There are many ways for a public company to raise money, but one of the more increasingly popular choices is through an “at-the-market” or ATM offering, whereby a company can sell its securities into an existing trading market in a series of transactions over an extended period of time and at prices based on prevailing market prices.
When disclosing information in a filing with the SEC, it is important to know whether such disclosure and any related exhibits should be "filed" or "furnished". To non-lawyers, this may seem like semantics or another technical difference among lawyers, but there is a distinct and important difference, which is oftentimes the cause behind the questions we receive from in-house counsel.
Most in-house counsel of public companies are very familiar with the reporting obligations required by the trifecta – Form 8-Ks, Form 10-Qs and Form 10-Ks – but they oftentimes rely on outside counsel to help determine whether any filings are required to be made under Section 16 of the Exchange Act. If someone is an officer or director of a public company or owns more than 10% of any class of securities of a public company, that person is deemed to be an insider of that company and is required to file the following forms with the SEC in order to report his or her insider-ness. As a practical matter, many companies assist their insiders with these forms as a courtesy, even though they are not technically the company’s responsibility.
Annual reporting season is once again upon us, so as you dust off your to do list, here are a few of the many important items for in-house counsel to consider during the inevitable flurry of activity in the coming weeks.
The SEC recently issued under the JOBS Act the long-awaited crowdfunding rules, whereby small businesses may raise capital from a large number of investors, each of whom contributes a small amount of money, without going through the trouble of filing a registration statement with the SEC. However, it is important to understand the limits and filing requirements imposed by the SEC before moving forward with a crowdfunding transaction.
Gone are the days where all parties to a transaction sit together in a conference room, sign documents, shake hands and close a deal. Today, it seems like almost all deals are closed via electronic transmission, which begs the question we often receive from in-house counsel - how valid are electronic signatures in commercial transactions?
This is the first in a series of posts that identify certain issues faced by in-house counsel of public companies in a range of corporate matters. To kick us off, we will examine three items to consider when preparing your Quarterly Reports on Form 10-Q to avoid common errors.