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The Securities Edge Securities Blog for Middle-Market Companies

Tag Archives: Gustav L. Schmidt

Wrong turn?: Is the SEC looking to further expand its regulatory jurisdiction through the disclosure process?

Posted in Disclosure Guidance

In the wake of the recent financial crisis, the Dodd-Frank Act created the SEC Investor Advisory Committee with the stated purpose of advising the SEC on (i) regulatory priorities of the SEC; (ii) issues relating to the regulation of securities products, trading strategies, and fee structures, and the effectiveness of disclosure; (iii) initiatives to protect… Continue Reading

Delaware vs Florida: Where should you incorporate?

Posted in Corporate Governance

There is an attraction for companies to incorporate in Delaware, likely due to the abundance of well-known publicly traded corporations that have chosen to incorporate there. However, it is not necessarily true that the Delaware General Corporation Law (“DGCL”) is better than corporate laws of other states; it is just more developed due to the… Continue Reading

Fee-shifting bylaw proposal moved to the back burner pending further investigation

Posted in Securities Litigation

In a case of first impression, the Delaware Supreme Court held that provisions contained in a nonstock corporation’s bylaws, requiring a plaintiff stockholder to reimburse the corporation’s legal expenses if the plaintiff loses on a claim it has brought against the corporation, are facially valid if adopted properly and for a proper purpose (i.e., not… Continue Reading

Institutional investor organization asks the SEC to require disclosure of “golden leashes”

Posted in Disclosure Guidance

The compensation disclosure rules contained in Regulation S-K are intended to provide meaningful disclosure regarding an issuer’s executive and director compensation practices such that the investing public is provided with full and fair disclosure of material information on which to base informed investment and voting decisions. However, as we pointed out in a blog from last… Continue Reading

Institutional investor organization asks the SEC to require disclosure of "golden leashes"

Posted in Disclosure Guidance

The compensation disclosure rules contained in Regulation S-K are intended to provide meaningful disclosure regarding an issuer’s executive and director compensation practices such that the investing public is provided with full and fair disclosure of material information on which to base informed investment and voting decisions. However, as we pointed out in a blog from last… Continue Reading

4th and 108, SEC elects to punt on Regulation S-K disclosure reform

Posted in Disclosure Guidance

Section 108 of the Jump Start Our Business Startups Actrequired the SEC to undertake a study of the disclosure requirements of Regulation S-K. Specifically, the statute mandated that the SEC shall: conduct a review of its Regulation S-K to— comprehensively analyze the current registration requirements of such regulation; and determine how such requirements can be… Continue Reading

The SEC gets an A+ with the proposed “Regulation A+” rules

Posted in Capital Raising

One of the most anticipated items from the JOBS Act enacted in April 2012 was the so-called Regulation  A+ –  a new and improved exemption that would allow issuers to raise up to $50 million in a 12-month period through a “mini-registration” process that is similar to that of rarely used Regulation A exemption. On… Continue Reading

The FDIC should consider updating its outdated statement of policy on bank stock offerings

Posted in Capital Raising, Financial Institutions

With the costs of compliance on the rise, we are seeing some significant consolidation in the banking industry, particularly among community banks. In a recent article on www.bankdirector.com, Rick Maroney writes that although bank M&A has been tepid thus far in 2013, some key drivers of M&A activity are starting to emerge and he predicts… Continue Reading

Government mandated pay ratio disclosure will fail to achieve its intended objectives

Posted in Disclosure Guidance

Compensation of public company executives re-emerged back into the public limelight after the recent financial crisis which began in late 2007. The public perception was one of outrage in large part due to the fact that many investors in public companies were experiencing significant losses in their investment portfolios while CEOs and other executives were… Continue Reading

Hurricanes, flash freezes and other disasters – plan and disclose accordingly or you may be hearing from the SEC

Posted in Disclosure Guidance

Almost 10 months since Superstorm Sandy caused widespread destruction to the northeastern U.S., an area not known for frequent hurricane activity, the people and businesses affected have still not fully recovered. As we now reenter the peak of hurricane season, businesses along the eastern seaboard are probably taking a closer look now than in years… Continue Reading

Removal of ban on general solicitation and advertising won’t be a license for issuers to say anything they want

Posted in Capital Raising

Although the SEC recently finalized rules that will remove the ban on general solicitation and advertising for certain private offerings under Rule 506 of Regulation D, it does not mean that issuers will have free reign and complete discretion over their use of advertisements. That is, issuers looking to locate potential investors through advertising after… Continue Reading

Social media and brokers: FINRA wants broker-dealers to be “friends” with their employees

Posted in Financial Institutions

With newer methods to communicate and interact with the so-called social network popping up on almost a daily basis, securities regulators have been giving more and more attention to social media and how companies and certain regulated professionals are employing it. As we discussed in a previous blog, the SEC has signed off on public… Continue Reading

Are new Iran-related disclosure requirements turning public companies into tattletales?

