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)

The Securities and Exchange Commission (SEC) recently awarded $3 million to joint whistleblowers despite concluding that the whistleblowers did not satisfy the technical eligibility requirements for receiving an award. See SEC Exchange Act Release No. 86010. The SEC Whistleblower Program has ramped up significantly the past few years, with record numbers of complaints being filed and awards being granted. In 2018, the SEC made two of its largest whistleblower awards: an $83 million award to three individuals; and an award of almost $54 million to two individuals. And the number of SEC whistleblower complaints filed has increased every year, culminating in over 5,200 complaints in fiscal year 2018 (ending September 30). To date, the SEC has awarded more than $284 million to 64 whistleblowers. While the amount of the recent $3 million whistleblower award may not be major news, the SEC’s determination to grant the award to ineligible whistleblowers warrants review.

Continue reading to learn more about about the SEC Whistleblower Program and the SEC’s rationale for waiving the eligibility requirements in the June 3 case.

Continue reading on BassBerry.com

I am excited to be co-presenting a webcast titled, “Navigating Corp Fin’s Comment Process,” with Era Anagnosti, Partner, White & Case LLP and Karen Garnett, Partner, Proskauer Rose LLP. This panel of former Senior SEC Staffers will explain the process by which the SEC Staff issues comments – step-by-step – as well as provide their practical guidance about how to respond. This program will cover both the basics, as well as advanced issues for practitioners to consider. Additional topics include:

  • Latest trends of comments made by the SEC Staff in SEC filings
  • Factors that make it more likely that a filing will be selected for review by the SEC Staff
  • Steps a company should take when it receives comments from the Staff
  • The appropriate way to ask for an in-person conference with the SEC Staff

The webcast will be held on Wednesday, June 19, 2019, from 2:00 – 2:45 p.m. EST. For more information and registration, please go to TheCorporateCounsel.net.

If you missed our teleconference earlier this week related to the recent SEC rule changes (see here and here for prior blog posts about the rule changes effective today), we are pleased to provide an audio recording available for download.

Have more questions about the amendments that are effective today, May 2, 2019? Email Jay Knight or a member of our Corporate & Securities Practice.

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