Wednesday, May 27, 2015

Follow SEC's Fort Worth Regional Office On Twitter

Now you can follow the Fort Worth Regional Office of the U.S. Securities and Exchange Commission on Twitter at @FortWorth_SEC.

As of the date of this blog post, since the Fort Worth Regional Office signed on to Twitter on September 22, 2014, it has "tweeted" 314 times, has amassed 1,128 followers.

Most of the tweets relate to:

  1. warnings and other information to help protect investors, 
  2. reminders and other information for securities registrants and other securities industries participants, or 
  3. reports of enforcement actions or other activities of the office.

Friday, May 15, 2015

TECH Fort Worth Still Making an IMPACT

Wednesday I had the pleasure of attending the 2015 TECH Fort Worth IMPACT Awards.  As always, the event had a lot of energy and showcased some of TECH Fort Worth's most successful past and current clients.

This year's keynote speaker was Alvaro Guillem, Ph.D., the President and co-founder of ZS Pharma Inc. ZS Pharma became a client of TECH Fort Worth in 2009, and as of the posting of this blog post, it has a market capitalization of $1.2 billion.  Dr. Guillem walked the audience through the benefits of its drugs for those suffering from hyperkalemia (elevated potassium levels) and ZS Pharma's early stage financing efforts. I was especially interested to learn that ZS Pharma benefited from an investment from the Texas Emerging Technology Fund, a $485 million fund created by the State of Texas to, among other things "help start-up companies get off the ground faster and attract high-tech jobs" (according to the website of the Office of the Texas Governor).

The event also spotlighted the successes of following TECH Fort Worth clients:

  • Beartek Gloves, who makes "smart" gloves that allow wearers to control electronic devices without removing the gloves. They are marketing especially to motorcyclists, skiers, and snowboarders, to make their activities safer and more convenient.
  • Ben Hogan Golf, who is re-launching the Ben Hogan brand of high quality, precision golf clubs.
  • Encore Vision, who is developing eye drops to treat presbyopia (farsightedness). [Wikipedia says that presbyopia comes from Greek words meaning literally "trying to see as old men do."]
  • Ampcare, who sells devices and techniques involving therapeutic neuromuscular stimulation technologies for the treatment of dysphagia (swallowing disorders). Ampcare was the "people's choice" award winner based upon a real-time vote by audience members at the event.
It is truly inspiring to see all of the great ideas, great people, and great companies that are attracted to and benefit from TECH Fort Worth, "a business incubator focused on helping entrepreneurs bring innovative technologies to market."  The Fort Worth business community is certainly lucky to have the TECH Fort Worth team in our corner.

Monday, May 11, 2015

Time for Chancery Courts to come to Texas?

There is a currently bill in the Texas House of Representatives which would create the first Chancery Courts in Texas.  What are chancery courts and why would Texas benefit from them?

Chancery courts specialize in complex business disputes, especially those involving mergers and acquisitions and corporate and securities matters. The theory is that a court that specializes in complex business disputes is likely to understand the issues better, provide swifter justice, and provide more consistent and therefor more predicable business law decisions.

Of course, the most famous chancery courts are those in the State of Delaware. Part of the reason Delaware is such a popular state in which to incorporate a business is that companies know they can gain access to the Delaware chancery courts, which are regarded is especially good at delivering (relatively) swift, certain, and fair decisions. That may not always be the case in other states where "regular" courts cannot focus on complex business issues because they must also hear cases involving family law, torts, probate, and a myriad of other non-business matters.

As you might have guessed, I think having chancery courts in Texas is a terrific idea. It helps underscore the message that Texas is business-friendly and a great place to start a business and to obtain justice for your business, if necessary.

