On March 20, 2025, CorpFin announced a number of C&DI updates.  Several of the updates address registration issues, including the timing of filing a registration statement after a year end has passed but the related Form 10-K or Form 10-K Part III information has not been filed.  All the C&DIs related to the now vacated daily share repurchase Form F-SR were withdrawn.

For foreign private issuers, new C&DI 110.10 states that an auditor change that has been reported on Form 6-K does not need to be reported in a subsequent Form 20-F so long as the Form 6-K includes all disclosures required by Form 20-F Item 16F(a).

As always, your thoughts and comments are welcome.

On February 21, 2025, Acting Chair Mark T. Uyeda delivered the R. Franklin Balotti Keynote Address at the Florida Bar’s 41st Annual Federal Securities Institute and M&A Conference.  In his address Acting Chair Uyeda focused on “the Commission’s role in fostering innovation, job creation, and economic growth, by maintaining cost-effective regulations for every stage of a company’s lifecycle.”

The major sections of his address were:

• • A New Beginning,
  • Improving Capital-Raising Opportunities for Entrepreneurs,
  • Empowering Retail Investment in Private Companies,
  • Making IPO’s Attractive Again, and
  • Scaling Public Company Disclosure Requirements.

His remarks address a number of areas, including crowdfunding regulations, tailoring the Commission’s regulations for newly public companies and whether the Commissions scaled disclosure requirements, including the definitions of large accelerated and accelerated filer and smaller reporting company, should be updated.  He also raised the question of whether all smaller reporting companies should be exempt from the SOX 404 ICFR auditor attestation requirements.

As always, your thoughts and comments are welcome!

On March 6, 2025, CorpFin updated two C&DIs addressing lock-up agreements in Rule 145(a) transactions (i.e., business combinations) and provided five new C&DIs related to tender offers.  You can find a list of the new and updated C&DIs here.

As always, your thoughts and comments are welcome! 

On February 12, 2025, the SEC issued Staff Legal Bulletin 14M, addressing several matters related to the shareholder proposal process.  Staff Legal Bulletin 14M rescinds SLB 14L and addresses the scope and application of certain parts of Rule 14a-8, including the economic relevance exclusion in Rule 14a-8(i)(5), the ordinary business exclusion in Rule 14a-8(i)(7), and issues of micromanagement.  It presents the SEC’s current views on several other issues, including proof of ownership letters and the use of email. It also includes a section of frequently asked questions.

As always, your thoughts and comments are welcome!

On January 27, 2025, SEC Commissioner Hester M. Peirce delivered the Alan B. Levenson Keynote Address at the Northwestern Securities Regulation Institute.  Continuing her practice of devising engaging titles for her speeches, these remarks are titled Sheep in the Steep.  She begins with a description of how the Sierra Nevada bighorn sheep “navigate the treacherous alpine terrains of their habitat.”  She then compares “the bighorn—making their way in a terrain that is steep, varied, and fraught with danger, including predators, avalanches, and disease” to “public companies navigating the hazardous regulatory, political, and societal landscape of today.”

Commissioner Peirce suggests seven steps to “offer a path toward more level, predictable terrain” for public companies.  Each of the seven steps, along with her thoughtful discussion behind each step, make for interesting reading.  Her step six is particularly relevant for professionals involved in public company reporting:

“A sixth step in bringing companies back to normal is for the Commission staff in our Division of Corporation Finance and Office of the Chief Accountant to re-double efforts to provide guidance to companies about the many disclosure issues that arise in the normal course of business. In the registration statement review process, staff should communicate early and often so new and seasoned issuers alike can have increased confidence in offering timelines. Of course, engagement on timing alone is not enough. The Commission also should encourage the expert staff to engage with public companies and their lawyers and accountants on difficult questions about the application of new and existing rules. This engagement should be dynamic and interactive, not formulaic. Commission staff time is well spent on these fundamental functions of a disclosure regulator, which in recent years have languished due to other Commission priorities.”

As always, your thoughts and comments are welcome!

On September 16, 2024, CorpFin updated its FAQs for companies that submit draft registration statements for nonpublic review. The JOBS Act provided this nonpublic review process for Emerging Growth Companies, and in 2017 CorpFin announced it would provide a nonpublic review option for many other companies.  The current update to the related FAQs makes a change for SPAC transactions.

The SECs Final Rules for SPACs created a requirement for companies acquired by a SPAC to be a co-registrant in a de-SPAC transaction registration statement.  The update addresses when a co-registrant’s CIK and related information should be included in the EDGAR process:

(19) Question:

If a registrant uses the confidential submission process to submit a draft registration statement in connection with a de-SPAC transaction, when should it include any co-registrant’s CIK and related submission information in the EDGAR Filing Interface?

Answer:

In EDGAR Release 24.3, EDGAR was enhanced to allow co-registrants on draft registration statement submissions. See Section 7.2.1 Accessing the EDGARLink Online Submission of the EDGAR Filer Manual. The primary registrant must include the co-registrant’s CIK and related submission information in EDGAR when it submits the draft registration statement. See Section 7.3.3.1 Entering Submission Information of the EDGAR Filer Manual. The draft registration statement must also contain the information required by the applicable registration statement form, including required information about the target company. Co-registrants do not need to separately submit the draft registration statements or related correspondence in EDGAR.

One interesting aspect of these FAQs is that finding them is a bit of a treasure hunt.  Beyond the “What’s New” notice on September 16, this Announcement, most recently updated on June 24, 2020, has a link to the FAQs.

As always, your thoughts and comments are welcome.