Regulation A+ and Other Alternatives to a Traditional IPO

Financing Your Growth Business Following the JOBS Act

David N. Feldman

• Publisher: Wiley
• Year: 2018
• ISBN:
  9781119416128
• Edition: 1
• Topic: Business
• Subtopic: Corporate Finance
• Index: Business

Understand Regulation A+ and other alternative funding methods

Regulation A+ and Other Alternatives to a Traditional IPO delves into the details of the new SEC rules under the JOBS Act of 2012 to examine the benefits and pitfalls for entrepreneurs and investors. Written by the 'Godfather of Reg A+, ' this book breaks down the complex details of Regulation A+ and other alternative funding methods to help small businesses determine how best to go public and raise capital. A traditional IPO comes with barriers that can be insurmountable for a small company seeking to enter the public markets; thus far, reverse mergers have provided a challenging 'back door' to the market, but Regulation A+ re-opens the front door to allow small cap companies to raise capital while keeping offering and compliance costs manageable in a way not possible with a traditional IPO. More complex than simple crowdfunding, yet just as accessible by all investors, Regulation A+ is a step up for entrepreneurs at any stage wanting to go public where Wall Street meets Main Street.

Straightforward explanations, smart strategy, and illustrative examples make this book an invaluable guide for those seeking to truly understand the nuances of Regulation A+ in order to work more effectively within its bounds.

• Understand how Regulation A+ differs from a traditional IPO and the early experience with this exciting new approach
• Examine the JOBS Act and the SEC's rules under Title IV
• Explore the past, present, and future of reverse mergers, special purpose acquisition companies (SPACs) and self-filings
• Discover new alternatives including new rules under Rule 504 and Regulation S

The new rules provide a faster, more streamlined, more cost-effective route to up to $50 million in capital, and offer companies more flexibility than ever. Every entrepreneur needs to know all available funding options, and Regulation A+ and Other Alternatives to a Traditional IPO provides essential guidance from the expert in the field.

CHAPTER 1
Why Go Public?

Before deciding how to go public, a company must decide whether to go public. As I often tell my clients, if you can benefit from being public, and can bear the costs of becoming so, you should seriously consider it, regardless of your company's stage of development.

Advantages of Being Public

In general, there are five major advantages to being public: easier access to capital, greater liquidity, ability to grow through acquisitions or strategic partnerships, ability to use stock options to attract and retain senior executives, and increased shareholder confidence in management.

Access to Capital

It is easier for public companies to raise money than it is for private companies. Regardless of the merits of any specific private company, public companies have five characteristics that make them more attractive to investors than private companies.

First, by law most public companies must disclose their financial results (good or bad) and other material developments to the SEC and the public regularly and in great detail. Disclosure requirements build investor confidence because it is harder for a public company to hide problems than it is for a private one to do so.

The second major benefit to investors is that there are more opportunities for a public company to create liquidity for their investment. This increases a public company's access to capital. Those who invest in private companies always worry about the “exit strategy” and look for companies that wish to be sold or to go public eventually. If a company is already public, it significantly enhances the investor's ability to exit.

The fact that one can trade a public company's stock creates liquidity because an investor can sell the stock in the public markets. Typically, public company investors obtain the ability to sell their shares publicly within three to five months after their investment. In an IPO, of course, investors usually can sell their shares immediately. At worst, they must wait six months after investing in a company (if it has not been a shell company for the past six months), or at most one year following most reverse mergers or if a company is not SEC reporting. This is significantly faster than the three to five years, or more, that a venture capitalist generally expects to wait for an investment to pay off.

The third major benefit to a company that completes a financing as a public company rather than a private one is that it is not bound by the restrictions and covenants that private equity or venture capital investors customarily require. Venture capitalists view themselves as management's partners, and require veto power on many different aspects of decision making in a company.

In general, once a company is public, investors stop demanding these powers. Thus, even if a private company is able to attract private equity investors, it still may want to consider going public, because IPO and private investment in public equity (PIPE) investors or others who finance public companies generally put fewer restrictions on the company's activities, decision making, and so on.

The fourth advantage of seeking financing after going public is valuation. The markets judge shares in a public company to be worth roughly twice as much as shares of similarly situated private companies. When a financing takes place as part of the going‐public event itself, the value of the company before the investment (known as the “pre‐money value”) is almost always materially higher than the value a private equity investor would place on the same company. This makes perfect sense when one considers that investors place a premium on liquidity.

Even though it is easier for public companies to raise money than private ones, this is not a sufficient reason for going public, as many companies who go public solely to obtain one round of financing learn to their dismay. Companies that follow this path frequently regret the decision; many in fact end up going private again. Companies that make the most out of being public also make use of some or all of the following benefits.

Liquidity

Liquidity gives all investors the opportunity to enhance their exit strategy by being able to turn their investments into cash. New investors are not the only ones who want to be able to exit. Sometimes one of the main reasons for bringing a private company public is so company founders, former investors, and senior executives holding stock positions can take money out of the business without selling the company outright or losing practical control. There are as many reasons owners might want cash as there are owners.

The challenge in this situation is to avoid a great wave of share sales by company insiders. There are two reasons for this. First, if too many insiders sell out, those who built the company in the past will lose the incentives that would encourage them to continue building the company in the future. Second, Wall Street notices when insiders are selling out. Generally, a wave of insider sales discourages outsiders from investing in a company. Therefore, a company should consult its advisors and design an appropriate, rewarding, but measured selling plan.

For example, a former client took his company public through a reverse merger. Shortly thereafter, the company founder actively began to sell his stock. He sold nearly $5 million worth of stock before the price began to drop precipitously. This caused prospective investors to lose interest in the company. Today the company is out of business and in bankruptcy. This is also the type of situation that leads to SEC investigations of investors' activities.

