Monthly Archives: February 2019
In January, NYSE Regulation sent out its yearly Compliance Guidance Memo to NYSE American listed companies. The annual letter updates companies on any rule changes from the year and reminds companies of items the NYSE deems important enough to warrant such a reminder.
The only new item in this year’s letter relates to advance notice of stock dividends and distributions. Effective February 1, 2018, the NYSE requires listed companies to provide ten minutes’ advance notice to the exchange of any announcement with respect to a dividend or stock distribution, whether the announcement is during or outside exchange traded hours. This change is consistent with other NYSE and Nasdaq rules which generally require notifications of announcements, including press releases, that could impact trading, at least 10 minutes prior to such notification.
The NYSE letter also provides a list of important reminders to all exchange listed companies, starting with the requirement to provide a timely alert of all material news. Part 4 of the Company Guide requires listed companies to promptly release to the public any news or information which might reasonably be expected to materially affect the market for its securities. Listed companies may comply with the NYSE’s Timely Alert/Material News policy by disseminating material news via a press release or any other Regulation FD compliant method. Furthermore, for news being released between 7:00 a.m. and 4:00 p.m. Eastern time, a company must call the NYSE’s Market Watch Group (i) ten minutes before the dissemination of news that is deemed to be of a material nature or that may have an impact on trading in the company’s securities; or (ii) at the time the company becomes aware of a material event having occurred and take steps to promptly release the news to the public and provide a copy of any written form of that announcement at the same time via email. As noted above, where the news is related to a dividend or stock distribution, advance notice must be provided regardless of the time of the announcement.
The NYSE includes examples of material news such as earnings, mergers/acquisitions, executive changes, redemptions/conversions, securities offerings and pricings related to these offerings, major product launches, regulatory rulings, new patent approvals and dividend or major repurchase announcements. Once notified, NYSE Marketwatch will determine if a temporary trading halt should be effected to allow the market time to fully absorb the news. Also, if the news is being released between 7:00 a.m. and 9:25 a.m., the company can request a temporary trading halt.
Furthermore, the requirement to provide the exchange with advance notice of the public release of information also applies to verbal information such as part of a management presentation, investor call or investor conference. In practice, companies usually file their scripts and any presentation materials via a Form 8-K immediately prior to the verbal release of information.
Similarly, NYSE believes that a change in the earnings announcement date can sometimes affect the trading price of a company’s stock and/or related securities and those market participants who are in possession of this information before it is broadly disseminated may have an advantage over other market participants. Consequently, listed companies are required to promptly and broadly disseminate to the market, news of the scheduling of their earnings announcements or any change in that schedule and to avoid selective disclosure of that information prior to its broad dissemination.
The purpose of these rules is to prevent insider trading or even a jump-start advantage to trading on material information. It is widely believed that insider trading rules are in need of an overhaul. Generally, insider trading refers to buying or selling a security in breach of a fiduciary duty or other relationship of trust and confidence, while in possession of material, nonpublic information about the security. Insider trading violations may also include “tipping” such information, securities trading by the person “tipped,” and securities trading by those who misappropriate such information. For more information, see HERE.
The compliance letter also addresses the following matters:
Annual Meeting Requirements – If an annual meeting is postponed or adjourned, such as if quorum is not reached, the company will not be in compliance with Section 704 of the Company Guide, which requires that a company hold an annual meeting during each fiscal year.
Record Date Notification – Listed companies are required to notify the NYSE at least ten calendar days in advance of all record dates set for any purpose or changes to a set date. Record dates should be set for business days.
Redemption and Conversion of Listed Securities – Advance notice must be provided to the NYSE of any call redemptions or conversions of a listed security. The NYSE tracks redemptions and conversions to ensure that any reduction in securities outstanding does not result in noncompliance with the Exchange’s distribution and market capitalization continued listing standards.
Annual Report Website Posting Requirement – Section 610(a) of the Company Guide requires that a company post its annual report on its website simultaneously with the filing of the report with the SEC.
Corporate Governance Requirements – All listed companies must file an annual affirmation that it is in compliance with the corporate governance requirements. The affirmation must be filed no later than 30 days after the company’s annual meeting and if no meeting is held, 30 days after the filing of its annual report (10-K, 20-F, 40-F or N-CSR) with the SEC.
Transactions Requiring Supplemental Listing Applications – A company is required to file a Listing of Additional Securities (“LAS”) application to obtain authorization from the NYSE for a variety of corporate events, including (i) the issuance or reserve for issuance of additional shares of a listed security; (ii) the issuance or reserve for issuance of additional shares of a listed security that are issuable upon conversion of another security; (iii) change in corporate name, state of incorporation or par value; and/or (iv) the listing of a new security (such as preferred stock or warrants). No additional securities can be issued until the NYSE authorizes the LAS. Moreover, authorization is required whether the securities will be issued privately or through a registration and even if conversion is not possible until some future date. Authorization takes approximately 2 weeks.
