Securities Regulation and Corporate Governance

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Changes Coming to Governance Provisions of New York Nonprofit Law
Amendments to New York’s Not-For-Profit Corporation Law are set to take effect on May 27.  The amendments impact several provisions of The New York Nonprofit Revitalization Act (“NRA”), which imposed substantial governance requirements on nonprofits when it took effect in 2014.  The amendments build greater flexibility into aspects of the NRA that were viewed as overly broad or prescriptive.  Key elements of the amendments are summarized below.  A redline showing the changes to the statutory language is available here.

Nonprofits incorporated in New York, and other nonprofits that may be subject to the Not-For-Profit Corporation Law due to their activities, should take note of the amendments and consider whether changes to their governance practices and documents are appropriate.

1.      Related party transactions.  The NRA provides for enhanced board oversight of related party transactions.  The amendments explicitly permit an authorized committee of the board to review and approve related party transactions, as an alternative to full board approval.  They also codify exceptions to the definition of “related party transaction” that are based on guidance previously issued by the Charities Bureau of the New York Attorney General’s office (available here).  These exceptions mean that immaterial or ordinary course transactions are no longer subject to the board/committee approval procedures under the NRA.  Specifically, the exceptions cover: (a) transactions that are themselves “de minimis” or where the related party’s financial interest is de minimis, with the judgment of what is de minimis to be left to individual nonprofits based on factors such as size and budget; (b) transactions that “would not customarily be reviewed” by the board at “similar organizations in the ordinary course of business” and that are available to others on the same or similar terms; and (c) transactions where a related party receives a benefit as a result of being a member of a class that benefits from the nonprofit’s work, where the benefit is available to all similarly situated members of the class on the same terms.  The amendments also create a defense to actions brought by the New York Attorney General challenging related party transactions.  The defense allows nonprofits to take steps to ratify transactions that were not approved in accordance with the procedures ...Read More
Top Five Reminders for Reporting Annual Meeting Results
With annual meeting season in high swing, over the coming weeks, many public companies will be preparing Form 8-Ks to report their voting results. Specifically, Item 5.07 of the Form 8-K requires a public company to report the voting results for all matters submitted to a vote of security holders. Here are our top five reminders when preparing this year’s voting results 8-Ks:

Number 1 -- If your public company is holding a “say on frequency” vote on executive compensation, remember to disclose the company’s decision as to how often the company plans to conduct future “say on pay” votes. This decision may be included in the same Form 8-K reporting the voting results -- or it can be included in an amendment to the Form 8-K reporting the voting results (but not in a new Form 8-K; see
Question 121A.04 of the SEC’s C&DIs) that is filed no later than 150 calendar days after the end of the annual meeting (but no later than 60 calendar days prior to the deadline for submission of shareholder proposals for the 2018 annual meeting under Rule 14a-8). As noted in Question 121A.04, the company’s decision alternatively may be disclosed in a Form 10-Q (under Part II, Item 5 (“Other Information”)) filed in time to meet the deadline for the disclosure. Failure to provide this disclosure on a timely basis can result in the loss of Form S-3 eligibility, so it is important to report the company’s decision within the filing deadline. The SEC rules are designed to allow boards sufficient time following the annual meeting to evaluate and determine the company’s frequency (including, if needed, to engage with stockholders). However, in practice, some companies may determine that it is not necessary for their board of directors to undertake an extended discussion or take formal action to approve the future frequency decision if the shareholder vote heavily supported the frequency recommended by the board. As a result, many companies may include their frequency disclosure in the Form 8-K reporting the voting results, rather than in a later filing.

Number 2 -- Remember to update your cover page of the Form 8-K to include the information regarding emerging growth company status. The SEC recently adopted technical changes to its forms to provide a way for emerging growth companies to reflect information about their status on the cover page of their SEC filings, as discussed in our prior
blog. Even if your company is not an emerging growth company, the c...Read More
SEC Revises Cover Page of Exchange Act and Other Forms and Revises Other Rules Under JOBS Act

Today, new rules became effective that change the cover page of many forms filed with the Securities and Exchange Commission (the “SEC”).  The SEC has adopted technical amendments to conform certain rules and forms to self-executing provisions of the Jumpstart Our Business Startups Act (the “JOBS Act”).  The SEC’s adopting release is available here.  Although the rule changes were driven by the need to accommodate Emerging Growth Companies (“EGCs”) in the SEC’s reporting regime, the amendments affect the Securities Act registration forms and Exchange Act reporting forms used by all companies, even those that are not EGCs.  The technical amendments apply to Forms S-1, S-3, S-4, S-8, S-11, F-1, F-3, F-4, 10, 8-K, 10-Q, 10-K, 20-F, 40-F and C.

