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Okay, one final Form D note – TechCrunch

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Some more comments from readers on the changing culture around startups filing their Form Ds with the SEC, and then a short update on SoftBank and a bunch more article reviews.

We are experimenting with new content forms at TechCrunch. This is a rough draft of something new – provide your feedback directly to the authors: Danny at danny@techcrunch.com or Arman at Arman.Tabatabai@techcrunch.com if you like or hate something here.

Lawyers are pretty uniform that disclosure is no longer ideal

If you haven’t been following our obsession with Form Ds, be sure to read up on our original piece and follow up. The gist is that startups are increasingly foregoing filing a Form D with the SEC that provides details of their venture rounds like investment size and main investors in order to stay stealth longer. That has implications for journalists and the public, since we rely on these filings in many cases to know who is funding what in the Valley.

Morrison Foerster put together a good presentation two years ago that provides an overview of the different routes that startups can take in disclosing their rounds properly.

Traditionally, the vast majority of startups used Rule 506 for their securities, which mandates that a Form D be filed within 15 days of the first money of the round closing. These days though, more and more startups are opting to use Section 4(a)(2), which doesn’t require a Form D, but also doesn’t provide a “blue sky” exception to start securities laws, which means that startups have to file in relevant state jurisdictions and no longer have preemption from the SEC.

David Willbrand, who chairs the Early Stage & Emerging Company Practice at Thompson Hine LLP, read our original articles on Form Ds and explained by email that the practices around securities disclosures have indeed been changing at his firm and others:

We started pushing 4(a)(2) very hard when our clients kept getting “outed” thru the Form D and upset about it. In my experience, for 99% is the desire to remain in stealth mode, period.

[…]

When I started in 1996, Form Ds were paper, there was no internet, and no one looked. Now they are electronic and the media and blogs scrape daily and publish the information. It actually really is true disclosure! And it’s kind of ironic, right, which goes to your point – now that it’s working, these issuers don’t want it.

[…]

What I find is that the proverbial Series A is the brass ring, and issuers wants to call everything seed rounds (saving the title) until something chunky shows up, and stay below the radar too. So they pop out of the cake publicly for the first time with a big “Series A” that they build press around – and their first Form D.

Another piece of feedback we received was from Augie Rakow, the co-founder and managing partner of Atrium, which bills itself as a “better law firm for startups” that TechCrunch has covered a few times before. He wrote to us that in addition to the media concerns, startups also have to be aware of the broad cross-section of interested parties to Form Ds that hasn’t existed in the past:

Today, there is a bigger audience in terms of who cares about venture backed companies. Whether this spun off from the launch of the Facebook movie or the fact that over two billion people across the global have the internet at their fingertips via smartphones, people are connected and curious. The audience is not only larger but also encompasses more national and international interests. This means there are simply more eyes on trends, announcements, and intel on privately held companies whether they are media, investors, or your competitors. Companies that have a good reason to stay stealth may want to avoid attracting this attention by not making a public Form D filing.

For startups, the obvious advice is to just consult your attorney and consider the tradeoffs of having a very clean safe harbor versus more work around regulatory filings to stay stealthy.

But the real message here is for journalists. Form Ds are no longer common among seed-stage startups, and indeed, startup founders and venture investors have a lot of latitude in choosing how and when they file. You can no longer just watch the SEC’s EDGAR search platform and break stories anymore. Building up a human sourcing capability is the only way to get into those early investment rounds today.

Finally — and this is something that is hard to prove one way or the other — the lack of disclosure may also mean that the fears around seed financing dropping off a cliff may be at least a little bit unfounded. Eliot Brown at the Wall Street Journal reported just yesterday that the number of seed financings is down 40% according to PitchBook data. How much of that drop is because of changing macroeconomic conditions, versus changes in filing disclosures?

Quick follow up on SoftBank

Tokyo Stock Exchange. Photo by electravk via Getty Images

Last week, I also got obsessed with SoftBank. The company confirmed today that it intends to move forward with the IPO of its Japanese mobile telecom unit, according to WSJ and many other sources. The company is targeting more than $20 billion in proceeds, and its overallotment could drive that above $25 billion, or roughly the level of Alibaba’s record IPO haul.

