Unregistered Offerings

This Note describes the accounting due diligence process with auditors in the context of a registered or unregistered securities offering, including why and how accounting due diligence is conducted, common topics covered and the potential actions that underwriters or initial purchasers and their counsel should consider after completing the accounting due diligence discussions.

An overview of the sources of law and regulation of accounting, auditing and financial reporting in the US. This Practice Note focuses on the rules and guidance governing accounting, auditing and financial reporting for public companies.

An overview of auditing in the financial reporting context. This note includes a general discussion of the purpose of auditing, the audit process, audit reports (or audit opinions) and auditor independence, with a focus on the rules and standards that apply in the context of US public company audits.

A letter from the underwriters in a public offering (or the initial purchasers in a Rule 144A/Regulation S offering) to the issuer identifying the information that the underwriters have provided for use in the prospectus (or offering memorandum). This Standard Document has integrated notes with important explanations and drafting tips.

Form of resolutions of a board of directors approving an unregistered offering of debt or equity securities under Rule 144A and Regulation S of the Securities Act of 1933. These resolutions cover the designation of authorized officers, approval of the offering memorandum and other transaction documents, appointment of a pricing committee and other matters. These Standard Clauses have integrated notes with important explanations and drafting tips.

Resolutions of a board of directors approving an unregistered offering (private placement) of debt securities under Rule 506 of Regulation D of the Securities Act of 1933, as amended. These resolutions are formatted as standard clauses and should be inserted into board minutes or a form of unanimous written consent. These Standard Clauses have integrated notes with important explanations and drafting tips.

This Note examines adjustments portfolio companies can make to their net income to improve their EBITDA, in particular the pro forma add-back for cost savings. This Note also compares the cost savings add-back to two other common adjustments to EBITDA, the add-backs for permitted acquisitions or dispositions and for business optimization expenses or restructuring charges.

This Checklist summarizes the steps to take when a foreign private issuer (non-US company) is claiming for the first time the Rule 12g3-2(b) exemption from registration and filing under the Securities Exchange Act of 1934.

This is a checklist of the documents most commonly used for an offering of debt securities pursuant to Rule 144A and Regulation S of the Securities Act. This checklist may be used by counsel to keep track of the status of all documents regardless of who is responsible for drafting and circulating the document to the working group.

Flowcharts providing a structural overview of common chains of capital markets transactions in the context of primary offerings through underwriters and initial purchasers, private equity and PIPE transactions and grants to management and employees. The flowcharts show how each step in certain common chains of transactions typically complies with the requirement of Section 5 of the Securities Act of 1933 that every offer or sale of a security be either registered with the Securities and Exchange Commission or exempt from registration. The flowcharts include links to resources containing detailed discussions of each type of transaction.

A comparative analysis of the options available to an issuer for accessing the equity capital markets. For best results, this Chart should be printed using the "landscape" setting.

This Note reviews credit ratings, the operations of the nationally recognized statistical rating organizations (NRSROs) and the SEC's proposed and adopted rule amendments  for NRSROs (including those required by the adoption of the Dodd-Frank Act).  An NRSRO is a credit rating agency that has registered as such with the SEC.  On May 18, 2011, the SEC proposed rules under the Dodd-Frank Act intended to increase transparency in and improve the integrity of credit ratings, in particular the credit ratings of structured finance products such as asset-backed securities (ABS). The proposed rules would amend existing rules governing credit ratings and NRSROs to improve the accuracy of credit ratings applied to structured financial products and minimize the mismanagement of risk by financial institutions and investors. See Legal Update, SEC Proposes Rules on Credit Ratings by NRSROs and Creates New ABS Due Diligence Requirements. This Note will be updated to reflect these rules after they have been adopted in final form by the SEC.

An overview of the federal securities laws governing debt exchange offers, the parties involved, the required documentation and the process of completing such exchange offers. In particular, this Note examines the difference between exchange offers and cash tender offers, disclosure obligations and issues to consider when structuring an exchange offer. This Note also examines consent solicitations, and timing considerations for the exchange offer. 

This Note discusses the relevant criteria for determining whether a particular security is classified as debt or equity for US federal income tax purposes.

This Checklist summarizes key items to cover in a due diligence investigation for a securities offering. It provides practical advice for organizing the due diligence process and highlights issues and potential problems to consider when reviewing specific categories of issuer documents, including corporate records, business contracts and others. It does not cover business due diligence, financial and accounting due diligence or specialist due diligence. This Checklist is not a comprehensive list, but merely a guide to assist attorneys in focusing on important issues.

This Note considers the purpose, scope and practical application of due diligence investigations in connection with SEC-registered securities offerings and unregistered securities offerings. It reviews the applicable federal securities law liability provisions and the due diligence defense available to offering participants in a registered offering if a plaintiff proves the affirmative elements of a Section 11 claim for a material misstatement or omission. It also identifies the differences among legal, business, financial and accounting and corporate governance due diligence.

