We had a fascinating week trying to get everything figured out on our FG Angels initiative with AngelList. Our syndicate, which we are going to max out at $450,000, is currently right at $300,000 after one week. We are humbled by all the support and interest.
We’ve chosen our first deal to do. But we aren’t ready to pull the trigger yet – probably early next week. We’ve spent the last few days wrestling with some legal / compliance issues. The AngelList gang has been AWESOME to work with. We aren’t surprised that we are having to figure this stuff out – we knew the new JOBS Act rules, 506 compliance, and the ambiguity around a bunch of stuff would be problematic. Yeah – the problems are obscure ones generated by our government, and there are moments where it seems like the SEC simply doesn’t want any of this to actually work. But that’s part of the fun of it.
I continue to be mildly amused and amazed by the prognostications from the sidelines from a variety of folks (angels, angel groups, VCs, and entrepreneurs). Some of the strong opinions are based on virtually no data, or misinformation, or a complete lack of perspective. And others are based on a lack of understanding of dynamic systems. Either way, when asked, I continue to tell people our mantra – the best way to learn about stuff like this is to participate.
So – if you want to participate with us and learn a bunch in the process, join our syndicate.
Did you know Twitter is going public? Of course you did – it’s all the mainstream media could seem to write about last week after the now infamous twitter tweet about it.
We’ve confidentially submitted an S-1 to the SEC for a planned IPO. This Tweet does not constitute an offer of any securities for sale.
— Twitter (@twitter) September 12, 2013
After all the speculation about valuation, who owns what, what it’ll price at, how much money will be made, is Twitter growing or shrinking, what is a tweet after all, will their stock symbol be TWIT?, and all the other nonsense that seemed to consume the business press, I noticed a perplexing thread from some people expressing how indignant they are they Twitter is going public in secret.
I watched it play out and tried to understand what people were reacting to. Eventually, I realized it was two things. The first is a misinterpretation of the JOBS Act and what a confidential S-1 filing actually is. Somehow there was the view that there wouldn’t be the normal public disclosure prior to Twitter going public, which is just incorrect. The second was some weird reaction to Twitter suddenly being “secretive” and a view that this was in fundamental philosophical conflict with what Twitter is.
After four days of chatter about this, Dan Primack wrote the first definitive article I saw that made sense of all of this titled Twitter’s IPO will not be done in secret. As is typically the case, Dan wrote a super clear and fact based article about what was going on with the confidential filing, how it would work, and why – in Dan’s words – “Twitter’s decision to file confidentially is neither bad nor good. It’s largely irrelevant.”
I won’t repeat Dan’s awesome article – go read it if this topic interests you.
Having been involved in numerous IPOs, I can tell you that the JOBS Act confidential filing process is a great thing and improves the overall process of taking a company public. Anyone who has been through taking a company public knows that there are numerous steps between the first S-1 filing with the SEC and the final filling where the SEC says “ok – you are ready to go public now.” This process is almost never smooth, is unpredictable in terms of timing, and often ends up being an bizarre and byzantine interactions between the SEC, accountants, lawyers, investment bankers, and management team members who scratch their heads and realize that the process isn’t really making anything any clearer, it’s just racking up massive fees for the lawyers and accountants.
The end result is a fully vetted S-1 filing. When a company has this cleared by the SEC, it is ready to go public. Prior to the JOBS Act, you made your first filing before any feedback from the SEC and then spent the next three to six months wrestling with the SEC – on their time frame and their rules – to get the filing finalized. If you didn’t time it right, you’d have to do new financial disclosure. If the SEC was slow because they had a backlog, it would take longer. If the SEC didn’t agree with your auditors on revenue recognition, you’d end up in a crazy escalating set of discussions. And – each amendment to the S-1 (basically a new filing) was done in public, so everyone – including your competitors – got to see everything that was going on. And dissect it. And criticize it. And analyze it. And act on it. And say anything they wanted about it.
