FEMA apparently uses an informal metric known as the “Waffle House Index” to determine the severity of a natural disaster. We at TheCorporateCounsel.net have our own informal way of assessing the severity of a legal disaster, and we call it the “Force Majeure Memo Index.” Whenever something bad happens, we don’t worry too much about it unless a major law firm kicks out a client memo (see second blog) citing the potential applicability of contractual force majeure clauses.
Unfortunately, this Faegre Drinker memo on contractual risks for global supply chains arising out of the Iran conflict arrived in my inbox last week, and this excerpt makes it clear that we’ve officially crossed the Rubicon:
Force Majeure (FM) clauses excuse performance if it becomes impossible or impracticable due to events like war, armed conflict, or government actions. They may also provide a right to terminate.
The party seeking performance will argue for a narrow construction of the FM provision, limiting the counterparty’s ability to claim relief. It will challenge any suggestion that the event in question caused an inability to perform, and seize upon any failure by the party invoking FM to comply with contractual notification provisions or to mitigate the effect of the event in question.
The party seeking to terminate or suspend will seek to rely on a broad construction, including of specified events such as “war”, “armed conflict”, “acts of government”, “fire or explosion”, etc. It will argue the event in question fits within the specified events, caused its failure to perform, that it has taken appropriate mitigation steps, and potentially that the prolonged duration of the event gives rise to a right to terminate the contract.
The memo addresses other contractual doctrines that might excuse a party from performing its obligations under a contract, as well as contractual provisions, such as MAC clauses, that might have the same effect. The memo also highlights practical steps that parties should consider in dealing with potential contractual performance issues resulting from the Iran conflict.
A “crypto user interface” is essentially an app that lets people see their digital currency and send, receive and manage it without needing to understand the blockchain technology that underlies it. Yesterday, the SEC’s Division of Trading & Markets issued a statement that provides a narrow path for certain crypto user interfaces to avoid broker-dealer registration.
The statement includes a detailed list of criteria that the provider of the user interface must satisfy in order to avoid registration. These include operating the interface as a neutral, non-discretionary tool that allows users to handle all aspects of their transactions using objective and transparent parameters. In addition, the provider may charge only fixed fees and may not solicit or recommend trades. Extensive disclosure concerning the provider’s role, fees, conflicts and other matters are also required. (This is definitely the 20,000 ft. overview of the criteria – be sure to read the statement for the details.)
The statement also includes a list of services that will disqualify the provider from relying on the exemption. These include, among other things, negotiating the terms of any transaction, making investment recommendations, handling customer funds or securities, processing trade documentation or taking orders or executing or settling trades.
Commissioner Hester Peirce issued a statement supporting the staff’s actions, but calling for “a more permanent regulatory approach that addresses the broker definition in light of current market circumstances.”
On Friday, the SEC approved Nasdaq’s application to expand trading hours expand trading hours for NMS listed equities and exchange-traded products to 23 hours a day, five days a week. This excerpt from the SEC’s release approving the proposal explains how it will work:
Going forward, Nasdaq proposes to conduct trading 23 hours per day, 5 days per week. It proposes doing so in two trading sessions rather than three. First, it will conduct a “Day” trading session, which will be the same and comprise its existing Pre-Market Hours, Regular Market Hours, and Post-Market Hours trading sessions. The Day Session will commence at 4:00 AM ET and end at 8:00 PM ET, and it will continue to feature both the Nasdaq Opening Cross and the Nasdaq Closing Cross. Second, Nasdaq will conduct a “Night” trading session, which will commence at 9:00PM ET and end at 4:00AM ET the next calendar day. All NMS Stocks would be eligible to trade during the proposed Night Session.
As we explain below, between 8:00 PM and 9:00 PM ET on each weekday, the Exchange will pause trading on its market to conduct maintenance, testing, and to process those corporate actions, such as mergers, stock splits, and dividends, that will become effective the following trading day. The pause will also allow for market participants to process and clear trades before proceeding to a new trading day. Nasdaq proposes to keep its markets closed during all weekend hours, except that the trading week will commence with a Night Session on Sunday nights at 9:00 PM ET. The trading week will end at the conclusion of the Day Session on Friday.
On holidays or dates when the Nasdaq market is otherwise closed, the closure will be effective as of 8:00 PM ET on the day prior to the closure date, and the market will generally reopen at 9:00 PM ET on the closure date. If the closure date is a Friday, the market will reopen on Sunday evening at 9:00 PM ET.