Broker Search Cards – SEC Rule 14a-13 requires any company soliciting proxies in connection with a shareholder meeting to send a search card to any entity that the company knows is holding shares for beneficial owners. The search card must be sent: (i) at least 20 business days before the record date for the annual meeting; or (ii) such later time as permitted by the rules of the national exchange on which the securities are listed. The NYSE American does not have any rules allowing for a later search card and accordingly, all listed companies must comply with the Rule 14a-13 20-day requirement.
NYSE American Rule 452, Voting by Member Organizations – The Exchange reviews all listed company proxy materials to determine whether NYSE American member organizations that hold customer securities in “street name” accounts as brokers are allowed to vote on proxy matters without having received specific client instructions. The Exchange recommends that listed companies submit their preliminary proxies for preliminary, confidential review.
Shareholder Approval and Voting Rights Requirements – Sections 711 through 713 of the Company Guide outline the Exchange’s shareholder approval requirements including the 20% rules. Listed companies are strongly encouraged to consult the Exchange prior to entering into a transaction that may require shareholder approval including, but not limited to, the issuance of securities: (i) with anti-dilution price protection features; (ii) that may result in a change of control; (iii) to a related party; (iv) in excess of 19.9% of the pre-transaction shares outstanding; and (v) in an underwritten public offering in which a significant percentage of the shares sold may be to a single investor or to a small number of investors (as this may be deemed a private offering requiring approval).
Listed companies are also encouraged to consult the Exchange prior to entering into a transaction that may adversely impact the voting rights of existing shareholders of the listed class of common stock, as such transactions may violate the Exchange’s voting rights. Examples of transactions which adversely affect the voting rights of shareholders of the listed common stock include transactions which result in a particular shareholder having: (i) board representation that is out of proportion to that shareholder’s investment in the company; or (ii) special rights pertaining to items that normally are subject to shareholder approval under either state or federal securities laws, such as the right to block mergers, acquisitions, disposition of assets, voluntary liquidation, or certain amendments to the company’s organizational/governing documents.
The ability to use an S-3 registration statement is significant for exchange traded companies. An S-3 allows forward incorporation by reference and can be used for a shelf registration among other benefits. S-3 eligibility is comprised of both registrant or company requirements and transaction requirements. In this blog I will discuss the general company and transaction requirements for a Form S-3. In a separate blog I will drill down on shelf offerings.
Companies that meet the following requirements are eligible to use a Form S-3 for a transaction that meets one of the transaction requirements:
(1) The company must be organized under the laws of the United States and must have its principal business operations in the United States or its territories;
(2) The company has a class of securities registered pursuant to either Section 12(b) or 12(g) of the Securities Exchange Act of 1934 (“Exchange Act”) or is required to file reports pursuant to Section 15(d) of the Exchange Act;
(3) The company (i) has been required to file Exchange Act reports and has filed all such Exchange Act reports for a period of 12 months; and (ii) has timely filed all Exchange Act reports required by Sections 13(a), 15(d) and Section 14(a) and 14(c) materials for a period of 12 calendar months, except for reports under Item 1.01 (entry into a material definitive agreement), 1.02 (termination of a material definitive agreement), 1.04 (mine safety – reporting shutdowns and patterns of violations), 2.03 (creation of a direct financial obligation or an obligation under an off-balance sheet arrangement), 2.04 (triggering events that accelerate or increase a direct financial obligation or off-balance sheet obligation), 2.05 (costs associated with exit or disposal activities), 2.06 (material impairments), 4.02(a) (non-reliance on previously issued financial statements or related audit report where the company makes the non-reliance determination) or 5.02(e) (compensatory arrangements with certain officers) of Form 8-K.
This eligibility rule specifically refers to reports required to be “filed” under the Exchange Act. Certain Items in a Form 8-K may be “furnished” and not “filed,” including disclosures pursuant to Items 2.02 (results of operations and financial conditions) and 7.01 (Regulation FD disclosure) and accordingly, the failure to timely file an 8-K under these Items will not affect Form S-3 eligibility. For more information on Form 8-K filing requirements, see HERE. If a company files for an extension of a Form 10-Q or 10-K on Form 12b-25 and files its report within the extension time frame, that report will be deemed timely filed.
