The SEC Pulse

SEC Announces New Changes to Covers of Periodic Reports and Registration Statements

Posted by Howard Berkenblit on April 4, 2017 at 12:54 PM

The SEC adopted technical rule and form SEC graphic.jpgamendments (https://www.sec.gov/rules/final/2017/33-10332.pdf) under the JOBS Act that impact almost every periodic report and registration statement by adding an additional “check the box” item on the covers (as well as the introductory language prior to such item.

Specifically, in the section where companies check off what type of issuer they are, there is now a new box for emerging growth company (“EGCs” - they will also still check the other relevant box for accelerated filer, smaller reporting company, etc.). In addition, to provide a uniform way to identify if EGCs have elected to take advantage of JOBS Act rules permitting them to defer adoption of accounting standards, the covers will also include an additional check the box item regarding such election. An example is below.

These rules go into effect as soon as they are published in the Federal Register, which should be in the next few days – in other words, for upcoming 10-Qs for the quarter ended March 31, 2017, companies will need to reflect this change (if not sooner for other reports). The forms impacted include, among others:  S-1, F-1, S-3, F-3, S-4, S-8, S-11, 20-F, 8-K (note this was not previously on the 8-K cover at all), 10-K, 10-Q – see the end of the rule release linked above for the forms and formats.

Example:

Indicate by check mark whether the registrant is a large accelerated filer, an accelerated filer, a non-accelerated filer, smaller reporting company, or emerging growth company. See the definitions of "large accelerated filer," "accelerated filer," "smaller reporting company," and "emerging growth company" in Rule 12b-2 of the Exchange Act.

Large accelerated filer 􀀀
Accelerated filer 􀀀
Non-accelerated filer 􀀀 (Do not check if a smaller reporting company)
Smaller reporting company 􀀀
Emerging growth company 􀀀

If an emerging growth company, indicate by check mark if the registrant has elected not to use the extended transition period for complying with any new or revised financial accounting standards provided pursuant to Section 13(a) of the Exchange Act.

Inflation Changes for EGCS and Crowdfunding Amounts:

The JOBS Act requires the SEC to revisit certain definitions that contain dollar amounts to index them for inflation every 5 years. These include the $1 billion revenue threshold in the EGC definition, as well as certain limits in Regulation Crowdfunding on the dollar amount raised and invested. As a result the technical rule amendments have now raised each of these amounts slightly. For example, to qualify as an EGC, an issuer’s revenues must now be less than $1,070,000,000 and the maximum amount of crowdfunding in any 12 month period cannot now exceed $1,070,000 (increased from $1 million). With respect to the EGC definition, many issuers describe this definition in their registration statements or periodic reports and should be mindful to make the updates to such description.

Other Changes:

The technical amendments also update various rules in Regulation S-K and S-X (in areas such as required financial statements, MD&A, executive compensation and others) to include references to various JOBS Act provisions that benefit EGCs. These are not new rules, but make it more convenient when checking the rules for particular filings to see what applies (or more likely does not apply) to EGCs by directly including instructions within the applicable rule provisions.

Topics: SEC, reporting requirements, Compliance Rules, Filing Rules

ZAG-S&W Represents Therapix Biosciences in $13.8 Million Initial Public Offering

Posted by Leah Schloss on March 30, 2017 at 1:42 PM

Culminating a process that began last July, ZAG-S&W advised Therapix Biosciences Ltd. (NASDAQ: TRPX, TASE: THXBY) on its initial public offering of American Depositary Shares in the United States, which debuted on Nasdaq last week (and is still trading well above its initial price).

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Therapix is a specialty clinical-stage pharmaceutical company focused on creating and enhancing a portfolio of technologies and assets based on cannabinoid pharmaceuticals.  The company has initiated two internal drug development programs based on repurposing an FDA-approved synthetic cannabinoid (dronabinol): Joint Pharma developing THX-TS01 targeted to the treatment of Tourette Syndrome, and BrainBright Pharma developing THX-ULD01 targeted to the treatment of mild cognitive impairments. 

