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On March 1, 2017, the Securities and Exchange Commission (“SEC”) announced the adoption of amendments that will require registrants that file certain registration statements and reports subject to the exhibit requirements of Item 601 of Regulation S-K (i) to include within each filing a hyperlink to each exhibit referenced therein and (ii) to submit all such filings to EDGAR in HTML format. The new requirements are set to go into effect on September 1, 2017 for most registrants.


Continue Reading SEC Adopts Rule Requiring Hyperlinks to Exhibits and HTML Formatting

In IAC Search, LLC v. Conversant LLC (f/k/a ValueClick, Inc.), 2016 WL 6995363 (Del. Ch. Nov. 30, 2016), the Delaware Court of Chancery provided a reminder on how potentially-overlooked contractual provisions could have a significant bearing on the types of claims an aggrieved party may bring.

IAC v. Conversant is the progeny of cases decided by the Delaware Court of Chancery examining fraud claims in the mergers and acquisition context. Previously, the court had established in Abry Partners V, L.P. v. F & W Acquisition LLC, 891 A.2d 1032 (Del. Ch. 2006), that “murky integration clauses, or standard integration clauses without explicit anti-reliance representations, will not relieve a party of its oral and extra-contractual fraudulent representations.”

Continue Reading Delaware Court Affirms Utility of Non-Reliance Clause in Dismissing Fraud Claim

On October 26, 2016, the SEC amended Rule 504 of Regulation D under the Securities Act of 1933 (the “Securities Act”) to increase the maximum amount of securities that may be sold thereunder in any 12-month period from $1 million to $5 million. Consequently, the rarely used Rule 504 may now prove useful to issuers of securities in smaller capital raising and M&A transactions.
Continue Reading Rule 504 Becomes Useful Tool for Smaller Capital Raising and M&A Transactions

So, fortune has smiled upon you. A partner has handed you a draft Form 10-K for a client and asked you to do a “rule check” or “form check” to confirm that no required disclosures are missing.

Most often, the Form 10-K template for a reporting company has evolved over a number of years, with significant input from the company’s accounting and legal professionals, and is generally in pretty good shape.

However, mistakes get made — and it’s your job to find them!

Here is a list of 12 items that even seasoned reporting clients frequently omit or prepare incorrectly when drafting the Form 10-K.

Continue Reading 12 Common 10-K Mistakes — And How To Find Them

There are plenty of articles about how to write good MD&A – referring of course to the “Management’s Discussion and Analysis of Financial Condition and Results of Operations” section of your company’s Form 10-K, Form 10-Q or Securities Act registration statement.

The purpose of this article is to give you concrete tips on how to write bad MD&A, section by section.

Continue Reading How to Write Bad MD&A

On December 4, 2015, President Obama signed into law the Fixing America’s Surface Transportation Act, or FAST Act. Although primarily a transportation bill, the FAST Act also made changes to the federal securities laws as described below. Overall, the FAST Act’s changes to the securities laws will help facilitate raising capital.
Continue Reading FAST Act Speeds-Up Raising Capital

Recently the SEC announced enforcement actions which highlight the importance of complying with the beneficial ownership reporting requirements under Sections 13(d), 13(g) and 16(a) of the Securities Exchange Act of 1934, or the Exchange Act.
Continue Reading Recent SEC Enforcement Actions Highlight Importance of Robust Insider Trading Compliance Policies