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The Public Company Handbook - Third Edition

Table of Contents

Chapter 1: You’re a Public Company? What Does It Mean?

  • 1934 Act Registration
    •
  • Listing on an Exchange
    •
  • Meeting Size Thresholds
    •
  • Concurrent Registration Under the 1933 and 1934 Acts
    •
  • 1934 Act Periodic Reporting Requirements
    •
  • Additional 1934 Act Regulation
    •

Chapter 2: The Basics: Public Company Periodic Reporting Obligations

  • CEO and CFO Certifications and Disclosure Practices
    •
  • Certifications by CEO and CFO
    •
  • Disclosure Controls and Procedures
    •
  • Internal Control Assessment
    •
  • Form 10-K and 10-Q Filing Deadlines
    •
  • Integrated Disclosure Under Regulation S-K and Regulation S-X
    •
  • Annual Report on Form 10-K
    •
  • Information Included in Form 10-K
    •
  • MD&A
    •
  • Incorporation by Reference
    •
  • Risk Factors and the Safe Harbor
    •
  • Form 10-K Exhibits
    •
  • Quarterly Reports on Form 10-Q
    •
  • Information Included in Form 10-Q
    •
  • Signatures and Certifications
    •
  • Form 10-Q Exhibits
    •
  • Missed Form 8-K Filings
    •
  • Current Reports on Form 8-K
    •
  • Mandatory Filing
    •
  • Optional Filing
    •
  • Regulation FD Disclosure
    •
  • Form 8-K Exhibits
    •
  • Timing
    •
  • Confidential Treatment
    •
  • SEC Review of 1934 Act Reports
    •
  • Amending 1934 Act Reports
    •
  • Applying Plain English Rules to 1934 Act Disclosure
    •
  • Drafting in Plain English
    •
  • The EDGAR Filing System
    •
  • Liabilities Relating to Periodic Reporting
    •

Chapter 3: Finding Your Voice: Public Disclosure Practices Under Regulations FD, G and M-A

  • Mandatory and Voluntary Disclosures
  • Regulation FD’s Mandate: Share and Share Alike
    •
  • "Curing" Unintentional Disclosures
    •
  • What’s Material? Is it just "Market Moving"?
    •
  • Exemptions From Regulation FD
    •
  • Liability for Selective Disclosure
    •
  • Regulation G: GAAP and the Earnings Call
    •
  • SEC-Filed Documents: Reconciliation to GAAP, Prominence and Explanation
    •
  • Corporate Disclosure Policy: Forward-Looking
    •
  • Disclosure and the Safe Harbor
    •
  • Written Forward-Looking Statements
    •
  • Oral Forward-Looking Statements
    •
  • Regulation M-A: Merger and Acquisition Communication
    •

Chapter 4: Insider Reporting Obligations and Trading Restrictions

  • Section 16 Reporting Obligations of Directors, Executive Officers and 10% Beneficial Stockholders
    •
  • Who Is an Insider?
    •
  • What Do Section 16(a) Insiders Report?
    •
  • How Does an Insider Report Beneficial Ownership?
    •
  • Consequences of Late Filing: Embarassment, Publicity and Fines
    •
  • Mandatory Electronic Filing and Website Posting Beneficial Ownership Reports
    •
  • Section 16(b) - Short-Swing Profit Liability
    •
  • Transactions Exempt From Section 16(b) Liability
    •
  • Calculating Profit Realized in a Short-Swing Transaction
    •
  • Schedules 13D and 13G Reporting Requirements for 5% Stockholders
    •
  • Initial Schedule 13G Report
    •
  • Schedule 13D or 13G Filings Once the Company Is Public
    •
  • Rule 144 Restrictions on Trading Restricted Stock and Stock Held by Directors, Executive Officers and Controlling Stockholders
    •
  • Securities Subject to Rule 144
    •
  • Who are Affiliates?
    •
  • Requirements of Rule 144
    •
  • Insider Trading and Rule 10b-5
    •
  • Penalties
    •
  • Company Insider Trading Policy
    •
  • Rule 10b5-1 Trading Plans
    •
  • Prohibition on Personal Loans Under Sarbanes-Oxley and Cashless Exercises
    •
  • Insider Trading During Pension Plan
    •
  • Blackout Periods Prohibited
    •

Chapter 5: Get With the Program: Setting Up a 10b5-1 Trading Plan

  • Benefits to the Company and Its Insiders of Adopting
    •
  • Rule 10b5-1 Trading Plans
    •
  • The Three "Legs" of a Rule 10b5-1 Trading Plan
    •
  • Drafting a Rule 10b5-1 Trading Plan
    •
  • Review by the Issuer
    •
  • Prohibition on Personal Loans to Insiders and Cashless Exercises
  • Public Disclosure; Filing the Right Forms
    •

