEC, including XBRL exhibits. An active hyperlink would be required in all filings made under the Securities Act or Exchange Act, provided however, that if the filing is a registration statement, the active hyperlinks need only be included in the version that becomes effective.

Currently exhibits may be filed in the EDGAR system in either ASCII or HTML format. HTML format allows for hyperlinks to another place within the same document or to a separate document. ASCII does not support such hyperlinks. Over the years HTML has become the standard used for EDGAR filings, with 99% of filings in 2015 using HTML. The current proposed rule would prohibit the use of ASCII for exhibits and require onlyHTML with the newly required hyperlinks.

In addition, the proposed rule changes would include conforming changes to Rule 105 of Regulation S-T. Rule 105 sets forth the limitations and liabilities for the use of hyperlinks. Rule 105 allows hyperlinks to other documents within the same filing or previously filed documents on EDGAR but prohibits hyperlinks to sites, locations, or documents outside the EDGAR system.

Further Background

On August 25, 2016, the SEC requested public comment on possible changes to the disclosure requirements in Subpart 400 of Regulation S-K. Subpart 400 encompasses disclosures related to management, certain security holders and corporate governance. See my blog on the request for comment HERE. On July 13, 2016, the SEC issued a proposed rule change on Regulation S-K and Regulation S-X to amend disclosures that are redundant, duplicative, overlapping, outdated or superseded (S-K and S-X Amendments). See my blog on the proposed rule change HERE.

That proposed rule changes and request for comments followed the concept release and request for public comment on sweeping changes to certain business and financial disclosure requirements issued on April 15, 2016. See my two-part blog on the S-K Concept Release HERE and HERE.

As part of the same initiative on June 27, 2016, the SEC issued proposed amendments to the definition of “Small Reporting Company” (see my blog HERE ). The SEC also previously issued a release related to disclosure requirements for entities other than the reporting company itself, including subsidiaries, acquired businesses, issuers of guaranteed securities and affiliates. See my blog HERE.

As part of the ongoing Disclosure Effectiveness Initiative, in September 2015 the SEC Advisory Committee on Small and Emerging Companies met and finalized its recommendation to the SEC regarding changes to the disclosure requirements for smaller publicly traded companies. For more information on that topic and for a discussion of the Reporting Requirements in general, see my blog HERE.

In March 2015 the American Bar Association submitted its second comment letter to the SEC making recommendations for changes to Regulation S-K. For more information on that topic, see my blog HERE.

In early December 2015 the FAST Act was passed into law. The FAST Act requires the SEC to adopt or amend rules to: (i) allow issuers to include a summary page to Form 10-K; and (ii) scale or eliminate duplicative, antiquated or unnecessary requirements for emerging-growth companies, accelerated filers, smaller reporting companies and other smaller issuers in Regulation S-K. The current Regulation S-K and S-X Amendments are part of this initiative. In addition, the SEC is required to conduct a study within one year on all Regulation S-K disclosure requirements to determine how best to amend and modernize the rules to reduce costs and burdens while still providing all material information. See my blog HERE.

The Author

Laura Anthony, Esq.
Founding Partner
Legal & Compliance, LLC
Corporate, Securities and Going Public Attorneys
LAnthony@LegalAndCompliance.com

Contact Legal & Compliance LLC. Technical inquiries are always encouraged.

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« SEC Requests Comment On Changes To Subpart 400 To Regulation S-K SEC Whistleblower Awards Pass $100 Million As It Continues To Crack Down On Confidentiality Provisions In Employment Agreements »

SEC Requests Comment On Changes To Subpart 400 To Regulation S-K

Posted by Securities Attorney Laura Anthony | September 13, 2016 Tags: Fast Act, Regulation S-K, Regulation S-X, SEC, Smaller Reporting Company, Subpart 400, The Fast Act

On August 25, 2016, the SEC requested public comment on possible changes to the disclosure requirements in Subpart 400 of Regulation S-K. Subpart 400 encompasses disclosures related to management, certain security holders and corporate governance. The request for comment is part of the ongoing SEC Division of Corporation Finance’s Disclosure Effectiveness Initiative and as required by Section 72003 of the FAST Act.

Background

The topic of disclosure requirements under Regulations S-K and S-X as pertains to financial statements and disclosures made in reports and registration statements filed under the Exchange Act of 1934 (“Exchange Act”) and Securities Act of 1933 (“Securities Act”) has come to the forefront over the past couple of years. The purpose of the Disclosure Effectiveness Initiative is to assess whether the business and financial disclosure requirements continue to provide the information investors need to make informed investment and voting decisions.

Regulation S-K, as amended over the years, was adopted as part of a uniform disclosure initiative to provide a single regulatory source related to non-financial statement disclosures and information required to be included in registration statements and reports filed under the Exchange Act and the Securities Act. Regulation S-X contains specific financial statement preparation and disclosure requirements.

In addition to affecting companies filing registration statements (including on Form 1-A in a Regulation A/A+ offering) and those filing reports with the SEC, any changes to Regulations S-K or S-X will affect acquired entities, acquirees, investment advisers, investment companies, broker-dealers and nationally recognized statistical rating organizations.

