The Staff of the Securities and Exchange Commission (the Staff) issued a Public Statement regarding the probable transition away from the London Inter-bank Offered Rate (LIBOR) after December 31, 2021, as a result of the expectation that a number of private-sector banks currently reporting information used to establish LIBOR will cease to do so after 2021 when their reporting commitment ends.

As a result, the publication of LIBOR may cease immediately following the end of 2021 or may result in LIBOR’s regulator determining that the quality of the LIBOR metric has diminished such that it is no longer representative of its underlying market.

Continue Reading Managing LIBOR Transition – SEC Considerations

Tatjana Paterno will take part in a CLE webinar titled, “Negotiating Earnouts in M&A Transactions: Effective Approaches to Bridging the Valuation Gap.”

Bass, Berry & Sims attorney Tatjana Paterno will  take part in a CLE webinar titled, “Negotiating Earnouts in M&A Transactions: Effective Approaches to Bridging the Valuation Gap” on July 25, 2019.  The webinar, hosted by Strafford Publications, will guide deal counsel in negotiating and structuring earnout clauses in M&A agreements that benefit buyers and sellers and reduce the likelihood of post-closing disputes. The webinar will also review these and other challenging issues:

  • Effective approaches in negotiating performance benchmarks for deals involving earnout provisions
  • Post-closing concerns that buyers and sellers should anticipate and address during deal negotiations
  • Tax issues that counsel must understand and consider regarding earnouts

This 90-minute webinar will be held on Thursday, July 25, 2019 from 1:00 p.m. to 2:30 p.m. E.D.T. and is eligible for CLE credit. To receive a complimentary pass please reach out to Tatjana Paterno. For more information and registration visit the Strafford website.

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. 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

When a public company is contemplating an acquisition, lawyers should consider early in the acquisition process whether the execution of the acquisition agreement and/or the completion of the acquisition may trigger a filing under Item 1.01 or Item 2.01 of Form 8-K.

Item 1.01

Item 1.01 of Form 8-K requires disclosure when a registrant enters into a “material definitive agreement” outside of the ordinary course of business.  In the context of an acquisition, this in most cases would potentially be triggered by the execution of the definitive acquisition agreement (rather than a letter of intent or term sheet).

Continue Reading Does Your Acquisition Agreement Trigger a Form 8-K?

While monitoring SEC comment letters, we recently came across the batch of SEC comment letters issued to Uber Technologies, Inc. in connection with its IPO registration statement that was declared effective on May 9, 2019.  The company’s response letters (with SEC comments repeated as is customary) are available below:

Presented below are five interesting takeaways from the letters that may have general application:

Continue Reading 5 Interesting Takeaways from Uber Technologies’ IPO SEC Comments

While developments with respect to the Management’s Discussion and Analysis of Financial Condition and Results of Operations (MD&A) section in SEC disclosure documents have garnered less attention in the legal press in recent years than certain other areas in the SEC disclosure arena, preparing and crafting MD&A disclosures remains a major area of focus for SEC disclosure lawyers.

The MD&A is the section of a periodic report or registration statement in which management provides its analysis of the registrant’s financial condition and results of operations, thereby providing critical insight into the views of management regarding the key drivers and trends impacting a public company’s financial performance.

Disclosure lawyers should note these key tips and observations when preparing or reviewing MD&A:

Continue Reading 12 Things You Need to Know About Drafting Management & Discussion Analysis (MD&A)

Last month, the Securities and Exchange Commission (SEC) held its annual SEC Speaks Conference in Washington, D.C. We have summarized several significant insights conveyed by SEC Staff that are instructive for counsel handling investigations by the SEC’s Enforcement Division.

Continue reading to learn more about:

  • Herrera and Waiver of Work Product Protections
  • Further Insight on Cooperation Credit
  • Effective Advocacy before the Enforcement Staff
  • Litigation in a Post-Lorenzo World

Continue Reading on BassBerry.com

Note: We updated this post (originally posted last week) to add a new frequently asked question about expanded hyperlinking. 

The questions and answers below address certain interpretive issues on the SEC’s new hyperlink requirements effective May 2, 2019. For more on the SEC’s amendments, see our previous post that details the rule changes.

FAQ #1

Question:  The new rules will require registrants to include an active hyperlink to information incorporated by reference into a registration statement or report if such information is publicly available on EDGAR “at the time the registration statement or form is filed.”

How does this new requirement apply to information incorporated by reference from one item to another within the same filing? 

Continue Reading Updated: FAQ on Expanded Hyperlinking

There have certainly been many developments in securities claims jurisdiction in the past several years, particularly in the area of “exclusive forum” provisions contained in charters or bylaws. Exclusive forum provisions typically provide that a certain court (e.g., the Delaware Court of Chancery) is the sole and exclusive forum for certain types of litigation involving the company. These provisions are often tested in the courts, especially when they seem to be in conflict with controlling precedent.  For example, in 2018 in Cyan v. Beaver Cty. Empls. Ret. Fund, the United States Supreme Court concluded that federal law did not bar state courts from adjudicating class actions alleging only claims under the 1933 Act, and it also prohibited the removal of such class actions from state to federal court.

Following Cyan, several Delaware companies attempted to avoid litigating 1933 Act class actions in state court by adopting charter-based federal forum provisions, which required stockholders to file any claim under the 1933 Act in federal court. Those efforts to circumvent the consequence of Cyan, however, failed when in a December 2018 case (Sciabacucchi v. Salzberg), the Delaware Court of Chancery rejected use of these federal forum provisions. The court reasoned that Delaware corporations could only adopt forum-selection provisions for “internal-affairs claims.” According to the Delaware Court of Chancery, “a 1933 Act claim is external to the corporation.” Therefore, because 1933 Act claims are external to Delaware corporations, charter provisions requiring a federal forum for 1933 Act class actions brought by corporation shareholders were invalid under Delaware law.

Notwithstanding the above related to the 1933 Act class actions, federal courts continue to have “exclusive jurisdiction” to hear claims brought under the 1934 Act as a result of Section 27(a) of that law.

Continue Reading Exclusive Forum Provisions in Charters and Bylaws: An Area of Frequent SEC Comment

On March 20, 2019, nearly a year and a half after proposing them, the SEC adopted amendments to disclosure requirements for reporting companies, as mandated by the 2015 Fixing America’s Surface Transportation Act (the “FAST Act”).  The amendments are a part of an ongoing effort by the SEC to simplify and modernize disclosure obligations.  According to the SEC’s press release, the amendments are expected “to benefit investors by eliminating outdated and unnecessary disclosure and making it easier for them to access and analyze material information.”

Among many other items, the amendments address the following topics:

  • Greater Flexibility When Filing Under Item 601 of Regulation S-K

    • Omission of Immaterial Schedules and Exhibits—The amendments revise Item 601 of Regulation S-K to expand the ability of registrants to omit immaterial schedules and similar attachments to required exhibits, which previously was only available to schedules and exhibits to acquisitions agreements being filed under Item 601(b)(2).

Continue Reading SEC Amendments Help Streamline Reporting for Public Companies

From the Bass, Berry & Sims Blog Network
From the Bass, Berry & Sims Blog Network

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