A copy of the bill that would create the Texas Chancery Court system (House Bill 1603) is available here. The bill would grant Texas Chancery Courts jurisdiction to hear cases involving the following matters:
  1. a derivative action on behalf of an organization;
  2. an action arising out of or relating to a qualified transaction in which the amount in controversy exceeds $10 million, excluding interest, statutory damages, exemplary damages, penalties, attorney ’s fees, and costs;
  3. an action regarding the governance or internal affairs of an organization;
  4. an action in which a claim under a state or federal securities or trade regulation law is asserted against: (A) an organization; (B) a governing person of an organization for an act or omission by the organization or by the person in the person ’s capacity as a governing person; (C) a person directly or indirectly controlling an organization for an act or omission by the organization; or (D) a person directly or indirectly controlling a governing person for an act or omission by the governing person; 
  5. an action by an organization, or an owner or a member of an organization, if the action:(A) is brought against an owner, managerial official, or controlling person of the organization; and (B) alleges an act or omission by the person in the person’s capacity as an owner, managerial official, or controlling person of the organization;
  6. an action alleging that an owner, managerial official, or controlling person breached a duty, by reason of the person ’s status as an owner, managerial official, or controlling person, including the duty of care, loyalty, or good faith;
  7. an action seeking to hold an owner of an organization, a member of an organization, or a governing person liable for an obligation of the organization, other than on account of a written contract signed by the person to be held liable in a capacity other than as an owner, member, or governing person;
  8. an action in which the amount in controversy exceeds $10 million excluding interest, statutory damages, exemplary damages, penalties, attorney’s fees, and costs that: (A) arise against, between, or among organizations, governing authorities, governing persons, members, or owners, relating to a contract transaction for business, commercial, investment, agricultural, or similar purposes; or (B) involve violations of the Finance Code or Business & Commerce Code;
  9. an action brought under Chapter 37, Civil Practice and Remedies Code, involving: (A) the Business Organizations Code; (B) an organization’s governing documents; or (C) a dispute based on claims that fall within the provisions of the applicable subsection of the bill; and
  10. an action arising out of the Business Organizations Code.
The bill was introduced by Texas State Representative Jason Villalba, who represents North Dallas in the Texas House, and is a very capable corporate and securities lawyer. Rep. Villalba's occupation and experience make him especially well qualified to understand the value of chancery courts.  As he notes on his website here: "By creating this business-focused, specialized Chancery Court, we are telling the world that Texas is open for business and that there is no greater state in the United States to incorporate and begin operations.”



Sunday, May 3, 2015

Rule 506(b)'s Merit - and Is there Merit to Merit Review?

An overwhelming majority of private placements of securities in America are done by means of sales strictly to accredited investors in reliance upon the exemption from the registration requirements under the Securities Act of 1933 afforded by Rule 506 under Regulation D (now known as Rule 506(b)).

So what so great about Rule 506(b)?  Some of the key benefits are as follows:

  1. No Uncertainty.  Rule 506(b) provides a tremendous amount of clarity for issuers of securities seeking to ensure that they have a valid private placement exemption. So long as an issuer has a reasonable belief that all of its investors are accredited and the issuer refrains from engaging in public solicitation activities, the issuer will generally have a valid private placement. Outside of the "safe harbor" of Rule 506(b), other factors (some of which are identified below) can complicate the analysis and/or limit an issuer's freedom when offering securities. For example, if an issuer wishes to rely upon the exemption afforded by Section 4(2) of the Securities Act, it better get ready to sort through decades of case law and SEC releases on what exactly it means to have a "transaction by an issuer not involving any public offering." 
  2. No Dollars Limits.  This benefit speaks for itself.  Rule 506(b) puts no limits on the dollar size of a private placement.  Contrast that with Rule 504 which limits issuers to raising $1 million or Rule 505 which limits issuers to raising $5 million.
  3. No Investor Limits.  Rule 506(b) permits sales to an unlimited number of accredited investors. Contrast that with the Section 4(2) exemption which provides no statutory guidance regarding how many investors may invest before a private placement turns into a public offering. 
  4. No Blue Sky Compliance.  Securities sold in reliance on Rule 506(b) are deemed to be "covered securities," thereby preempting most state level blue sky regulation. States may require issuers to make a notice filing, pay a small filing fee, and consent to service of process in any state where it sells securities, but issuers who sell "covered securities" need not register or find a valid exemption from registration in up to 50 different states.
  5. No Disclosure Requirement.  While Rule 506(b) permits sales to up to 35 unaccredited investors, issuers rarely permit unaccredited investors to participate in Rule 506(b) private placements because doing so requires issuers to provide a detailed private placement memorandum to every investor, which is generally cost prohibitive. By limiting sales exclusively to accredited investors, there is no information disclosure obligation upon the issuer (though it is generally advisable to provide at least some disclosure document to each investor to insulate the issuer from potential securities fraud claims).  
  6. No Verification Requirement. The SEC recently adopted Rule 506(c) which permits issuers to engage in public solicitation in connection with private placements so long as the issuer "verifies" that all investors are accredited. But since the steps that an issuer must take to "verify" an investor's status are somewhat vague (and/or are somewhat intrusive on the investor) at this point, most issuers engaging in private placements continue to rely upon Rule 506(b) and its lower standard that the issuer have a "reasonable belief" that its investors are accredited. 
Today I want to focus on Item 4 above - the preemption of potential multi-state blue sky registration and/or review by state level securities regulators (such as the Texas State Securities Board).  How valuable is it to avoid such review and regulation?  Very.  Even if every individual state securities regulatory body was a marvel of efficiency and reasonableness, merely getting familiar with the registration requirements and/or exemptions from registration in up to 50 states would be a challenging task for issuers. 