In accordance with its mandate under Section 72003 of the FAST Act, the SEC is studying and seeking comment to:

Determine how to modernize and simplify disclosure requirements to reduce the costs and burdens to the company while still providing all material and necessary information to investors;

Further a principles-based approach whereby companies and their management can determine the relevancy and materiality of information provided instead of just including boilerplate language or filling space to meet a static requirement. Of course, this needs to be balanced with the need to ensure completeness and comparability of information among different companies; and

Evaluate information delivery methods and explore ways to eliminate repetition and the disclosure of immaterial information.

Request for Comment

Subpart 400 of Regulation S-K, including Items 401 through 407, require disclosures on directors, executive officers, control persons and promoters; executive compensation; security ownership of certain beneficial owners and management; transactions with related persons, promoters and control persons; ethics and corporate governance.

The SEC’s request for comment does not provide any commentary about particular concerns, thoughts, or questions by the SEC, but is a short general request on “existing requirements in these rules as well as on potential disclosure issues that commenters believe the rules should address.”

Overview of Subpart 400

Item 401 – Directors, Executive Officers, Promoters and Control Persons

Item 401 of Regulation S-K requires the disclosure of the identity and ages of all directors and persons nominated to become a director. In addition, Item 401 requires disclosure of all positions held at the company by that director or nominee, their term of office, and any arrangement or understanding between that person and another person “pursuant to which he was or is to be selected as a director or nominee.” The instructions provide some clarity. Compensation for service as a director is not included in arrangements with other persons. A person must consent to being included as a nominee. No information need be provided on an outgoing director.

Item 401 requires the disclosure of the identity and ages of all executive officers. In addition, Item 401 requires disclosure of all positions held at the company by that executive officer, their term of office, and any arrangement or understanding between that person and another person pursuant to which he was or is to be selected as an officer. A person must consent to being included as an executive officer.

For a first-time registration statement or a registration statement by a company not subject to the reporting requirements under the Securities Exchange Act, Item 401 requires the identification of certain significant employees – in particular, where a person is not an executive officer but otherwise makes a significant contribution to the company’s business. The same information required for executive officers is required for significant employees. Similarly, for a first-time registration statement or registration statement by a company that has not been subject to the reporting requirements for at least 12 months, the same information must be provided for promoters and control persons.

In addition, family relationships, business experience for the past five years, and disclosures of certain legal proceedings must be made for each director and executive officer. The legal proceeding disclosure is a scaled-down version of the bad-actor requirements found elsewhere in the rules, such as Rule 506 and Regulation A. Also, Item 401 requires disclosure of bankruptcy proceedings involving the person or a company for which they were an executive officer during the past five years.

Item 402 – Executive Compensation

An entire treatise could be written on Item 402. From a high level, Item 402 requires disclosure of all compensation awarded to, earned by, or paid to a company’s executive officers and directors. Item 402 also requires disclosures related to pay ratio and require “say on pay” advisory votes. See my blog HERE.

Compensation must be disclosed in tabular form and is meant to encompass any and all benefits received by an executive officer or director, including salary, bonuses, stock awards (including under a plan or not, qualified or non-qualified), option awards, non-equity incentive plans, pension value, benefits, perquisites and all other forms of compensation. Moreover, Item 402 requires a compensation discussion and analysis explaining the presented information.

Item 402 requires details of outstanding stock awards and options, including exercise dates and prices, the market value of underlying securities and vesting schedules. Detailed information is also required regarding pension benefits.

Emerging-growth and smaller reporting companies provide a scaled-down disclosure under Item 402. For details on the Item 402 scaled-down requirements related to emerging growth and smaller reporting companies, see my blog HERE.

Item 403 – Security Ownership of Certain Beneficial Owners and Management

Item 403 requires disclosure of the security ownership of officers, directors and 5% or greater shareholders, including the beneficial owner or natural person behind any entity ownership. Ownership is disclosed in tabular form and includes name, address, number of securities owned and percentage owned of that class. Item 403 requires disclosure of all classes of outstanding equity regardless of whether such class is registered or publicly trades.

Item 404 – Transactions with Related Persons, Promoters, and Certain Control Persons

Item 404 requires the disclosure of material related party transactions. For purposes of Item 404, related parties include officers or officer nominees, directors or director nominees, a family member of a director or executive office, 5% or greater shareholders, or any person that has a direct or indirect material interest in the company. Companies other than emerging-growth or smaller reporting companies must also disclose the company’s policy for the review, approval or ratification of related party transactions. Item 404 also requires the disclosure of compensations, assets or benefits to be received by promoters where the company is filing an S-1 or Form 10 registration statement.

A “promoter” has a specific definition in the securities laws and is not tied to stock promotion in the sense that many may think. A “promoter” is defined in Rule 405 of the Securities Act as including:

(1) Any person who, acting alone or in conjunction with one or more other persons, directly or indirectly takes initiative in founding and organizing the business or enterprise of an issuer; or

(2) Any person who, in connection with the founding and organizing of the business or enterprise of an issuer, directly or indirectly receives in consideration of services or property, or both services and property, 10 percent or more of any class of securities of the issuer or 10 percent or more of the proceeds from the sale of any class of such securities. However, a person who receives such securities or proceeds either solely as underwriting commissions or solely in consideration of property shall not be deemed a promoter within the meaning of this paragraph if such person does not otherwise take part in founding and organizing the enterprise.

(3) All persons coming within the definition of promoter in paragraph (1) of this definition may be referred to as founders or organizers or by another term provided that such term is reasonably descriptive of those persons’ activities with respect to the issuer.