Eligibility requires that a company have been required to file reports under the Exchange Act and as such, the voluntary filing of reports generally does not count. However, in the Lamar Advertising Co. no-action letter issued in 2009, the SEC set out nine factors that, if satisfied, would allow a voluntary filer to use form S-3. In short, the company must have been required to file Exchange Act reports because of an effective Securities Act registration statement, at some point thereafter become a voluntary filer as they had less than 300 shareholders, did not file a Form 15, had a contractual obligation to file reports and continued to do so, and then again became required to file reports either because of a newly filed Securities Act or Exchange Act registration statement. A company can request relief from the timeliness requirement; however, such relief is only granted in very limited circumstances;
(4) Since the filing of its last Exchange Act report, neither the company nor any of its subsidiaries has: (i) failed to pay a dividend or sinking fund installment or a cumulative dividend on preferred stock; or (ii) defaulted on any installment on indebtedness for borrowed money or on any rental on a long-term lease if the default is material to the financial position of the company or its subsidiaries on a consolidated basis. Furthermore, regardless of the fact that a disqualifying default is either cured or waived after it occurs, the form may not be used between the date of the default and the audit at the end of the fiscal year in which such material default occurred. However, if a prospective default never occurs because the lenders have waived payment in advance of the due date, the form may still be used;
(5) A foreign company that meets all of the other eligibility requirements and files regular U.S. Exchange Act reports;
(6) A company will not lose eligibility if it is a successor registrant as long as the succession was for the purpose of changing state of domicile or creating a holding company structure and the assets and liabilities of the successor are substantially the same as the predecessor;
(7) If a company is subject to the electronic filing requirements of Rule 101 of Regulation S-T, which all reporting companies are, it must have made all required electronic filings and posted on its website all XBRL data files within the prior 12 months. I note, however, that effective September 17, 2018, the SEC no longer requires that companies post XBRL data on their websites. See HERE.
Primary Offerings – Instruction 1.B.1
Form S-3 can be used for primary offerings of a company whose market value of voting and non-voting common equity held by non-affiliates is $75 million or more, including for the sale and issuance of new securities or for the resale of already issued and outstanding securities held by third parties (indirect primary or resale), including offerings by subsidiaries and standby underwriters in connection with the call or redemption of warrants or a class of convertible securities. Common equity is defined as “any class of common stock or an equivalent interest, including but not limited to a unit of beneficial interest in a trust or a limited partnership interest.” Only outstanding common equity is used in the calculation and not convertible securities or common equity underlying convertible securities.
An affiliate of a Company is a person that “controls, or is controlled by, or is under common control with, such issuer.” The SEC defines “control” as “the possession, direct or indirect, of the power to direct or cause the direction of the management and policies of a person, whether through the ownership of voting securities, by contract, or otherwise.” Determining affiliate status is a facts and circumstances determination, and the SEC has indicated many times that it will not provide guidance on affiliate status. Clearly, executive officers and directors are affiliates. However, whether stockholders that do not otherwise have board representation are affiliates or not can be a troublesome analysis. A beneficial owner of 10% or more of the voting securities of a company is presumed to be a control person/affiliate. Further, 5% stockholders are required to disclose in a Schedule 13D or 13G filed with the SEC whether their shares are held for the purposes of influencing or changing control. Companies should review their known beneficial owners and consider all factors relating to affiliate status, including but not limited to: (i) distribution of voting shares among all stockholders; (ii) impact of possible resale; (iii) relationship between the stockholder and management; (iv) influence as a stockholder; and (v) voting agreements.
For purposes of determining the value threshold, market value is computed by using the last sale price or the average of the bid and asked prices as of a date within 60 days prior to the date of filing. The number of shares held by non-affiliates is usually determined as of the date of filing but can be any day within the 60-day look-back period. It is not necessary to calculate the number of shares held by non-affiliates for the same day on which the average price of the stock is determined. For example, the number of shares outstanding on the date of filing might be used, together with the average price of stock for any day within the 60-day period.
A company must meet this eligibility requirement each time it files an update to the registration statement. Accordingly, if the market value drops between updates, a company would need to switch to an S-1 (or other form it is qualified to use) when filing an update. Furthermore, as Form S-3 incorporates Exchange Act reports by reference, the filing of a Form 10-K is the equivalent to filing a post-effective amendment. This means that if the company is not eligible to use Form S-3 at the time of filing its 10-K, it would be required to file a post-effective amendment on whatever other form would be available at the time. However, a company can use the same Form S-3 (as updated and amended through subsequent Exchange Act reports or post effective amendments) to switch between a baby shelf and full shelf based on the fluctuating market value of voting and non-voting common equity held by non-affiliates.
Prior to the recent change in the definition of a smaller reporting company (SRC) (see HERE), the threshold for use of a Form S-3 for a full shelf offering was the same as that for an SRC. That is, prior to June 2018, SRCs did not qualify to use Form S-3 for primary offerings except for under the baby shelf rule. Following the amended definition of an SRC, companies that qualify as an SRC and to use Form S-3 (i.e., with a public float in excess of $75 million but under $250 million) will be able to take advantage of the SRC scaled disclosures in their shelf offerings.