The SEC’s technical amendments are intended to provide a uniform method for an EGC to notify the SEC and the public that it is an EGC and whether it has opted out of the extended transition period for complying with new accounting standards.  The amendments modify the cover pages of each of the forms to include two additional checkboxes.  The first checkbox allows the company to indicate whether it is an EGC.  The second checkbox allows the company to make an irrevocable election not to use the extended transition period for complying with new or revised accounting standards.

The amendments are made necessary by the JOBS Act, which, in relevant part, exempts EGCs from a number of disclosure and regulatory requirements.  An EGC is permitted to provide two years, rather than three years, of audited financial statements in its registration statement for an initial public offering of common equity securities (“IPO Registration Statement”).  In subsequent registration statements or periodic reports, an EGC need not present selected financial data under Item 301 or management discussion and analysis under Item 303 of Regulation S-K for any period prior to the earliest audited period presented in the IPO Registration Statement.  An EGC is exempt from the required advisory shareholder votes on compensation of named executive officers (“say-on-pay”), the frequency of say-on-pay votes, and golden parachutes, and is not required to provide an auditor attestation on management’s assessment of its internal control over financial reporting.  An EGC may comply with the requirements of Item 402 of Regulation S-K by providing only the information required of a smaller reporting company.  Furthermore, an EGC may defer compliance with any new or revised accounting standards until such standards are applicable to companies that are not subject to SEC reporting. 

The Division o...Read More

SEC’s Division of Corporation Finance Suspends Enforcement of Certain Conflicts Minerals Requirements

It has been an eventful week for those following the conflict minerals rules in the news.  The United States District Court for the District of Columbia issued final judgment in the long-running conflicts minerals litigation (detailed here) and, following a statement by Acting Chairman Piwowar, the Division of Corporation Finance has issued a blanket statement that it will not recommend enforcement of some of the most burdensome requirements of the rules (available here).

Final Court Decision

On April 3, 2017, the D.C. District Court entered final judgment in National Association of Manufacturer’s et al. v. SEC et al.  Consistent with prior rulings, the District Court held that Section 1502 of the Dodd-Frank Act, which mandated the adoption of the conflict mineral rules, and Exchange Act Rule 13p-1 and Form SD adopted thereunder, violate the First Amendment to the extent that they compel companies to disclose on their websites that any of their products “have not been found to be ‘DRC-conflict free.’”  The decision, however, left the other requirements of the conflicts minerals rules in place.  The District Court remanded to the Commission to take action in accordance with its decision.

Statements by the Acting Chairman and Corporation Finance No-Action Position

On April 7, 2017, in response to the District Court’s final judgment, the Commission’s Acting Chairman, Michael Piwowar, issued a public statement on the issue (available here).  Piwowar noted that the Court of Appeals left it to the Commission to determine how to address the Court’s decision – specifically, whether Congress’s intent in the portion of Section 13(p)(1) that the Court deemed unconstitutional can be achieved through a means that does not infringe on companies’ First Amendment rights, and how the Court’s determination affects the conflicts minerals rules overall.

Piwowar noted that he has instructed the Commission’s Staff to begin working on a recommendation for future Commission action.  In the meantime, Piwowar explained that the requirements listed in Item 1.01(c) of Form SD (including requir...Read More

SEC Adopts Amendment Shortening Trade Settlement Cycle From T+3 to T+2 (potential implications)

The SEC has adopted an amendment to Rule 15c6-1(a) of the Exchange Act (the Settlement Cycle Rule) shortening the standard settlement cycle for most broker-dealer transactions from three business days after the trade date (“T+3”) to two business days after the trade date (“T+2”).  The compliance date for the amendment is September 5, 2017.  The new requirement will prohibit broker-dealers from effecting or entering into a contract for the purchase or sale of a security (other than exempted securities, government securities, municipal securities, commercial paper, bankers’ acceptances, and commercial bills) that provides for payment of funds and delivery of securities later than the second business day after the date of the contract, unless otherwise expressly agreed to by the parties at the time of the transaction.