Therapix raised a total of $13.8 million (including full exercise of the underwriters’ overallotment option), which it plans to use to advance the formulation and clinical development efforts for its two lead product candidates, including Phase II clinical trials, and for working capital and other general corporate purposes. Laidlaw & Company (UK) Ltd. acted as sole book running manager for the offering.

The ZAG-S&W team consisted of attorneys from Boston, New York and Tel Aviv, including Howard Berkenblit, Oded Har-Even and David Huberman, as well as Shy Baranov, Rob Condon, Ron Ben-Bassat, Boaz Shiffman and Hila Nahum.

Topics: NASDAQ, IPO, pharmaceuticals

SEC Adopts T+2 Settlement Cycle for Securities Transactions

Posted by Howard Berkenblit on March 22, 2017 at 2:54 PM

The SEC today adopted an amendment to shorten by one business day the standard settlement cycle for most broker-dealer securities transactions. Currently, the standard settlement cycle for these transactions is three business days, known as T+3. The amended rule shortens the settlement cycle to two business days, T+2. Broker-dealers will be required to comply with the amended rule beginning on September 5, 2017.  For more information, view the SEC's press release.

Topics: broker-dealer securities transactios

SEC Approves Rules to Require Hyperlinks in Exhibit Lists

Posted by Howard Berkenblit on March 2, 2017 at 11:37 AM

As anyone who has ever tried to find an exhibit to an SEC filing that is incorporated by reference knows, it is not always easy or quick! 

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Help is on the way - yesterday, the SEC approved
rule changes that will require companies to include a hyperlink to each exhibit (other than XBRL exhibits and certain other limited exemptions) in their filings' exhibit indexes. The rules will also require all filings to be in HTML format since ASCII format cannot support functional hyperlinks.

The final rules will take effect on September 1, 2017 (September 1, 2018 for smaller reporting companies and non-accelerated filers).

 

Topics: SEC, Filings, Filing Rules

ZAG-S&W Represents Pluristem Therapeutics in $17.3 Million Stock Offering

Posted by Leah Schloss on January 27, 2017 at 10:58 AM

A ZAG-S&W team represented Pluristem Therapeutics Inc. (NASDAQCM: PSTI, TASE: PLTR), a leading developer of placenta-based cell therapy products, in its $17.3 million underwritten public offering of common stock and warrants, which included a full exercise of the underwriter’s over-allotment option. Pluristem intends to use the net proceeds of the offering for research and product development activities, clinical trial activities, investment in capital equipment and for working capital and other general corporate purposes.

The offering press releases can be viewed here and here, and the prospectus related to the offering can be found here.

The ZAG-S&W team included Oded Har-Even, Howard Berkenblit, Shy Baranov and Ron Ben-Bassat.

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Law firm ZAG-S&W represents U.S. and foreign businesses, as well as sources of equity capital and debt financing such as banks and other financial institutions, individual and institutional investors. The firm facilitates a full range of financing transactions, including: initial public offerings (IPOs), secondary public offerings, venture capital investments, leveraged buyouts, private placements of securities, strategic partnerships and joint ventures. It also regularly handles shelf registrations, periodic SEC filings, stock exchange listings and compliance solutions. "ZAG-S&W's work for clients transcends distance, culture and language," said Oded Har-Even. "Our bilingual team members in Israel and the U.S. understand the dynamics of two very different markets and can deftly bridge cultural differences on business practices, regulatory, securities and other legal issues to achieve your business goals."

Contact: 

Leah Schloss
617.338.2448
lschloss@zag-sw.com

 

 

Topics: SEC, NASDAQ, offering

Sullivan & Worcester Advises Hospitality Properties Trust in Offering of $600 Million of Unsecured Notes

Posted by Leah Schloss on January 26, 2017 at 11:10 AM

An S&W team represented Hospitality Properties Trust (Nasdaq: HPT) in its underwritten public offerings of $400 million of 4.95% unsecured senior notes due February 15, 2027 and $200 million of 4.50% unsecured senior notes due June 15, 2023, the latter of which consisted of a re-opening of an outstanding series of HPT’s notes. HPT expects to use the net proceeds from these offerings to repay amounts outstanding under its unsecured revolving credit facility, for general business purposes and possibly to redeem some or all of its outstanding 7.125% series D cumulative redeemable preferred shares of beneficial interest.