Unlike the baby shelf rule, companies eligible to use Form S-3 for a primary offering are not required to have a class of equity registered on a national exchange. In other words, a company whose market value of voting and non-voting common equity held by non-affiliates is $75 million or more and that trades on the over the counter market, would be eligible to use Form S-3 assuming it met the other eligibility requirements (such as the timely filing of all Exchange Act reports).
A company that qualifies to use Form S-3 for primary offerings under Instruction 1.B.1 may use that form to register the offer and sale of both an immediately convertible security and the underlying security. The fact that subsequent conversions may occur at a time when the company does not meet the transaction requirement for conversions described below, would not affect the initial registration of the offer of the underlying securities. If it becomes necessary to update the registration statement, the company may accomplish the update by incorporation by reference or post-effective amendment only if it meets the conditions for the use of the form at that time.
A Form S-3 cannot be used for exchange offers or other business combination transactions. Although securities registered on Form S-3 cannot be sold in exchange for other securities, the consideration is not strictly limited to cash. Form S-3 would be available, for example, for transactions in which the consideration for the securities consists of promissory notes or services performed for the issuer by the recipient of the securities.
Other Limited Primary Offerings (the “Baby Shelf Rule”) – Instruction 1.B.6
For companies that have an aggregate market value of voting and non-voting common stock held by non-affiliates of less than $75 million, Instruction 1.B.6(a) limits the amount that the company can offer to up to one-third of that market value in any trailing 12-month period. This one-third limitation is referred to as the “baby shelf rule.” The baby shelf rule is only available to companies that have at least one class of securities listed on a national exchange.
To calculate the non-affiliate float for purposes of S-3 eligibility, a company may use the last sale price or the average of the bid and asked prices on any date within the last 60 days. The registration capacity for a baby shelf is measured immediately prior to the offering and re-measured on a rolling basis in connection with subsequent takedowns. The availability for a particular takedown is measured as the current allowable offering amount less any amounts actually sold relying on the baby shelf rule in prior takedowns. Accordingly, the available offering amount will increase as a company’s stock price increases, and decrease as a stock price decreases. Moreover, if the aggregate market value of voting and non-voting common stock held by non-affiliates equals or exceeds $75 million after the effective date of the S-3, the one-third limit will not apply to additional sales and instead the registration statement will be considered filed under the full shelf registration provisions.
In making the calculation where derivative securities had been sold, the company should multiply the aggregate market value of the underlying equity by the maximum number of common shares that the derivative securities can be converted into. The market value of the underlying common equity can be determined using the same per share price used to determine the market value of the non-affiliate float. If the derivative securities have been converted or exercised, the aggregate market value of the underlying equity shall be calculated by multiplying the actual number of shares into which the securities were converted or received upon exercise, by the market price of the shares on the date of conversion or exercise.
To rely on this instruction to conduct an offering, the company cannot be a shell company and must not have been a shell company for at least 12 calendar months prior to utilizing Form S-3. In addition, if the company has been a shell company at any time previously, it must have filed current Form 10 information with the SEC at least 12 calendar months previously reflecting its status as an entity that is not a shell company.
On November 2, 2016, the SEC issued a C&DI clarifying the calculation of the one-third limitation under the baby shelf rule. In particular, some companies were effecting an S-3 shelf takedown with an investor while simultaneously completing a private placement with the same investor and registering the private placement securities via a new resale S-3 filing. Although the shelf takedown was a primary direct issuance from the company and the resale registration filed on behalf of the selling shareholder, the combined effect was the use of S-3 for an amount of securities in excess of the $75 million limitation.
This workaround had become somewhat commonplace until the SEC issued the new C&DI on November 2, 2016 clarifying that this will no longer be allowed. The C&DI provides in total:
Question: An issuer with less than $75 million in public float is eligible to use Form S-3 for a primary offering in reliance on Instruction I.B.6, which permits it to sell no more than one-third of its public float within a 12-month period. May it sell securities to the same investor(s), with a portion coming from a takedown from its shelf registration statement for which it is relying on Instruction I.B.6 and a portion coming from a separate private placement that it concurrently registers for resale on a separate Form S-3 in reliance on Instruction I.B.3, if the aggregate number of shares sold exceeds the Instruction I.B.6 limitation that would be available to the issuer at that time?
Answer: No. Because we believe that this offering structure evades the offering size limitations of Instruction I.B.6, the securities registered for resale on Form S-3 should be counted against the issuer’s available capacity under Instruction I.B.6. Accordingly, an issuer may not rely on Instruction I.B.3 to register the resale of the balance of the securities on Form S-3 unless it has sufficient capacity under Instruction I.B.6 to issue that amount of securities at the time of filing the resale registration statement. If it does not, it would need to either register the resale on Form S-1 or wait until it has sufficient capacity under that instruction to register the resale on Form S-3.