Item 404 expands the definition of promoter to include “any person who acquired control of a registrant that is a shell company, or any person that is part of a group, consisting of two or more persons that agree to act together for the purpose of acquiring, holding, voting or disposing of equity securities of a registrant, that acquired control of a registrant that is a shell company.”

Item 405 – Compliance with Section 16(a) of the Exchange Act

Section 16(a) of the Exchange Act requires the filing of Forms 3 and 4 by officers, directors or 10%-or-greater shareholders. For a review of the Section 16 filing requirements, see my blog HERE. Item 405 requires a company to disclose failures to meet these filing requirements.

Item 406 – Code of Ethics

Item 406 requires a company to disclose whether it has adopted a code of ethics for the executive officers and accounting controller. A copy of the code of ethics must also be filed with the SEC and included on the company’s website.

Item 407 – Corporate Governance

Item 407 requires disclosure of corporate governance standards, including those related to director independence; board committees, including audit compensation, and nominating committees; and annual meeting attendance. Item 407 requires detailed information for each category of corporate governance as well as the policies and procedures of each board committee.

Further Background

The request for comment follows the July 13, 2016 proposed rule change on Regulation S-K and Regulation S-X to amend disclosures that are redundant, duplicative, overlapping, outdated or superseded (S-K and S-X Amendments). See my blog on the proposed rule change HERE. That proposed rule change followed the concept release and request for public comment on sweeping changes to certain business and financial disclosure requirements issued on April 15, 2016. See my two-part blog on the S-K Concept ReleaseHERE and HERE.

As part of the same initiative on June 27, 2016, the SEC issued proposed amendments to the definition of “Small Reporting Company” (see my blog HERE). The SEC also issued a release related to disclosure requirements for entities other than the reporting company itself, including subsidiaries, acquired businesses, issuers of guaranteed securities and affiliates. See my blog HERE.

Prior to the S-K Concept Release and current Regulation S-K and S-X proposed amendments, in September 2015 the SEC Advisory Committee on Small and Emerging Companies met and finalized its recommendation to the SEC regarding changes to the disclosure requirements for smaller publicly traded companies. For more information on that topic and for a discussion of the Reporting Requirements in general, see my blog HERE.

In March 2015 the American Bar Association submitted its second comment letter to the SEC making recommendations for changes to Regulation S-K. For more information on that topic, see my blog HERE.

The Author

Laura Anthony, Esq.
Founding Partner
Legal & Compliance, LLC
Corporate, Securities and Going Public Attorneys
LAnthony@LegalAndCompliance.com

Contact Legal & Compliance LLC. Technical inquiries are always encouraged.

Follow me on Facebook, LinkedIn, YouTube, Google+, Pinterest and Twitter.

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« FinCEN Updates Due Diligence Rules SEC Issues Proposed Amendments To Item 601 Of Regulation S-K Related To Exhibits »

FinCEN Updates Due Diligence Rules

Posted by Securities Attorney Laura Anthony | September 6, 2016 Tags: AML Procedures, AML Programs, AML Rules, CIP Rule, CIP Rules, Due Diligence Rules, FinCEN, Finra, FINRA Rule 3310, The Bank Secrecy Act, The USA Patriot Act

On May 11, 2016, the Financial Crimes Enforcement Network (“FinCEN”) issued new final rules under the Bank Secrecy Act requiring financing institutions, including brokerage firms, to adopt additional anti-money laundering (AML) procedures that include specific due diligence and ongoing monitoring requirements related to customer risk profiles and customer information. In addition, the new rules require financial institutions to collect and verify information about beneficial owners and control person of legal entity customers.

The Securities Exchange Act of 1934 (“Exchange Act”) specifically requires brokerage firms to comply with the Bank Secrecy Act. FinCEN provides minimum rules. Brokerage firms are also required to comply with AML rules established by FINRA, including FINRA Rule 3310. The purpose of the AML rules is to help detect and report suspicious activity including the predicate offenses to money laundering and terrorist financing, such as securities fraud and market manipulation. FINRA also provides a template to assist small firms in establishing and complying with AML procedures. As of the date of this blog, FINRA has not updated Rule 3310 or its form template.

The new rules will make the difficult process of opening brokerage accounts even more difficult, especially for foreign individuals and entities and U.S. individuals and entities operating through offshore entities. The new rules could impact the ongoing process of depositing and trading in penny stocks, even for existing brokerage firm clients. FinCEN initially issued advance notice of proposed rulemaking in March 2012 and issued proposed rules in August 2014. A push to issue final rules gained momentum following the release of the Panama Papers. The new rules become effective for new customer accounts opened on or after May 11, 2018; however, as discussed below, where appropriate it may have retroactive application.

FinCEN requires that financial institutions address the following four key elements in all of their AML programs: (i) customer identification and verification; (ii) beneficial ownership identification and verification; (iii) understanding the nature and purpose of customer relationships to develop risk profiles; and (iv) ongoing monitoring for reporting suspicious transactions and maintaining and updating customer information.

Obligation to identify and verify beneficial ownership

The USA Patriot Act grants authority to FinCEN to establish rules for financial institutions to identify and verify customer information and establish AML procedures in general. All financial institutions are required to have minimum AML procedures, and the application of these procedures has been the subject of many enforcement proceedings. The initial customer identification program rule (CIP Rule) was enacted in 2003 and required financial institutions to identify any individual or entity that opened an account but did not require identification of beneficial ownership.