Chapter 6: Proxy Solicitation and the Annual Report to Shareholders

  • The Proxy Statement
    •
  • Information Included in the Proxy Statement
    •
  • Increased Focus on the Board of Directors
    •
  • Audit and Compensation Committee Reports (and Other Information)
    •
  • The Audit Committee Report and Other Disclosure
    •
  • Filing and Distributing Proxy Materials
    •
  • Filing Fees

  • Distributing the Proxy Statement to Shareholders
    •
  • The Proxy Card
    •
  • Shareholder Proposals submitted for Inclusion in Proxy Card
    •
  • Procedural Requirements
    •
  • Substantive Requirements
    •
  • No-Action Letter Requests

  • Statement in Opposition to Qualifying Proposal
    •
  • Shareholder Proposals Not Submitted for Inclusion in Proxy Materials
    •
  • The Proxy Contest: Election Contests and Takeover Transactions
    •
  • Directors’ and Officers’ Questionnaire
    •
  • The Annual Report to Shareholders
    •
  • Content Requirements of the Annual Report
    •
  • Formatting Requirements of the Annual Report
    •
  • Timing of the Annual Report
    •

Chapter 7: Annual Meeting of Shareholders

  • Pre-Meeting Planning
    •
  • Setting the Record Date
    •
  • Setting the Meeting Date
    •
  • Notifying Shareholders, Exchanges and Markets
    •
  • Reaching Past "Street Name" to Contact
    •
  • Beneficial Owners
    •
  • Who Attends the Annual Meeting?
    •
  • Board Meeting or Board Consent to Address Matters Pertaining to the Annual Meeting
    •
  • Script, Agenda and Rules of Conduct
    •
  • Voting and Quorum Requirements
    •
  • Voting in Person or by Proxy
    •
  • Quorum
    •
  • Broker Nonvotes
    •
  • Abstentions
    •
  • The Effect of Abstentions and Broker Nonvotes
    •
  • Shareholder Actions by Written Consent in Lieu of an Annual Meeting
    •

Chapter 8: Corporate Governance: Best Practices in the Boardroom

  • Board Composition
    •
  • Independence
  • Board Size
  • Board Structure and Director Terms
  • Board Leadership
  • Board Meetings and Process
  • Regular Meetings of the Board
  • Special Meetings of Board
  • Board Committees
  • Types of Committees
  • Audit Committee
  • Compensation Committee
  • Nominating and Governance Committee
  • Other Committees
  • Board Compensation
  • Cash Compensation
  • Equity Compensation
  • Director Responsibilities
  • Duty of Care
  • Duty of Loyalty
  • Duties to Other Stakeholders
  • Duty of Candor
  • Judicial Review: Business Judgment Rule
  • Enhanced Scrutiny
  • Entire Fairness
  • Liabilities and Indemnification Provisions
  • Limiting Director Liability
  • Indemnifying Directors and Officers
  • Indemnification Agreements
  • Director and Officer (D&O) Insurance
    •

Chapter 9 Governance on the "Big Board": NYSE Listing Standards

  • Listing Requirements
    •
  • Initial Listing Requirements
    •
  • Continued Listing Requirements
    •
  • NYSE Corporate Governance Standards
  • A Majority of Directors Must Be Independent
  • What’s "Independence"? NYSE Describes "What’s Not"
  • Executive Sessions for Non-Management Directors
  • Audit Committee
  • Compensation Committee
  • Nominating and Governance Committee
    •
  • Corporate Governance Guidelines
  • Code of Business Conduct and Ethics
  • Annual CEO Certification of Compliance With NYSE Corporate Governance Standards
  • NYSE May Issue Public Reprimand Letters
  • Shareholder Approval
  • Stock Compensation Plans
  • 20% Stock Issuance
  • Insider Issuances
  • Change of Control Transactions
    •
  • Additional NYSE Standards
  • Communicate! – NYSE Notices and Forms
    •
  • Disclosure of Material News
  • Exceptions to Public Disclosure
  • Procedures for Public Disclosure
  • Trading Halts
    •