Although the SEC has made it clear that the private placement and shelf takedown shares will both count towards the $75 million baby shelf limit, a company can still conduct concurrent shelf takedowns and private placements with the same investor. In such case, the investor can either hold the private placement shares for the applicable Rule 144 holding period, or the shares can be registered for resale on Form S-1.
Primary Offerings of Non-Convertible Securities Other than Common Equity – Instruction 1.B.2
Form S-3 can be used for the primary offering of non-convertible securities other than common equity (such as debt or preferred stock), to be offered by cash, if the company (i) has issued at least $1 billion in non-convertible securities in registered primary offerings over the prior three years; or (ii) has outstanding at least $750 million of non-convertible securities, issued in primary offerings for cash; or (iii) is a wholly owned subsidiary of a well-known seasoned issuer; or (iv) is a majority owned operating partnership of a real estate investment trust that qualifies as a well-known seasoned issuer.
Secondary Offerings – Instruction 1.B.3
A Form S-3 can be used to register the resale of outstanding securities held by a shareholder as long as the company meets the registrant qualifications and already has securities of the same class listed and registered on a national securities exchange or quoted on the automated quotation system of a national securities association. The OTC Markets does not qualify as an automated quotation system for purposes of this eligibility requirement. When registered warrants, the warrants themselves do not have to be trading on the national exchange as long as the underlying common stock is listed.
Instruction 1.B.3 is not the exclusive way to use Form S-3 for secondary offerings. That is, if a company meets the eligibility requirement for a primary offering under Instruction 1.B.1 (i.e., market value of voting and non-voting common equity held by non-affiliates is $75 million or more), it can use Form S-3 to register a secondary offering under that provision, regardless of whether it has a class of securities registered on a national exchange.
Earnout shares to be issued in connection with a consummated merger may be registered on Form S-3, even though the shares have not been earned and are not outstanding at the time the registration statement. Likewise, securities to be issued in an exchange relying on Section 3(a)(9) of the Securities Act may be registered for resale on Form S-3 even though the exchange has not yet been completed.
A Form S-3 may be used under Instruction 1.B.3 to register the resale of securities to be issued upon the conversion of a convertible security such as a convertible note or preferred stock prior to the actual conversion. However, the company may not register an indeterminate number of shares. Accordingly, if the conversion formula is floating such as a discount to market price, the company must make a good-faith estimate of the maximum number of shares that it may issue on conversion to determine the number of shares to register for resale. If the number of registered shares is less than the actual number issued, the company would need to file a new registration statement to register the additional shares. Furthermore, if the number of shares to be registered is in excess of thirty percent (30%) of the outstanding public float at the time of registration, it will be considered an indirect primary offering and a company may only use Form S-3 if it qualifies to use the form for a primary offering under Instruction 1.B.1.
Instruction 1.B.3 may not be relied on for the “resale” of securities held by a parent or subsidiary as a parent or subsidiary is generally considered an alter ego of the company itself. That is, a resale in that case would be considered a primary offering and the company would have to rely on Instruction 1.B.1 to use Form S-3. However, there are circumstances where affiliates may make offerings that are deemed to be genuine secondaries.
Rights Offerings, Dividend or Interest Reinvestment Plans, and Conversions of Warrants and Options – Instruction 1.B.4
Form S-3 is available for securities to be offered (i) upon the exercise of outstanding rights granted by the issuer of the securities to be offered, if such rights are granted on a pro rata basis to all existing security holders of the class of securities to which the rights attach, (ii) under a dividend or interest reinvestment plan, or (iii) upon the conversion of outstanding convertible securities or the exercise of outstanding warrants or options issued by the issuer of the securities to be offered, or by an affiliate of the issuer. To utilize Form S-3 for one of these transactions, the company must have, within the prior 12 calendar months, sent an annual report complying with Rule 14a-3(b) to all record holders of the rights, all participants in the plan or all record holders of the convertible securities. Similarly, the company must have, within the prior 12 calendar months, provided certain information about management, management compensation, securities ownership and corporate governance under Regulation S-K.
Asset-backed Securities – Instruction 1.B.5
Form S-3 is not available to register offerings of asset-backed securities.
Equity Line Transactions
Depending on the amount of securities to be issued in an equity line transaction, a company that meets the eligibility requirements could use a Form S-3 to register the put shares as a primary indirect offering (Instruction 1.B.1), a baby shelf offering (Instruction 1.B.6) or a secondary offering (Instruction 1.B.4).