This Practice Note discusses the safe harbor exemption from registration under Rule 701 of the Securities Act for equity securities issued as employee compensation. It discusses Rule 701 eligibility considerations, including the requirements for issuer eligibility, participant eligibility and securities eligibility, as well as issuer disclosure obligations. The Note also describes limitations on resales of securities sold under Rule 701 and the interaction between the Rule 701 exemption and the registration requirement under Section 12(g) of the Exchange Act, including changes introduced under the JOBS Act.

This Note discusses broker-dealers' affirmative obligation to conduct a reasonable investigation when recommending securities sold in offerings exempt from SEC registration under Regulation D of the Securities Act of 1933. The Note explains the FINRA rules and broker-dealer specific interpretations of the securities laws that impose this obligation. The Note also provides guidance on broker-dealer reasonable investigations in light of the Financial Industry Regulatory Authority's Regulatory Notice 10-22 and related enforcement actions.

An introduction to the basic concepts of accounting and financial reporting, including the organization and line items of the basic financial statements (the balance sheet, income statement and statement of cash flows).

This Note discusses the US federal income tax consequences of owning debt securities of a foreign corporate issuer.

This is a standard forward-looking statements legend, also referred to as a safe harbor legend.  It can be used as part of a public company's earnings press release to increase the likelihood of liability protection for forward-looking statements under the statutory safe harbor.  This legend includes several examples of forward-looking statements and important factors to be included in the meaningful cautionary language required by the safe harbor to aid drafters.  This Standard Document has integrated notes with important explanations and drafting tips.

This is a standard forward-looking statements legend, also referred to as a safe harbor legend.  It can be used as part of a public company's disclosure document, Exchange Act report, press release or other document to increase the likelihood of liability protection for forward-looking statements under the statutory safe harbor.  It may be used for disclosures issued in connection with a securities offering (other than an IPO) or for disclosures issued in the ordinary course of business.  This legend includes several examples of forward-looking statements and important factors to be included in the meaningful cautionary language required by the safe harbor to aid drafters.  This Standard Document has integrated notes with important explanations and drafting tips.

Standard limitation on asset sales covenant which may be inserted into an indenture governing high-yield debt securities. These Standard Clauses have integrated notes with important explanations and drafting tips.

Standard limitation on liens covenant which may be inserted into an indenture governing high-yield debt securities. These Standard Clauses have integrated notes with important explanations and drafting tips.

Standard limitation on transactions with affiliates covenant which may be inserted into an indenture governing high-yield debt securities. These Standard Clauses have integrated notes with important explanations and drafting tips.

An overview of the standard financial covenants and ratio tests contained in an indenture for high-yield debt securities. In particular, this Note explains what financial covenants are, identifies market considerations and examines two principal cash flow ratios in detail.

This document discusses the pending dispute surrounding Harrah's 2008 debt exchange offers and provides a summary of the key litigated issues.

A form of incentive stock option agreement to be used to grant incentive stock options to employees under a stock option or other equity incentive plan. This Standard Document has integrated notes with important explanations and drafting tips.

This chart outlines the SEC integration rules and safe harbors applicable to multiple offerings of securities by an issuer. This chart should be used in conjunction with Practice Note, Multiple Offerings: Dealing with Integration.

This Practice Note provides an overview of the exceptions and exemptions under the Investment Company Act of 1940 commonly relied on in corporate and finance transactions. The Note also explains why it is important for ordinary companies to avoid becoming “inadvertent investment companies” subject to the Investment Company Act (also referred to as '40 Act or ICA). The authors wish to thank J. Alan Bannister, Partner, and Virginia C. Snider and Joseph M. Ortega, Associates, at Gibson, Dunn & Crutcher LLP, for their assistance with this Note.

This Checklist provides a quick reference guide to help in making materiality determinations under securities and disclosure laws and rules, includes important questions to ask and highlights key areas where information is often found to be material, requiring careful attention and perhaps public disclosure. 

This Note summarizes key provisions of the Jumpstart Our Business Startups (JOBS) Act relating to crowdfunding. The crowdfunding portion of the JOBS Act amends the Securities Act to add a new registration exemption intended to allow capital raising from a large number of people in relatively small amounts, typically through the internet and social media.

This Note summarizes key provisions of the Jumpstart Our Business Startups (JOBS) Act relating to Exchange Act registration.

This Note summarizes key provisions of the Jumpstart Our Business Startups (JOBS) Act relating to general solicitation and advertising in securities transactions exempt from registration under Rule 506 of Regulation D and Rule 144A under the Securities Act of 1933.

A discussion of the purpose and content of legal opinions and 10b-5 letters (also known as negative assurance or disclosure letters) delivered in registered and unregistered securities offerings. This Practice Note discusses preparing, reviewing and negotiating legal opinions and 10b-5 letters in securities offerings.

