exit strategy; resale exemption; 4(a)(1-1/2)

On June 8, 2017, the House of Representatives passed the Financial CHOICE Act of 2017 on a vote of 233-186. Congress loves acronyms, and here “CHOICE” stands for Creating Hope and Opportunity for Investors, Consumers and Financial Choice ActEntrepreneurs. Although the thrust of the bill is focused on repeal or modification of significant portions of the Dodd-Frank Wall Street Reform and Consumer Protection Act of 2010 and addresses a number of other financial regulations, it also includes a broad range of important provisions aimed at facilitating capital formation, including:

  • Exemption of private company mergers and acquisitions intermediaries from the broker-dealer registration requirements of the Exchange Act;
  • Expansion of the private resale exemption contained in Section 4(a)(7), which codified the so-called “Section 4(a)(1½)” exemption for resales of restricted securities by persons other than the issuer, by eliminating information requirements and permitting general solicitation, so long as sales are made through a platform available only to accredited investors;
  • Exemption from the auditor attestation requirement under Section 404(b) of Sarbanes-Oxley of companies with average annual gross revenues of less than $50 million;
  • Creation of SEC-registered venture exchanges, a new class of stock exchanges that can provide enhanced liquidity and capital access to smaller issuers;
  • Exemption of small offerings that meet the following requirements: (i) investor has a pre-existing relationship with an officer, director or shareholder with 10 percent or more of the shares of the issuer; (ii) issuer reasonably believes there are no more than 35 purchasers of securities from the issuer that are sold during the 12-month period preceding the transaction; and (iii) aggregate amount of all securities sold by the issuer does not exceed $500,000 over a 12-month period;
  • Exemption from the prohibition in Regulation D against general solicitation for pitch-type events organized by angel groups, venture forums, venture capital associations and trade associations;
  • Streamlining of Form D filing requirements and procedures with the filing of a single notice of sales and prohibiting the SEC from requiring any additional materials;
  • Exemption from the Investment Company Act for any VC fund with no more than $50 million in aggregate capital contributions and uncalled committed capital and having not more than 500 investors;
  • Exempting Title III crowdfunding shareholders from the shareholder number trigger for Exchange Act registration;
  • Amendment of Section 3(b)(2) of the Securities Act (the statutory basis for Regulation A+) to raise the amount of securities that may be offered and sold within a 12-month period from $50 million to $75 million; and
  • Allowing all issuers, not just emerging growth companies, to submit confidential registration statements to the SEC for nonpublic review before an IPO, provided that the registration statement and all amendments are publicly filed not later than 15 days before the first road show.

In the coming weeks, I intend to blog in greater detail about a few of these reform efforts, including the proposed broker-dealer exemption for M&A intermediaries, venture exchanges and crowdfunding fixes.

NYSEThe fate of the Financial CHOICE Act is unclear. A variety of interest groups have expressed strong opposition to the bill, and it appears unlikely the Senate will pass it in its current form. My hunch is that the more controversial aspects of the bill relate to the Dodd-Frank repeal and other financial services reforms. I also believe that there is greater potential for general consensus building around capital markets reform, as was demonstrated in connection with the passage of the JOBS Act five years ago, so that any final version that ultimately gets passed will hopefully include much if not all of the reforms summarized above.

Seed stage investment deals, i.e., those in a range of approximately $100,000 on the low end and around $1.3 million on the high end, are structured either as straight equity or as convertible loans. If straight equity, the company typically issues to the investor shares of preferred stock usually designated as Series Seed which includes a package of enhanced rights but usually stripped down from seed investingthose typically associated with Series A shares.  Alternatively, the investor could invest in the form of a loan that converts into the security issued in the next equity round, usually at some discount to the next round’s price.

This post will focus on convertible note deal term trends based on the 2016 Venture Capital Report recently released by the helpful folks at Wilmer Hale. The convertible note data in the Report was compiled from over 100 deals handled by the firm from 2013 through 2015 for companies and investors in the U.S.

Conversion Discount

Seed investors often negotiate for a discount from the price per share in the next equity round to reward the seed investor for investing at an earlier, riskier stage. discount89% of convertible loan deals covered by the Report in 2015 had discounts, a significant increase from the 66% that had them in 2013.  Sometimes parties negotiate for an ascending discount in which the discount increases as the period between seed and next round increases.  The Report doesn’t provide any information on time periods between seed and next round, or on the percentage of deals that had a sliding discount.  The range of discounts was between 10% and 50%, with 74% of discounted deals having a discount of 20% or less and 26% having discounts of more than 20%.

