Anna Pinedo is a partner in Mayer Brown’s New York office and a member of the Corporate & Securities practice. She concentrates her practice on securities and derivatives. Anna represents issuers, investment banks/financial intermediaries and investors in financing transactions, including public offerings and private placements of equity and debt securities, as well as structured notes and other hybrid and structured products.

Read Anna's full bio.

Before the SEC shutdown, the Office of the Investor Advocate published the annual report on its activities during 2018. The report addresses non-GAAP financial measures and key performance indicators. The report notes that some investors find value in non-GAAP financial measures; however, others are troubled by inconsistent and changing disclosures and would like to see greater standardization that would permit comparisons to be more easily made. The report suggests continue attention be paid to the metrics used by public companies, and I how these are prepared and presented period to period. The report also addresses the Advocate’s focus during the year on problematic investment products, such as initial coin offerings, and increasing use of margin debt. The full report can be accessed here: https://www.sec.gov/advocate/reportspubs/annual-reports/sec-investor-advocate-report-on-activities-2018.pdf

 

The recently published MoneyTree Report provides an overview of venture capital investment trends. In 2018, VC-backed companies raised $99.5 billion, an increase in annual funding of 30%, despite a decline in the number of deals. In 2018, the number of early-stage deals declined, but the number of later-stage deals increased. There were 184 “mega-rounds” completed in 2018, or funding rounds of $100 million or more. Globally, there were 382 mega-rounds completed in 2018 although overall financing activity globally declined in 2018. There were 55 companies that attained unicorn status in 2018. At year-end 2018, there were 140 venture-backed unicorns. By sector, Internet companies led with 540 deals completed in the fourth quarter raising $9.1 billion. This was followed by 162 healthcare financings and $4.0 billion. Fintech-related funding increased 38% in 2018 over 2017.

According to statistics from Dealogic and the Citi Capital Markets Review and 2019 Outlook, there was a modest decline in 2018 follow-on offering volume compared to 2017. The decline is likely attributable to increased volatility during the year. The Review notes several important trends in follow-on activity, citing increased reliance on marketed (versus unannounced or accelerated marketed) offerings, a larger percentage of first follow-ons following early IPO lock-up releases, an increase in acquisition financing, and increased forward sales of equity. The Review notes that in 2018, 37% of first follow-ons had an early lock-up release, up from 23% in 2017 and 8% in 2006. Another notable trend was the decline in follow-on offerings including secondary stock, perhaps as a result of financial sponsors choosing to wait for less volatile markets. Forward sales, principally in the REIT and energy sectors, increased from four in 2017 to 22 in 2018.

CB Insights recently published its seventh annual Tech IPO Pipeline Report.  The report notes that in 2013, the median time between first funding and IPO for U.S. VC-backed tech companies was 6.9 years compared to 10.1 years for tech companies that went public in 2018.  As we have noted in previous posts, tech companies continue to raise more significant amounts of funding prior to undertaking their IPOs.  In 2018, tech companies raised, on average, $239 million before undertaking their IPOs, which is almost 1.4x the amount raised in 2017, and over 3.7x as much as 2012 figures.

The number of new private tech unicorns has outpaced the number of tech IPOs in 2018.  After 2014, tech IPOs declined significantly and have remained at those depressed levels, with only 19 tech IPOs in 2018.  By contrast, there were 45 tech companies that became unicorns in 2018.  The mega-round financing trend, wherein companies raise over $100 million per round, was also prevalent in the tech-sector, with almost 120 mega-round financings completed in 2018.

Tech-focused private equity firms continue to acquire majority stakes in tech companies that are nearing liquidity opportunities, whether IPOs or M&A exits.  However, M&A exits continue to replace IPOs.  The report cites as examples Qualtric, Adaptive Insights, and AppNexus.

A registered direct offering (RDO) is a public offering of securities that is sold on a best efforts basis by a placement agent that is engaged by the issuer to introduce the issuer to potential purchasers. An RDO is generally targeted to a select number of accredited and institutional investors, although it may be sold to non-accredited investors. Issuers find RDOs an attractive option when they are seeking to test the market or conduct an offering without attracting much market attention.

In this Lexis Practice Advisor® Top 10 Practice Tips, we provide 10 practice points relating to RDOs.

A comfort letter is a letter delivered by an issuer’s independent accountants to the underwriters or initial purchasers that provides certain assurances with respect to financial information included in a registration statement, prospectus or offering memorandum used for a securities offering. Underwriting agreements and purchase agreements typically require the delivery of one or more comfort letters, in form and substance reasonably acceptable to the underwriters, initial purchasers or their counsel, as a condition to closing the securities offering. Comfort letters assist underwriters in establishing a due diligence defense under Section 11 of the Securities Act and in creating a record of their reasonable investigation of the issuer and its financial condition to ensure there are no material misstatements or omissions in the offering document.

In this Lexis Practice Advisor® Top 10 Practice Tips, we provide 10 practice points that can help you, as counsel to underwriters or initial purchasers, skillfully navigate the task of reviewing and negotiating comfort letters.

In connection with securities offerings, the underwriters or placement agents generally negotiate a lock-up agreement with the issuer, as well as with the issuer’s directors, officers, and, in the case of initial public offerings, control persons. The lock-up agreements provide the underwriters or placement agents with some assurance that new issuer securities will not be sold immediately following the proposed offering the sale of which might disrupt the trading market for the offered securities.

In this Lexis Practice Advisor® Top 10 Practice Tips, we provide 10 practice points to consider in drafting and negotiating lock-up agreements.

On December 19, 2018, the US Securities and Exchange Commission (the Commission) amended Rule 251 and Rule 257 of the Securities Act of 1933, as amended (the Securities Act), which are part of Regulation A, in order to allow companies subject to the reporting requirements of Section 13 or 15(d) of the Securities Exchange Act of 1934, as amended (the Exchange Act) to make offerings in reliance on the Regulation A exemption.  The rule changes were mandated by the Economic Growth, Regulatory Relief, and Consumer Protection Act of 2018 (the Economic Growth Act).

To read more, see our Legal Update.

The Securities and Exchange Commission adopted final rules today making Regulation A available to reporting companies.  The Commission was required to amend Regulation A pursuant to the mandate in the financial services regulatory legislation, the Economic Growth, Regulatory Relief, and Consumer Protection Act.  Pursuant to Regulation A, an issuer may raise up to $50 million in a 12-month period.  While it is not clear how this new flexibility will promote capital formation, supporters of the measure had noted that smaller reporting companies or other smaller companies that might be subject to limitations on the use of a shelf registration statement for primary offerings might find this alternative helpful.

The final amendments to Regulation A can be found here: https://www.sec.gov/rules/final/2018/33-10591.pdf.

On December 18, 2018 the Commission published a Request for Comment on Earnings Releases and Quarterly Reports (the “Request”), which solicits public comment on both earnings releases and the frequency of periodic reporting. In the Request, the Commission notes that it is seeking to reduce administrative and other burdens for U.S. public companies without compromising investor protection.

To learn more, read our Legal Update.