A review of the principal federal securities law provisions that potentially impose liability on an issuer and the offering participants in connection with an issuer's offering of securities and the main due diligence defenses to that liability. The principal liability provisions reviewed are Section 11 and Section 12 of the Securities Act and Section 10(b) and Rule 10b-5 of the Exchange Act.

A letter from the underwriters or initial purchasers to parties to lock-up agreements waiving or releasing all or certain lock-up restrictions.  This Standard Document has integrated notes with important explanations, drafting tips and practical advice on drafting in limitations or conditions to the the lock-up waiver.

A checklist of guidance for making filings under FINRA Rule 5123, which requires FINRA member firms to make filings in certain private placements effective December 3, 2012.

An examination of medium-term note (MTN) programs conducted in the US, including transaction structures, principal parties and offering documents, the registration process and the mechanics of establishing an MTN program and effecting a takedown.

This Note reviews the circumstances under federal securities laws requiring issuers to integrate multiple offerings and methods to avoid integration. This Note reviews the applicable laws concerning private offerings completed before a registration statement is filed, concurrent private and public offerings (including a discussion on the Black Box letters), concurrent private offerings, a private offering following an abandoned public offering and an abandoned private offering followed by a public offering. It also contains a discussion of other SEC rules available to an issuer to avoid application of the integration doctrine.

Standard Clauses that can be used as sample contractual language when structuring a securities transaction to avoid or defer stockholder approval required by NASDAQ's 20% rule. NASDAQ requires stockholder approval before a listed company can issue twenty percent or more of its outstanding common stock or voting power. These Standard Clauses can be used as a starting point in drafting provisions in indentures, convertible securities, warrants, preferred stock certificates of designation and securities purchase agreements. These Standard Clauses have integrated notes with important explanations and drafting tips.

This Checklist is a reference for attorneys reviewing and negotiating a draft comfort letter in a registered or unregistered securities offering. It lists and explains key steps to take and key points to look for in the comfort letter review and negotiation process.

This Checklist outlines the main issues in the anti-dilution provisions of a general form of warrant used in a financing transaction and provides negotiating points for both the investor and the company.

This Checklist provides background on commonly negotiated provisions in the covenants and expenses sections of a purchase agreement for a Rule 144A/Regulation S offering (equity or debt). The Checklist gives examples of typical negotiating positions that issuers and initial purchasers take, and gives example arguments in favor of these positions. This Checklist is part of a three-checklist series that includes checklists on negotiating the representations and warranties section, and the closing conditions, termination and indemnity sections, of Rule 144A/Regulation S purchase agreements.

A letter from the underwriters of a registered offering (or the initial purchasers of an unregistered offering) giving official notice to the issuer of their election to exercise an over-allotment option (also referred to as a green shoe) granted in the underwriting agreement. This Standard Document has integrated notes with important explanations, drafting tips and practical advice to conduct the over-allotment (or green shoe) closing.

An overview of the Office of Foreign Assets Control (OFAC), focusing on due diligence in securities offerings. This Note explains what OFAC is, who is targeted by OFAC sanctions, who must comply, what the sanctioned activities are and why OFAC is important in securities offerings. The Note also discusses OFAC-related due diligence procedures.

Under changes made by the Hiring Incentives to Restore Employment Act enacted in 2010, US issuers are effectively precluded from issuing debt in bearer form for US tax purposes after March 18, 2012. This Note describes the US tax sanctions that apply to issuers and holders of bearer debt, and explains the features that distinguish bearer debt from registered debt for US tax purposes.

This Note discusses the common terms and features of a PIPE transaction (private investment in public equity).

This Note discusses the definition of a passive foreign investment company (PFIC), the US federal income tax consequences to a US investor in a PFIC and the disclosure obligations for PFICs.

An overview of the principal elements of an offering memorandum (OM) (also referred to as a private placement memorandum) prepared in connection with an offering of debt securities under Rule 144A and Regulation S. In particular, this Note reviews typical sections of an OM, including risk factors, capitalization table, management's discussion and analysis, plan of distribution and resale limitations. It also discusses how the OM is prepared, finalized and printed.

This Standard Document is a form of press release announcing the pricing of an unregistered offering of debt securities under Rule 144A and Regulation S under the Securities Act of 1933, as amended. This Standard Document has integrated notes with important explanations and drafting tips.

This is a standard form of a pricing term sheet for non-convertible debt securities that can be used to convey pricing information to investors immediately after pricing in connection with an offering of debt securities and be filed as a free writing prospectus in SEC-registered offerings. This form can be used for both SEC-registered and unregistered offerings including Rule 144A and Regulation S offerings. This Standard Document has integrated notes with important explanations and drafting tips.

An overview of the terms of a purchase agreement used for the sale of securities in an unregistered offering under Rule 144A and Regulation S. This Note discusses the purpose and structure of the purchase agreement and provides an overview of the key provisions. Topics covered include representations and warranties, covenants, closing conditions and indemnity and termination provisions.