The offering press release can be viewed here and the prospectus related to the offerings can be found here.

The S&W team included Howard Berkenblit, Bill Curry, Jeff Morlend and Rick Goulding, as well as Ameek Ponda and Brian Hammell on tax matters.


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Sullivan & Worcester is a leading corporate law firm advising clients ranging from Fortune 500 companies to emerging businesses. With more than 175 lawyers in Boston, London, New York and Washington, D.C., the firm offers services in a wide range of areas, including corporate finance, banking, trade finance, securities and mutual funds, litigation, mergers and acquisitions, intellectual property, tax, real estate and REITs, private equity and venture capital, bankruptcy, environment and natural resources, climate change, renewable energy and water resources, regulatory law, and employment and benefits. For more information please visit www.sandw.com.   

Contact: 

Leah Schloss
617.338.2448
lschloss@sandw.com

Topics: SEC, NASDAQ, offering

Fast-paced December for U.S.-Israeli Law Firm ZAG-S&W Representing Underwriters in Offerings

Posted by Leah Schloss on January 5, 2017 at 4:08 PM

ZAG-S&W, a joint venture between Sullivan & Worcester and Zysman, Aharoni & Gayer, acted as legal advisor to Roth Capital Partners in two matters: Roth Capital’s underwriting of the offering 8 million shares of Class A common stock of LightPath Technologies, Inc. and Roth Capital’s sale of Top Image Systems Ltd.’s convertible notes. On behalf of Aegis Capital Corp., ZAG-S&W represented the financial services company in its role as underwriter of a Rennova Health, Inc. preferred stock offering; in an offering of ordinary shares and warrants of Rosetta Genomics; and in a registered direct offering of American depositary shares on behalf of Medigus, Ltd.

On December 21, it was announced that ZAG-S&W worked with Roth Capital on two matters. First, in the LightPath Technologies (NASDAQ: LPTH) deal, ZAG-S&W represented Roth Capital as sole book-running manager in underwriting an estimated $9.7 million public offering of LightPath Technologies Class A common stock at a price of $1.21 per share, including a fully exercised over-allotment option. The ZAG-S&W team on the deal was Oded Har-Even and Robert V. Condon III.

Earlier in the month, the ZAG-S&W team advised Roth Capital in the sale of $5 million of convertible notes of Top Image Systems, Ltd. (NASDAQ: TISA), an innovator of intelligent content processing solutions, to Hale Capital Partners LP.

Har-Even and Condon represented Aegis Capital in its role as underwriter in a $12.4 million offering of convertible preferred stock for Rennova Health (NASDAQ: RNVA), which closed on December 20.

And in November 2016, ZAG-S&W represented Aegis Capital as underwriter in a $4.5 million offering of ordinary shares and warrants by molecular diagnostics company Rosetta Genomics (NASDAQ: ROSG). The team also advised Medigus Ltd. (NASDAQ: MDGS, TASE: MDGS), a medical device company developing minimally invasive endosurgical tools and a leader in direct visualization technology, in a $763,000 registered direct offering of American depositary shares (ADS). The ZAG-S&W team on the Rosetta deal was Oded Har-Even, Robert V. Condon III and Ron Ben-Bassat. On the Medigus offering, the team included Oded Har-Even, Robert V. Condon III, Hila Nahum and Shy Baranov.

About ZAG-S&W
Law firm ZAG-S&W represents U.S. and foreign businesses, as well as sources of equity capital and debt financing such as banks and other financial institutions, individual and institutional investors. The firm facilitates a full range of financing transactions, including: initial public offerings (IPOs), secondary public offerings, venture capital investments, leveraged buyouts, private placements of securities, strategic partnerships and joint ventures. It also regularly handles shelf registrations, periodic SEC filings, stock exchange listings and compliance solutions. “ZAG-S&W’s work for clients transcends distance, culture, and language,” said Oded Har-Even. “Our bilingual team members in Israel and the U.S. understand the dynamics of two very different markets and can deftly bridge cultural differences on business practices, regulatory, securities and other legal issues to achieve your business goals.”

