Unregistered Offerings

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.

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.

An overview of the purpose, scope and content of a comfort letter delivered in connection with an offering of securities and guidelines for the review and negotiation of comfort letters by underwriters and their counsel.

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 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 Practice Note discusses the role of the Financial Industry Regulatory Authority (FINRA) in SEC-registered securities offerings. The Note reviews the types of offerings that are affected and the role of counsel in filing with FINRA and managing the FINRA review process (focusing on the process in the context of an IPO). The Note discusses common issues in the process, including analyzing underwriting compensation and arrangements under FINRA Rule 5110 (the corporate financing rule) and underwriter conflicts of interest under Rule 5121 (the prominent disclosure and QIU rule). It discusses considerations relevant to shelf offerings that are not exempt from filing with FINRA.

A discussion of four key financial reporting topics. The Note discusses topics that are important either because the SEC has focused on them in comment letters on reporting company disclosure or because changes to accounting principles with practical implications to a company's agreements have been proposed. This Note discusses the accounting principles governing revenue recognition, lease accounting, fair value accounting and loss contingency disclosures. NOTE: On May 16, 2013, the FASB released released a revised version of its proposed ASU that would amend ASC 840, Leases. This Note does not yet reflect the revised proposed ASU.

This Note discusses the US federal income tax consequences of owning common stock or American Depositary Shares (ADSs) of a foreign corporate issuer.

A discussion of the role of the subsidiaries of a US issuer in the context of high-yield indenture covenants. This Note examines how subsidiary, restricted subsidiary and unrestricted subsidiary are each defined in the indenture and the distinction of restricted versus unrestricted subsidiaries. It also examines subsidiary debt and subsidiary guarantees, guarantees by foreign subsidiaries and the impact of subsidiary guarantors on disclosure documents.

This document discusses the dispute surrounding the proxy contest between Amylin Pharmaceuticals, Inc. and its stockholders, Icahn Capital LP and affiliated funds and Eastbourne Capital Management, L.L.C., and provides a summary of key litigated issues and practical implications indicated by the litigation.

This document discusses the dispute surrounding the proposed exchange of senior unsecured debt by Realogy for second lien term loans and provides a summary of key litigated issues and practical implications indicated by the outcome of the litigation.

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 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.

This Note summarizes some key limitations on interest deductibility imposed on a US corporate issuer.

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.

An overview of the so-called New York Stock Exchange (NYSE) 20% rule requiring stockholder approval before a listed company can issue 20% or more of its outstanding common stock or voting power.  This Note examines how to apply the rule, make calculations under the rule, claim an exception under the rule and structure transactions to avoid or defer stockholder approval.  This Note can be used by companies and practitioners before any issuance of common stock, other equity with voting rights or convertible securities and warrants. 

This Note provides a comprehensive set of examples of frequently asked questions related to the law and lore of offers of securities. Specifically, this Note offers examples of questions and answers dealing with offers and communications in IPOs, traditional road shows, non-deal road shows and industry reports and earnings guidance. This Note is not updated for the effects of the JOBS Act.

This Note explains the mechanics of a PIPE transaction. In particular, this Note outlines the advantages and disadvantages of a PIPE transaction and the differences between a traditional and non-traditional (structured) PIPE transaction. Eligibility requirements, pricing and negotiating points and other legal concerns are also identified.

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.

This Note provides an overview of key issues that in-house or external counsel to a start-up company or smaller business should consider and address in advance of capital raising activities. With the enactment of the Jumpstart Our Business Startups Act (JOBS Act) in April 2012, start-ups and smaller companies will have additional opportunities to access the capital markets. Advanced preparation by counsel will make it easier for the companies they represent to take advantage of these opportunities.

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.

This Practice Note gives an overview of Regulation M, focusing on the restrictions it places on underwriters, issuers and selling securityholders, and affiliates of these parties, in certain securities offerings (Rule 101 and Rule 102). It explains Regulation M's provisions permitting NASDAQ passive market making and stabilization in securities offerings (Rule 103 and Rule 104). It also discusses the restrictions on short selling before certain public offerings (Rule 105).

This Note discusses the Section 4(a)(1) (formerly Section 4(1)) exemption for resales of securities from the registration requirements of the Securities Act and the safe harbor provided by Rule 144 of the Securities Act. In particular, this Note explains who is eligible to rely on the Section 4(a)(1) exemption and the Rule 144 safe harbor and distinguishes the treatment of control securities and restricted securities. In addition, this Note describes the conditions that must be satisfied to rely on Rule 144, including any holding period and volume limitations applicable. In addition, this Note discusses restrictive legends and how to remove them from securities.

This Note discusses the extent to which an issuer recognizes cancellation of indebtedness income (CODI) in connection with a restructuring of outstanding debt securities.

