Helping Clients Access the Capital Markets and Stay Apprised of Regulatory Developments

Update: SEC Extends 45-Day Filing Relief Through July 1, 2020

On March 25, 2020, the SEC modified its March 4th order described here, which allowed extended filing deadlines for disclosure reports due between March 1 and April 30, 2020.  The modified order covers all filings due on or before July 1, 2020.

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SEC Provides COVID-19 Disclosure Guidance

The SEC’s Division of Corporation Finance issued new COVID-19 disclosure guidance on March 25, 2020. This follows earlier guidance and relief offered by the Staff. (See the links here, here and here, for example.) The SEC is encouraging thoughtful, tailored and widely disseminated disclosure by affected companies, even in the absence of a specific line item requirement.

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Delaware Supreme Court Upholds Federal Forum Selection Provisions

The Delaware Supreme Court, on March 18, 2020, in Salzberg v. Sciabacucchi, reversed the decision of the Court of Chancery and upheld the validity of a forum selection provision in the certificate of incorporation of a Delaware corporation requiring claims under the Securities Act of 1933 to be brought in federal courts.

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SEC Coronavirus Guidance on Shareholder Annual Meeting Engagement

On March 13, 2020, the SEC issued guidance regarding the effect of the coronavirus (COVID-19) ‎on upcoming annual shareholder meetings. The SEC advised that a company that has already ‎mailed and filed its proxy materials can change the date, time, or location (including changing to a ‎‎“virtual (or “remote-only”) meeting”) of its annual meeting without mailing additional proxy ‎materials so long as that company promptly‎

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SEC Proposes Sweeping Changes for Exempt Offerings

The Securities and Exchange Commission on March 5, 2020 proposed sweeping changes ‎to the rules governing capital raising through private offerings and other offerings exempt from ‎registration under the Securities Act. If adopted, these amendments, along with the previously ‎proposed expanded definition of “accredited investor,” will be the most significant changes in ‎the regulation of exempt offerings in many years, expanding opportunities for capital raising ‎without registration. ‎

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SEC Guidance on Coronavirus Disclosures

The SEC, together with the PCAOB, recently updated guidance to reporting companies on issues ‎arising from the coronavirus (COVID-19) outbreak. On February 19, 2020, SEC Chairman Clayton, ‎PCAOB Chairman William Duhnke, and senior members of the SEC staff advised that, while ‎specific analysis of the impact of the coronavirus may not be feasible, information about a ‎company’s plan and response to its outbreak could be material and may need to be disclosed.‎

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Locke Lord QuickStudy: Delaware Expands Stockholder Rights to Demand Information and Facilitates Caremark Claims

Delaware law usually protects directors in making good faith business decisions. However, the recent Delaware Court of Chancery AmerisourceBergen1 decision signals a two-part trend of (i) increased stockholder access to corporate information through Section 220 books and records demands and (ii) the willingness of Delaware courts to entertain Caremark claims for failures of oversight by a corporate board.

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SEC Provides Guidance on Performance Metrics in MD&A; Proposes Financial Disclosure Changes

The Securities and Exchange Commission, on January 30, 2020, issued guidance to reporting companies about the use of key performance indicators and other metrics, including those that are non-GAAP financial measures, in Management’s Discussion and Analysis.

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