With the September 1, 2017, deadline fast approaching for complying with the SEC’s new rules on exhibit hyperlinks, we have updated our March blog post with the frequently asked question below.

How does one link to an exhibit in a 30-year old registration statement that was filed as one gigantic ASCII file? The only available “link” would be to the whole file.

Based on recent informal Staff discussions relating to this question, we were instructed that the filer should hyperlink to the ASCII filing containing the exhibit and clearly identify the hyperlinked exhibit that is being incorporated by reference from the ASCII filing. By way of example, the hyperlink description could look something like this:

3.1 Articles of Incorporation (incorporated by reference to Exhibit 3.1 to the Form S-1 Registration Statement filed with the SEC on XX XX, XXX) (File No. XXX-XXXXXX)

Alternatively, the registrant could voluntarily choose to re-file the old exhibit with the present filing.

If you have other questions about the SEC rules on exhibit hyperlinks, please contact me or another member of our Corporate & Securities Practice Group.

The firm recently released an updated Blueprint for an IPO, a guide to help companies understand the process of going public and the new challenges they will face once their securities are publicly traded. An IPO is at the same time exciting and very demanding on a company’s management team. IPO candidates face for the first time the expansive regulatory scheme administered by the Securities and Exchange Commission (SEC) and must deal with corporate governance processes that are much different than what they had as private companies.

The newly released guide is organized in an easy to use Q&A format detailing many of the ongoing obligations a company will face after it becomes a public company.

Below is a list of the types of questions that are answered in the newest edition of the Blueprint for an IPO.

Continue Reading Bass, Berry & Sims Releases Updated Blueprint for an IPO

Last month, the Staff of the SEC’s Division of Corporation Finance announced that, as part of the Division’s ongoing efforts to facilitate capital formation, all issuers are now permitted to submit draft registration statements relating to IPOs and Exchange Act Section 12(b) registration (e.g., spin-offs) to the Staff for nonpublic (i.e., confidential) review.

Previously, nonpublic review was available only to emerging growth companies (EGCs), as authorized by the JOBS Act, and in certain circumstances to foreign private issuers. Nonpublic submission of registration statements makes it possible for companies to avoid alerting the market of offering plans before the company is certain that it will move forward with any offering.

Continue Reading SEC Extends Confidential Review of Certain Registration Statements to Non-EGCs

The most recent edition of The Business Lawyer, published by the ABA’s Business Law Section, includes its Annual Review of Federal Securities Regulation prepared by its Subcommittee on Annual Review from the Committee on Federal Regulation of Securities. The Review outlines significant developments in federal securities law and regulation during 2016. The Review is divided into three sections:

  • Regulatory actions
  • Accounting statements
  • Case law developments

I currently chair the Subcommittee and wish to give special thanks to all of its distinguished authors that contributed content, including a special thanks to William Lay and Talley Wood from Bass, Berry & Sims for helping draft and edit portions of the Review.

The Review is available here.

For most companies, the end of June means the end of the second fiscal quarter, which means right now you are hard at work finalizing the company’s interim financial statements and preparing its Form 10-Q for an August filing deadline. The end of the second quarter also means that it is time to check the company’s filing status for Exchange Act reports for fiscal 2018.

Know Your Filing Status

While the determination of whether a company will qualify as an “accelerated filer” or “large accelerated filer” for 2018 will not take effect until the date your Form 10-K is filed for fiscal 2017 (or, if earlier, your 10-K due date), the determination of your public float is calculated as of the last business day of the most recently completed second fiscal quarter, or June 30 for companies with a calendar fiscal year. Below are reminders for the different types of filers.

Continue Reading The Results Are In – Now it’s Time to Check Your Filing Status

The new SEC Chairman, Jay Clayton, testified on June 27 to the Senate Appropriations Subcommittee about the SEC’s budget request. His comments clearly show that rulemaking is in the pipeline at the Staff level to facilitate capital formation in the public markets. In this regard, Chairman Clayton states, “U.S. capital markets remain the envy of the world, but fewer companies are choosing to enter the public capital markets than in the past, and, as a result, investment opportunities for Main Street investors are more limited.” The following is an excerpt of Chairman Clayton’s comments.

Continue Reading Testimony on the Fiscal Year 2018 Budget Request

In monitoring SEC comment letters, we came across this SEC comment letter made public last week. It serves a reminder to registrants about their loss contingency disclosures, particularly those involving a “reasonably possible” loss per ASC 450.  In the letter the SEC staff comments, “In regards to this [disclosed litigation] matter as well as any additional matters for which you believe it is at least reasonably possible that a material loss has been incurred but are unable to estimate the amount of loss, please supplementally tell us (a) the procedures you undertake on a quarterly basis to attempt to develop a range of reasonably possible loss for disclosure and (b) the specific factors that are causing your inability to estimate and when you expect those factors to be alleviated for each matter.” 

Continue Reading SEC Comment About “Reasonably Possible” Litigation Loss

Recently, I provided guidance and insight on how the SEC is using technology to make structured financial data more widely available and efficient to users. In two articles featured in the Technology and SEC Disclosure newsletter, I discussed EDGAR upgrades and the use of hyperlinks in company filings. As mentioned in the newsletter, “I do think the use of additional hyperlinking should be explored further. There is a great deal of information that could be hyperlinked in a particular filing, whether or not it’s a Securities Act registration statement that’s incorporating Exchange Act filings such as the 10-K and Qs. And I do think there are more hyperlink opportunities for issuers that would not be a significant burden and could provide a lot of benefit to investors.”

If you’re interested, the articles – “Reinventing Edgar” and “The Hyperlinks Rule” – were featured in the June 2017 Technology and SEC Disclosure newsletter, published in conjunction with Mergermarket and Toppan Vintage.

I wrote an article published by Securities Regulation Daily discussing the upcoming “say-when-on-pay” votes that many companies will hold during their annual meetings this year. Because Dodd-Frank mandates that the vote be held every six years, a great portion of companies last held the say-when-on-pay vote immediately following the enactment of Dodd-Frank in 2011 and must vote again in 2017. The say-when-on-pay vote is a non-binding advisory referendum on the frequency of a non-binding advisory vote regarding executive compensation.

While the vote was relatively anticlimactic in 2011 due to the wide regard many institutional shareholders held for annual say-on-pay votes, it is worth noting the importance of the Form 8-K disclosure requirements in relation to the vote.

To review details on these technical requirements as outlined in the full article – download PDF. The full article, “Annual Meeting 8-K: Don’t Forget Say-When-on-Pay Determination,” was published by Securities Regulation Daily on June 15, 2017.

In monitoring SEC comment letters, we came across this SEC comment letter made public today, which we thought of particular interest to our readership given its direct application to almost all public companies. In the letter, the SEC Staff expressly concludes that simply including a URL address in an earnings press release that directs readers to a website where the non-GAAP reconciliation is located does not comply with the requirements in Item 10(e)(1)(i) of Regulation S-K (i.e., “must include….in the filing…a reconciliation”) and the general rules regarding disclosure of non-GAAP financial measures outlined in Regulation G (i.e., “must accompany that non-GAAP financial measure with…a reconciliation”). Although this is the Staff’s current position, we believe this may be an interesting area to watch in light of the SEC’s recent rulemaking in the hyperlinking space (see this post) as well as continued innovation in electronic communication and IR practices.

Continue Reading SEC Staff Says No to Hyperlinking Non-GAAP Reconciliations in the Earnings Press Release