Since 1993, T+3 has been the standard settlement cycle for broker-dealer transactions.  Advancements in technology, the desire to reduce market and credit risk from unsettled trades and the transition of certain international markets to a two day settlement cycle led the SEC to make the move from T+3 to T+2.  The parties to a trade will retain the ability to utilize a longer settlement cycle by expressly agreeing to do so at the time of the trade.  

While the new T+2 settlement cycle is likely achievable for routine capital markets transactions like the issuance of common stock or investment grade debt by repeat issuers, more complex offerings may be difficult to close on this timetable.  As has been the case under the T+3 cycle, issuers will be able to opt into a longer, alternative settlement cycle by clearly disclosing that they intend to settle on a longer cycle.  In such instances, initial purchasers who wish to trade such securities prior to two business days before the closing of the initial trade will be required to specify an alternative settlement cycle at the time of any such secondary trade to prevent a failed settlement.

One area where this change may have an unexpected impact is the settlement time for payment in tender offers.  Rule 14e-1(c) of the Exchange Act requires a bidder to promptly pay the consideration offered upon termination (i.e., expiration)  of the tender offer.  While “promptly” is undefined in the rule, the SEC has stated that “this standard may be determined by the practices of the financial community, including current settlement practices.”  In most cases, the payment of funds and delivery of securities occurs by the third business day after the transaction date.  In light of the new T+2 settlement cycle, it is quite possible the SEC Staff will begin to take the position that the “prompt payment” obligation requires a bidder to pay the co...Read More

Non-Voting Shares Make Their Public Debut and Generate Some Governance Concerns, but How Will Courts View the Structure When First Presented?

On March 1, 2017, Snap Inc. (“Snap” or the “Company”) – owner of the popular social media platform Snapchat – priced its highly anticipated initial public offering (“IPO”). With 200 million shares sold at $17 per share, the IPO raised approximately $3.4 billion for the Company. On their first trading day, Snap shares opened at $22.41 per share and peaked as high as $28.84 the following day. As of March 10, shares closed at $22.07, above its initial offering price, but below its opening trading price. As the largest IPO of any U.S.-based company since Facebook’s public offering in 2012, many investors’ primary focus here has been on the complete lack of voting privileges associated with the shares sold in the IPO. 

As described in Snap’s IPO prospectus, the Company has three classes of shares: Class A common stock, the publicly traded shares; Class B common stock, reserved for early investors and executives; and Class C common stock, owned solely by the company’s co-founders Evan Spiegel and Bobby Murphy. Class A shares are not entitled to vote, while Class B and Class C shares are each entitled to one and ten votes, respectively, and vote together as a single class. Given this structure, even before shares were sold in the IPO, 88.5 percent of the voting power of the Company remained concentrated in its two founders. Furthermore, Class B shares lose voting privileges when sold or transferred, and Spiegel’s and Murphy’s control of the Company through their Class C shares will not diminish even if either or both leave Snap.

Attempting to preserve control through non-traditional voting structures is not a new concept for companies, especially technology companies. Many technology companies have dual class structures, in which founders and other early-round investors hold higher vote shares (typically ten votes per share) and others hold low vote shares (typically one vote per share).  In the last several years, a number of companies including Alphabet, Google’s parent company, Facebook, Zillow and Under Armour have introduced non-voting shares into their capital structures in order to delay the loss of voting control of their founder(s). Snap, however, is the first to issue only non-voting shares to the public in an IPO.