The start date for the new extended trading hours remains a little murky. The SEC’s order notes that before it can kick 23/5 trading off, Nasdaq apparently has to file a further rule change proposal confirming that its systems are ready to handle night trading.
As I blogged back in December, a lot of folks on Wall Street aren’t crazy about this move. Among other things, market participants expressed concerns about investors waking to see “a stock blasted 10% higher or lower on thin overnight volume, driven more by traders’ knee-jerk reactions than by calm analysis.”
I’ve got to say, that argument seems a little more strained than it did back in December. I mean, is there anyone who’s witnessed the stock market’s trading history since the launch of the Iran conflict who can argue with a straight face that our currently well-rested traders have been making moves based on “calm analysis?”
Glass Lewis recently published its inaugural Institutional Investor Stewardship Report, which surveyed approximately 60 asset managers and asset owners across Europe (49%), North America (44%), and APAC (7%). Survey participants represented a range of firm sizes, investment approaches, and stewardship structures. Here are the key takeaways:
– Hybrid stewardship models are now the norm: Nearly two-thirds (65%) of respondents combine baseline portfolio expectations with deeper engagement on select holdings.
– Integration is a work in progress: While 88% report some integration between voting and engagement, a significant share of organizations still operate with fragmented workflows. Nearly half (49%) rely on spreadsheets or general-purpose tools to track engagement.
– Data and accountability as key enablers: Investors highlighted stronger feedback loops with investment teams (44%), credible escalation strategies (41%), and improved data management (36%) as priorities for improved stewardship.
– Regional differences in priorities: European investors place greater emphasis on sustainability themes, while North American investors continue to focus more on traditional governance issues.
We recently posted the transcript for our “From S-1 to 10-K: Avoiding Disclosure Pitfalls” webcast, during which Wilson Sonsini’s Tamara Brightwell, Cooley’s Brad Goldberg, Latham’s Keith Halverstam and Gibson Dunn’s Julia Lapitskaya reviewed the most frequent disclosure and compliance challenges that newly public companies face and shared insights into how to avoid the common missteps that can trigger SEC comments, investor scrutiny, and unnecessary risk. The webcast covered the following topics:
– Entering the Exchange Act Reporting Cycle
– Risk Factors, Forward-Looking Statements, and Earnings Communications
– Form 8-K Current Reports
– Form 10-K and Proxy Statement
– Mechanics of the First Annual Meeting
– SOX, Internal Controls, and Disclosure Controls in the First Year
Members of the TheCorporateCounsel.net can access the transcript of this program. If you are not a member, email info@ccrcorp.com to sign up today and get access to the full transcript – or call us at 800.737.1271.
Yesterday, Corp Fin issued new SEC Forms CFI 116.26 that gives small cap ATM issuers a potentially very big break. Here’s the new guidance:
Question: A company entered into a sales agreement with a named selling agent for an at-the-market offering of an amount of securities that the company reasonably expected to offer and sell. The company had an effective Form S-3 registration statement, was eligible to offer and sell securities in reliance on General Instruction I.B.1, and filed a prospectus supplement for the offering. At the time of its next Section 10(a)(3) update, the company does not meet the $75 million public float requirement of Instruction I.B.1 but remains eligible to use Form S-3 in reliance on General Instruction I.B.6 (the “baby shelf”). Will the staff object if the company continues to offer and sell the full amount of securities covered by the prospectus supplement even if that amount would exceed the offering limits of General Instruction I.B.6?
Answer: Under these circumstances, the staff will not object if the company continues offering and selling the full amount of securities covered by the prospectus supplement that was filed prior to the Section 10(a)(3) update. [March 19, 2026]
Traditionally, each Section 10(a)(3) update drew a bright line around questions concerning Form S-3 eligibility, and if an issuer no longer met the $75 million public float test, any existing ATM program would be subject to the baby shelf limitations in Instruction 1.B.6. Now, an issuer that finds itself in this position can continue to issue the full amount of the shares covered by the ATM pro supp even after the date of the Section 10(a)(3) update.
The relief granted by this CDI is relatively modest in the grand scheme of things (after all, we’re talking about ATM programs), but in taking a position that the Section 10(a)(3) update is no longer a bright line in all situations, the Staff may have crossed the Rubicon here. It will be interesting to see where that journey takes it.
Last month, Meredith blogged about Nasdaq’s proposal to offer “Fast Entry” to its Nasdaq 100 Index for mega-cap IPOs. This excerpt from a recent WSJ article summarizes how the proposal would work:
Consider a company whose total market capitalization is large enough to rank among the 40 biggest in the Nasdaq 100. Under the rule proposal, if that company does an IPO for less than 10% of its shares outstanding, it would enter the index at a weight of five times the market value of its freely tradable shares.