But consider states that require so-called "merit review" of a securities offering. That's when a state-level blue sky regulator takes it upon themselves to look beyond whether or not the issuer has fully disclosed the material information about the issuer and the offering to determine if a particular investment is "fair" to potential investors.

I have serious doubts that the twin goals of investor protection and facilitating capital formation for the US economy are advanced by merit review by state blue sky securities regulators.  For example, according to an article by Samual S. Guzik in a recent issue of the Texas Journal of Business Law, in 1980 securities regulators in the Commonwealth of Massachusetts and other states prohibited "ordinary investors" from participating in an IPO for Apple Computer, reasoning that the offering price was too high relative to the company's book value!  

Thursday, December 11, 2014

37th Annual UT-CLE Securities Regulation Conference

As longtime readers of this blog will know, I am a big fan of The University of Texas School of Law’s Continuing Legal Education’s Annual Conference on Securities Regulation and Business Law. I am honored to be serving as a Presiding Officer at the next conference (the 37th), which will take place February 12 and 13, 2015, at the Cityplace Conference Center in Dallas.

The conference is one of the state’s premier securities law events, with distinguished faculty, including representatives of the U.S. Securities and Exchange Commission, the Texas State Securities Board and FINRA.  Next year's conference will include presentations on private placements, crowdfunding, M&A brokers, public offerings, private investment funds, proxy contests, minority shareholder oppression, director fiduciary duties, and more.  What could be more fun?!

I strongly encourage corporate and securities lawyers to attend.

Friday, November 21, 2014

Fort Worth, Texas Magazine 2014 Top Attorney List

I'd like to thank the good folks at Fort Worth, Texas magazine for including me on their 2014 Top Attorney List.  I was nominated in the Securities law category.  I am honored to be included on a list with some terrific attorneys.  They held a reception for the winners at the Fort Worth Club last night, which was a lot of fun.  Here's what the entrance to the reception looked like:

Friday, November 14, 2014

Third Party Rights in a Company or Partnership Agreements

Does Texas law permit a third-party who is not a party to a company agreement or partnership agreement of a Texas limited liability company, limited partnership or general partnership to nonetheless claim rights under such agreements?

Yes, effective September 1, 2013, Texas amended Sections 101.052 (regarding LLC agreements) and added a new Section 154.104 (regarding general and limited partnership agreements) of the Texas Business Organizations Code to specifically authorize company agreements and partnership agreements to provide such third-party rights if the members or partners so choose to include them in the company agreement or partnership agreement.

According to the author of S.B. 847, which effected these amendments, "While this principle is already implicit in the law, [the bill] makes it explicit in order to eliminate any confusion and to better protect third parties involved in the agreements."

So what third parties might request rights be reflected directly in company agreements and partnership agreements?  Any party that has an interest in the company or partnership or its operation or management, including banks and other lenders, landlords, and franchisors, among others.