There has been a fair amount of criticism of Snap’s move to publicly offer shares that do not include voting rights. Kurt Schacht, the Chair o...Read More

SEC Adopts Requirements for Active Hyperlinks In Exhibit Indexes

The SEC has adopted final rules requiring an active hyperlink to each filed exhibit identified in the exhibit index of most Securities Act and Exchange Act registration statements and reports that are required to include exhibits under Item 601 of Regulation S-K.  The rules become effective on September 1, 2017 (though the adopting release encourages early compliance), provided that smaller reporting companies and non-accelerated filers that submit filings in ASCII format need not comply with the rules until September 1, 2018.  The new requirements will apply to Forms S-1, S-3, S-4, S-8, S-11, F-1, F-3, F-4, SF-1, SF-3, 10, 10-K, 10-Q, 8-K, F-10, 20-F and 10-D (though the compliance date for Form 10-D will be announced at a later date).  The requirement will not apply to other forms under the multi-jurisdictional disclosure system used by certain Canadian issuers or to Form 6-K, as exhibits and exhibit indexes are not required by those forms. 

Hyperlinks are required for each exhibit other than exhibits filed with Form ABS-EE, XBRL exhibits, and exhibits filed in paper pursuant to a temporary or continuing hardship exemption.  Registration statements will require hyperlinks in the exhibit index of the initial filing and each subsequent pre-effective amendment. 

Historically, the EDGAR system has supported filings in either HTML format or ASCII format, but registrants will now have to file registration statements and reports subject to the hyperlinking requirements in HTML format, because the ASCII format does not support hyperlinking.  The adopting release noted that in 2015, less than one percent of the forms affected by the rule were submitted in the ASCII format.  The SEC provided the one-year phase-in period for smaller reporting companies and non-accelerated filers that file in ASCII format to mitigate some of the cost burdens for those companies related to switching to the HTML format.

In the event that a hyperlink is malfunctioning or incorrect, the hyperlink must be corrected (i) by pre-effective amendment, in the case of a registration statement that is not yet effective, or (ii) in the next Exchange Act report that contains an exhibit index, in the case of an effective registration statement or Exchange Act report. An inaccurate hyperlink in an effective registration statement may also be corrected in a post-effective amendment.   The adopting release provides that an inaccurate hyperlink alone will not render a filing materially deficient, nor affect a registrant’s eligibility to use short-form registration statements. 

The SEC will be issuing an updated EDGAR Filer Manual that will describe the procedures necessary to create hy...Read More

SEC Brings Enforcement Action for Deficient Disclosure of Financial Advisors’ Fee Arrangements

On February 14, 2017, the U.S. Securities and Exchange Commission (the “SEC”) announced the settlement of an enforcement action against CVR Energy, Inc. (“CVR” or the “Company”).  The SEC brought action against the Company for its failure to disclose adequately the material terms of its fee arrangements with two investment banks in connection with the financial advisory services each bank provided to CVR during the pendency of a hostile tender offer launched by an activist.  See CVR Energy, Inc., Exchange Act Release No. 80039 (February 14, 2017).

Notwithstanding the fact that the banks failed to help CVR avoid a takeover by the activist or produce a higher offer price, they collected approximately $36 million in success fees based on the expansive definition of the term “success” set forth in their engagement letters with the Company.  The engagement letters (negotiated with the assistance of CVR’s outside counsel), provided the banks would receive an increased fee in the event the company were sold, regardless of whether:  (i) the final sale price was deemed adequate by CVR’s board, (ii) the banks succeeded in defending against the activist’s bid, or (iii) the banks were successful in causing the activist to raise its bid for the Company.

According to the SEC’s order, CVR violated Section 14(d)(4) and Rule 14d-9 thereunder which require an issuer to summarize the material terms of the compensation arrangements with its financial advisor when disclosing a solicitation or recommendation on Schedule 14D-9 in response to a tender offer.  CVR’s Schedule 14D-9 (prepared by CVR’s outside counsel), indicated the banks’ fee arrangements were “customary.”  The SEC’s order found CVR’s disclosure of customary compensation inadequate under the circumstances noting that it failed to inform CVR shareholders of the potential conflicts of interest arising from the structure of the fee arrangements.