One interesting note from Taiga Uranaka at Reuters on the public issue is that everyday investors will likely play an outsized role in the IPO process:

Yet SoftBank’s brand name is still likely to draw retail investors long accustomed to using SoftBank’s phone and internet services. Many still see CEO Son as a tech visionary who challenged entrenched rivals NTT DoCoMo Inc ( 9437.T ) and KDDI, and brought Apple Inc’s ( AAPL.O ) iPhone to Japan.

Japanese households are commonly seen as an attractive target in IPOs with their 1,829 trillion yen in financial assets, even if they are traditionally risk-averse with over 50 percent of assets in cash and deposits.

More than 80 percent of the shares will be offered to domestic retail investors, a person with knowledge of the matter told Reuters.

Pavel Alpeyev at Bloomberg noted that “SoftBank is looking to tempt investors with a dividend payout ratio of about 85 percent of net income, according to the filing. Based on net income in the last fiscal year, that would work out to an almost 5 percent yield at the indicated IPO price.” A higher dividend ratio is particularly attractive to retired individual investors.

Despite SoftBank’s horrifying levels of debt, Japanese consumers may well save the company from itself and allow it to effectively jump start its balance sheet yet again. Complemented with a potential Vision Fund II, Masayoshi Son’s vision for a completely transformed SoftBank seems waiting for him in the cards.

Notes on Articles

Tech C.E.O.s Are in Love With Their Principal Doomsayer – Nellie Bowles writes a feature on Yuval Noah Harari, the noted philosopher and popular author of Sapiens. Bowles investigates the paradoxical popularity of Harari, who sees technology as creating a permanent “useless class” and criticizes Silicon Valley with his now enduring popularity in the region. Interesting personal details on the somewhat reclusive Israeli, but ultimately the question of the paradox remains sadly mostly unanswered. (2,800 words)

Why Doctors Hate Their Computers – Atul Gawande discusses learning and using Epic, the dominant electronic medical records software platform, and discovers the challenges of building static software for the complex adaptive system that is health care. His observations of the challenges of software engineering will be well-known to anyone who has read Fred Brooks, but the piece does an excellent job of exploring the balancing act between the needs of technocratic systems and the human design needed to make messy and complicated professions work. Worth a read. (8,900 words)

Picking flowers, making honey: The Chinese military’s collaboration with foreign universities – An excellent study by Alex Joske at the Australia Strategic Policy Institute on the hundreds of military scientists from China who use foreign academic exchanges as a means of information acquisition for critical scientific and engineering knowledge, including in the United States. China’s government under Xi Jinping has made indigenous technology development a chief domestic priority, and the U.S. innovation economy is encouraged to increasingly guard its intellectual property. (6,500 words)

The Digital Deciders – New America report by Robert Morgus who investigates the fracturing of the internet, which I have written about at some length. Morgus finds that a small group of countries (the “digital deciders”) will determine whether the internet continues to be open or whether nationalist interests will close it off. Let’s all hope that Iraq believes in freedom of expression and not Chinese-style surveillance. Worth a skim. (45 page report, but with prodigious tables)

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Audio-Technica true wireless earbuds case recalled over fire risk

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Audio-Technica, a company known for its high-end personal audio devices, has recalled the charging cases for its ATH-CK3TW true wireless earbuds after receiving multiple reports of overheating ‘incidents.’ The recall was recently highlighted by the US Consumer Product Safety Commission (CPSC), which notes that consumers who own the case can get it replaced for free.

The Audio-Technica ATH-CK3TW true wireless earbuds were announced in September 2019. As with other true wireless headphones on the market, the product involves two individual earpieces, as well as a charging case that contains a battery for recharging the earbuds. Consumers charge the case using a USB cable.

In a new post on its website, the US CPSC reports that about 7,450 charging cases sold as part of the ATH-CK3TW model have been recalled due to a risk of overheating, which may lead to a fire. These cases are made of plastic and sold in multiple colors; Audio-Technica will replace regardless of the shade, though.

Consumers who own a pair of true wireless Audio-Technica earbuds can check the model number on the back of the charging case. Assuming you have a recalled unit, you should stop using it immediately and get in touch with Audio-Technica, which will provide you with a prepaid shipping label to return the case to the company.

Once the case is received, the company will ship the consumer a replacement case that’ll work with their earpieces. Though there haven’t been any injuries reported in association with this recall, the company notes that four cases of overheating happened outside of the US and that damage to both the charging surface and case resulted.