Eight years following the crash of the Chinese reverse merger boom and a slew of SEC enforcement proceedings, the SEC is once again concerned with the financial reporting by U.S. listed companies with operations based in China. In December 2018, the SEC issued a cautionary public statement from SEC Chair Jay Clayton, SEC Chief Accountant Wes Bricker and PCAOB Chairman William D. Duhnke III entitled “Statement on the Vital Role of Audit Quality and Regulatory Access to Audit and Other Information Internationally – Discussion of Current Information Access Challenges with Respect to U.S.-listed Companies with Significant Operations in China.”
Just reading the title reminded me of the boom in China-based reverse mergers around 2009-2010 followed by the trading halts or delistings of at least 50 companies in 2011 and 2012. In the summer of 2010, the SEC launched an initiative to determine whether certain companies with foreign operations—including those that were the product of reverse mergers—were accurately reporting their financial results, and to assess the quality of the audits being done by their auditors. By June 2011, the SEC was strongly warning investors of the risks posed by reverse mergers in general, and Chinese deals in particular, singling out six Chinese issuers.
Numerous SEC enforcement actions and civil lawsuits were filed claiming fraud and misrepresentations in SEC filings including financial reports. Partially as a result of the crisis, in late 2011 both the NYSE and Nasdaq amended their listing requirements to add a seasoning requirement following a reverse merger. The seasoning rules prohibit a company that has completed a reverse merger with a public shell from applying to list until the combined entity had traded in the U.S. over-the-counter market, on another national securities exchange, or on a regulated foreign exchange, for at least one year following the filing of all required information about the reverse merger transaction, including audited financial statements. In addition, the rules require that the new reverse merger company has filed all of its required reports for the one-year period, including at least one annual report.
In addition, the seasoning rule requires that the reverse merger company “maintain a closing stock price equal to the stock price requirement applicable to the initial listing standard under which the reverse merger company is qualifying to list for a sustained period of time, but in no event for less than 30 of the most recent 60 trading days prior to the filing of the initial listing application.” The rule includes an exception for companies that complete a firm commitment offering resulting in net proceeds of at least $40 million.
In addition to the specific additional listing requirements contained in the new rule, the Exchange may “in its discretion impose more stringent requirements than those set forth above if the Exchange believes it is warranted in the case of a particular reverse merger company based on, among other things, an inactive trading market in the reverse merger company’s securities, the existence of a low number of publicly held shares that are not subject to transfer restrictions, if the reverse merger company has not had a Securities Act registration statement or other filing subjected to a comprehensive review by the SEC, or if the reverse merger company has disclosed that it has material weaknesses in its internal controls which have been identified by management and/or the reverse merger company’s independent auditor and has not yet implemented an appropriate corrective action plan.”
Slowly since that time, Chinese companies have again started to access U.S. capital markets via both reverse mergers and direct IPO’s. However, clearly the issues and concerns raised by the SEC in 2011 have not all been resolved.
SEC Public Statement
The SEC’s recent cautionary public statement was issued jointly from SEC Chair Jay Clayton, SEC Chief Accountant Wes Bricker and PCAOB Chairman William D. Duhnke III. The statement’s opening sentence sets the tone for the rest of the content, and in particular, “[A]s we are nearing the end of the fiscal year for many reporting companies, it is important to remember that complete, accurate financial statements and credible audits are things we—investors, issuers, and regulators worldwide—all care about.”
The statement continues with a recognition of the global nature of both capital markets and companies, with U.S.- and non-U.S.-based companies seeking access to the U.S. capital markets and the fundraising and liquidity they bring. The statement points out that U.S.-listed companies accounted for approximately 40% of the market capitalization of global public companies in 2017. Capital access and liquidity are made possible by the assurance that companies that list and trade on U.S. markets provide high-quality and reliable financial information and that U.S. rules, regulations, and regulatory oversight apply. When the listed company operates outside the U.S., regulators must operate in multiple jurisdictions to be able to access audit-related information and otherwise effectuate their responsibilities over any company trading in the U.S. markets.
A multinational company must comply with financial reporting obligations in many of the countries in which it operates and its auditors must be able to operate on a worldwide basis. The multi-jurisdictional aspect is sometimes challenging in that information necessary for regulatory oversight does not always flow back to the U.S. as it should. Barriers to the information flow include data protection, privacy, confidentiality, bank secrecy, state secrecy, or national security laws. The U.S. has been working with foreign jurisdictions to address these laws and barriers where a company subjects itself to U.S. regulatory oversight by listing on U.S. securities exchanges and accessing U.S. capital markets. For example, the SEC is one of over 120 signatories to the International Organization of Securities Commissions (IOSCO) Multilateral Memorandum of Understanding, which provides for enforcement consultation and cooperation, and the exchange of information. Moreover, the SEC has over 75 formal cooperative arraignments with foreign regulators, the PCAOB has conducted inspections of registered accounting firms in over 50 foreign countries, and the PCAOB has cooperative arrangements with 23 foreign regulators.
