SEC

SEC Proposed Changes To The Definition Of A “Dealer”

Following a continuous stream of litigation against small-cap and penny stock convertible debt lenders, the SEC has proposed some statutory changes to the definition of a “dealer” under the Exchange Act. The SEC’s enforcement attack on convertible debt lenders began in 2017 and has been decried by industry participants as regulation by enforcement which, unfortunately, is not resulting in judicial orders or settlements offering clear guidance (see HERE). Also, unfortunately, the proposed new rules, which were published in March 2022 and are likely to reach final rule stage this year, still do not help small-cap investors navigate the regulatory highway.

The rule is intended to require certain proprietary or principal traders and liquidity providers to register as either a dealer or government securities dealer as applicable. The proposed rules would amend Exchange Act Rules 5a5-4 and 3a44-2 to enhance the definition of “as part of a regular business” in Sections 3(a)(5) and 3(a)(44) of the Exchange Act.

Proposed Rules

November 8, 2022

The SEC Drafts Strategic Plan For Fiscal Years 2022-2026

On August 24, 2022, the SEC released its draft strategic plan for the fiscal years 2022 to 2026 and sought public comment on same. The three primary goals set forth in the plan include: (i) protecting working families against fraud, manipulation, and misconduct; (ii) developing and implementing a robust regulatory framework that keeps pace with evolving markets, business models, and technologies; and (iii) supporting a skilled workforce that is diverse, equitable, inclusive, and is fully equipped to advance agency objectives.

To achieve these goals, the SEC intends to use of market and industry data to prevent, detect, and prosecute improper behavior. The SEC also seeks to modernize design, delivery, and content of disclosures to investors so they can access consistent, comparable, and material information while making investment decisions.

These statements are very broad, but even at face value, the different focus of the SEC as compared to the last plan published in 2018 is clear. In 2018 the three primary

November 1, 2022

SEC Adopts Pay Versus Performance Disclosure Rules

Following seven years of “will they or won’t they,” on August 25, 2022, the SEC adopted final rules requiring information reflecting the relationship between executive compensation actually paid by a company and the company’s financial performance (“Pay vs. Performance”). The rules were initially proposed in April 2015, and then languished for years (see HERE). On January 27, 2022, the SEC re-opened the comment period and expanded the proposal to include additional performance metrics (see HERE).

The SEC administration under Gary Gensler has been actively tackling compensation and insider trading related issues, including re-visiting executive compensation clawback rules (see HERE); publishing new guidance on disclosures and accounting for spring-loaded compensation awards (see HERE); proposing amendments to Rule 10b5-1 insider trading plans (see HERE); and proposing new share repurchase program disclosure rules (see HERE).

The amendments require companies to provide a table disclosing specified executive compensation and financial performance measures for their five most recently completed

October 25, 2022

SEC Issues C&DI On The Use Of Proxy Cards

Days before the universal proxy compliance deadline, the SEC issued 3 new compliance and disclosure interpretations (C&DI) addressing issues raised by the new rules.

BACKGROUND

On November 17, 2021, the SEC adopted final rules requiring parties in a contested election to use universal proxy cards that include all director nominees presented for election at a shareholder meeting (see HERE). The original rules were proposed on October 16, 2016 (see HERE) with no activity until April, 2021, when the SEC re-opened a comment period (see HERE).

The rule adoption came with a flurry of rule amendments, proposals and guidance related to the proxy process, some of which reverses recent rules on the same subject, including amendments to the rules governing proxy advisory firms (see HERE) and additional proposed amendments to Rule 14a-8 governing shareholder proposals (see HERE).

The final rules require dissident shareholders and registrants to provide shareholders with a proxy card that includes the

October 18, 2022

SEC Chair Gary Gensler Testifies To Senate Banking Committee

On September 15, 2022, SEC Chairman Gary Gensler gave his yearly testimony to the U.S. Senate Committee on Banking, Housing and Urban Affairs highlighting his priorities for the SEC. This year Mr. Gensler kept his testimony extremely short, allowing more time for questions and answers.

Last year, Chair Gensler gave lengthy testimony on his four key priorities: (i) market structure; (ii) predictive data analytics; (iii) issuers and issuer disclosure (including SPACs); and (iv) funds and investment management (see HERE).

This year Gensler again focused on market structure as a priority, noting that many aspects of the national market system rules have not been updated since 2005. Though not using the same topic subtitles as last year, SPACs, insider trading and investment funds remain top of list, as does crypto. Other priorities include shorting the settlement cycle to T+1, increasing central clearing in the treasury markets (rules were recently proposed), cybersecurity, and private funds.

