June 2015

Photo by Patricia J. Lovelace © All rights reserved
Photo by Patricia J. Lovelace © All rights reserved

This week, the SEC published a series of new Compliance and Disclosure Interpretations (“CDIs”) related to the newly revised Regulation A, which became effective on June 19, 2015. While many of the new CDIs addressed procedural and interpretational issues under the new rules, there was an important development that could make Regulation A that much more useful for companies.

The positive news comes in the form of the SEC staff’s response to Question 182.07 which asks whether issuers would be able to use Regulation A in connection with merger or acquisition transactions that meet the criteria for Regulation A in lieu of registering the offering on an S-4 registration statement. Based on the SEC’s final adopting release, it did not appear that Regulation A would be available for use in these types of business combination transactions. However, the interpretation published yesterday clarifies that issuers may, in fact, use Regulation A in connection with mergers and acquisitions. The one exception is that Regulation A would not be available for business acquisition shelf transactions that are conducted on a delayed basis.

This is a very positive development for issuers that want to issue equity in connection with acquisitions of other companies, but do not wish to become a public reporting company under the Exchange Act. Previously, these issuers had very few Continue Reading More Positive Regulation A News

Reg A+ is now effective!
Photo by Lisandro M. Enrique © 2015 All rights reserved

Today is June 19th.  It is an exciting day for companies that need to raise capital because Reg A+ finally goes into effect.

As a reminder, Reg A+ is a nickname for SEC Regulation A, as amended by the SEC.  Reg A has been around for many years but was rarely used because it was available only to very small financings, had too many limitations, and was costly.  As part of the JOBS (Jumpstart Our Business Startups) Act enacted in 2012, the SEC was instructed to update Reg A to make it more useful as a capital-raising tool.  Reg A+ is the result.

The main benefits of Reg A+ include the following:

  • Companies can raise up to $50 million every 12 months.
  • Insiders can sell their shares in a Reg A+ offering.
  • Investors in a Reg A+ offering have immediate liquidity – they can sell their shares once the offering is completed and don’t have to hold them for a period of time.
  • Some Reg A+ offerings are exempt from state securities or “blue sky” laws.
  • Some Reg A+ offerings are easier to list on an exchange.

We think Reg A+ provides a great opportunity to raise capital and can be looked at as an alternative to either a private placement or an IPO.  But, don’t take our word for it.  Here is what others are saying about Reg A+.  If you have any questions about Reg A+, please feel free to reach out to any of the Gunster attorneys in the Securities and Corporate Governance Practice.

Doom over crowdfunding?The first enforcement action involving a crowdfunding project was recently brought by the Federal Trade Commission. It involved the development of a board game which did not go well despite a successful crowdfunding campaign. This matter is interesting and instructive not only because it is the first such case, but also because it highlights some of the significant risks inherent in the crowdfunding process. The FTC’s official press release on this matter contains a good summary of the relevant events.

According to the FTC complaint, Erik Chevalier discovered an idea for a board game called The Doom that Came to Atlantic City! This game was designed to be a dark fantasy take on the traditional Monopoly board game. The game had originally been developed by two designers, but Chevalier planned to take their concept and produce and distribute a finished game. To raise money for this venture, Chevalier turned to Kickstarter, probably the best known crowdfunding platform. According to the FTC complaint, Chevalier represented to investors that the funds raised would primarily be used for the development, production, completion, and distribution of this game, and that participants would receive certain rewards, such as copies of the final game and action figures, in return for their participation in this campaign.

This crowdfunding campaign was very successful. Chevalier’s original goal was to raise $35,000, but this campaign raised more than $122,000 for the development of this game. Unfortunately, things went bad as the game development process encountered delays.

According to the FTC complaint, Continue Reading First crowdfunding fraud enforcement action

Unless you’ve been off the grid, you’ve surely read about the kerfuffle between Senator Elizabeth Warren and SEC Chair Mary Jo White (here’s an example). It seems that Senator Warren is unhappy that the SEC, under Chair White’s leadership, hasn’t done enough. Specifically – among other things – it hasn’t adopted a bunch of rules that the Senator believes are critical, such as requiring public companies to disclose the ratio of CEO pay to that of rank-and-file employees.

I’ve written before about Congressional interference in SEC rulemakings (for example, Connecticut Senator Blumenthal’s recommendation that the SEC should deem “fee-shifting” by-laws not just a risk factor but a “major” risk factor – discussed here). I’ve also called out the SEC when I think it’s out of line (for example, here). However, the recent attacks by Senator Warren seem to me to be beyond the pale – they’re strident and scream disrespect for Chair White and for the Commission generally.

Moreover, they demonstrate Senator Warren’s inability, failure or refusal (or all of the above) to recognize certain fundamental issues with which the SEC has to deal, including these (among many others): Continue Reading Warren vs. SEC