A “legal entity” is defined as a corporation, limited liability company, partnership or other entity that is created by the filing of a public document with a U.S. state or foreign governmental body. Under the new rules, the financial institution will need to identify beneficial owners of a legal entity that own (i) 25% or more of the equity of the legal entity; and (ii) any control persons over the legal entity, including officers, directors and senior management. Certain entities are excluded from the definition of an “entity” for purposes of the CIP rules, including financial institutions, banks, bank holding companies, certain pooled investment funds, state regulated insurance companies and foreign financial institutions.

Subject to certain exclusions, the new rule requires financial institutions to identify and verify the beneficial owners of their legal entity customers. The rulemaking process included numerous comments on this requirement. As a concession, the final rule generally does not contain a requirement that the financial institution verify that a listed beneficial owner in fact holds the disclosed ownership interest or exerts actual control over the entity.

As with most such rules, the financial institution can establish written processes and procedures tailored to that institution and its operations. Such processes and procedures must include a consideration of both the ownership test and control test of beneficial ownership. A financial institution must collect information on all individuals who either directly or indirectly own 25% or more of the equity of an entity. Where a financial institution has questions or determines there are risk factors, they may collect identifying information on owners with a lower percentage as well. In addition, the financial institution must collect information on all individuals that have the ability to control, manage or direct the entity, including officers, directors and key management.

The terms “direct and indirect” and “control” remain undefined and are to be broadly construed based on facts and circumstances to encompass all forms of potential ownership and control. Likewise, when making risk and knowledge assessments, the financial institution must consider all facts and circumstances and is held to a “reasonableness” standard.

Financial institutions must verify the collected information. The original CIP Rule established verification requirements based on risk. The same risk-based verification processes remain in place, with some modifications. In essence, the financial institution must gather due diligence, including corporate records, ownership records and the like, and continue such process until it is satisfied it has enough information on the beneficial owners of that particular entity, considering the risk imposed by that entity.

There are two significant modifications from the CIP Rule. In particular, a financial institution may rely on photocopies of documents rather than originals, and the institution may rely on disclosures of ownership from the entity itself except where it has knowledge of facts that would call into question the reliability or veracity of such information.

The risk assessment in the CIP Rule includes a consideration of all relevant facts and circumstances, including, but not limited to: (i) type of account; (ii) method of opening account; (iii) size of account and trading activity; (iv) type of identifying customer information; (v) relationship with the customer, including other accounts with the same beneficial owners, length of relationship, personal knowledge, and account activity; (vi) whether the customer has a physical address or physical business location; (vii) whether the customer has a U.S. tax identification number; and (viii) historical activity, including a suspicious activity.

Although the rule sets a firm requirement that financial institutions complete written procedures and apply them to all accounts opened on or after May 11, 2018, FinCEN is clear that a financial institution has a broad requirement to monitor and know its customers. Where risks are identified, additional procedures as outlined in the new rules should be applied to accounts, effective immediately. In addition, financial institutions should have ongoing monitoring procedures and may, where appropriate, go back and ask for information on existing accounts, as well as require updated information for accounts on a continuing basis. For instance, if an account has suspicious activity or contradictory ownership or control information is brought to the financial institution’s attention, there would be an obligation to conduct further due diligence and update and verify ownership and control information.

Basic AML Procedure Requirements

The USA Patriot Act sets out the basic requirements for effective AML policies and procedures. In particular, an effective AML program requires: (i) written policies and procedures; (ii) a designated compliance officer; (iii) an ongoing training program; (iv) an independent audit; and (v) customer due diligence. The new rules are focused on the fifth element: customer due diligence.

An effective customer due diligence process must have procedures for effectively understanding a customer relationship and establishing a customer risk profile, and for ongoing monitoring and compliance procedures, including those related to detecting and reporting suspicious activities and updated customer beneficial ownership and control information.

The Bank Secrecy Act imposes an obligation on broker-dealers to file a SAR with FinCEN to report any transaction (or a pattern of transactions) involving $5,000 or more, in which it “knows, suspects, or has reason to suspect” that it “(1) involves funds derived from illegal activity or is conducted to disguise funds derived from illegal activities; (2) is designed to evade any requirements of the Bank Secrecy Act; (3) has no business or apparent lawful purpose and the broker-dealer knows of no reasonable explanation for the transaction after examining the available facts; or (4) involves use of the broker-dealer to facilitate criminal activity.”

SEC guidance points out red flags that should cause a broker to conduct further investigation as to whether a SAR needs to be filed, including:

Read More

The Author

Laura Anthony, Esq.
Founding Partner
Legal & Compliance, LLC
Corporate, Securities and Going Public Attorneys
LAnthony@LegalAndCompliance.com