Repeating his mantra, Chair

October 11, 2022

Final Rules On The Foreign Companies Accountable Act; PCAOB Reached Deal WIth China And Hong Kong – Part III

The Holding Foreign Companies Accountable Act (“HFCA”) was adopted on December 18, 2020, requiring both the SEC and the PCAOB to adopt rules and procedures implementing its provisions. The HFCA requires foreign-owned issuers to certify that the PCAOB has been able to audit specified reports and inspect their audit firm within the last three years. If the PCAOB is unable to inspect the company’s public accounting firm for three consecutive years, the company’s securities are banned from trading on a national exchange.

As part of the HFCA’s implementation, on November 5, 2021, the SEC approved PCAOB Rule 6100 establishing a framework for the PCAOB’s determination that it is unable to inspect or investigate completely registered public accounting firms located in foreign jurisdictions because of a position taken by an authority in that jurisdiction (see HERE) On December 2, 2021, the SEC adopted amendments to finalize rules implementing the submission and disclosure requirements in the HFCA (see HERE) and

October 4, 2022

Final Rules On The Foreign Companies Accountable Act; PCAOB Reached Deal WIth China And Hong Kong – Part II

As part of the HFCA’s implementation, on November 5, 2021, the SEC approved PCAOB Rule 6100 establishing a framework for the PCAOB’s determination that it is unable to inspect or investigate completely registered public accounting firms located in foreign jurisdictions because of a position taken by an authority in that jurisdiction (see HERE.) On December 2, 2021, the SEC adopted amendments to finalize rules implementing the submission and disclosure requirements in the HFCA and published a sample

September 27, 2022

Final Rules On The Foreign Companies Accountable Act; PCAOB Reached Deal WIth China And Hong Kong – Part I

As part of the HFCA’s implementation, on November 5, 2021, the SEC approved PCAOB Rule 6100 establishing a framework for the PCAOB’s determination that it is unable to inspect or investigate completely registered public accounting firms located in foreign jurisdictions because of a position taken by an authority in that jurisdiction (see HERE .) On December 2, 2021, the SEC adopted amendments to finalize rules implementing the submission and disclosure requirements in the HFCA and published a sample

September 20, 2022

2022 Delaware Corporate Law (DGCL) Amendments

Each year the Delaware legislature passes several amendments to the Delaware General Corporation Law (DGCL) which impact public and private companies incorporated in Delaware, and elsewhere, as many states follow the DGCL. Effective August 1, 2022, the DGCL has been amended to: (i) add certain exculpation provisions in favor of senior officers; (ii) reduce the voting rights necessary to convert a corporation to another type of business entity; (iii) require a dissolution filing upon expiration of a corporate existence; (iv) update signature affirmations; (v) eliminate the requirement to make a stockholder list available during a stockholder meeting; (vi) clarify the method of notice for a stockholder meeting; (vii) increase insurance protections; (viii) update three important provisions related to stockholder appraisal rights; (ix) provide technical updates to the requirements for equity issuances; (x) broaden the ability to complete advance stockholder consents; (xi) improve the method of effectuating a domestication; and (xii) clarify annual franchise tax reports.

Stockholder Appraisal Rights

Appraisal

September 13, 2022

SEC Adopts Amendments To Rules Governing Proxy Advisory Firms

On July 13, 2022, the SEC adopted amendments to the rules governing proxy voting advice, in essence undoing material provisions in the new rules that had been adopted in July 2020. The newest rules were proposed in November 2021 but had effectively been in place since June 2021 when SEC Chair Gary Gensler issued a statement making it clear that the SEC would not be enforcing the 2020 amendments to certain rules governing proxy advisory firms or the SEC guidance on those new rules.

The final rules rescind two of the rules adopted in 2020 and specifically, the conditions to the availability of two exemptions from the proxy rules’ information and filing requirements on which proxy voting advice businesses may rely. Those conditions require that: (i) companies that are the subject of proxy voting advice have such advice made available to them in a timely manner; and (ii) clients of proxy voting advice businesses are provided with a means of

September 6, 2022

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SEC

SEC Proposed Changes To The Definition Of A “Dealer”

The SEC Drafts Strategic Plan For Fiscal Years 2022-2026

SEC Adopts Pay Versus Performance Disclosure Rules

SEC Issues C&DI On The Use Of Proxy Cards

SEC Chair Gary Gensler Testifies To Senate Banking Committee

Final Rules On The Foreign Companies Accountable Act; PCAOB Reached Deal WIth China And Hong Kong – Part III

Final Rules On The Foreign Companies Accountable Act; PCAOB Reached Deal WIth China And Hong Kong – Part II

Final Rules On The Foreign Companies Accountable Act; PCAOB Reached Deal WIth China And Hong Kong – Part I

2022 Delaware Corporate Law (DGCL) Amendments

SEC Adopts Amendments To Rules Governing Proxy Advisory Firms

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