Conversion Caps

A major advantage of convertible loans is that they allow the parties to defer negotiation of probably the most difficult business issue until the next round: valuation. But that advantage also poses a risk to the seed investor, namely that at the time of conversion at the next round the company’s pre-money valuation will be much higher and thus much more expensive for the seed round investor. caps A discount offers protection against valuation inflation, but only relative to what the next round investors are paying.  An added measure of protection is a cap on the next round valuation applicable to the seed investor’s conversion rate.  For example, imagine a $1 million convertible loan with no discount, no cap, and the company subsequently raises $5 million in a Series A round at a pre-money valuation of $20 million with a per share price of $1.  The note would convert into one million shares ($1 million loan (leaving aside interest for simplicity) divided by $1/share).  But if the note had a $5 million cap, the shares would convert at the rate of, not $1 per share, but $0.50 per share, so that the seed investor would receive two million shares ($1,000,000/$0.50) rather than one million.  I’ve previously blogged here about why valuation caps are loved by angels, tolerated by VCs and hated by entrepreneurs.

Although still popular, valuation caps seem to be trending down somewhat. The Report indicates that only 55% of convertible loan deals contained caps in 2015, nearly a 20% drop from the 74% that featured them the year before.

Conversion on Maturity

The truth about seed round convertible promissory notes is that they are promises that no one intends to be kept. At least the repayment part.  They are intended to be converted into equity.  But what happens if a qualified next round doesn’t occur prior to the maturity date of the note?  Very often, the note will provide that the outstanding principal and interest will convert on a given date, either automatically or at the option of the holder, at a set price or a price determined by a formula or procedure.  According to the Report, 60% of deals in 2015 had some kind of conversion at maturity.  Of those, 89% were at the investor’s option (up from 80% in 2013) and 11% were mandatory (down from 20% in 2013).  In addition, 32% of the 2015 deals that converted upon maturity convert into common stock, substantially unchanged from 2013 but a dramatic decline from the 54% of the conversion-at-maturity deals in 2015 that convert into common.  68% of the 2015 convert-at-maturity deals convert into preferred, also substantially unchanged from 2013, but a sharp increase from the 46% of the 2014 deals that convert into preferred.

Sale of the Company

Upon a sale of the company prior to maturity and prior to a next-round conversion, the outstanding principal and interest may convert into common or preferred stock, either automatically or at the option of the debt holder. In 2015, 74% of the convertible deals covered in the Report had some kind of conversion on a sale of the company, up from 66% in 2014.  Of those, the conversion-on-sale feature was overwhelmingly at the option of the holder (91%, up from 86% in 2014; 9% were mandatory).  Of these deals, they were pretty evenly split in 2015 between those converting into common and those converting into preferred.  In 2014, on the other hand, the conversion-on-sale provisions tended to favor conversions into common (60%) rather than preferred (40%).

Conversion Premiums on Sale of the Company

Seed investors sometimes negotiate for the right to be paid a multiple of principal and interest upon a sale of the company, similar to a liquidation preference associated with preferred stock. Roughly one half of the deals in the Report had company sale premiums.  The premiums ranged from 1.5x (i.e., 1.5 times the outstanding principal and interest) on the low end to 4x on the upper end, an increase from the upper range of 3x in 2014, although the median multiple was steady throughout 2013-2015 at 2x.

Secured Notes

Convertible note investors sometimes negotiate for the note to be secured by some or all of the company’s assets. If the note is not repaid or converted at maturity, the investor could look to the pledged assets to satisfy the loan.  Investors in 2015 were not as successful as they were in 2013 in getting their notes secured.  Only 15% of the convertible notes covered by the Report in 2015 were secured (85% unsecured), down from 25% in 2013 (75% unsecured in 2013).

Conclusion

The foregoing data on conversion discounts, caps, conversion at maturity, sale-of-company conversions and premiums and security suggests that the convertible note deal term pendulum may have started to swing back in favor of investors in 2015. Deal terms in the categories of conversion discounts, conversion at maturity, sale-of-company conversions and sale-of-company premiums were more favorable to investors in 2015.  Terms were more favorable to companies in 2015 with respect to caps and note security.  Given recent developments regarding cooling valuations and a stalled technology IPO market, it will be interesting to see whether the pendulum for convertible deal terms will move more significantly in favor of investors in 2016.