During this time, you were in a “quiet period” so you couldn’t say anything in response. Your competitors attack you based on data in your S-1 filing through a plant in an article in the WSJ – nope, you can’t say anything. The NY Times writes a long article and misinterprets a bunch of the data – nope – silence. A blogger tears you apart for something buried on p.123 of the S-1 which ends up getting changed in a future filing anyway – nope silence.
Or worse – for some reason the IPO window closes and you don’t go public. You withdraw your filing. But the public data is still out there for everyone – especially your competitors and customers to see. Oops.
Under the new rules you do all of this work to get to a final filing in confidence. You make it public three weeks before you go on the roadshow. You make all the documents public, but the only one that really matters is the final one. The sausage got made in private and now you are ready to go public. All the expected articles come out. Everyone dissects all the data. But you are ready for this since you are now ready to go public.
I’m glad Twitter used the new confidential filing process. We’ve already used it for companies in our portfolio, and will continue to. In a few years, the process of taking a new company public will be much cleaner as a result. And while there will always be a huge amount of noise around the process, especially for high profile companies like Twitter, at least there will be a clearly defined timeframe for all the pre-IPO noise.
The JOBS Act, which was approved by Congress and signed by President Obama with much fanfare over a year ago, was intended to help small business. It is, after all, called the Jumpstart Our Business Startups Act. A number of the provisions have been slow to get written into law and the SEC has missed their deadlines on a bunch of stuff, including the often talked about equity crowdfunding activity.
Recently, the SEC weighed in on a number of the things they were required to with much fanfare. Fred Wilson wrote Let The Games Begin in response to the SEC lifting the General Solicitation Ban. However, Fred, and many others, missed the new proposed Amendments to Regulation D, Form D and Rule 156 under the Securities Act. And they look like one scary mess that could undermine the whole thing if approved.
Some posts with analysis of this have finally started to appear. A good summary is by Joe Wallin at his Startup Law Blog titled Proposed Rules Hard on Startups. And I’ve gotten a number of emails with similar analysis. My favorite summary was from a very experienced law firm.
“The SEC giveth (as mandated by Congress) and taketh away (by its own mandate).
It is incredible that the SEC finally got around to implementing rules to remove the ban on solicitation (as it was required by statute to do so in 2012), but concurrently proposes new rules intended to retard the benefits of easing the capital formation process (the goal of the JOBS Act).
The new proposed rules will require a Form D to be filed 15 days in ADVANCE of a Reg 506 offering and after, substantially expand the scope of information required to be disclosed in Form D and disqualify an issuer from relying on Rule 506 for one year if the issuer does not comply with the new filing requirements (including a requirement that the Form D be timely filed). The new rule also would require filing with the SEC of all written general solicitation materials. So much for deregulation!”
Seriously? More commentary from one of the emails I received follows:
“The new rules and rule proposals were a kind of packaged effort to address the Congressional mandate in the JOBS Act, while attempting to maintain investor protection. Apparently, the package was enough to mollify Commissioner Walter, but Commissioner Aguilar was unwilling to go along. In his view, the rules adopted come at the expense of investor protection. He reiterated that the record supports the argument that elimination of the ban on general solicitation will facilitate fraud and viewed the adoption of the rules without appropriate safeguards as “reckless.” He also contended that the proposal to study the practical effects and then adopt rules if necessary would come too late – closing the barn door after the horses have already escaped. Although he voted for adoption of the disqualification rule, he also objected to the narrowing of the categories of individuals covered, as well as the application to only prospective events, especially given the two-year delay in adoption of the final rule. On the other side of the aisle, Commissioners Paredes and Gallagher both objected to the proposal to facilitate monitoring of market changes resulting from elimination of the prohibition. They both viewed the proposal as placing an undue burden on capital formation and undermining the objectives of the JOBS Act.”
While the “proposed rules” are still “proposed”, hopefully the SEC will reject these new proposals, especially in the context of Congress’s mandate to Jumpstart Our Business Startups.
I’ve always had mixed feelings about the importance of a company announcing a financing in the absence of any other activity. “Dear World: We Just Raised $X From Investors A, B, and C.” Ok, but so what?