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.

An overview of considerations to bear in mind when determining whether an issuer should engage an investment bank or other financial intermediary to assist with liability management transactions.

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 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.

An overview and detailed discussion of the parties to and documentation of a securitization transaction in which the securitized assets are originated in the US.

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 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.

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. 

This Note discusses why it is beneficial to qualify as a foreign private issuer, which non-US companies qualify as foreign private issuers, when foreign private issuer status must be assessed and when the rules on beneficial ownership under Section 16  of the Securities Exchange Act of 1934, as amended must be met in relation to issuers that are no longer foreign private issuers.

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. 

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 2011 IPO and follow-on equity offerings contained in the PLCWhat's Market database and summaries of their respective lock-up provisions and exceptions. 

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.

This is a standard due diligence request list sent to an issuer in connection with a registered or an unregistered offering of debt or equity securities. This Standard Document has integrated notes with important explanatory 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 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.

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.

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 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.

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.

A form of registration rights agreement to be used in connection with a Section 4(a)(2) private placement of debt or equity securities. This agreement sets out the terms and conditions by which investors are granted certain registration rights for the public resale of unregistered securities. It is drafted in favor of investors, but aims to be reasonable and includes provisions commonly included in registration rights agreements. This Standard Document has integrated notes with important explanations and drafting and negotiating tips.

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 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.

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 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.

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.

Standard Clauses for financial covenants required to be met by the issuer pursuant to the terms of an indenture governing high-yield debt securities. The Standard Clauses have integrated notes with important explanations and drafting and negotiating tips.

Standard limitation on indebtedness 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 restricted payments covenant to be inserted into an indenture governing high-yield debt securities. These Standard Clauses have integrated notes with important explanations and drafting tips.

A form of standard legends and transfer restrictions to be inserted in global certificates representing securities issued under Rule 144A and Regulation S under the Securities Act. These Standard Clauses have integrated notes with important explanations and drafting tips.

Form of resolutions of a pricing committee of a board of directors setting the price and other terms of debt or equity securities in an unregistered offering under Rule 144A and Regulation S of the Securities Act of 1933. These Standard Clauses have integrated notes with important explanations and drafting tips.

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.

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.

A standard form company representation relating to anti-money laundering (AML) laws and to compliance with AML-related rules to include in an underwriting agreement for a securities offering. This Standard Clause has integrated notes with important explanations and drafting tips.

A standard form of company representation to include in an underwriting agreement for a securities offering relating to compliance with the regulations of the Office of Foreign Assets Control (OFAC). This Standard Clause has integrated notes with important explanations and drafting tips.

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 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.

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.

A checklist that summarizes the factors that influence whether a particular security is classified as debt or equity for US federal income tax purposes (for a more detailed discussion on this topic, see Practice Note, Debt v. Equity: US Tax Classification of Securities).

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 Chart shows which provisions of the Jumpstart Our Business Startups Act (JOBS Act) foreign private issuers (FPIs) can take advantage of.

This chart outlines the rating categories of Standard & Poor's Ratings Services, Fitch Ratings and Moody's Investor Services for corporate debt lasting more than 12 months (long-term debt), together with an explanation of what each category means.

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.

This chart identifies the significant parties of the working group involved in registered and unregistered offerings of securities.

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 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.

A Checklist of best practices for public companies and their counsel to consider when the company and its employees are active in social media. This Checklist offers suggestions in dealing with the limitations and challenges that federal securities laws place on the use of social media and avoiding violations of the securities laws. This Checklist also covers social media use during sensitive disclosure periods, such as during securities offerings and proxy solicitations.

This chart is a general summary of the federal securities laws applicable to debt exchange offers and cash tender offers. In particular, the chart summarizes the requirements of the Securities Act of 1933, the Securities Exchange Act of 1934 and the Trust Indenture Act of 1939.

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.

A look at the JOBS Act a year after its signing, including PLC resources on the widespread changes in the law and the market it led to in its first year and guidance on the provisions that have yet to be implemented.

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.

On May 22, 2012, Practical Law Company and Morrison & Foerster LLP presented How Will the JOBS Act Affect Non-US Issuers, a one hour webinar on the practical implications of the Jumpstart Our Business Startups Act on foreign private issuers and their capital markets transactions and disclosure obligations in the US. You can access the recorded webinar here (registration required to view recorded webinar). You can download the webinar slides by clicking the PDF link below.

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.

Public companies are rapidly expanding their use of social media and other informal corporate disclosure channels. Before using these channels for corporate communications, companies should understand the regulatory issues that may arise. This Article explores the potential securities and disclosure concerns in this developing area and provides guidance on how companies can stay ahead of the curve and reduce risks when using social media.