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Oculus Quest subscriptions roll out for games and apps

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Oculus today announced that it’s now allowing developers to offer subscriptions to their apps. While perhaps not the best fit for gaming – which Oculus was centered around at the beginning of its life – the company says that by offering subscriptions, it can offer monetization options that make Quest a better fit for other types of apps. Obviously there’s no one-size-fits-all solution for subscription offerings, but in today’s announcement, Oculus listed several different apps that will offer them to start.

There are six different apps that are adding subscriptions today: FitXR, Rec Room, Tribe XR, TRIPP, vSpatial, and VZfit. Oculus says that content you’ve previously purchased in these apps will continue to be accessible after these subscriptions go live, so it sounds like developers won’t be allowed to remove content that’s already been paid for and stick it behind a subscription.

In FitXR, for instance, Oculus says that subscribers will get a new instructor-led class from the existing Box and Dance studios and the upcoming HIIT studio each day, along with access to multiplayer. Those who already purchased FitXR will keep the content they’ve paid for (which includes Add-On packs). While newcomers to the app will get a seven-day free trial to the FitXR subscription service, those who already own the app will get a 90-day trial.

With Rec Room, we see something entirely different. While the base app will continue to be free, a subscription called Rec Room Plus will be offered as something of a premium tier for those who want it. The monthly subscription will net users 6,000 tokens each month – which translates to $10 of real world cash – along with weekly four-star items and access to a special section of the store that’s reserved for subscribers.

Ultimately, what you get with a subscription depends on the app – some might require a subscription to access the app, while others might just offer the subscription as a bonus for those interested in getting some extra content. Oculus says that you’ll be able to cancel subscriptions at any time. To read more about the subscriptions being offered by these initial six apps, check out today’s blog post on the Oculus website.

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Apple Fitness+ adds workouts for beginners plus older and pregnant users

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Apple Fitness+ is gaining new workouts today, adding specific sessions for pregnancy and that target older adults and beginners. It’s part of a workout boost for the Apple Watch-centered subscription fitness system, and will also include a new Time to Walk session with Jane Fonda.

Announced last year, Fitness+ opened up its guided sessions in December 2020. It relies on exercise tracking through the Apple Watch, with tutorials and classes delivered via a variety of the company’s screens, such as Apple TV, iPad, and iPhone.

One of the challenges early-adopters have found, particularly those just getting into fitness, is trying to get up to speed. That’s something Apple is addressing today, with new workouts for beginners. Offered across the Yoga, Strength, and HIIT workout types, they consist of low-impact exercises and spend more time on how to perfect form to build good habits.

Much in the same way, the new workouts for older adults focus on the specific needs of older people trying to get – or stay – fit. They center on strength, flexibility, balance, coordination, and mobility, Apple says, with a series of eight sessions led by trainer Molly Fox, with guest appearances by Gregg Cook for Strength, Dustin Brown for Yoga, Bakari Williams for HIIT, and Jhon Gonzalez for Dance.

Each workout is 10 minutes long, and many can be completed with either bodyweight or a light dumbbell, Apple says. Alternatively, they may use a chair or involve leaning against the wall. They can also be combined with other Fitness+ workouts, carrying those modifications over.

Finally, there’s a new workouts for pregnancy series. 10 sessions – covering Strength, Core, and Mindful Cooldown – will be led by Betina Gozo alongside trainers Emily Fayette and Anja Garcia, each 10 minutes in length. They’re designed, Apple says, to suit any stage of pregnancy along with any fitness level. Again, as with the older fitness sessions, they also include suggestions on how to modify the more general Fitness+ workouts in ways to accommodate those who are pregnant.

Beyond the three specific categories, there are now two new trainers: one in the Yoga section, and the other in HIIT (High Intensity Interval Training). From April 19, meanwhile, Jane Fonda’s Time to Walk session will be added. That takes the form of an audio interview with paired walking instructions.

Apple Fitness+ is currently available in the US, Australia, Canada, Ireland, New Zealand, and the UK. Three months access is bundled with a new Apple Watch Series 3 or later, while existing owners can try it free for a month. After that, it’s $9.99 per month or $79.99 per year – for up to six family members to share – or bundle as part of the $29.95 Apple One Premiere plan.

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