Securities attorney Laura Anthony and her experienced legal team provides ongoing corporate counsel to small and mid-size private companies, OTC and exchange traded issuers as well as private companies going public on the NASDAQ, NYSE MKT or over-the-counter market, such as the OTCQB and OTCQX. For nearly two decades Legal & Compliance, LLC has served clients providing fast, personalized, cutting-edge legal service. The firm’s reputation and relationships provide invaluable resources to clients including introductions to investment bankers, broker dealers, institutional investors and other strategic alliances. The firm’s focus includes, but is not limited to, compliance with the Securities Act of 1933 offer sale and registration requirements, including private placement transactions under Regulation D and Regulation S and PIPE Transactions as well as registration statements on Forms S-1, S-8 and S-4; compliance with the reporting requirements of the Securities Exchange Act of 1934, including registration on Form 10, reporting on Forms 10-Q, 10-K and 8-K, and 14C Information and 14A Proxy Statements; Regulation A/A+ offerings; all forms of going public transactions; mergers and acquisitions including both reverse mergers and forward mergers, ; applications to and compliance with the corporate governance requirements of securities exchanges including NASDAQ and NYSE MKT; crowdfunding; corporate; and general contract and business transactions. Moreover, Ms. Anthony and her firm represents both target and acquiring companies in reverse mergers and forward mergers, including the preparation of transaction documents such as merger agreements, share exchange agreements, stock purchase agreements, asset purchase agreements and reorganization agreements. Ms. Anthony’s legal team prepares the necessary documentation and assists in completing the requirements of federal and state securities laws and SROs such as FINRA and DTC for 15c2-11 applications, corporate name changes, reverse and forward splits and changes of domicile. Ms. Anthony is also the author of SecuritiesLawBlog.com, the OTC Market’s top source for industry news, and the producer and host ofLawCast.com, the securities law network. In addition to many other major metropolitan areas, the firm currently represents clients in New York, Las Vegas, Los Angeles, Miami, Boca Raton, West Palm Beach, Atlanta, Phoenix, Scottsdale, Charlotte, Cincinnati, Cleveland, Washington, D.C., Denver, Tampa, Detroit and Dallas.

Contact Legal & Compliance LLC. Technical inquiries are always encouraged.

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« DTC Again Proposes Procedures For Issuers Subject To Chills And Locks SEC Requests Comment On Changes To Subpart 400 To Regulation S-K »

DTC Again Proposes Procedures For Issuers Subject To Chills And Locks

Posted by Securities Attorney Laura Anthony | August 30, 2016 Tags: DTC, dtc chill, dtc chills, DTC Eligibility, dtc global lock, dtc global locks, Finra

On June 3, 2016, the DTC filed a new set of proposed rules to specify procedures available to issuers when the DTC imposes or intends to impose chills or locks. The issue of persistent and increasing chills and global locks which once dominated many discussions related to the small- and micro-cap space has dwindled in the last year or two. The new proposed rule release explains the change in DTC procedures and mindset related to its function in combating the deposit and trading of ineligible securities.

Background

On October 8, 2013, I published a blog and white paper providing background and information on the Depository Trust Company (“DTC”) eligibility, chills and locks and the DTC’s then plans to propose new rules to specify procedures available to issuers when the DTC imposes or intends to impose chills or locks (see my blog HERE). On December 5, 2013, the DTC filed these proposed rules with the SEC and on December 18, 2013, the proposed rules were published and public comment invited thereon. Following the receipt of comments on February 10, 2014, and again on March 10, 2014, the DTC amended its proposed rule changes (see my blog HERE).

Then on August 14, 2014, the DTC quietly withdrew its proposed rules and was silent until the release of new proposed rules on June 3, 2016.

A DTC chill is the suspension of certain DTC services with respect to an issuer’s securities. Those services can be book entry clearing and settlement services, deposit services (“Deposit Chill”) or withdrawal services. A chill can pertain to one or all of these services. In the case of a chill on all services, including book entry transfers, deposits, and withdrawals, it is called a “Global Lock.”

From the DTC’s perspective, a chill does not change the eligibility status of an issuer’s securities, just what services the DTC will offer for those securities. For example, the DTC can refuse to allow further securities to be deposited into the DTC system or while an issuer’s securities may still be in street name (a CEDE account), the DTC can refuse to allow the book entry trading and settlement of those securities.

The proposed rule change would add new Rule 33 to address: (i) the circumstances under which the DTC would impose and release a restriction on deposits (“Deposit Chill”) or on book entry services (a “Global Lock”); and (ii) the fair procedures for notice and an opportunity for the company to challenge the Deposit Chill or Global Lock.

As stated in the rule release, the current proposed rules “specify procedures available to issuers of securities deposited at DTC when DTC blocks or intends to block the deposit of additional securities of a particular issue (‘Deposit Chill’) or prevents or intends to prevent deposits and restrict book-entry and related depository services of a particular issue (‘Global Lock’).”

Background and Purpose for the Rule

The DTC serves as the central securities depository in the U.S. facilitating the trading and operation of the country’s securities markets. I’ve written about the DTC on numerous occasions, including recently in this blog HERE – on the settlement and clearing process, which provides basic background and history on the role and function of the DTC in the clearing of trillions of dollars in securities on a daily basis.

Once a security is approved as eligible for DTC depository and book-entry services, banks and broker-dealersthat are participants with the DTC (which is almost all such entities) may deposit securities into their DTC accounts on behalf of their respective clients. Securities deposited into the DTC may be transferred among brokerage accounts by book-entry (electronic) transfer, facilitating quick and easy transactions in the public marketplace. Eligible securities are registered on the books of a company in the DTC’s nominee name, Cede & Co.

A basic premise to use of the DTC is that securities be fungible. To be fungible all deposited securities must be freely tradable and devoid of unique characteristics or features such as restrictions on transfer. Since deposited securities are in fungible bulk, the deposit or existence of any illegally or improperly deposited securities (restricted securities) taints the bulk of all securities held by the DTC for that company.

