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Posts from Bryan Pitko

New SEC Rule Permits All Issuers to “Test-the-Waters”

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The SEC issued new rules in a release captioned “Solicitations of Interest Prior to a Registered Public Offering.”   New Rule 163B enables all issuers to engage in test-the-waters communications with qualified institutional buyers, referred to as QIBs, and institutional accredited investors, referred to as IAIs, regarding a contemplated registered securities... Read More

Topics: Public Companies and Securities

Preliminary Planning for the 2020 Proxy Season

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Our preliminary list of important planning considerations for the 2020 proxy season is set forth below. Directors’ and Officers’ Questionnaires; Committee Charters We have identified only a few possible changes to date for D&O questionnaires and committee charters for the 2020 proxy season. New rules adopted to implement the FAST... Read More

Topics: Public Companies and Securities

SEC Proposes to Modernize Disclosures of Business, Legal Proceedings, and Risk Factors

The SEC has issued proposed rule amendments to modernize the description of business, legal proceedings, and risk factor disclosures that registrants are required to make pursuant to Regulation S-K.  The SEC stated the proposed amendments are intended to update the rules to improve disclosures for investors and to simplify compliance... Read More

Topics: Public Companies and Securities

Delaware Reaffirms Entire Fairness Standard for Review of Director Compensation

Quoting both a nearly 70-year-old decision and a nearly 30-year-old SNL skit, the Delaware Court of Chancery, in Stein v. Blankfein et al, reaffirmed that in most circumstances decisions of directors awarding director compensation are subject to review under the entire fairness standard. The Court also addressed the possibility of... Read More

Topics: Public Companies and Securities

SEC Proposes to Modify Filer Definitions and Obligations under SOX 404(b)

Current SEC reporting requirements establish three different filer statuses that categorizes issuers subject to Exchange Act reporting requirements as non-accelerated, accelerated, and large accelerated filers. Section 404(a) of the Sarbanes-Oxley Act, or SOX, requires almost all SEC reporting issuers, regardless of filer status, to establish and maintain internal control over... Read More

Topics: Public Companies and Securities

SEC Proposes to Amend Financial Disclosures Regarding M&A Transactions

The SEC has proposed rule amendments that revise required financial disclosure upon the acquisition and disposition of businesses in M&A transactions. The proposed changes would, among other things: update the significance tests under these rules by revising the investment test and the income test, and conforming the significance threshold and... Read More

Topics: M&A, Public Companies and Securities

NYSE Revises Shareholder Approval Rules for Certain Issuances of Securities

The SEC has approved amendments to Sections 312.03 and 312.04 of the NYSE Listed Company Manual that modify the price requirements for certain exceptions to shareholder vote requirements related to issuances of securities set forth in Section 312.03. The amendments replace the former “book and market value” minimum pricing threshold... Read More

Topics: Public Companies and Securities

Quick Reference for FAST Act Changes to Form 10-K, 10-Q, 8-K and Proxy Statements

The Fixing America’s Surface Transportation Act, or FAST Act, required the SEC to consider ways to streamline SEC regulations. Accordingly, the SEC adopted final amendments to its rules that are intended to modernize and simplify certain disclosure requirements in Regulation S-K, and related rules and forms, in a manner that... Read More

Topics: Public Companies and Securities

SCOTUS Finds Investment Banker Liable for Cutting and Pasting Fraudulent Statement

The U.S. Supreme Court considered the extent of liability under Rule 10b-5 and other rules of the Securities and Exchange Commission and related statutes in Lorenzo v. Securities and Exchange Commission.  The facts of the case were undisputed.  Francis Lorenzo, while the director of investment banking at an SEC-registered brokerage... Read More

Topics: Litigation, Public Companies and Securities