The staff of Corp Fin have posted a revised set of CDIs interpreting the cross-border exemptions. The new CDIs replace the 17-year old interpretations that were contained in Section II of the July 2001 Interim Supplement to the antediluvian Telephone Interpretations Manual. (You may even have a copy in a three-hole binder somewhere.) Some of the CDIs reflect only technical revisions, some are substantive and some are entirely new interps.
Corp Fin has just posted A Small Entity Compliance Guide for Issuers that summarizes the recent amendments to the definition of “smaller reporting company” and related amendments. (See this PubCo post and this Cooley Alert.) The Guide also provides some clarification regarding timing and transition to the new definition.
Corp Fin has issued two new CDIs related to the voluntary submission of Notices of Exempt Solicitation under Exchange Act Rule 14a-6(g). That rule requires any person who engages in an exempt solicitation pursuant to Exchange Act Rule 14a-2(b)(1) (i.e., without soliciting a proxy) and beneficially owns over $5 million of the class of securities subject to the solicitation to furnish or mail to the SEC a Notice of Exempt Solicitation. Rule 14a-103 requires the soliciting party to attach the written soliciting materials required to be submitted pursuant to Rule 14a-6(g)(1). Recently, some shareholders (think John Chevedden) have begun to submit these Notices voluntarily in what appears to be a way to publicly to express their views on proposals.
Corp Fin has announced that it intends to begin to publicly release on EDGAR “bedbug” letters—letters issued by Corp Fin to advise the issuer that its registration statement or other offering document is so deficient that Corp Fin won’t even bother to review it until the filing is amended to repair the deficiencies. (This type of “bedbug” letter is not to be confused with the “poison pen” type of “bedbug” letter that is frequently submitted to the SEC by participants in proxy contests for the purpose of identifying errors, misleading statements and violations made in filings by their opponents. Why they are both called “bedbug” letters is above my pay grade.)
For quite a while, the CDIs related to the proxy rules and proxy statements have been a bit of a hodge-podge of different sources and supplements. There were even interpretations extant from the ancient Telephone Interpretations Manual—you may even have a mimeograph copy of that in your office somewhere. Now, Corp Fin has undertaken to update and harmonize some of those proxy-related interpretations, specifically the basic Interpretations Manual and its March 1999 Supplement. The rest of the supplements remain undisturbed for the moment; however, Corp Fin advises that it is in the process of updating them all.
In past few years, after Corp Fin issued Staff Legal Bulletin 14H redefining the meaning of “direct conflict” under the Rule 14a-8(i)(9) exclusion for “conflicting proposals,” the staff has continued to fill in the outline of what works and what doesn’t work under the new interpretation of the exclusion. In American Airlines Group (avail. April 2, 2018), the staff concluded that the approach taken by the company was coloring outside the lines and denied no-action relief.