Chapter 10: To Market, To Market: Nasdaq Listing Standards

  • Listing Requirements
  • Quantitative Listing Requirements
  • Initial Listing Requirements
  • Continued Listing Requirements
  • Nasdaq Corporate Governance Standards
  • Nasdaq Corporate Governance Standards
  • A Majority of Independent Directors
  • Mandatory Executive Sessions of Independent Directors
  • Audit Committee
  • Audit Committee Approves Related Party Transactions
  • Compensation Committee (or Compensation Decisions by Independent Directors)
  • Nominating Committee (or Nominations by Independent Directors)
  • Code of Business Conduct
  • Notification of Material Noncompliance
  • With Nasdaq Corporate Governance Rules
  • Shareholder Approval
  • 20% Stock Issuance (5% to Affiliates in an Acquisition)
  • Additional Corporate Governance Standards
  • Keeping Nasdaq Informed
  • Disclosure of Material News
  • Exceptions to Nasdaq’s Disclosure Requirement
  • Companies Must Publicly Announce
  • Going Concern Qualifications
  • Procedures for Public Disclosure
  • Trading Halts
    •

Chapter 11: Corporate Structural Defenses to Takeovers

  • Why Adopt Corporate Structural Defenses?
  • Why Not Adopt Structural Defenses?
  • Staggered Board of Directors
  • Supermajority Removal Provisions
  • Filling Vacancies on the Board
  • Shareholder Rights (Poison Pill) Plans
  • State Statutory Antitakeover Provisions
  • Delaware Section 203: A Business Combination Statute
    •
  • Authorized Common and Blank Check Preferred Stock
  • Common Stock
  • Preferred Stock
  • Limitations on Shareholders’ Meetings and Voting Requirements
  • Limitations on the Right to Call Special Shareholders’ Meetings
  • Advance Notice Bylaw Provisions
  • Elimination of Shareholder Action by Written Consent
  • Supermajority Vote on Merger or Sale of Assets
  • Supermajority Vote on Amendments to Certificate of Incorporation
  • Other Actions: Change-of-Control or "Golden Parachute" Agreement
  • Best Protections

Chapter 12: Follow-On, Secondary and Shelf Registrations

  • Registration: A Fact of Public Company Life
    •
  • Follow-On and Secondary Offerings on Forms S-1 and S-3
  • Registration on Form S-1
  • Registration on Form S-3
  • Shelf Registrations
  • Common Types of Shelf Registrations
    •
  • Requirements of Resale Shelf and Universal Shelf
  • Registration Statements
  • Unique Flexibility for WKSIs
  • Form S-4: Mergers and Acquisitions
  • The Acquisition Shelf
  • Benefits of the Acquisition Shelf
  • Downsides to the Acquisition Shelf
  • Registration on Form S-8
  • Registrant Requirements
  • Transaction Requirements
  • Definition of Employee
  • Transferable Options
    •

Chapter 13: Securities and Corporate Governance Litigation

  • Liability Under the 1934 Act —Section 10(b) and Rule 10b-5
  • Liability Under the 1933 Act — Sections 11and 12(a)(2)
  • Section 11 — Liability for Misrepresentations in a Registration Statement
  • Section 12(a)(2) — Seller’s Liability
  • Special Situations Under the 1933 Act and the 1934 Act
  • Forward-Looking Statements
  • Liability for Endorsing Third-Party Statements
  • Duty to Correct and Duty to Update
  • Shareholder Class Actions
  • Securities Litigation After Sarbanes-Oxley
  • CEO/CFO Certifications
  • Extension of Statute of Limitations
  • Retention and Destruction of Documents
  • Standards of Professional Conduct for Attorneys
  • Securities Debts Survive Bankruptcy
  • "Whistle-blower" Protection
  • SEC, Justice, State Regulators are Active
  • Corporate Governance Litigation
  • Change of Control Situations
  • Derivative Lawsuits
  • Regulatory Investigations and Enforcement
  • SEC
  • NYSE/Nasdaq
    •

Chapter 14: Tiring of the Public Eye? Delisting, Deregistration and Going Private

  • Delisting and Deregistration
  • Exchange Delisting (Section 12(b))
  • Size Criteria Delisting (Section 12(g))
  • Suspension After Filing 1933 Act Registration (Section 15(d))
    •
  • Going Private Transactions: Flying Below the Radar The Process of Going Private
  • Rule 13e-3
    •

Appendix 1

  • Key Sarbanes-Oxley and Corporate Governance Disclosure Items
    •

Appendix 2

  • Annual 1934 Act Reporting Calendar
    •

Appendix 3

  • Form 8-K Reportable Events and Filing Deadlines
    •

Appendix 4

  • NYSE Initial Listing Requirements
    •

Appendix 5

  • Nasdaq Initial Listing Requirements
    •


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