Previously, upon detecting suspiciously large deposits of thinly traded securities, the DTC imposed or proposed to impose a Deposit Chill to maintain the status quo while it contacted the company and required such company to provide a legal opinion from independent counsel confirming that the securities met the eligibility requirements. As a reminder, the basic eligibility requirements that counsel confirmed were that the company’s securities were (i) issued in a transaction registered with the SEC under the Securities Act of 1933, as amended (“Securities Act”); (ii) issued in a transaction exempt from registration under the Securities Act and that, at the time of seeking DTC eligibility, are no longer restricted; or (iii) eligible for resale pursuant to Rule 144A, Regulation S or other applicable resale exemption under the Securities Act.

The Deposit Chill could, and often did, remain in place for years due to a company’s non-responsiveness, refusal or inability to submit the required legal opinion. As a practitioner that wrote such opinions, I can say that they were very expensive for a company. In order to satisfy the obligations as an attorney, we would be required to review each questionable deposit, including all paperwork, and satisfy ourselves that the securities qualified for deposit. In other words, for each deposit we would review the documents as if we were writing the initial opinion letter. Many times the company did not have all the records available and the shareholder that had made the deposit was not available, non-responsive or no longer had any supporting records. Sometimes the list of questionable deposits was in the hundreds and reviewing each and every one was extremely time-consuming. On more than one occasion, a company would spend significant funds attempting to comply only to realize that they fell short and no opinion could be rendered.

Regarding Global Locks, the DTC monitored enforcement actions, regulatory actions and pronouncements alleging Section 5 violations and would impose a Global Lock upon learning of such proceedings. At the time, the DTC had the policy to release the Global Lock when the action was withdrawn, dismissed on the merits with prejudice or otherwise resolved in favor of the company or shareholder defendants. However, over time this system was problematic as many enforcement proceedings are only resolved after several years and often without any definitive determination of wrongdoing.

On March 15, 2012, the Securities and Exchange Commission (SEC) issued an administrative opinion stating that an issuer is entitled to due process proceedings by the DTC as a result of a DTC chill placed on an issuer’s securities (In the Matter of the Application of International Power Group, Ltd. Admin. Proc. File No. 3-13687). The SEC stated, “DTC should adopt procedures that accord with the fairness requirements of Section 17A(b)(3)(H), which may be applied uniformly in any future such issuer cases”; “Those procedures must also comply with Section 17A(b)(5)(B) of the Exchange Act, which requires clearing agencies when prohibiting or limiting a person’s access to services, to (1) notify such person of the specific grounds for the prohibition or limitation, (2) give the person an opportunity to be heard upon the specific grounds for the prohibition or limitation, and (3) keep a record.”

At the time, the SEC confirmed that the DTC could still put a chill on an issuer’s security prior to giving notice and an opportunity to be heard to that issuer, in an emergency situation, stating, “[H]owever, in such circumstances, these processes should balance the identifiable need for emergency action with the issuer’s right to fair procedures under the Exchange Act. Under such procedures, DTC would be authorized to act to avert imminent harm, but it could not maintain such a suspension indefinitely without providing expedited fair process to the affected issuer.”

Following International Power, the DTC filed proposed rules on December 5, 2013, which were withdrawn on August 14, 2014.

In the time since International Power, the DTC has determined that its proposed procedures for imposing Deposit Chills and Global Locks are more appropriately directed to current trading halts or suspensions imposed by the SEC, FINRA or a court of competent jurisdiction. In fact, the DTC seems to think that the Deposit Chill and Global Lock process they were using only created more problems. In the proposed rule release, DTC states, “DTC believes that wrongdoers have seemingly taken into account DTC’s Restriction process, and have been avoiding it by shortening the timeframe in which they complete their scheme, dump their shares into the market and move on to another issue.”

Moreover, imposing Global Locks in response to an SEC enforcement action did nothing to curtail the behavior which had already occurred. As the DTC notes, “by the time of an enforcement action, the wrongdoers had long since transferred the subject securities.” Further, neither the Deposit Chill nor the Global Lock affected the trading in the security. In short, the DTC realized that its methods were not working.

New Proposed Rule 33

Imposing Chills and Locks

The proposed new Rule is dramatically simplified from the early 2014 proposals. Under the proposed new Rule 33, the DTC will establish the basis for the imposition of Deposit Chills and Global Locks premised directly on current judicial or regulatory intervention or the threat of imminent adverse consequences to the DTC or its participants.

In particular, if FINRA or the SEC halts or suspends trading in a security, the DTC will impose a Global Lock. The DTC will also impose a restriction (Chill or Lock) if ordered to do so by a court of competent jurisdiction. The DTC, however, recognizes that FINRA and the SEC may issue a trading halt or suspension for other reasons than fraud or wrongdoing, such as due to a technical glitch. Accordingly, if the DTC reasonably determines that a Global Lock will not further its regulatory purposes.

The DTC will also impose a Chill (or Lock) when it becomes aware of a need for immediate action to avert an imminent harm, injury, or other material adverse consequence to the DTC or its participants. It is expected that these circumstances will be rare, but an example would be if the DTC becomes aware that persons were about to deposit securities at the DTC in connection an ongoing corporate hijacking, market manipulation, or in violation of the law, or if a company notifies the DTC of stolen certificates. In support of its ability to impose such as Chill or Lock, the DTC quotes the SEC’s opinion in International Power, as discussed above.