For more information:

Leah Schloss
617.338.2448
lschloss@sandw.com




 

Topics: NASDAQ, offering, life sciences, Israel

ZAG-S&W Advises in Rosetta Genomics' U.S. Offering

Posted by Leah Schloss on November 29, 2016 at 4:18 PM

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A ZAG-S&W Team announced that it represented Aegis Capital Corp. as Lead Placement Agent in an approximately $5 million concurrent registered direct and private placement offering of ordinary shares, debentures and warrants by Rosetta Genomics, which develops and commercializes a full range of microRNA-based and other molecular diagnostics (NASDAQ: ROSG).  The offering press release can be viewed here

The ZAG-S&W team included Oded Har-Even, Shy Baranov, Rob CondonRon Ben-BassatHila Nahum and Adi Osovsky.

Law firm ZAG-S&W represents U.S. and foreign businesses, as well as sources of equity capital and debt financing such as banks and other financial institutions, individual and institutional investors. The firm facilitates a full range of financing transactions, including: initial public offerings (IPOs), secondary public offerings, venture capital investments, leveraged buyouts, private placements of securities, strategic partnerships and joint ventures. It also regularly handles shelf registrations, periodic SEC filings, stock exchange listings and compliance solutions. "ZAG-S&W's work for clients transcends distance, culture and language," said Oded Har-Even. "Our bilingual team members in Israel and the U.S. understand the dynamics of two very different markets and can deftly bridge cultural differences on business practices, regulatory, securities and other legal issues to achieve your business goals."

For more information:

Leah Schloss

617.338.2448


 

Topics: offerings, NASDAQ, Non-US Issuer

Change Regarding Mailing of Annual Reports to Stockholders

Posted by Howard Berkenblit on November 3, 2016 at 3:19 PM

The SEC Division of Corporation Finance issued a new interpretation yesterday that allows a company to post its annual report to shareholders to its website (and keep it posted for at least one year) rather than mail the SEC seven hard copies. Rule 14a-3 under the Exchange Act requires the mailing solely for the SEC’s information, one of the few paper filings still around in the age of EDGAR. Under its current practice, when the SEC receives the hard copies it posts on a company’s EDGAR list that it has been submitted but does not include the actual document if not submitted electronically. The annual report to shareholders substantially overlaps the annual report on Form 10-K in any case. Since most companies already post their annual reports for at least a year, the new interpretation effectively means one less mailing to worry about, though companies must still mail the annual report with the proxy statement when sending out annual meeting materials to shareholders.

Topics: SEC, EDGAR, Form 10-K, Annual Reporting

SEC Proposes "Universal" Proxy Card for Contested Elections

Posted by Howard Berkenblit on October 27, 2016 at 8:13 AM

The SEC today proposed amendments to the proxy rules to require parties in a contested election to use universal proxy cards that would include the names of all director nominees. The proposal gives shareholders the ability to vote by proxy for their preferred combination of board candidates, similar to voting in person. The proposed rules would require proxy contestants to provide shareholders with a proxy card that includes the names of both management and dissident director nominees. In addition, the proposed rules would require management and dissidents to provide each other with notice of the names of their nominees, establish a filing deadline and a minimum solicitation requirement for dissidents, and prescribe presentation and formatting requirements for universal proxy cards.

The SEC also proposed amendments to the proxy rules to ensure that proxy cards specify the applicable shareholder voting options in all director elections and require that proxy statements disclose the effect of a shareholder’s election to withhold its vote. Under the proposed amendments, proxy cards would be required to include an “against” voting option for the election of directors when there is a legal effect to a vote against a nominee and to provide shareholders the ability to “abstain” in a director election governed by a majority voting standard. The proposed change would eliminate the current ability to provide a “withhold” voting option when it has the legal effect of an “against” vote. 

The full text of the proposals, which are subject to a 60 day public comment period, can be found here.

Topics: SEC, proxy rules, universal proxy cards

About the Blog


The SEC Pulse provides updates and commentary from our Capital Markets Group on issues affecting publicly traded and privately owned businesses, investment banks and foreign companies who trade or raise capital in the United States, and boards of directors and company officers in securities transactions and corporate governance matters. 

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