Posted in Disclosure Guidance

In other breaking news that many may have missed, Orbitz Worldwide, Inc. recently reported in its most recent 10-Q that a handful of employees of a Hilton-branded hotel were paid wages via direct deposit into bank accounts maintained with Bank Melli. The obvious question is why is Orbitz reporting on seemingly immaterial activities of a… Continue Reading

Will director compensation be the next target?

Posted in Compensation

Since 2007, executive compensation practices of public companies have been at the forefront of activist shareholders’ and shareholder rights groups’ agendas. Mandatory say-on-pay proposals, enhanced executive compensation disclosure, compensation committee and compensation consultant independence rules are just a few of the recent significant changes to the laws and regulations applicable to public companies in the… Continue Reading

Say-on-pay litigation: Round 2

Posted in Compensation

Why doesn’t the plaintiffs’ bar believe Congress means what it says? The Dodd-Frank Act could not have been more clear that the outcome of the mandatory say-on-pay advisory vote for public companies does not create or imply any change to the fiduciary duties of board members. However, as we have discussed in previous blog posts,… Continue Reading

When does hedging or pledging of company stock by insiders equate to bribery?

Posted in Corporate Governance

The answer: when ISS is evaluating a public company’s corporate governance under its revised policies for the 2013 proxy season. We previously blogged about the potential insider trading issues that could theoretically arise when insiders pledge company stock to secure loans. Now, with the implementation of the revised ISS governance standards, there are additional reasons… Continue Reading

Proposed campaign contribution disclosure rules may be coming as early as April (but not likely)

Posted in Disclosure Guidance

As first reported by Professors  Lucian Bebchuk and Robert J. Jackson, Jr. in their recent posting on the Harvard Law School Forum on Corporate Governance and Financial Regulation, the SEC may take action to issue proposed rules on corporate political spending disclosures by public companies as early as the second quarter of this year. This… Continue Reading

Did the JOBS Act unintentionally change the statutory private offering exemption?

Posted in Capital Raising

For securities issuers, the most widely used exemption from registration is the private offering exemption in Section 4 of the Securities Act. Formerly referred to as the “Section 4(2)” exemption, the enactment of the JOBS Act in April of this year fixed the section numbering in Section 4 of the Securities Act which, until now,… Continue Reading

Are political contribution disclosure rules for public companies coming in the near future?

Posted in Disclosure Guidance

Petition and comment letters urging the SEC to create rules requiring public companies to disclose their political contributions may finally be gaining some traction.  We previously blogged about this petition, which was submitted by a group of ten law professors in response to the Supreme Court’s opinion in the Citizens United v. Federal Election Commission… Continue Reading

Acquirers beware! New expedited acquisition method could violate the Exchange Act

Posted in Mergers and Acquisitions

When the private equity firm 3G Capital took Burger King private in 2010, it used an innovative “dual-track” acquisition structure to minimize the amount of time to consummate the acquisition. This involved 3G simultaneously pursuing both a friendly tender offer to Burger King shareholders as well as a traditional merger that would need to be… Continue Reading

Did Apple violate Regulation FD at its iPhone 5 release conference?

Posted in Disclosure Guidance

On September 12, 2012, Apple, Inc. held a highly anticipated conference at which it announced the upcoming release of the latest model of the iPhone. These types of conferences have been part of Apple’s standard operations for many years and seem to be a key element of its marketing strategy. Although attendance is limited to… Continue Reading

Video Interview: Discussing the Facebook-Instagram Deal's Fairness Review with LXBN TV

Posted in Mergers and Acquisitions, Technology Company Issues

Following up on my post on the subject, I had the opportunity to speak with Colin O’Keefe of LXBN regarding the Facebook/Instagram deal.  In the brief interview, I explain how things have changed since Facebook’s IPO and what, if anything, that meant for the deal’s fairness review with the California Department of Corporations.

Video Interview: Discussing the Facebook-Instagram Deal’s Fairness Review with LXBN TV

Posted in Mergers and Acquisitions, Technology Company Issues

Following up on my post on the subject, I had the opportunity to speak with Colin O’Keefe of LXBN regarding the Facebook/Instagram deal.  In the brief interview, I explain how things have changed since Facebook’s IPO and what, if anything, that meant for the deal’s fairness review with the California Department of Corporations.

Is Facebook’s acquisition of Instagram fair to Instagram shareholders?

Posted in Mergers and Acquisitions, Technology Company Issues

We previously blogged about the potential liability for Facebook, Inc. directors if the company paid too much for the social media start-up company Instagram. Recall that in April, Facebook agreed to acquire Instagram for, at the time, approximately $1 billion with the consideration payable 30% in cash and 70% in Facebook common stock (now, due… Continue Reading