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Securities Regulation

Division of Corporation Finance Offers New Guidance on Application of the SEC’s Universal Proxy Rules Ahead of the 2024 Proxy Season

November 22, 2023 | Posted by James J. Moloney; Ronald O. Mueller; Michael A. Titera; Julia Lapitskaya Topic(s): Corporate Governance; Proxy Access; Proxy Statements and Annual Meetings; Securities Regulation; Shareholder Proposals

As discussed in our previous client alert, the universal proxy rules that went effective on August 31, 2022 require proxy cards distributed by both public companies and nominating shareholders in contested director elections to include both sides’ director nominees, such that shareholders casting their vote can “mix-and-match" nominees from each of the company’s and the dissident’s slate of director nominees.

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SEC Exempts Rule 144A Debt Issuances From Rule 15c2-11 Information Requirements

November 2, 2023 | Posted by Hillary H. Holmes; Thomas J. Kim; Andrew L. Fabens Topic(s): Capital Markets; Financial Statements; Private Placements; Securities Regulation

On October 30, 2023, the Securities and Exchange Commission (the “Commission") issued an Order exempting brokers and dealers from the requirements of Rule 15c2-11(g) (the “Rule") under the Securities Exchange Act of 1934, as amended, with respect to fixed-income securities that are sold in compliance with the safe harbor in Rule 144A (the “Rule 144A") under the Securities Act of 1933, as amended, for resales to Qualified Institutional Buyers (“QIBs").  As a result, issuers of Rule 144A fixed-income securities will not have to publish public information in order for brokers to quote their securities and facilitate trading.

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SEC Rolls Out Enforcement Sweep Against Delinquent Filers Ahead of Recent 13D/G Amendments

October 31, 2023 | Posted by James J. Moloney; Brian J. Lane; Michael A. Titera Topic(s): Corporate Governance; Disclosure; Registered Securities Offerings; Securities Regulation

Late last month, shortly before adopting amendments to Regulation 13D/G, the Securities and Exchange Commission (“SEC") announced civil charges against several officers, directors, and major shareholders of public companies for failing to satisfy their timely reporting obligations. The SEC also charged the affiliated public companies for contributing to the reporting failures by insiders.

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SEC Desktop Calendar 2024 – Now Available

October 10, 2023 | Posted by Hillary H. Holmes; Lori Zyskowski Topic(s): Audit Committee; Capital Markets; Disclosure; IPOs; Registration Statements; Securities Regulation; Underwriters and Agents

​To continue assisting US companies with planning for SEC reporting and capital markets transactions into 2024, we offer our annual SEC Desktop Calendar. This calendar provides both the filing deadlines for key SEC reports and the dates on which financial statements in prospectuses and proxy statements must be updated before use (a/k/a financial staleness deadlines).

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Preparing for a Potential Government Shutdown: Initial Impacts on SEC Operations

September 29, 2023 | Posted by Hillary H. Holmes; James J. Moloney; Ronald O. Mueller Topic(s): Capital Markets; Disclosure; IPOs; Proxy Statements and Annual Meetings; Registered Securities Offerings; Securities Regulation; Shareholder Proposals; Underwriters and Agents

A looming partial shutdown of the federal government is on track to occur at 12:01 a.m. ET on Sunday, October 1, 2023, if Congress is unable to reach agreement on legislation funding the government. The SEC Division of Corporation Finance (the “Division”) announced that in the event of a government shutdown, the SEC’s “activities will be extremely limited” and specifically, that it would not be able to accelerate the effectiveness of registration statements. The Division advised that, to the extent possible, registrants with pending registration or offering statements that have satisfied the requirements to request acceleration of the effective date should consider requesting effectiveness or qualification while the Division continues its normal operations.

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EDGAR Next: SEC Proposes Changes to EDGAR Filer Access and Account Management Procedures

September 28, 2023 | Posted by Michael A. Titera; James J. Moloney Topic(s): Miscellaneous; Securities Regulation

​Following a request for comment on the topic in 2021, on September 13, 2023, the Securities and Exchange Commission (“SEC") proposed amendments to Rules 10 and 11 of Regulation S-T and Form ID regarding potential technical changes to Electronic Data Gathering, Analysis, and Retrieval System (“EDGAR") filer access and account management (referred to by the SEC as “EDGAR Next"). 

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Another Batch of SEC Staff Guidance on Rule 10b5-1 Amendments

August 29, 2023 | Posted by Michael A. Titera; Thomas J. Kim; Julia Lapitskaya; Lori Zyskowski; Ronald O. Mueller Topic(s): Disclosure; Executive Compensation; Securities Regulation

​On August 25, 2023, the staff of the Division of Corporation Finance (the “Staff") of the Securities and Exchange Commission (the “SEC") issued five new Compliance and Disclosure Interpretations (“C&DIs") regarding the SEC’s recent Exchange Act Rule 10b5-1 amendments. The new C&DIs address how to calculate the required cooling-off period; how 401(k) plans interact with the Rule 10b5-1 affirmative defense in certain circumstances; when the Rule 10b5-1 check box on Form 4 applies; and when disclosure of plan adoption and termination is required.

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Summary of Public Company Cybersecurity Disclosure Rules

July 29, 2023 | Posted by Ronald O. Mueller; Elizabeth A. Ising; Julia Lapitskaya; Lori Zyskowski Topic(s): Audit Committee; Corporate Governance; Disclosure; Securities Regulation

On July 26, 2023, the Securities and Exchange Commission (“SEC” or “Commission”), in a 3-to-2 vote, adopted a final rule requiring the disclosure of material cybersecurity incidents and cybersecurity risk management, strategy, and governance by public companies, including foreign private issuers. A two-page summary of the final rule is attached for your reference. 

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Form 10-Q Updates and Reminders

July 17, 2023 | Posted by Michael A. Titera; Ronald O. Mueller; Thomas J. Kim; Lori Zyskowski; Elizabeth A. Ising; James J. Moloney; Julia Lapitskaya; Aaron K. Briggs Topic(s): Corporate Governance; Disclosure; Securities Regulation

As many companies prepare their quarterly reports on Form 10-Q for the quarter ended June 30, 2023, we offer the following observations and reminders regarding new disclosure requirements taking effect for this reporting period, as well as risk factor considerations that may be relevant to upcoming Form 10-Q reporting.  For convenience, this publication also includes a summary of certain upcoming compliance dates for public companies.

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Updated Summary of Director Education Opportunities Now Available

July 10, 2023 | Posted by Hillary H. Holmes; Lori Zyskowski; Ronald O. Mueller; Elizabeth A. Ising Topic(s): Audit Committee; Corporate Governance; ESG; IPOs; Securities Regulation; Shareholder Proposals

​Gibson Dunn’s summary of director education opportunities has been updated as of July 2023. A copy is available at this link. Boards of Directors of public and private companies find this a useful resource as they look for high quality education opportunities.  

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