Following our February 24 post, we learned that representatives of accounting firms sought advice from the SEC on whether they can rely solely on Section 205 Orders to confirm valid issuance of outstanding shares as to which there is uncertainty. We understand that they were informed by the SEC…

On February 14, we reported that a number of Delaware corporations, mostly those resulting from deSPAC transactions, have petitioned the Court of Chancery to validate their increases in authorized shares and other corporate actions due to their failure to seek, and in many cases to obtain, the class vote that…

On December 13, 2022, the staff of the Division of Corporate Finance (the “SEC”) revised and expanded its Compliance and Disclosure Interpretations (“CDIs”) on reporting non-GAAP financial measures in SEC filings and press releases.  The CDIs present an opportunity for counsel to review the use of non-GAAP financial measures with…

A number of Delaware corporations with two or more classes of common stock, especially SPACs (special purpose acquisition companies) that have completed deSPAC transactions, are discovering that they may not have properly approved charter amendments that increased their authorized shares of common stock. In Garfield v. Boxed, Inc. (Del. Ch.…

As April 13th approaches, in-house counsel at public companies should prepare for the electronic Form 144 filing requirement beginning on that date.  Form 144 is the filing that officers and directors of public companies file under Rule 144 when they sell shares of their company’s stock (other than pursuant to…

The SEC announced on February 3, 2023 a settled enforcement action against Activision Blizzard, Inc., finding that it failed to have adequate controls for reporting widespread workplace misconduct to management and used separation agreements for employees that impeded whistleblowing in violation of SEC rules.[1]

Disclosure Controls and Procedures Failures…

Public companies with a calendar fiscal year are already in the process of preparing their Annual Report on Form 10-K and their glossy Annual Report to Shareholders.  Here are two technical points to remember that are new this year:

Form 10-K Cover Page

The Securities and Exchange Commission (SEC) recently…

On December 14, 2022, the SEC unanimously adopted cooling-off periods and other changes to how plans adopted under Rule 10b5-1 (“10b5-1 Plans”) will work going forward.  Executive officers and directors of public companies frequently use 10b5-1 Plans to conduct sales of their company’s stock at a time when they have…

On December 9th, the UK Government, as part of the Edinburgh Reforms, announced a number of reforms to the UK capital markets landscape.  Many of the changes reflect existing post-Brexit governmental findings, following reviews of the financial services regulatory framework.

The Edinburgh Reforms reflect the UK Government’s intent to repeal…

This article describes two recent Delaware decisions relevant to the Model Business Corporation Act (the “MBCA”). One of those decisions relates to a board’s determination of the availability of surplus to support distributions to stockholders, and the other upholds, at the motion to dismiss stage, a claim that the…