In my book, there is only one real reason for this – to attract new potential employees: “We’ve just raised $X and are hiring 20 people including types A through types Q – see our jobs page at jobs.companyname.com and apply now.”
Unfortunately, very few funding announcements are focused on this for two reasons. The first is the stupid one – many entrepreneurs get tangled up in the ego dynamics of a financing (“look ma – we raised money’) and lose sight of the notion that raising money is just one tiny step on the path to success. In my book, once you’ve completed a financing, take a deep breath, tell everyone in the company so they know how much money is in the bank, and then get back to work creating amazing things for your customers.
The second is less stupid, but is something I see over and over again, even with companies we are investors in (and we know better). When you do a financing, you file something called a Form D with the SEC. This process is fully automated which means it is easy for our friends like Dan Primack at Fortune to see any new filings that are made. Dan was one of the first people I knew who regularly published Form D info – it’s now spread widely across most of the VC-based publications, but I’ve give Dan credit for being the most diligent with this (and with many other things he reports on.)
Once you’ve filed your Form D, the data is available on Edgar with a simple search. There are other ways to get it as well since there are plenty of services that republish Edgar data with a better UI for searching. Regardless, the info on Form D is out there on the web.
Some VCs I know claim that you don’t have to file a Form D. Having researched this, I think it’s a dumb move. Most credible attorneys that work with corporate securities, especially those in the VC industry, will insist that you file a Form D if you have more than one investor, or if you have investors in more than one state. In our world, we just tell companies we invest in to file it and not worry about it.
This takes us back to the beginning of the post. For some reason, some companies want to keep their financings quiet. That’s fine – just file your Form D and say nothing about it. It’ll get picked up in the daily VC publications, like Term Sheet and VentureWire. Maybe it’ll end up on TechCrunch if you’ve got some famous investors that they like to write about. And, if your local paper is on the ball, it’ll show up there also. But it’s meaningless – “Joe’s Company Raised $X From Investors A, B, and C according to a filing with the SEC.” Next.
But if you are going to announce your financing, do it right – in conjunction with your Form D filing. Have your jobs page up. Make it clear that you are hiring. If you have substantive stuff to announce around the financing, say an acquisition, a major strategic partnership, or a new product release, announce it at the same time. Substance matters here – the more the better.
Make your noise for a day – and then get back to work creating amazing things for your customers.
I considered titling this post “why RSS isn’t dead” but decided that was too easy.
I don’t pay much attention to public markets. However, now that the IPO window for tech companies has opened back up there are some companies that I want to track. However, I don’t really care about the daily stock prices – instead, I’m focused on the actual SEC filings.
I used to subscribe to several services for SEC filings (remember EDGAR Online and 10KWizard) but let them lapse a while ago. My partner Jason suggested I just use the SEC website. So I went there and discovered that it’s really good.
I went to Search for Company Filings and quickly found all the companies I cared about. I then clicked on the RSS icon in my browser and subscribed to the feed for each company I was interested in using Google Reader.
Google Reader is part of my daily information routine. I subscribe to a bunch of blogs – those of all of the companies I’ve invested in, their founders and employees who blog, and a bunch of random people I like to read. I long ago unsubscribed to all the news sites – I just scan them via Twitter throughout the day. But I find 15 minutes a day with Google Reader allows me to stay current on most of the “other stuff” that I care about.
Now, whenever a company I’m tracking files something with the SEC, it’ll show up the next morning in Google Reader. Perfect – as I never need this info real time. No extra email notifications. No subscription service that I have to pay for. No need to periodically go “check on stuff.”
I love how fundamental wiring – like RSS – is – well – fundamental. It always delights me when I find a simple solution to a problem like “track SEC filings for companies I am following.”
Over the past 24 months, a deplorable activity in the money management business came to light. It got the name “pay to play” but was just another form of bribery. The common description of pay to play is “the practice of making campaign contributions and related payments to elected officials in order to influence the awarding of lucrative contracts for the management of public pension plan assets and similar government investment accounts.” Yup – sounds like bribery to me.