Releasing Chills and Locks

New Rule 33 also address the release of Chills and Locks. From a high level, a Chill or Lock can be released if it was imposed in error in the first instance, such as based on clerical error.

Where a Global Lock has been imposed as a result of an SEC or FINRA trading suspension or halt, the Global Lock will be lifted when the suspension or halt is lifted. Where a Global Lock or Chill is imposed based on court order, the DTC will release it when also ordered to do so by a court.

Where a Chill or Lock is imposed as a result of imminent adverse consequences, it would be lifted when the DTC reasonably determines that lifting such Chill or Lock would not pose a threat of imminent adverse consequences such that the original basis for imposition has passed. Examples of when such a Chill or Lock could be lifted include: (i) the perceived harm as passed or is significantly remote; (ii) when the basis for the issue no longer exists (for example, lost certificates found); or (iii) there is a prior Global Lock based on an SEC enforcement action, but there is no current indication that illegally distributed securities are about to be deposited.

Proposed Fair Procedures

The DTC has established procedures to give a company timely notice of the imposition of a Chill or Lock, an opportunity to respond or object in writing, and a review and determination by an independent DTC officer. The DTC will also maintain complete records of all actions and proceedings. The DTC will send the initial written notice to the company’s last known business address and to the company’s transfer agents, if any, on record with the DTC.

The notice will be sent within 3 days of the imposition of the Chill or Lock. The company will have 20 business days to respond. An independent DTC officer will review the file. The independent DTC officer may request additional information from the company. Once the review is complete, a final written decision will be sent to the company. The company will then have 10 business days to submit a supplement; however, the supplement will only be reviewed if the objection is based on a clerical mistake or clear oversight or omission. If a supplement is submitted, the DTC must respond within 10 business days.

The Rule change will not modify of affect the DTC’s current ability to (i) lift or modify a Chill or Lock; (ii) restrict services in the ordinary course based on other rules not associated with Chills or Locks; (iii) communicate with the company, its transfer agent, or its representative as long as communications are memorialized in writing; or (iv) send out a restriction notice in advance of imposing a Chill or Lock.

Chart Summary of DTC Proposed Rules

The Author

Laura Anthony, Esq.
Founding Partner
Legal & Compliance, LLC
Corporate, Securities and Going Public Attorneys
LAnthony@LegalAndCompliance.com

Contact Legal & Compliance LLC. Technical inquiries are always encouraged.

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« Smaller Reporting Companies vs. Emerging Growth Companies FinCEN Updates Due Diligence Rules »

Smaller Reporting Companies vs. Emerging Growth Companies

Posted by Securities Attorney Laura Anthony | August 23, 2016 Tags: Emerging Growth Companies, Emerging Growth Company, S-3 Eligible, Smaller Reporting Companies, Smaller Reporting Company, Test The Waters, The Fast Act

The topic of reporting requirements and distinctions between various categories of reporting companies has been prevalent over the past couple of years as regulators and industry insiders examine changes to the reporting requirements for all companies, and qualifications for the various categories of scaled disclosure requirements. As I’ve written about these developments, I have noticed inconsistencies in the treatment of smaller reporting companies and emerging growth companies in ways that are likely the result of poor drafting or unintended consequences. This blog summarizes two of these inconsistencies.

As a reminder, a smaller reporting company is currently defined as a company that has a public float of less than $75 million in common equity as of the last business day of its most recently completed second fiscal quarter, or if a public float of zero, has less than $50 million in annual revenues as of its most recently completed fiscal year-end. I note that on June 27, 2016, the SEC issued a proposed rule to change that definition. The SEC proposes to amend the definition of a smaller reporting company to include companies with less than a $250 million public float as compared to the $75 million threshold in the current definition. In addition, if a company does not have an ascertainable public float, a smaller reporting company would be one with less than $100 million in annual revenues, as compared to the current threshold of less than $50 million. Once considered a smaller reporting company, a company would maintain that status unless its float drops below $200 million or its annual revenues drop below $80 million.

An emerging growth company (“EGC”) is defined as a company with total annual gross revenues of less than $1 billion during its most recently completed fiscal year that first sells equity in a registered offering after December 8, 2011. An EGC loses its EGC status on the earlier of (i) the last day of the fiscal year in which it exceeds $1 billion in revenues; (ii) the last day of the fiscal year following the fifth year after its IPO (for example, if the issuer has a December 31 fiscal year-end and sells equity securities pursuant to an effective registration statement on May 2, 2016, it will cease to be an EGC on December 31, 2021); (iii) the date on which it has issued more than $1 billion in non-convertible debt during the prior three-year period; or (iv) the date it becomes a large accelerated filer (i.e., its non-affiliated public float is valued at $700 million or more). EGC status is not available to asset-backed securities issuers (“ABS”) reporting under Regulation AB or investment companies registered under the Investment Company Act of 1940, as amended. However, business development companies (BDC’s) do qualify.

The Fast Act

The FAST Act, passed into law on December 4, 2015, amended Form S-1 to allow for forward incorporation by reference by smaller reporting companies. A smaller reporting company may now incorporate any documents filed by the company, following the effective date of a registration statement, into such effective registration statement. In what was probably unintended in the drafting, the FAST Act changes only include smaller reporting companies and not emerging growth companies. Generally, forward incorporation by reference requires that the company be S-3 eligible. The FAST Act change has created an anomaly whereby a smaller reporting company can utilize forward incorporation by reference but an EGC could not unless it was also S-3 eligible.

