On July 26, the Securities and Exchange Commission (SEC), by a 3-2 vote, adopted final rules intended to enhance public companies’ disclosures regarding (1) cybersecurity incidents through a new required current report item under Form 8-K and (2) cybersecurity risk management and governance in annual reports on Form 10-K through a new item under Regulation S-K. Continue Reading SEC Adopts Cybersecurity Disclosure Rules
Scott Bell’s practice encompasses a wide array of corporate and transactional matters, including mergers and acquisitions, private equity and venture capital financings, securities offerings and securities law compliance, shareholder activism defense and general corporate governance and strategic issues.
I recently authored an article highlighting the latest updates in human capital disclosure requirements for public companies since the Securities Exchange Commission (SEC) imposed new requirements in late 2020.
While public companies were historically only required to disclose their gross headcount as it relates to human capital, the 2020 changes added a broader requirement that companies include in their filings a description of their human capital resources, which includes any human capital measures or objectives that the company’s management team focuses on when running the business.Continue Reading Updates to Human Capital Disclosure Requirements
Late last year, the Securities and Exchange Commission (SEC) approved amendments to the federal proxy rules to, among other things, mandate the use of a universal proxy card in public solicitations involving director election contests. On February 24, we hosted a webinar to discuss issues relating to universal proxy rules. Access the recording of the webinar here.
Continue Reading Key Takeaways from New Universal Proxy Rules Webinar
Please join the Bass, Berry & Sims Corporate & Securities Practice Group for a series of complimentary webinars exploring various public company-related securities law issues. These CLE programs will be an extension of our Securities Law Exchange Blog and will feature timely and practical guidance for SEC disclosure counsel on key topics of interest.
Continue Reading [WEBINAR] SEC’s New Universal Proxy Rules: Key Considerations & Next Steps to Prepare
As public companies continue to navigate the ongoing economic upheaval caused by the COVID-19 pandemic, opportunistic activist investors may find the resulting economic conditions conducive to accumulating significant ownership positions, agitating for changes in corporate strategy and management, and pursuing public activist campaigns. Although the number of overt activist campaigns were down during the primary 2020 proxy season, as the annual meeting season for most public companies took place during the initial months of the pandemic lockdown, the third and fourth quarters generally tend to see an increase in activist activity as hedge funds make initial preparations for the following year’s proxy season. Given these circumstances, this is an opportune time for public companies to make preparations by reviewing and evaluating their defensive profiles.
The following summarizes most of the common defensive mechanisms that companies utilize when faced with activist campaigns, hostile takeover attempts, and other attempts to influence corporate policy in ways that may not be in the best interest of all shareholders. While there is no one-size-fits-all approach to defensive measures, an evaluation of the existing defensive profile of the company is a critical first step. In our experience advising on behalf of companies and their boards of directors, an analysis of the corporation’s defenses under its organizational documents and applicable law is usually undertaken and summarized for the board in connection with a defensive profile review.
Defensive Measures Related to Stockholder Meetings
Are stockholders able to take action by written consent?
Section 228(a) of the Delaware General Corporation Law (DGCL) generally provides that, unless restricted by the certificate of incorporation, the requisite stockholders needed to approve an action may do so by written consent instead of a meeting—including actions to elect new directors or to approve a takeover proposal. Limiting stockholder action by written consent is particularly important for companies with large blocks of its common stock concentrated among one or several large stockholders, including holdings by large institutional holders, which could otherwise take swift action by written consent and without holding a stockholder meeting.Continue Reading A Practical Guide to Evaluating a Company’s Defensive Profile
The novel coronavirus (COVID-19) has already proven to have profound social, political and economic effects on the world, impacting nearly every continent, community and business sector. With the growing uncertainty about the extent to which such effects will be felt in the future, many companies have begun to evaluate their pending acquisition agreements and financing arrangements to consider the scope of terms such as “Material Adverse Change” and “Material Adverse Effect” (MAC), and the provisions using such terms, as they relate to COVID-19.
While merger and acquisition (M&A) agreements and debt financing arrangements typically include MAC provisions, these provisions vary widely and should be read carefully. This article briefly describes some of the things companies should consider in evaluating COVID-19 in the context of MAC provisions in both M&A arrangements and debt financing transactions.
MAC Provisions in M&A Transactions
One area of law where participants may be taking a fresh look at contractual provisions with the effects of COVID-19 in mind is in M&A contracts. In the vast majority of M&A agreements, whether for public or private targets, the buyer will have a “walk right” between signing and closing if the target business suffers a MAC. Regardless of the terminology used and the particulars of the contractual definition, the intent of these provisions is generally understood to allow a buyer that has signed an M&A contract not to have to close if some negative event or circumstance has affected the target business and it is so severe that the buyer’s benefit of the bargain is essentially lost, and the buyer, therefore, has the right to terminate the agreement without closing the acquisition.Continue Reading COVID-19 and Material Adverse Change: M&A and Financing Considerations
The Bass, Berry & Sims Corporate & Securities Practice Group recently hosted its first in a series of complimentary webinars exploring various public company-related securities law issues.
The first webinar, Key Insights into Financial Reporting Considerations: MD&A, Earnings Releases & Regulation FD, was held on July 18 and shared guidance on the preparation of the Management Discussion & Analysis (MD&A), key disclosure issues regarding earnings releases and calls, and important considerations for public companies under Regulation FD.Continue Reading 5 Key Takeaways from Our Public Company Financial Reporting Webinar
Please join the Bass, Berry & Sims Corporate & Securities Practice Group as they launch a series of complimentary webinars exploring various public company-related securities law issues. These quarterly CLE programs will be an extension of our Securities Law Exchange Blog and will feature timely and practical guidance to SEC disclosure counsel on key topics of interest.
The first Securities Law Exchange webinar, hosted by Bass, Berry & Sims attorneys Kevin Douglas and Scott Bell on July 18, 2019 from 12:00 p.m. – 1:00 p.m. CST, will highlight key financial reporting considerations for public companies. The discussion will include practical advice regarding the preparation of the Management Discussion & Analysis (MD&A), key disclosure issues regarding earnings release presentations, and important considerations for public companies under Regulation FD.Continue Reading WEBINAR: Key Insights into Financial Reporting Considerations: MD&A, Earnings Releases & Regulation FD