A roadmap of the steps involved in conducting an offering of debt securities under Rule 144A and Regulation S. This Note provides an overview of the process, from the engagement of issuer's counsel to the closing of the offering. It also includes commentary on each of the principal documents prepared in connection with the offering, including the offering memorandum, purchase agreement, registration rights agreement, indenture and legal opinions. The Note also includes an overview of the due diligence process and a summary of pricing and closing mechanics.

An overview of the standard terms and provisions of the registration rights agreement used in the context of a Rule 144A and Regulation S offering of non-convertible debt securities. This Note discusses the obligation to register the securities in connection with an A/B exchange offer and to file a resale shelf registration in certain circumstances. The discussion includes details on standard provisions concerning payment of expenses, registration procedures, participation of broker-dealers in exchange offer and indemnity and contribution provisions.

This Note examines the safe harbor under Regulation S of the Securities Act of 1933, as amended, for the offer and sale of securities in offshore transactions outside the US.  Regulation S is a safe harbor from the registration requirements of the Securities Act.  This Note discusses the basic requirements of Regulation S, the issuer safe harbor under Rule 903, the resale safe harbor for subsequent holders of securities under Rule 904, and the definition of a US person under Regulation S. 

This Note examines unregistered resales of eligible securities to qualified institutional buyers (QIBs) under Rule 144A of the Securities Act of 1933, as amended and resales among sophisticated investors under the so-called Section "4(1½)" exemption.

A Checklist describing the steps attorneys should take in reviewing the final version of a prospectus or offering memorandum for a securities offering before instructing the financial printer to begin printing (sometimes referred to as "pushing the button"). This Checklist provides practical guidance for reviewing and signing off on a financial printer's "blue line," the final, typeset version of the offering document that must be approved before the document can be printed in bulk and distributed to investors. This Checklist also includes a discussion of e-disclaimers used in electronic distributions of offering documents.

This Note describes the process for conducting a private placement of securities from the decision to seek financing to the completion of a transaction and summarizes some commonly used exemptions from registration used by issuers of unregistered securities. This Note discusses choosing the type of offering, finding and qualifying prospective investors, negotiating the terms of the offering, preparing and delivering the private placement memorandum, completing the subscription documents, and closing the offering. In addition, the Note discusses SEC proposals to amend Regulation D and add exemptions for smaller companies. Note: On August 29, 2012, the SEC proposed rules to remove the prohibition on general solicitation and general advertising under Rule 506 of Regulation D and Rule 144A, as required under the JOBS Act (see Legal Update, SEC Proposes JOBS Act General Solicitation Rules). This Note does not yet reflect the proposed rules.

This Note provides a comprehensive summary of the law and lore relating to offers of securities and a roadmap to maneuver safely through the maze of available safe harbors and industry customs. Specifically, this Note summarizes the securities laws and regulations behind offers, examines what is and what is not considered an offer and identifies the safe harbors that can provide protection for registered securities offerings, unregistered offerings and foreign private issuer offerings. This Note also examines under what circumstances offers are permitted and highlights the consequences of violating applicable laws and rules. This Note is not updated for the impact of the JOBS Act.

This Practice Note explains how a foreign private issuer (non-US company) can qualify for the Rule 12g3-2(b) exemption from the registration and periodic filing requirements of the Securities Exchange Act of 1934, as amended. The Note also discusses why a foreign private issuer would use this exemption, what non-US dislosure information is required to be electronically published and the potential problem of unsponsored ADR programs.

A standard form to be used as a starting point for drafting an opinion to a reporting or non-reporting issuer's transfer agent in connection with a sale of restricted stock in reliance on the safe harbor from registration under the Securities Act of 1933 provided by Rule 144 under the Securities Act. 

A standard form SAS 72 or auditor representation letter delivered to the issuer's auditors in an unregistered securities placement or issuance so that the accountants can prepare and deliver a comfort letter. This letter can also be adapted for use in those circumstances when a SAS 72 representation letter is required in the registered offering context.

Form of risk factor relating to cyber security that may be inserted into a public company's annual and periodic reports, registration statements or private placement offering documents. This document provides sample language describing risks arising from information security, including the impact of a potential or actual material network breach and steps taken to reduce risk exposure. These Standard Clauses have integrated notes with important explanations and drafting tips.

An overview of trading of equity securities of private, pre-IPO companies in the secondary market. This note examines how and why this trading has sharply increased on secondary marketplaces such as SecondMarket and SharesPost, who stands to win and lose and the myriad issues that active secondary trading creates for companies. In addition, this note addresses the securities law issues raised by such trading, including the available registration exemptions and the practical steps companies can take to protect against some of the consequences of active secondary markets.

This chart lists the types of securities exempt from registration with the SEC under Section 3 of the Securities Act of 1933, as well as the limited transactional registration exemptions provided by Section 3.