Another client took a more circumspect approach, with great success. He restricted when, in what amount, and how often insiders could sell their shares. He meticulously consulted with legal counsel before each such insider sale to determine whether there was a risk of insider trading. Today, the company is growing, its stock price is rising steadily, and the founders have been able to sell enough stock, slowly and deliberately, to begin to realize their exit strategies.

Growth Through Acquisitions or Strategic Partnerships

The second most popular reason for going public (after the need to raise capital) is to pursue a strategy of growth through acquisition, joint venture, or strategic partnership. As noted earlier, investors are more willing to provide financing to a public company, even when the purpose of the financing is to fund acquisitions. In addition, a public company often can use stock as currency or “scrip” in the package of consideration to be provided to a company it is acquiring or collaborating with. Indeed, sometimes the only consideration given is stock.

In general, the value of the stock provided exceeds the agreed‐upon value of the transaction because there is some risk the stock will drop in value down the road. In other words, if a company is to be acquired for $20 million, including $10 million in cash, a seller may demand the balance to be equal to $12 million or $13 million in stock to offset the risk of stock price volatility. Public buyers generally are willing to be flexible in this regard, as purchasing with stock circumvents the need to raise cash for the purchase. It also allows a company to retain its cash for other purposes such as reserves or capital investments.

Stock Options for Executives

Many companies have difficulty attracting talented senior management. Public companies have an advantage over private ones in the competition for top people because they can offer stock options and other equity incentives—the “brass ring” of affiliation with a public company—as part of the compensation package. Frequently, compensation for top executives at public companies seems exorbitantly high. However, the fine print often reveals that the vast bulk of a multimillion‐dollar compensation package comes not in the form of wages, but in the form of stock or stock options. (Stock options aren't just for high‐ranking executives. Many stories have been written about the millionaire secretaries at Microsoft, Facebook, eBay, Google, and other companies.)

Private companies also have the option of setting up stock option plans; however, the problem, as with all investments involving private companies, is liquidity. Private company executives know that they cannot make money from owning stock unless there is some form of liquidity event. The company must go public, be sold, or initiate a major dividend distribution to turn shares into cash. Stock options in a public company are much more versatile and, therefore, more valuable.

Options are attractive to those who lead public companies because they align management's incentives with company performance as judged by the market. Option holders are highly motivated to build the company's success so that its stock price will go up. The vesting process, whereby options become available based on an executive's time with the company, encourages a long‐term commitment. I know many senior executives who stay with a company longer than planned simply to ensure that their options vest.

Confidence in Management

Because of SEC disclosure requirements, shareholders of public companies feel more confident that the actions of management and the operation of the company will be transparent. The SEC requires reporting companies to reveal financial results regularly (providing explanations of period‐to‐period changes), including executive compensation, related‐party transactions, material contracts, liquidity, capital resources, and the like. Public companies create this stream of information as required by SEC rules, and the result is to help shareholders feel knowledgeable about the company's operations and challenges. The scaled disclosure permitted by some companies after completing a Reg A+ IPO, as we will discuss, does not materially reduce the quality or quantity of the information available to investors.

On the other hand, state laws generally limit the type and quantity of information that a shareholder of a private company may obtain. Rarely can a shareholder legally obtain a financial statement and a list of shareholders more than once a year. Some states require a shareholder to show cause or even bring a court proceeding before obtaining this or other information. Investors in private companies typically negotiate broader and more frequent information delivery, but still find extracting pertinent information to be a constant challenge.

That being said, it must be remembered that even public company filings can be misleading or fraudulent. The lessons of Enron, WorldCom, and others are not terribly distant and will linger. Nonetheless, private companies still have greater incentives to play games than do public ones. After all, the public company that plays fast and loose with disclosure requirements faces a greater risk of SEC investigation, criminal prosecution, and class action lawsuits.

It is not unusual for a senior executive of a public company to ask my firm to figure out how not to disclose something, which is almost always something bad. Even when disclosure is not mandatory, when the decision is on or even near the borderline, we usually take the view that disclosure is recommended. (We don't recommend it in every case. For example, the departure of a CEO's longtime personal assistant generally would not need to be disclosed. However, the departure of a director certainly would.)

Disadvantages of Being Public

There are five well‐recognized disadvantages of being public: pressure to please Wall Street by emphasizing short‐term results; mandatory public disclosure of company information, which makes “warts” hard to hide; vulnerability to fraud (even after Sarbanes‐Oxley); higher annual expenses, because of the costs of fulfilling SEC reporting ...

Table of contents

• Cover
• Title Page
• Table of Contents
• Preface
• Acknowledgments
• CHAPTER 1: Why Go Public?
• CHAPTER 2: Pre‐2012: The History of Regulation A and the Death of Small‐Company IPOs
• CHAPTER 3: The JOBS Act and Its Genesis
• CHAPTER 4: The SEC's Rules Under Title IV Regulation A+; Court Challenge
• CHAPTER 5: Offering Statement and Light Reporting Preparation; Testing the Waters
• CHAPTER 6: Early Experience with Regulation A+; Wall Street Partners with Main Street
• CHAPTER 7: Potential Changes to Regulation A
• CHAPTER 8: Basics of Reverse Mergers
• CHAPTER 9: Troubled Industry: China, Seasoning Rules, Bogus Shells
• CHAPTER 10: The Future of Reverse Mergers
• CHAPTER 11: Special Purpose Acquisition Companies (SPACs)
• CHAPTER 12: Self‐Filings
• CHAPTER 13: Other IPO Alternatives
• CHAPTER 14: The Experts Speak—A Look Ahead
• About the Author
• Index
• End User License Agreement