Unfortunately, China is not one of these cooperative arrangements, and the PCAOB has been facing issues being able to inspect auditing firms in China, as well as Hong Kong where the audit client has operations in mainland China. Based on reports to the PCAOB from audit firms up to March 31, 2018, there were 213 listed companies in China and 11 in Belgium for which the PCAOB and SEC have not been able to inspect audit records despite ongoing and significant efforts. From March 31 to the date of the SEC’s public statement, some of those companies changed their listing or trading status, dropping the number down to 178 companies.
The SEC is and remains the principal regulator of the world’s largest securities markets and, as such, must often deal with cross-border issues. The SEC sees its mission as administering and enforcing requirements for reliable financial reporting globally in light of the global nature of the economy and the many companies that operate worldwide. The SEC furthers this mission by communicating and cooperating with regulators in other countries and by participating in international organizations such as IOSCO (the International Organization of Securities Commissions) and The Monitoring Group, which engages in the monitoring of international accounting, auditing, and ethics standards.
The SEC also oversees the PCAOB which, in turn, is the principal U.S. regulator that oversees the audits of public companies and SEC-registered brokers and dealers. The PCAOB is required by U.S. law to conduct regular inspections of all registered public accounting firms, both domestic and foreign, that issue audit reports or that play a substantial role in their preparation. As noted above, the PCAOB has inspected audit firms in 50 different foreign countries. The PCAOB also often works in cooperation with foreign regulators and their audit inspection authorities.
However, despite the cooperative arrangements, there are legal impediments blocking the free flow of information from some countries. In particular, blocking statutes and data protection, privacy, confidentiality, bank secrecy, state secrecy, and national security laws sometimes complicate or outright restrict the sharing of information with U.S. regulators. Some of these laws prohibit foreign-domiciled companies from responding directly to SEC requests for information and documents or doing so, in whole or in part, only after protracted delays in obtaining authorization. Other laws can prevent the SEC from being able to conduct any type of examination, either on-site or by correspondence. Accordingly, securities regulators around the world seek agreements with one another for access to business books and records or auditor documentation. Likewise, some countries prohibit the PCAOB from inspecting audit firms within their borders, even if the auditor is PCAOB-registered. In that case, the PCAOB usually enters into cooperative arrangements with local regulators that allows them to jointly inspect a firm.
However, the SEC is generally not satisfied with their ability to inspect, investigate and enforce the U.S. securities laws in China. Despite the significant value of China-based companies trading in U.S. markets, Chinese law requires that the business books and records related to transactions and events occurring within China be kept and maintained there. China also restricts the auditor’s documentation of work performed in the country from being transferred out of China. Also, Chinese laws governing the protection of state secrets and national security have been invoked to limit foreign access to China-based business books and records and audit work papers. As a result, for certain China-based companies listed on U.S. stock exchanges, the SEC and PCAOB have not had access to the books and records and audit work papers. The SEC and PCAOB are engaging in ongoing discussions with Chinese officials and regulators but have not made satisfactory progress.
The SEC believes that if a company wants to access U.S. securities markets, the SEC needs to be able to directly supervise these entities and the auditors that audit their books and records. Any audit firm that registers with the PCAOB is legally obligated to cooperate and provide documents and testimony, if requested, in connection with inspections and investigations regardless of their locations. If the SEC and/or PCAOB cannot access a company or its auditor, they will seek sanctions and other remedial measures. To help keep investors informed of these issues, the PCAOB publishes a list of companies and auditors for which they have not been able to conduct inspections or obtain sufficient information.
The SEC continues to try and negotiate with Chinese authorities to improve relations and allow the SEC and PCAOB to have timely access to information necessary to conduct investigations or inspections but has not been successful to date. Many China-based companies and companies with significant operations in China want to access U.S. securities markets, but the inability of U.S. regulators to properly access records is causing the SEC concern about the risk to investors. Even if an audit is conducted correctly and financial reports are accurate, there is a greater risk to investors if the SEC cannot do its job and inspect the records. Of course, there is also the very real risk of fraud, which could emanate from a large company (for example, Enron or WorldCom) and have a broad market impact. The SEC is considering remedial measures, which could include requiring affected companies to make additional disclosures and placing additional restrictions on new securities issuances.