This Note provides an overview of the registration exemptions available to issuers conducting private placements under Section 4(a)(2) (formerly Section 4(2)) and Regulation D. These exemptions are available to US and non-US public and private companies. This Note discusses Section 4(a)(2) issuer private placements, the safe harbor requirements of Regulation D, filing the Form D, the FINRA Rule 5123 filing requirement for FINRA members and proposed changes to Regulation D.

A Practice Note discussing the rapidly expanding social media use in companies and the securities and disclosure laws that are slow in catching up, resulting in a potential minefield for public companies.  This Note explores the potential securities and disclosure concerns in this developing area, highlights potential examples of misconduct and provides guidance on how companies can reduce securities and disclosure risks while taking advantage of social media benefits.

Standard representations, warranties and covenants which may be inserted into a purchase agreement in relation to an offering of securities (debt or equity) outside the US under Regulation S under the Securities Act of 1933, as amended. These representations, warranties and covenants establish that the transaction meets the requirements of Regulation S. These Standard Clauses have integrated notes with important explanations and drafting tips.

This Note provides a brief overview of the different types of equity compensation available to employers. It then provides a more detailed discussion of stock options granted by public company employers to employees, specifically addressing tax, regulatory and other legal considerations.

A subscription agreement to be used in connection with a private placement of debt securities to accredited investors (as defined in Rule 401 of Regulation D under the Securities Act of 1933, as amended). The private placement is made in reliance on Rule 506 of Regulation D. This Standard Document has integrated notes with important explanations and drafting and negotiating tips.

This chart summarizes the primary federal securities law rules governing permitted communications and restrictions on publicity applicable to an issuer of securities. The chart identifies the communication rules for each of the different classes of issuers (including WKSIs, emerging growth companies, seasoned issuers and non-reporting issuers) during the pre-filing period, the waiting period and the post-effective period of a public offering.

A discussion of term sheets outlining the considerations that go into deciding whether to have them and what to include in them.

This Note examines the provisions of the Sarbanes-Oxley Act of 2002 (SOX) that apply to both private and public companies. It also examines how SOX has elevated the standard of conduct for many private companies in the areas of corporate governance and financial oversight and compliance. This is because many large private companies are voluntarily choosing to comply with some or all of the SOX provisions that were specifically intended for public companies. Some of these provisions are enhanced liabilities for document destruction, fraud and white-collar crime. Furthermore, this Note discusses the benefits a company can reap in complying with SOX. In addition, this Note discusses the regulatory burdens under SOX and how SOX affects private companies' best practices.

A discussion of matters relating to the asset-backed securities (ABS) issued in a securitization in which the securitized assets are originated in the US. The Note discusses issuance of the securities, creating a security interest in the asset pool collateral, credit enhancement, liquidity support and the role of credit rating agencies in a securitization.

This Note discusses the US federal income tax consequences of owning common stock of a US corporate issuer.

Form of unanimous written consent of the board of directors for a Delaware or New York corporation to be used when the board of directors takes action without a formal board meeting. This Standard Document has integrated notes with important explanations and drafting tips.

A standard form company representation relating to the Foreign Corrupt Practices Act of 1977 and unlawful payments.  This representation can be used as a starting point for drafting an FCPA representation to include in an underwriting or purchase agreement for a securities offering. This Standard Clause has integrated notes with important explanations and drafting tips.

A standard form provision stemming from the eToys litigation relating to fiduciary duties owed by underwriters to issuers or selling stockholders. This provision can be used as a starting point for drafting an eToys provision to be included in an underwriting or purchase agreement for a securities offering. This Standard Clause has integrated notes with important explanations and drafting tips.

These charts show the first dates in 2012 when newer financial statements must be included in a registration statement filing because older financials have gone stale under the financial statement staleness rules. These rules, which are contained in Rule 3-12 of Regulation S-X, apply to SEC-registered securities offerings. A chart is provided for IPO companies, large accelerated filers, accelerated filers and non-accelerated filers, other than foreign private issuers, with calendar fiscal years. These charts are a companion resource to Practice Note, Updating Financial Statements: The Staleness Rules, which provides a detailed primer on the staleness rules.

This Note discusses the circumstances under which issuers can use glossaries in their prospectuses and other public filings, as well as in offering documents for unregistered offerings. This Note also offers examples of the types of glossaries that may be used.

A general form of warrant to be used in connection with the financing of a private company, including in a private equity or venture capital transaction. This agreement sets out the terms and conditions by which the holder of a warrant receives the right to purchase, for a set exercise period, a specific number of equity securities of an issuer for an exercise price based on the fair market value of the equity securities at the time the warrant is issued. It is drafted in favor of the investor, but aims to be reasonable and includes customary provisions commonly included in many warrants. This Standard Document has integrated notes with important explanations and drafting and negotiating tips.

