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Corporate & Securities

Corporate & Securities

The SEC Approves Final Rules Regarding General Solicitation and General Advertising in Rule 506(c) Offerings

Pursuant to Section 201(a) of the Jumpstart Our Business Startups Act (the “JOBS Act”), on July 10, 2013, the Securities and Exchange Commission (the “SEC”) approved final rules to eliminate the prohibition on general solicitation and general advertising* in securities offerings conducted pursuant to Rule 506 of Regulation D and Rule 144A under the Securities Act of 1933 (the “Securities Act”).

Corporate & Securities

Noncompete Agreements May Be Enforceable Even Against Employees Terminated Without Cause

A recent court case throws into question the per se rule that covenants not to compete are unenforceable in New York when an employee is terminated without cause.

A number of decisions by the New York State Court of Appeals and the United States Court of Appeals for the Second Circuit had established a per se rule that employers who terminate an employee without cause would not be able to enforce any provisions of a covenant not to compete.

Corporate & Securities

Consideration in Option Contracts Addressed by Court of Appeals

The New York State Court of Appeals decided two cases recently regarding consideration in option contracts. The two cases, which involved many of the same parties, hinged on the granting of an option in exchange for consideration. In both cases, the court reiterated principles of contract law. The court ruled that when the cases involve sophisticated parties represented by counsel, the court will not examine the sufficiency of the consideration and will not permit extrinsic evidence to determine what “other good and valuable consideration” might be. If a party wishes to condition its contractual obligations on a particular performance by the other party, it should make that condition part of the written agreement.

Corporate & Securities

SEC Issues Rules Requiring Broker-Dealers to Search For Lost Securities Holders

The Securities and Exchange Commission (SEC) has issued new rules for broker-dealers requiring them to search for securities holders if they lose contact with them.  The rules require for the first time that broker-dealers attempt to find securities holders that they have lost touch with.  Broker-dealers and other participants in the securities market must also notify people who have not processed checks that were issued to them in association with their securities.

Corporate & Securities

FINRA and BBB Take Action Against Investment Scams

The Financial Industry Regulatory Authority (FINRA) Investor Education Foundation has joined forces with the Better Business Bureau (BBB) to launch a new website, BBB Smart Investing, which is intended to help investors avoid unlicensed brokers and fraudulent investment schemes.
The website, located at www.bbb.org/smartinvesting, combines the consumer outreach of BBB with the extensive knowledge of FINRA.

Corporate & Securities

FINRA Took Significant Action in 2012

The Financial Industry Regulatory Authority (FINRA), the independent regulator of securities firms, accomplished much in 2012 in the areas of detecting fraud, developing cross-market surveillance and improving transparency in securities markets.  The regulator also assessed $68 million in fines and ordered $34 million in restitution to customers during 2012, a record amount.

Corporate & Securities

House Passes Bills that Loosen Regulation and Encourage Capitalization

Four bills that reduce regulatory red tape and could make it easier for small businesses to raise capital have passed in the U.S. House of Representatives and are waiting in the Senate for approval. Two of those bills deal specifically with fundraising. House members proposing these bills said less regulatory restriction and better access to capital is the best way to help small companies grow. H.R. 2940 proposes allowing small private companies to solicit investors through advertising. The SEC’s ban on solicitation is said to shrink the pool of investors in small companies…

Corporate & Securities

FINRA Rule 5123 Regarding Notice Filings for Private Placements Becomes Effective December 3, 2012

FINRA Rule 5123 (“Rule 5123” or the “Rule”) becomes effective on December 3, 2012 and will apply prospectively to private placements that begin selling efforts on or after this date. Rule 5123 requires a member firm of the Financial Industry Regulatory Authority (“FINRA”) selling an issuer’s securities in a private placement to file with FINRA a copy of any private placement memorandum, term sheet or other offering document, including any materially amended versions thereof, used by the firm. Under the Rule, the FINRA member firm must file the disclosure documents within 15 calendar days of the date of the first sale or indicate that it did not use any such offering documents.

Corporate & Securities

SEC Changes Net Worth Definition of Accredited Investor

The Securities and Exchange Commission recently changed policies to exclude home value from net worth as it determines whether an individual can invest in some securities offerings that are unregistered. SEC rules allow some people to qualify for limited and private offerings without registration or specific disclosures if the sales are only to “accredited investors”. These “accredited investors” can qualify for these opportunities by having a net worth of at least $1 million, amongst other qualification factors.

Corporate & Securities

Spinoffs Become More Popular but Require Careful Planning

Company spinoffs were all the rage last year with even more expected in 2012. From toy and technology companies to food distribution and agriculture companies, 2011 was a record year for businesses wanting to break up into smaller, perhaps more profitable entities. The market has been busy for several reasons. Since the market has been weak, companies are being more creative to build value for their investors. Some “activist investors” even push company management to separate the high-growth part of the business from the rest of the company. The uptick in spinoffs may also be a result of a slow IPO market.