However, for some reason, the definition of this expanded to include any campaign contributions to any state or local officials, regardless of the size. So, if I contribute $1,000 to the campaign of the Colorado state treasurer, I violate this SEC rule and become someone who is “paying to play.” Now, as someone who gets multiple calls and emails most days to contribute to campaigns as an election approaches, I can assure you that it has never occurred to me to support the campaign for a state treasurer. However, I do know that a candidate for state treasurer has called me asking for campaign contributions. And I’ve politely declined.
After studying the implications of this ruling, I’ve decided it prohibits me and my spouse (Amy) from making any campaign contributions to state or local races anywhere in the country. The NVCA has also studied the new SEC rule and has come to the same conclusion:
“This ruling is consistent with guidance the NVCA has been providing members. It is now even more important to have a firm-wide policy against political contributions to these officials / candidates. This restriction does NOT include political contributions to candidates running for federal office (U.S. House of Representatives, U.S. Senate, U.S. President) nor does it include contributions to the NVCA PAC, which only gives to federal candidates.”
We’ve instituted this rule at Foundry Group, although it’s upsetting and offensive to me because I think it fundamentally violates my First Amendment rights. To err on the side of caution, we’ve determined that spouses cannot make state or local political contributions either. This infuriates Amy, as it should.
It’s even more upsetting when you consider that there is no cap on political contributions that corporations can make. The Supreme Court ruled on this in January stating that the government has no business regulating political speech. So, on one hand we have corporations who can give any amount to any candidate running for office while on the other hand my wife can’t contribute $1,000 to someone running for governor of Colorado.
Now, don’t misunderstand me – I think pay to play is grotesque. And Amy and I are huge advocates of campaign finance reform. However, the core problem of pay to play is bribery, not the active support of state and local candidates for office by individual citizens. They are totally different things and should be able to be easily and cleanly differentiated, without the government regulating my political speech.
I’m far away from Washington DC today. Actually, I’m a lot closer to Russia than I am to DC and that makes me an expert on Russia. Wait, someone else said that (although the people next to me and Amy at dinner last night were speaking Russian.)
But my friend the Internets (actually, the Web) brought DC closer to me today. While I’m only involved in a handful of things related to politics and DC, several of them popped up somewhere in my world in the last two days. So, I thought I’d share them with you.
Let’s start with software patents. I’m still seriously bummed about Bilski – not the specific ruling, but the fact that in my opinion the Supreme Court wimped out on something that is very important. Several friends have told me that the Supreme Court did exactly what they were supposed to – they ruled on a vary narrow and specific issue that was put before them. A few other friends of mine, including several lawyers that know a lot about the Supreme Court, said it looked like the Supreme Court came close to making a significant and profound ruling – with plenty of hints buried in the stuff Justice Stevens wrote. I can’t interpret any of the Supreme Court inside baseball, but I do know how I feel about software patents and expressed my frustration in an article that I co-authored with Paul Kedrosky titled Software Patents Need to Be Abolished that showed up in the Huffington Post yesterday. In case you need more evidence around the stupidity of the whole situation, take a look at the crap van Rijn is going through. Or maybe this patent from Microsoft on “how to turn a page in an electronic book.”
DC Topic #2 is the Startup Visa. Inc. Magazine has a great article about the issue and the Startup Visa titled The Immigrant Advantage. My friends Kevin Mann (British) and Thanavath Jaroenvanit (French) – both of TechStars Boulder 2008 – co-founders of Graphic.ly – and one of my inspirations for the Startup Visa movement) are prominently featured. And the Kauffman Foundation just came out with a study that concludes that Job Growth is Entirely Driven by Startups. I’ve had a few encouraging conversations about the Startup Visa movement recently, including hearing about a new co-sponsor of the Senate Bill (“The Startup Visa Act of 2010”) as well as talking to a handful of prominent organizations that are close to signing up to get behind it.
Finally, LeBron James has apparently signed with the Miami Heat. I have no idea what that has to do with DC, other than I’m sure the Wizards were trying to get him also.