An overview of the terms and provisions of typical registration rights granted in the context of unregistered securities offerings. This Note also examines why registration rights are important to investors, registration rights in a Rule 144A/Regulation S offering, registration rights in a traditional Section 4(a)(2) private placement and the method for exchanging restricted securities for unrestricted securities in reliance on Rule 144.

This Note lists categories of risk factors commonly included in SEC periodic reports of Fortune 500 public companies in the banking and financial services industry (based on their SIC filing code) and sets out sample disclosure taken from SEC filings by companies in this industry. This Note also provides direct links to risk factor disclosure in Form 10-K filings by companies in this industry. This resource is updated periodically to reflect new SEC filings. 

This Note lists categories of risk factors commonly included in SEC periodic reports of Fortune 500 public companies in the food and beverage industry (based on their SIC filing code) and sets out sample disclosure taken from SEC filings by companies in this industry. This Note also provides direct links to risk factor disclosure in Form 10-K filings by companies in this industry. This resource is updated periodically to reflect new SEC filings. 

This Note lists categories of risk factors commonly included in SEC periodic reports of Fortune 500 public companies in the manufacturing and machinery industry (based on their SIC filing code) and sets out sample disclosure taken from SEC filings by companies in this industry. This Note also provides direct links to risk factor disclosure in Form 10-K filings by companies in this industry.   This resource is updated periodically to reflect new SEC filings.  

This Note lists categories of risk factors commonly included in SEC periodic reports of Fortune 500 public companies in the medical devices and healthcare industry (based on their SIC filing code) and sets out sample disclosure taken from SEC filings by companies in this industry. This Note also provides direct links to risk factor disclosure in Form 10-K filings by companies in this industry.  This resource is updated periodically to reflect new SEC filings.

This Note lists categories of risk factors commonly included in SEC periodic reports of Fortune 500 public companies in the oil and gas industry (based on their SIC filing code) and sets out sample disclosure taken from SEC filings by companies in this industry. This Note also provides direct links to risk factor disclosure in Form 10-K filings by companies in this industry. This resource is updated periodically to reflect new SEC filings.

This Note lists categories of risk factors commonly included in SEC periodic reports of Fortune 500 public companies in the retail industry sector (based on their SIC filing code) and sets out sample disclosure taken from SEC filings by companies in this industry. This Note also provides direct links to risk factor disclosure in Form 10-K filings by companies in this industry. This resource is updated periodically to reflect new SEC filings. 

Sample disclosure to include in a free writing prospectus, a prospectus or other offering document to alert investors of a settlement cycle different from the T+3 that is specified under Rule 15c6-1 of the Securities Exchange Act of 1934 in the context of a securities offering. This Standard Clause has integrated notes with important explanations and drafting tips.

This Article summarizes some of the main for-profit crowdfunding methods currently being used in the US. It examines key criticisms of the pending crowdfunding exemption under Title III of the JOBS Act and describes alternative methods being used right now, before the Title III rulemaking is completed. These alternatives include rewards-based crowdfunding, accredited crowdfunding platforms, peer-to-peer lending platforms and intrastate crowdfunding.

The SEC announced the agenda for an upcoming meeting of its Advisory Committee on Small and Emerging Companies, which is scheduled to take place on May 1, 2013 at 9:30 a.m. (EDT).

The NYSE proposed a rule change that would remove Section 312.07, which establishes voting requirements for proposals requiring shareholder approval, from its Listed Company Manual.

The SEC issued a report on its investigation of Netflix and its CEO for an alleged Regulation FD violation related to a Facebook posting. 

Following its release this February of FAQs clarifying the availability of an exemption from broker-dealer registration created by Title II of the JOBS Act, the SEC's Division of Trading and Markets has granted no-action relief to a funding platform that currently appears to be complying with the exemption.

An overview of  Exxon, or A/B, exchange offers whereby an issuer conducts an offering of SEC-registered debt securities in exchange for previously-issued unregistered debt securities.  This Note contains a discussion of the mechanics of participating in the exchange offer and includes a sampling of exchange offers filed with the SEC in 2012 with links to the Form S-4s and supporting documents (such as letters of transmittal, letters to clients and letters to broker-dealers).

The SEC Advisory Committee on Small and Emerging Companies announced it will meet on February 1, 2013 and released draft recommendations to be finalized at the meeting.

On December 3, 2012 FINRA released a set of FAQs on Rule 5123.

The Depository Trust & Clearing Corporation (DTCC) and the Securities Transfer Association (STA) agreed to a protocol for the replacement of security certificates that were damaged or destroyed by Hurricane Sandy.

The SEC announced the agenda and panelists for its annual Government-Business Forum for Small Business Capital Formation, scheduled for November 15, 2012.

The SEC has announced that it will extend until November 21, 2012 the deadline for filings otherwise due between October 29 and November 20, 2012 for filers unable to file due to Hurricane Sandy. 

