Below is a brief overview of the most frequent types of securities transactions and matters that we advise on for our clients.
Regulation D Offerings
Regulation D under the Securities Act provides a number of exemptions from the registration requirements, allowing some companies to offer and sell their securities without having to register the offering with the SEC.
Regulation CF Offerings
Regulation Crowdfunding enables eligible companies to offer and sell securities through crowdfunding. The rules: all transactions under Regulation CF to take place online through an SEC-registered intermediary, either a broker-dealer or a funding portal; raise a maximum aggregate amount of $1,070,000 through crowdfunding offerings in a 12-month period; limit the amount individual investors can invest across all crowdfunding offerings in a 12-month period and require disclosure of information in filings with the SEC and to investors and the intermediary facilitating the offering.
Regulation A/A+ Offerings
Regulation A is an exemption from registration for public offerings. Regulation A has two offering tiers: Tier 1, for offerings of up to $20 million in a 12-month period; and Tier 2, for offerings of up to $50 million in a 12-month period. For offerings of up to $20 million, companies can elect to proceed under the requirements for either Tier 1 or Tier 2.
Regulation S/Offshore Offerings
Regulation S provides an exclusion from the Section 5 registration requirements of the Securities Act for offerings made outside the U.S. by both U.S. and foreign issuers. A securities offering, whether private or public, made by an issuer outside of the U.S. in reliance on Regulation S need not be registered under the Securities Act.
These types of offerings are ideal for raising general working capital, funding specific projects, funding research and development, and paying off debt, most likely the debt incurred due to a recent IPO.
Registration Statements (Form S1 & S3)
Form S-1. Any company may use Form S-1 to prepare a registration statement. Information about how to prepare the non-financial disclosures in the registration statement is set out in Regulation S-K. Information about the form and content of required financial statements is set out in Regulation S-X. In addition to the information expressly required by Form S-1, your company also must provide any other information that is necessary to make your disclosures not misleading. Securities laws and SEC rules allow certain smaller companies and newly public companies to prepare their disclosures using streamlined rules designed to make compliance easier.
Form S-3. is a simplified securities and exchange form that registers securities for companies. In order to use Form S-3, certain criteria must be met. Form S-3 can be used by a company that qualifies, in order to register securities under the Securities Act, instead of using the original Form S-1.
Companies that wish to offer a stock or bond for sale to the public must file a prospectus as part of the registration process with the SEC. Companies must file a preliminary and a final prospectus. However, the SEC has specific guidelines as to what's listed in a prospectus for various securities.
Securities Reporting (10-K, 10-Q & 8-K)
10-K. The 10-K provides investors with a comprehensive analysis of the company. It's similar to a prospectus and contains more information than an annual report. For instance, the financial statements are more detailed. Companies have to submit this lengthy annual filing within 90 days of the end of their fiscal year.
10-Q. A truncated version of the 10-K is the 10-Q. The 10-Q is provided within 45 days of the end of each of the first three quarters of the company's fiscal year. It details the company's latest developments and provides a preview of the direction it plans to take. Major differences from the 10-K include unaudited financial statements and less detailed reports.
8-K. Major developments that investors should know about are described in the 10-K or 10-Q, but if those developments don't make the two filings in time, they are presented in the 8-K. This unscheduled document addresses specific events and provides further detail and exhibits, such as data tables and press releases.
Confidential Treatment Requests
A “confidential treatment request” (CTR) is an application made by a registrant to the SEC requesting that certain information contained in a document required to be filed with the SEC under the Securities Act or the Exchange Act, be afforded “confidential treatment” and thus redacted from the registrant’s SEC filing and not publicly disclosed for a specified period of time. The SEC’s decision granting or denying the CTR will be contained in a confidential treatment order (CTO) to be issued to the registrant.
Going Private Transactions
Going private is a transaction or a series of transactions that convert a publicly traded company into a private entity. Once a company goes private, its shareholders are no longer able to trade their stocks in the open market, allowing the company to terminate its public company status and related reporting obligations under the Exchange Act.
Section 13 & 16 Reporting
Schedule 13D form not only reveals who owns most of the company's shares, but also introduces the owner (or owners) to investors and provides contact information. It's filed within 10 days of any entity acquiring 5% or more of any class of a company's securities.
Section 16 of the Exchange Act imposes filing standards for insiders, the name given to officers, directors or stockholders, who possess stock that directly or indirectly results in beneficial ownership of more than 10% of the company’s common stock or other equity class.
A tender offer is a broad solicitation by a company or a third party to purchase a substantial percentage of a company’s Section 12 registered equity shares or units for a limited period of time. The offer is at a fixed price, usually at a premium over the current market price, and is customarily contingent on shareholders tendering a fixed number of their shares or units.
Also known as the SOX Act of 2002 and the Corporate Responsibility Act of 2002, it mandated strict reforms to existing securities regulations and imposed tough new penalties on lawbreakers. The act created strict new rules for accountants, auditors, and corporate officers and imposed more stringent record keeping requirements.
Blue Sky Compliance
Blue sky laws are state regulations established as safeguards for investors against securities fraud. The laws, which may vary by state, typically require sellers of new issues to register their offerings and provide financial details of the deal and the entities involved. As a result, investors have a wealth of verifiable information on which to base their judgment and investment decisions.
In the proxy statement, investors can view management's salaries, any conflicts of interest that might exist and other perks received. It's presented prior to the shareholder meeting and must be filed with the SEC before soliciting a shareholder vote on the election of directors and approval of other corporate actions.