In the 4th quarter of 2018, the SEC finalized amendments to the disclosure requirements for mining companies under the Securities Act of 1933 (“Securities Act”) and the Securities Exchange Act of 1934 (“Exchange Act”). The proposed rule amendments were originally published in June 2016. In addition to providing better information to investors about a company’s mining properties, the amendments are intended to more closely align the SEC rules with current industry and global regulatory practices and standards as set out in by the Committee for Reserves International Reporting Standards (CRIRSCO). In addition, the amendments rescind Industry Guide 7 and consolidate the disclosure requirements for registrants with material mining operations in a new subpart of Regulation S-K.
The final amendments require companies with mining operations to disclose information concerning their mineral resources and mineral reserves. Disclosures on mineral resource estimates were previously only allowed in limited circumstances. The rule amendments provide for a two-year transition period with compliance beginning in the first fiscal year on or after January 1, 2021.
Summary of the Final Rules
In amending the disclosure rules for mining companies, the SEC considered that many companies are already subject to one or more of the s and that by aligning the SEC reporting requirements to these rules, the compliance burden and costs for these companies could be reduced while still providing the necessary investor protections.
Under the final rules, a company with material mining operations must disclose specific information related to its mineral resources and mineral reserves on one or more of its properties. The rules define “mineral reserve” to include diluting materials and allowances for losses that may occur when the material is mined or extracted. The rules also amend the definition of “mineral resource” to exclude geothermal energy. Consistent with CRIRSCO standards, a company must disclose exploration results, mineral resources, or mineral reserves in SEC filings based on information and supporting documentation prepared by a mining expert referred to as a “qualified person.”
A company must obtain a dated and signed technical report summary from the qualified person related to mineral resources and reserves determined to be on each material property. The report must be signed either directly by the qualified person or the firm that employs them. Moreover, multiple qualified persons may take part in preparing the final technical report summary. The qualified person may conduct either a pre-feasibility or final feasibility study to support a determination of mineral reserves even in high-risk situations. The report must be filed as an exhibit to the company’s SEC report when first disclosed and subsequent changes or amendments to the report must also be filed as exhibits. A technical report on exploration results may also be voluntarily filed as an exhibit.
The final rules require the qualified person to use a price for each commodity that provides a reasonable basis for establishing estimates of mineral resources or reserves. The price may be either historical or forward-looking, but the report must disclose and explain the reasons for using the selected price, including any material underlying assumptions. Similarly, instead of requiring a specific point of reference, the qualified person may choose any point of reference subject to disclosure and explanations. The technical report summary may disclose mineral resources as mineral reserves as long as it also discloses mineral resources excluding mineral reserves.
A qualified person is not subject to expert liability under Section 11 of the Securities Act of 1933 (“Securities Act”) for information and factors that are outside that person’s expertise, even if discussed in the technical report.
Although the proposed rule amendment provided for quantitative presumptions as to when mineral resources or reserves will be deemed material, the final rule did not include this provision, instead allowing management to rely on a principles-based approach in determining materiality. Likewise, management can determine when a change in previously reported estimates of mineral resources or reserves is material. Also, the proposed rule would have required a table with certain information on a company’s top 20 properties, but the final rule instead also uses a principles-based approach, again leaving it to the company to determine material disclosures of its properties and mining operations.
Materiality relating to mineral resources and reserves has been modified to consistently rely on a principles-based approach. A principles-based approach requires the company to “rely on a registrant’s management to evaluate the significance of information in the context of the registrant’s overall business and financial circumstances” and to “exercise judgment” in determining whether disclosure is required. The SEC has shown a trend towards this principles-based approach for determining materiality for purposes of disclosure in its recent reviews and amendments to Regulation S-K and Regulation S-X (see, for example, HERE and HERE). Practitioners, including the American Bar Association (“ABA”), have advocated for principles-based disclosure over quantitative or bright line tests (see HERE) believing that a quantitative guideline results in lengthy, and often immaterial, information. Congressional lawmakers have also supported this approach requiring the SEC to conduct a study on shifting even more disclosure requirements to principles based, as part of the FAST Act (see HERE).
The number of summaries and tables that are currently required has been reduced from seven to two and the company may now choose to make its disclosures using either tables or a narrative format. A company is permitted to voluntarily disclose exploration targets in its SEC reports as long as they are accompanied by certain specified cautionary and explanatory statements. Disclosure of exploration activity and results is mandatory once the company determines the information is material to investors. Also, the qualified person may include inferred resources in their economic analysis as long as certain conditions are met.
A company may now use historical estimates of mineral resources or reserves in SEC filings pertaining to mergers, acquisitions, or business combinations if they are unable to update the estimate prior to the completion of the relevant transaction, provided that the company discloses the source and date of the estimate, and does not treat the estimate as a current estimate.
Finally, the amended rules allow a company holding a royalty or similar interest to omit any information required under the summary and individual property disclosure provisions to which it lacks access and which it cannot obtain without incurring an unreasonable burden or expense.