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.

This Article discusses the Foreign Account Tax Compliance Act (FATCA) provisions included in the Hiring Incentives to Restore Employment (HIRE) Act to target offshore tax evasion.

A survey of how market practice in the Rule 144A investment grade, high-yield and convertible debt markets has evolved in the two years since the amendments to Rule 144.

This Article identifies the reasons behind the increased high-yield bond issuance activity year-to-date and examines recent trends and features in high-yield offerings.

This article considers the liquidity mismatch that funds have faced as a result of the financial crisis, and examines the solutions they have found to deal with the problem. It also looks at trends that are emerging in the area, such as the introduction of longer lock-up periods by funds, the increasing popularity of hybrid funds and changing investor preferences.

A discussion of the use of virtual data rooms during the due diligence process and other stages of a transaction.

An overview of the negotiations involved in high-yield indentures in the private equity context and the covenants typically found in the indenture.

An outline of the principal civil liability provisions that typically affect securities offerings.This article is part of the PLC US Special Report, which was published to mark the launch of PLC's first US services.

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's Division of Trading and Markets has granted no-action relief to a second funding platform that will match angel and other accredited investors with start-up companies without registering with the SEC as a broker-dealer. 

The SEC released an overview for foreign issuers that provides information about what is required of foreign private issuers to access US capital markets.

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.

On November 1, 2012, the American Institute of Certified Public Accountants (AICPA) issued an exposure draft of its Proposed Financial Reporting Framework for Small- and Medium-Sized Entities, which is intended to be a simpler and less costly reporting framework for entities that are not required to report under US GAAP.

The Depository Trust Company has instituted certain changes to its operations following the loss of power and flooding at its lower Manhattan headquarters.

The SEC released a report mandated by Section 504 of the JOBS Act on its authority to enforce Exchange Act Rule 12g5-1(b)(3), an anti-circumvention provision related to registration under Section 12(g) of the Exchange Act.

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.

The SEC issued proposed rules to permit general solicitation and general advertising in certain securities offerings.

The Government Accountability Office released a study on factors affecting trends in offerings under Regulation A under the Securities Act. The study was 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.

The Financial Accounting Foundation (FAF) announced the creation of the Private Company Council (PCC), a new body designed to improve the process of setting accounting standards for private 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's Division of Corporation Finance has released generally applicable frequently asked questions regarding Title I of the JOBS Act.

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.

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 4, 2011, FINRA proposed new Rule 5123 to ensure that investors in private placements have detailed information about the anticipated use of proceeds, the offering expenses and the offering compensation.

On September 1, 2011, the SEC amended Form ID to include additional applicant types.

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.

An update on the IRS's issuance of preliminary guidance on implementing the Foreign Account Tax Compliance Act (FATCA) withholding and reporting provisions enacted as part of the Hiring Incentives to Restore Employment Act of 2010 (HIRE Act).

An update on SEC Chairman Mary Schapiro announcing the launch of a new process that makes it easier for the public to provide comments on SEC rules required by the Dodd-Frank Wall Street Reform and Consumer Protection Act.

An update on the July 1, 2010 draft of an Exposure Draft on Financial Statement Presentation issued by the Financial Accounting Standards Board (FASB) and the International Accounting Standards Board (IASB).

An update on FINRA's proposal to adopt NASD Rule 2720, which relates to public offerings of securities by member firms with conflicts of interest, as FINRA Rule 5121 in the consolidated FINRA rulebook.

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 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.

An update on the SEC's final rule amendments imposing additional disclosure and conflict of interest 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 update on the SEC's statement that California's recently-issued IOUs are "securities" under the federal securities laws.

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 SEC's approval of a FINRA rule proposal on reporting and other requirements for private placements of unregistered securities issued by FINRA members.

An update on the bulletin describing important changes to DTC's Representations for Rule 144A Securities Rider.

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

Legal Update on S&P's New Criteria for Rating Distressed Companies Engaged in Exchange Offers.

An update on a revised FINRA rule proposal on reporting and other requirements for private placements of unregistered securities issued by members.

An update on a recent announcement released by Moody's predicting, among other things, that the global speculative-grade default rate will exceed 12% in 2009.

An update on Fitch's clarification of its existing policy on the provision of rating confirmations with respect to changes to global structured finance transactions or documentation.

An update on the record high global downgrade ratio reported by Standard & Poor's for the 4th quarter of 2008.

An update on the SEC approval of MSRB's transparency system for municipal auction rate securities and municipal variable rate demand obligations.

An update on the SEC requiring public companies and mutual funds to use interactive data for reporting financial information.

An update on US generally accepted accounting principles being accepted in Europe.

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

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