The NYSE proposed amendments to its Listed Company Manual that would modify the process and minimum time period to provide notice that the company is relying on the financial viability exception to the rule requiring stockholder approval to issue 20% or more of its common stock or voting power.

This Practice Note provides an overview of lock-up agreements and covenants, including a discussion of key terms and the carve-outs typically negotiated for issuers and for directors, officers and stockholders.  This Note also includes links to summaries of 2012 IPO and follow-on equity offerings contained in the PLCWhat's Market database and summaries of their respective lock-up provisions and exceptions. 

The IRS issued final regulations on the definition of "publicly traded" debt which significantly expand the definition and make several changes to the proposed regulations issued in January 2011.

This Article provides an overview of at-the-market equity distribution programs (ATMs) and equity line facilities. It discusses the advantages that ATMs and equity lines offer over other methods of equity financing and explains the structure, terms and mechanics of these facilities and how to implement and maintain them. The Article covers topics including how to register the offered securities with the SEC and how to comply with securities exchange rules, Regulation M and FINRA filing requirements.

FINRA announced that it is accepting public comments on the appropriate scope of FINRA rules that should apply to member firms engaging in crowdfunding activities under the JOBS Act.

The SEC announced that it has scheduled an open meeting for August 22, 2012 to consider amendments to Rule 506 of Regulation D and Rule 144A that would remove the prohibition on general solicitation in these rules. These amendments are required by the JOBS Act.

SEC Chairman Mary Schapiro testified before a House Oversight and Government Reform Committee that the SEC will miss a JOBS Act rulemaking deadline.

An overview of the key practical and legal considerations involved when marketing securities through a road show.

The SEC Advisory Committee on Small and Emerging Companies announced that it will hold a meeting on June 8, 2012 to discuss the effects of the JOBS Act on small and emerging companies.

The SEC's Division of Trading and Markets issued FAQs providing guidance on the crowdfunding intermediary provisions of the JOBS Act.

The SEC's Division of Corporation Finance released additional frequently asked questions (questions 18-41) regarding Title I of the JOBS Act.

The SEC posted a notice reminding issuers that it has not yet implemented the JOBS Act's crowdfunding exemption.

Although characterized in the press as principally addressing the needs of small and micro-cap companies, provisions in the JOBS Act are applicable to a broad range of both domestic and foreign companies. Companies without ready sources of capital in today's regulatory environment may realize significant benefits from a broadened menu of capital formation alternatives.

Senior staff members of the SEC Division of Corporation Finance discussed interpretive guidance on the Jumpstart Our Business Startups Act (JOBS Act). This oral guidance supplements various written guidance the staff has published over the last week.

14 law firms have released a report detailing their consensus on the immediate effect of the Jumpstart Our Business Startups Act of 2012 on SEC rules governing general solicitation and advertising in certain private placements.

On April 5, 2012, Practical Law Company and Morrison & Foerster LLP recorded How the JOBS Act Affects Capital Markets Practice, a one hour webinar on how the Jumpstart Our Business Startups Act affects capital markets raising transactions and disclosure obligations. You can access the recorded webinar here. Click here to download webinar slides.

The House of Representatives passed the Senate-amended Jumpstart Our Business Startups (JOBS) Act.

The SEC staff issues a small entity compliance guide explaining the new net worth standard for accredited investors and withdraws two outdated questions from its Compliance and Disclosure Interpretations (C&DI).

The SEC announced that an attorney agreed to settle an SEC civil injunction action alleging the attorney committed securities fraud under Section 17(a) of the Securities Act and under Section 10(b) and Rule 10b-5 of the Exchange Act. The action was based on the attorney's opinion and 10b-5 letter, and role in reviewing the offering document, in an unregistered bond offering.

The SEC adopted a final rule amending the net worth standard in the definition of accredited investor under the Securities Act to conform the definition to the requirements of the Dodd-Frank Act.

On November 29, 2011 the OCC issued proposed rules, as required by the Dodd-Frank Act, to remove references to credit ratings from their non-capital regulations, potentially impacting securities offerings by OCC-regulated banks.

On October 25, 2011, the SEC announced the agenda for the first meeting of its Advisory Committee on Small and Emerging Companies, which is scheduled to take place on October 31, 2011 at 9 a.m. EDT.

On September 19, 2011, the SEC proposed a rule under the Dodd-Frank Act that would prohibit underwriters, sponsors and other parties involved in the creation and distribution of asset-backed securites (ABS) from engaging in transactions that would create or result in a material conflict of interest with any investor in the ABS.

An update on the SDNY opinion in Gibbons v. Malone, rejecting short swing profit liability for the purchase and sale of two different classes of stock.

An update on the concept release issued by the Public Company Accounting Oversight Board (PCAOB) detailing possible changes to the standard auditor's report.

An update on the SEC's plan to raise certain dollar thresholds that would need to be met before investment advisers can charge their qualified clients performance fees under the Dodd-Frank Act and to amend Rule 205-3 of the Investment Advisers Act.