 

Buried in the recently enacted Highway Bill, officially the Fixing America’s Fast ActSurface Transportation Act or FAST Act, is a new exemption for the resale of securities.  The new resale exemption appears in the form of a new Section 4(a)(7) of the Securities Act of 1933 and essentially codifies the so-exit strategy 2called 4(a)(1-1/2) exemption.  New Section 4(a)(7) will provide securityholders seeking to resell their securities without registration greater certainty and another viable alternative exit pathway, particularly from privately held companies.   Inasmuch as no Securities and Exchange Commission rulemaking is required, the new exemption is effective right now.

Background

The requirement that each sale of securities be either registered with the Securities and Exchange Commission or satisfy an exemption from registration applies as well to any resale of securities by security holders. Rule 144 is a common exemption for the resale of restricted securities (and of any securities by holders who are affiliates of the issuer, i.e., control securities).  Another exemption used by reselling shareholders is the so-called 4(a)(1-1/2) exemption, an unofficial, unwritten exemption conceived by securities lawyers which over time has become accepted practice.  It’s called the 4(a)(1-1/2) exemption because it contains elements of both Section 4(a)(1) of the Securities Act, which exempts from registration transactions by any person other than an issuer, underwriter or dealer, and Section 4(a)(2) of the Securities Act, which exempts transactions by an issuer not involving any public offering.

The New Section 4(a)(7) Resale Exemption

New Section 4(a)(7) essentially codifies “Section 4(a)(1-1/2)” by exempting from the registration requirements of Section 5 of the Securities Act resales of restricted securities that satisfy the following requirements:

  • securities sold only to accredited investors
  • no general solicitation
  • if the issuer is not a reporting company, the seller and prospective buyer are able to obtain from the issuer certain reasonably current information about the issuer, including the number of shares outstanding, information about the officers and directors, any persons registered as a broker, dealer or agent that will receive any commission for the transaction; recent balance sheet and profit and loss statements; and if the seller is a control person of the issuer, a statement regarding the nature of the affiliation and a certification by the seller that it has no reasonable grounds to believe that the issuer is in violation of the securities laws
  • seller is not a direct or indirect subsidiary of the issuer
  • neither the seller nor any person being paid in connection with the sale is a bad actor, as described in Regulation D
  • the issuer is not a blank check, blind pool or shell company; and
  • the class of securities has been outstanding for at least 90 days prior to the transaction.

New Section 4(a)(7) will provide greater legal certainty to shareholders seeking to resell shares than currently provided in the so-called Section 4(a)(1-1/2) exemption, which was never formally legislated or codified through SEC rulemaking.

New Section 4(a)(7) will also present a viable alternative to Rule 144, the traditional safe harbor for the resale of restricted and control securities, in relation to which Section 4(a)(7) has both advantages and disadvantages.

As to the advantages, sellers under Section 4(a)(7) may sell an unlimited number of shares, unlike affiliates in Rule 144 transactions who are capped in any rolling three month period to the greater of one percent of the outstanding shares or the average weekly trading volume over the preceding four week period. Section 4(a)(7) sellers need not satisfy any holding period, unlike Rule 144 sellers who must hold the shares for either six months in the case of reporting issuers or one year in the case of non-reporting issuers.  A Section 4(a)(7) exemption need not be reported in an SEC filing, unlike Rule 144 sales by affiliates.  Finally, the FAST Act made explicitly clear that shares sold in a Section 4(a)(7) transaction are deemed “covered securities” for purposes of the National Securities Markets Improvement Act of 1996, meaning that state regulation is preempted and these transactions are not subject to state review.

On the other hand, there are certain disadvantages relative to Rule 144. Shares sold in a Section 4(a)(7) transaction are deemed to be restricted securities in the hands of the purchaser, who would then need to find his own exemption on a subsequent resale, as opposed to shares sold under Rule 144 which become unrestricted.  Furthermore, Section 4(a)(7) shares may only be sold to accredited investors, whereas shares sold under Rule 144 may be sold to anyone.

Finally, it will be interesting to see what practices emerge with respect to the information that must be obtained from a non-reporting issuer, including whether issuers will insist on signed confidentiality agreements as a condition to disclosing the required information.