Brian Hirshberg

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On March 20, 2019, the Securities and Exchange Commission (“SEC”) approved a New York Stock Exchange (“NYSE”) rule modifying the price requirements that companies must meet to avail themselves of certain exceptions from the NYSE shareholder approval requirements.  Shareholder approval was not previously required if an issuance of securities was made at a price at least as great as each of the book and market value of an issuer’s common stock.  The new NYSE rule…
On February 28, 2019, the staff of the Securities and Exchange Commission’s Division of Investment Management issued a no-action letter to the Independent Directors Council permitting board members of a business development company to vote by telephone, video conference or other remote means in certain circumstances.  This modernized position softens, but does not eliminate, the unnecessary burden for BDCs and their boards to adhere to certain in-person voting requirements.  For example, the Investment Company Act…
Global REIT IPOs decreased dramatically – down 47 percent – from 49 REIT IPOs in 2017 to 26 REIT IPOs in 2018. This decrease reflects a difficult capital-raising market, with pressures from rising interest rates and a softening real estate market in the United States, and signals changes in future REIT fundraising activities. Download the REIT IPO Market Update from Bloomberg Law® to understand recent changes in the REIT IPO landscape, including: Shifts in the…
On January 18, 2019, Congresswoman Maxine Waters and Congressman Patrick McHenry introduced legislation that would require the Securities and Exchange Commission (the “Commission”) to carry out a study of Rule 10b5-1 trading plans. Rule 10b5-1 trading plans are passive investment agreements that provide an affirmative defense for companies and insiders (directors, officers and affiliated shareholders) transacting in the relevant company’s securities from claims brought under the Exchange Act. Currently, any person or entity can establish…
On January 10, 2019, the staff of NYSE Regulation released its annual memorandum detailing important rules and policies applicable to listed companies. The memorandum provides helpful reminders for issuers (noting important rule differences for domestic and foreign private issuers) with securities listed on the NYSE and also highlights new compliance items. In particular, as previously announced, the memorandum notes that NYSE-listed companies are now required to provide notice to the NYSE at least ten minutes…
As detailed in our Legal Update, on December 18, 2018, the Securities and Exchange Commission (“SEC”) adopted a final rule requiring companies to disclose their hedging policies for employees, officers and directors. However, in a change from the proposed rule, the SEC decided not to apply the new disclosure requirement to listed closed-end funds following receipt of industry comments opposing application of the rule to such funds. However, the SEC decided to apply the…
On December 19, 2018, the Securities and Exchange Commission (the “SEC”) proposed a new rule (Rule 12d1-4) intended to modernize and improve the regulatory framework for fund of funds arrangements (fund investing in shares of another fund). Currently, funds are required to rely on existing statutory exemptions or exemptive rules or seek exemptive relief prior to creating a fund of funds arrangement, resulting in unnecessary and avoidable costs and delays and an inconsistent regulatory framework.…
In 2017, the Public Company Accounting Oversight Board (“PCAOB”) adopted a new standard for auditor’s reports that requires a description of critical audit matters (“CAMs”) designed to provide investors with information that relates to accounts or disclosures that are material to a company’s financial statements and involve especially challenging, subjective or complex auditor judgment. The CAM standard will be required for audits for fiscal years ending on or after June 30, 2019 for large accelerated…
A pre-funded warrant allows its holder to purchase the issuer’s securities at a nominal exercise price (typically, $0.01 per share).  Instead of waiting to receive proceeds following a warrant’s exercise, the issuer receives substantially all of the warrant’s proceeds upfront (without any conditions) as part of the warrant’s purchase price.  In our recently published On point. we provide a comprehensive overview of pre-funded warrants, including certain advantages for issuers and holders, as well as…