An update on the SEC's proposed rule under the Dodd-Frank Act amending the net worth standard in the definition of accredited investor.

A discussion of interpretations published by the staff of the SEC's Division of Corporation Finance to resolve ambiguities or unintended consequences arising from certain immediately effective provisions of the Dodd-Frank Act.

An update on the SEC approval of FINRA's proposed rule change adopting Rule 5121 into the FINRA consolidated rulebook.

An update on the SEC's compliance and disclosure interpretations (C&DIs) providing guidance on the net worth calculation when determining whether an investor qualifies as an accredited investor under Securities Act Rules 215 and 501(a)(5).

An update on the Second Circuit Court of Appeals decision in Highland Capital Management LP v. Schneider, holding that a broker lacked both apparent and actual authority to contract to sell certain promissory notes on behalf of its client.

An update on the SEC's proposed modification to Regulation AB, which governs disclosure relating to offerings of asset-backed securities.

A discussion on poison put risk factor-type language in SEC filings with the SEC in response to the Amylin decision, including links to recent filings.

An update on the reintroduction of the Covered Bond Act in the House.

An update on the publication by the International Capital Market Association of guidance on changes to documents for the new safekeeping structure for international debt securities.

An update on a new safekeeping structure for international debt securities issued in global registered form to be launched on June 30, 2010.

An update on the SEC's no-action letter allowing reliance on Section 3(a)(9) of the Securities Act of 1933, as amended, for issuance of a new parent security in exchange for an old parent security guaranteed by wholly-owned subsidiaries.

In the absence of specific disclosure standards from the SEC, there continues to be wide variability in the scope and quality of climate change risk disclosures to investors.  This Article examines current disclosure practices and explains why greater guidance from the SEC is needed.

An update on proposed amendments by the SEC to impose additional annual reporting requirements on nationally recognized statistical rating organizations (NRSROs).

An update on the Delaware Supreme Court's order affirming the Court of Chancery's decision in a dispute between Amylin Pharmaceuticals, Inc. (Amylin) and the San Antonio Fire & Police Pension Fund.

An update on Revenue Procedure 2009-37 which provides the exclusive procedures for taxpayers to make an election to defer recognizing cancellation of indebtedness income (CODI) for debt restructurings in 2009 and 2010.

An article discussing change of control provisions in debt agreements.

An update on the SEC's statement that California's recently-issued IOUs are "securities" under the federal securities laws.

An update on Depository Trust & Clearing Corporation's (DTCC) plan to create a joint venture with NYSE Euronext for clearing US fixed income securities and derivatives.

An update on The Depository Trust Company's riders for Rule 144A and Regulation S offerings.

An update on a proposed rule change by FINRA to amend Rule 2720, which regulates potential conflicts of interest that exist with respect to the pricing of public offerings and the conduct of due diligence when a member participates in such offerings.

An update on the Fifth Circuit Court of Appeals' decision to affirm the district court's holding that the failure by Affiliated Computer Services, Inc. to timely file its SEC reports did not violate the terms of its indenture or the Trust Indenture Act of 1939.

This is an update on amendments to the SEC rules regarding application for EDGAR filing codes to allow additional documents to be submitted online.

An update on guidance for Form D and new EDGAR filers from the SEC's Division of Corporation Finance.

An update on the SEC's new rules and proposals for new rules for credit rating agencies.

An update on a Standard & Poor's analysis of recent distressed debt exchanges.

An update on the revised Master Agreement Among Underwriters published by the Securities Industry and Financial Markets Association (SIFMA).

An update on Fitch Ratings' release of an updated Code of Conduct.

An update on a notice issued by FINRA reminding broker-dealers of their obligation to comply with federal securities laws and FINRA rules when participating in unregistered resales of restricted securities.

An update on a class action lawsuit filed in federal court in Delaware alleging among others that Harrah's unlawfully restricted bond exchange offers to certain bondholders over similarly-situated holders, which resulted in these bondholders obtaining priority claims in potential bankruptcy proceedings.

An update on the new rules being adopted by the SEC which define the terms "annuity contract" and "optional annuity contract" and provide a certain filing exemptions for insurance companies with respect to indexed annuities and other securities.

An update on the Realogy-Carl Icahn litigation.

An update on a new rule approved by the SEC to regulate certain equity-indexed annuities in order to curb fraudulent and abusive practices in the sales of those annuities.

An update on new rule changes approved by the SEC to designate the Municipal Securities Rulemaking Board as the central repository for ongoing disclosures by municipal issuers and to make those disclosures available for free online.

An update on the Eighth Circuit Court of Appeals' decision to affirm the district court's judgment in favor of UnitedHealth Group Inc. in its declaratory judgment suit against Wilmington Trust Co.

This is a summary of the NASDAQ rule change which establishes a PORTAL reference database.