SEC Charges Cloud Communications Company and Senior Executives Mark Greenquist And Michael Swade With Misleading Revenue Projections

SEC Charges Cloud Communications Company and Senior Executives Mark Greenquist And Michael Swade With Misleading Revenue Projections

The Securities and Exchange Commission charged a cloud communications company and two executives with providing misleading quarterly revenue estimates. The company and executives agreed to pay over $1.9 million in penalties to settle the SEC’s charges.

According to the SEC’s order, Sonus Networks Inc.’s former CFO, Mark Greenquist, was aware of red flags which undermined the company’s first quarter 2015 revenue estimates.  These red flags included that Sonus had pulled forward deals initially projected to close in 2015 in order to achieve its revenue guidance for the fourth quarter of 2014.  Despite recognizing these risks, Greenquist said in a press release that he was comfortable with the consensus analyst revenue estimate of $74 million for the first quarter.  About six weeks later, the company issued guidance of $74 million which reflected certain forecasted sales that had been improperly reclassified, due to pressure from Michael Swade, Sonus’s Vice President of Global Sales, in order to support the $74 million estimate. Read More

Foreign Private Issuers NYSE Audit Committee Requirements

Foreign Private Issuers NYSE Audit Committee Requirements

The New York Stock Exchange (NYSE) corporate governance standards are contained in Section 303A of the NYSE Listed Company Manual. The NYSE corporate governance standards apply to all US companies that are listing or have listed equity securities on the NYSE (see NYSE Listed Company Manual). Foreign Private Issuers must comply with the audit committee standards in Rule 10A-3 of the Securities Exchange Act of 1934 (the “Exchange Act”).

Compliance with SEC Rules

Foreign Private Issuers must have an audit committee that complies with the requirements of Rule 10A-3 under the Exchange Act. Additionally, a Foreign private issuer must disclose how its corporate governance standards in its home country differ from the NYSE corporate governance requirements. Foreign private issuers that are subject to SEC Reporting Requirements and required to file a Form 20-F must disclose this corporate governance information in their Form 20-F report. All other foreign private issuers can provide this information on their websites or in annual reports filed with the SEC. Read More

Section 4(a)(2) and Rule 506(b) Exempt Offerings

Section 4(a)(2) and Rule 506(b) Exempt Offerings

Section 4(a)(2) of the Securities Act of 1933, as amended (the “Securities Act”) exempts certain securities offerings from the SEC’s registration requirements when the transactions are by an issuer and do not involve a public offering of securities.

To qualify a securities offering for the Section 4(a)(2) exemption, investors in the offering must:

  • either have enough knowledge and experience in finance and business matters to be “sophisticated investors” who are able to evaluate the risks and merits of the investment, or be able to bear the investment’s economic risk; and
  • have access to the type of information normally provided in a prospectus of a SEC registration statement such as Form S-1.

In general, public advertising of the offering, and general solicitation of investors, is incompatible with the Section 4(a)(2) exemption. As the number of investors increases and their relationship to the company and its management becomes more remote, it is more difficult to demonstrate that the offering qualifies for this exemption. If a company offers securities to even one person who does not meet the necessary conditions, the securities offering may be in violation of the Securities Act. Read More

Foreign Private Issuer NYSE Audit Committee Requirements

Foreign Private Issuer NYSE Audit Committee Requirements

The New York Stock Exchange (NYSE) corporate governance standards are contained in Section 303A of the NYSE Listed Company Manual. The NYSE corporate governance standards apply to all US companies that are listing or have listed equity securities on the NYSE (see NYSE Listed Company Manual). Foreign Private Issuers must comply with the audit committee standards in Rule 10A-3 of the Securities Exchange Act of 1934 (the “Exchange Act”).

Compliance with SEC Rules

Foreign Private Issuers must have an audit committee that complies with the requirements of Rule 10A-3 under the Exchange Act. Additionally, a Foreign private issuer must disclose how its corporate governance standards in its home country differ from the NYSE corporate governance requirements. Foreign private issuers that are subject to SEC Reporting Requirements and required to file a Form 20-F must disclose this corporate governance information in their Form 20-F report. All other foreign private issuers can provide this information on their websites or in annual reports filed with the SEC. Read More

SEC Charges U.S. Congressman Christopher Collins and Others With Insider Trading

SEC Charges U.S. Congressman Christopher Collins and Others With Insider Trading

The Securities and Exchange Commission announced on Aug. 8, 2018  the filing of insider trading charges against Congressman Christopher Collins, the U.S. Representative for New York’s 27th Congressional District, his son, Cameron Collins, and a third individual, Stephen Zarsky. In a parallel action, the U.S. Attorney’s Office for the Southern District of New York today announced related criminal charges.