This enforcement action comes on the heels of recent guidance published by the SEC that addresses the appropriate level of disclosure relating to a financial advisor’s fee arrangements in Schedule 14D-9 filings.  On November 18, 2016, the Staff in the Office of Mergers & Acquisitions in the Division of Corporate Finance (the “Staff”) at the SEC rel...Read More

Acting SEC Chair Piwowar Directs Staff to Reconsider Conflict Minerals Rule

On January 31, 2017, the SEC’s Acting Chairman, Michael Piwowar, issued a public statement (available here) that he has directed the Commission’s Staff to reconsider whether the Staff’s prior guidance on conflict minerals disclosures (previously published in April 2014 and available here) is still appropriate and evaluate whether additional relief may be appropriate. 

By way of background, the SEC’s conflict minerals disclosure rules – Exchange Act Rule 13p-1 and Form SD – were challenged shortly after adoption. Ultimately, the Court of Appeals for the D.C. Circuit in National Association of Manufacturer’s et al. v. SEC et al. held that certain of the disclosures required by the SEC’s conflict minerals rule violated the First Amendment.  Specifically, the Court of Appeals held that Section 13(p) and Rule 13p-1 (the “Rule”) “violate the First Amendment to the extent the statute and rule require regulated entities to report to the Commission and state on their website that any of their products have not been found to be ‘DRC conflict free.’”

Shortly thereafter, the Corporation Finance Division Director at the time, Keith Higgins, issued a public statement providing guidance that companies will be afforded some flexibility in how they describe products in their Conflict Minerals Reports.  The guidance explained that companies are not required to affirmatively describe their products as “DRC conflict free,” having “not been found to be ‘DRC conflict free,’” or “DRC conflict indeterminable.”  However, if a company voluntarily elects to describe any of its products as “DRC conflict free”, then the company would be permitted to do so provided it had obtained an independent private sector audit (IPSA) as otherwise required.

Piwowar goes on in his statement to provide several general observations regarding the current state of affairs surrounding the Rule.  Specifically, Piwowar notes that the litigation relating to the Rule is ongoing, the Staff’s prior guidance in this area remains in effect, and the temporary transition period relating to the Rule has expired.  Specifically, the reporting period beg...Read More

Marblegate Case Overturned by Second Circuit Court of Appeals

In a case closely watched by companies and investors alike, on January 17, 2016, the Second Circuit Court of Appeals overturned the decision of the District Court for the Southern District of New York in Marblegate Asset Management vs. Education Management Corp.  The District Court had held that a series of debt restructuring transactions by Education Management Corp. violated Section 316(b) of the Trust Indenture Act of 1939, as amended.  Section 316(b) of the Trust Indenture Act provides that “the right of any holder of any indenture security to receive payment of the principal and interest on such indenture …shall not be impaired or affected without the consent of such holder.”  Reading this provision broadly, the District Court found that a restructuring that released a parent guarantee and effectively stripped most of the assets from the issuer of the debt without the consent of each bondholder violated Section 316(b), even though the particular indenture for the bonds in question was not amended in connection with the restructuring.  The District Court concluded that Section 316(b) protects a bondholder’s practical ability to receive payment even where the indenture was not explicitly modified.  The District Court’s decision, together with another similar decision in the Southern District of New York in the case of Meehancombs Global Opportunities Funds, LP v. Caesers Entertainment Corp., caused significant concern among practitioners that these decisions significantly limited companies’ ability to enter into negotiated debt restructurings without consent of 100% of all indenture bondholders.  Because the requirement of 100% approval gives bondholders significant negotiating leverage and creates a real risk of “holdouts,” such a requirement could effectively prevent many debt restructurings outside of a bankruptcy court.  

In a 2-1 decision, the Second Circuit overturned the decision of the District Court and held that Section 316(b) of the Trust Indenture Act did not prohibit the restructuring by Education Management Corp.  The Second Circuit agreed with the District Court that Section 316(b) of the Trust Indenture Act is ambiguous, and therefore conducted its own review of the legislative history of the provision.  After such review, the Second Circuit concluded that Section 316(b) was intended only to prohibit formal amendments to the core payment rights of an indenture without consent of each bondholder, and not to prevent restructuring that effectively reduced the issuer’s ability to repay the bonds. 

There remain some steps the plaintiffs could take to challenge the Second Circuit’s decision in Marblegate, including seeking a rehearing in the Second Circuit or appeal to the U.S. Supreme Court.  Unless and unt...Read More

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