Testing the Waters in an IPO

Test-the-waters communications involve solicitations of indications of interest for an offering prior to the effectiveness of a registration statement. Where Regulation A freely allows, and even encourages, test-the-waters communications, the standard IPO process using a Form S-1 still strictly limits pre-effectiveness solicitations of interest and offering communications overall. Section 5(a) of the Securities Act prohibits the sale of securities before the registration statement is deemed effective. Communications made by the company during an IPO process, depending on the mode and content, result in violations of Section 5 of the Securities Act of 1933 (the “Securities Act”). Communication-related violations of Section 5 during the pre-filing and pre-effectiveness periods are often referred to as “gun jumping.”

In April 2012, the Jumpstart Our Business Startups Act (the “JOBS Act”) was enacted, which, in part, established a new process and disclosures for public offerings by EGC’s.

Section 105(c) of the JOBS Act provides an EGC with the flexibility to “test the waters” by engaging in oral or written communications with qualified institutional buyers (“QIB’s”) and institutional accredited investors (“IAI’s”) in order to gauge their interest in a proposed offering, whether prior to (irrespective of the 30-day safe harbor) or following the first filing of any registration statement, subject to the requirement that no security may be sold unless accompanied or preceded by a Section 10(a) prospectus. Generally, in order to be considered a QIB, you must own and invest $100 million of securities, and in order to be considered an IAI, you must have a minimum of $5 million in assets. For a more complete discussion on the test-the-waters provisions available to EGC’s, see my blog HERE.

Section 105(c) is not available for smaller reporting companies. Where a smaller reporting company is not also an EGC, it cannot engage in Section 105(c) test-the-waters communications made available under the JOBS Act. This is clearly a legislative miss. The JOBS Act is intended to create capital-raising opportunities for small companies. Although I understand that the thought was to assist EGC’s in the IPO process, the fact is that many smaller reporting companies engage in a series of follow-on public offerings before reaching a size and level of maturity where they no longer need the assistance of rules and laws designed to encourage capital in smaller companies. Ironically, by that point, these companies will be able to engage in additional communications only available to eligible larger issues, such as free writing prospectus and Rule 163 communications.

Refresher on Regulation S-K and S-X Differences for Smaller Reporting Companies and EGC’s

The scaled-down disclosures for smaller reporting companies and emerging growth companies include, among other items: (i) only 3 years of business description as opposed to 5; (ii) 2 years of financial statements as opposed to 3; (iii) elimination of certain line item disclosures such as certain graphs and selected financial data; and (iv) relief from the 404(b) auditor attestation requirements. However, although similar, there are differences between the scaled disclosure requirements for an emerging growth company vs. a smaller reporting company. In particular, the following chart summarizes these differences:

Read More

The Author

Laura Anthony, Esq.
Founding Partner
Legal & Compliance, LLC
Corporate, Securities and Going Public Attorneys
LAnthony@LegalAndCompliance.com

Securities attorney Laura Anthony and her experienced legal team provides ongoing corporate counsel to small and mid-size private companies, OTC and exchange traded issuers as well as private companies going public on the NASDAQ, NYSE MKT or over-the-counter market, such as the OTCQB and OTCQX. For nearly two decades Legal & Compliance, LLC has served clients providing fast, personalized, cutting-edge legal service. The firm’s reputation and relationships provide invaluable resources to clients including introductions to investment bankers, broker dealers, institutional investors and other strategic alliances. The firm’s focus includes, but is not limited to, compliance with the Securities Act of 1933 offer sale and registration requirements, including private placement transactions under Regulation D and Regulation S and PIPE Transactions as well as registration statements on Forms S-1, S-8 and S-4; compliance with the reporting requirements of the Securities Exchange Act of 1934, including registration on Form 10, reporting on Forms 10-Q, 10-K and 8-K, and 14C Information and 14A Proxy Statements; Regulation A/A+ offerings; all forms of going public transactions; mergers and acquisitions including both reverse mergers and forward mergers, ; applications to and compliance with the corporate governance requirements of securities exchanges including NASDAQ and NYSE MKT; crowdfunding; corporate; and general contract and business transactions. Moreover, Ms. Anthony and her firm represents both target and acquiring companies in reverse mergers and forward mergers, including the preparation of transaction documents such as merger agreements, share exchange agreements, stock purchase agreements, asset purchase agreements and reorganization agreements. Ms. Anthony’s legal team prepares the necessary documentation and assists in completing the requirements of federal and state securities laws and SROs such as FINRA and DTC for 15c2-11 applications, corporate name changes, reverse and forward splits and changes of domicile. Ms. Anthony is also the author of SecuritiesLawBlog.com, the OTC Market’s top source for industry news, and the producer and host ofLawCast.com, the securities law network. In addition to many other major metropolitan areas, the firm currently represents clients in New York, Las Vegas, Los Angeles, Miami, Boca Raton, West Palm Beach, Atlanta, Phoenix, Scottsdale, Charlotte, Cincinnati, Cleveland, Washington, D.C., Denver, Tampa, Detroit and Dallas.

Contact Legal & Compliance LLC. Technical inquiries are always encouraged.

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