Christopher Collins, who served as an independent director of an Australian biotech company, Innate Immunotherapeutics Ltd., is charged with tipping Cameron Collins after receiving confidential information about negative clinical trial results for Innate’s multiple sclerosis drug. Cameron Collins and his girlfriend’s father, Stephen Zarsky, are charged with trading and tipping others on the basis of the material, nonpublic information. Read More

Form S-1 Filing Requirements, Filing Form S-1, S-1 Offering, S-1 …

Form S-1 Filing Requirements, Filing Form S-1, S-1 Offering, S-1 …

Going public  using Form S-1 or Form 1-A allows issuers to chose from a variety of offering structures. Private companies seeking to raise capital often file a registration statement on SEC Form S-1 or Form 1-A of Regulation A in connection with their going public transaction. Once a Form S-1 is effective, the company becomes subject to the SEC reporting requirements. The most commonly used registration statement form is Form S-1.

All companies qualify to register securities on a Form S-1 registration statement. Private companies going public should be aware of the expansive disclosure required in registration statements filed with the SEC prior to making the decision to go public. Read More

Regulation A+ White Paper – Regulation A+ Lawyers

Regulation A+ Lawyers – Regulation A+ White Paper

Overview of the Regulation A+ Exemption

On March 25, 2015, The Securities and Exchange Commission (the “SEC”) adopted final rules to implement Section 401 of the Jumpstart Our Business Startups (JOBS) Act by expanding Regulation A into two tiers. These changes have had a notable impact on companies going public. One key benefit of Regulation A+ is that companies using Regulation A+ can comply with scaled down SEC reporting obligations.

Tier 1 of Regulation A+ provides an exemption for securities offerings of up to $20 million in a 12-month period while Tier 2 provides an exemption for securities offerings of up to $50 million in a 12-month period. An issuer of $20 million or less of securities in its offering can elect to proceed under either Tier 1 or Tier 2. Read More

What Are the SEC Reporting Requirements After My Form S-1 ls Effective?

What Are the SEC Reporting Requiements After My Form S-1 ls Effective?

Once the SEC staff declares your company’s Securities Act registration statement on Form S-1 effective, the company becomes subject to the SEC’s reporting requirements under the Securities Exchange Act of 1934.  These rules require your company to file annual reports on Form 10-K, quarterly reports on Form 10-Q and current reports on Form 8-K with the SEC on an ongoing basis. Read More

SEC Charges William McFarland and Others With $27.4 Million Offering Fraud

SEC Charges Failed Fyre Festival Founder and Others With $27.4 Million Offering Fraud

The Securities and Exchange Commission announced on July 24, 2018 that New York entrepreneur William Z. (Billy) McFarland, two companies he founded, a former senior executive, and a former contractor agreed to settle charges arising out of an extensive, multi-year offering fraud that raised at least $27.4 million from over 100 investors.

The SEC’s complaint alleges that McFarland fraudulently induced investments into his companies Fyre Media, Inc., Fyre Festival LLC, and Magnises, Inc., including in connection with McFarland’s failed venture to host a “once-in-a-lifetime” music festival in the Bahamas. Read More

Why Does a Company Go Public? Going Public Attorneys

How Does My Company Go Public? Going Public Attorneys

Going public is a big step for any company. The process of “going public” is complex and at times precarious. While going public offers many benefits it also comes with risks and quantities of regulations with which issuers must become familiar. Despite the risks even in a down economy, the U.S. markets remain an attractive source of capital for issuers. Going public is an intricate process, and it is important to have an experienced going public attorney to help your company navigate through the process and deal with the Securities & Exchange Commission the (“SEC”), Financial Regulatory Authority (“FINRA”) & Depository Trust Company (“DTC”).

Upon completion of a going public transaction, most companies are subject to the regulations that apply to public companies, including those of the Securities Act of 1933, as amended (the “Securities Act”) and Securities Exchange Act of 1934, as amended (the “Exchange Act”). A going public securities attorney can guide the company through these regulations. Read More