Say what?
If a company with a total market capitalization of $1 trillion floated only 5% of its stock in an initial offering, that would be $50 billion in freely tradable shares. Under Nasdaq’s proposal, the basis for weighting the company in the Nasdaq 100 index would be five times greater, or $250 billion.
In current market conditions, this company with $50 billion in freely tradable shares—multiplied by a factor of five—would immediately hurdle into the top third of all stocks in the index.
Nasdaq’s proposal – which is in the consultation phase – is made in contemplation of some mega-IPOs that are likely to come down the pike this year, including SpaceX (which has reportedly conditioned its willingness to list on Nasdaq on adoption of the proposal), Open AI, and Anthropic. However, the proposal’s going over like a lead balloon with some institutional investors. Here’s another excerpt from the WSJ article:
The likely result, several asset managers tell me, is that with the company looming five times larger in the benchmark, index funds and other big investors would be under pressure to buy more of the stock, giving an artificial boost to its performance.
If Nasdaq adopts the proposed rule, “you’re creating false demand that’s going to affect the stock price because of the lack of liquidity,” says Ken Mertz, chief investment officer at Emerald Advisers, an asset-management firm in Leola, Pa. “Higher demand would create greater volatility and potential harm to market efficiency. And it would bring more speculation into the marketplace.”
Other commentators are more blunt in their criticism. For example, Michael Burry, of “The Big Short” fame, says that George Noble’s Substack piece on the proposal is a must read. Mr. Noble kicks off his critique with a statement that “This is the most SHAMELESS structural manipulation of a major index I’ve ever seen. . . ” Spoiler Alert: He doesn’t get more positive on the proposal from there.
We’ve recently passed the 13,000-query mark in our “Q&A Forum.” Of course, as Broc would always point out when he wrote one of these Q&A milestone blogs, the “real” number is much higher since many queries have others piggy-backed upon them. Over the years, we’ve collectively developed quite a resource. Combined with the “Q&A Forums” on our other sites, there have been well over 35,000 individual questions answered – including over 11,000 that Alan Dye has answered over on Section16.net.
As always, we welcome – in fact, we actively encourage – your input into any query you see that you think you can shed some light on for other members of our community. There is no need to identify yourself if you are inclined to remain anonymous when you post a reply (or a question). And of course, remember the disclaimer that you need to conduct your own analysis & that any answers don’t constitute legal advice. Also, please keep in mind that the Q&A Forum is not an outsourced research service – we all have day jobs and aren’t in a position do research projects!
Don’t miss out on the Q&A Forum or any of our other practical resources – checklists, handbooks, webcasts, members-only blogs and more – which so many securities & corporate lawyers know are critical to practicing in this space. If you’re not yet a subscriber, you can sign up for a membership today by emailing sales@ccrcorp.com or by calling us at 800-737-1271.
While much of the DExit debate has focused on differences in the way director and controlling shareholder actions will be evaluated under the legal standards of different states, investor relations concerns also need to be top of mind for companies considering reincorporation. A recent FTI memo discusses some of the non-legal considerations associated with DExit proposals. This excerpt highlights factors companies should consider during the evaluation stage for a possible move from Delaware:
– Candidly Assess Current Relationship With Shareholders. Requesting shareholder approval to reincorporate does not happen in a vacuum. History matters. When shareholders are voting, they will be assessing more than just the merit of the proposal. They will be assessing the history of engagement with the Company, the Company’s current shareholder rights profile, the Board’s rapport with shareholders at large, and, if applicable, any response to previous shareholder dissent. Shareholders need to trust the Board in order to support such a proposal, and trust is established well before the filing of a preliminary proxy.
– Start Early. Companies should thoroughly assess the merit of reincorporation, including to which jurisdictions, alongside legal counsel. Shareholders will want to see that the Board took the appropriate steps to determine this was in the best interest of shareholders, and this process was not rushed. Further, reincorporation requires the filing of a preliminary proxy and a deliberate campaign-like approach to secure shareholder support (more on that below), which underscore the importance of starting early.
– Avoid Surprises (for your shareholders and for you).
Engage Shareholders Early. Companies should have regular dialogue with their top investors on governance matters, establishing a relationship with them before requesting their support on a proposal like reincorporation. In these engagements, companies can discuss the topic of reincorporation at a high level with their top shareholders and seek their views on the topic.
Conduct a Voting Outlook. Prior to requesting shareholder approval to reincorporate, a Company should have a rough idea of which shareholders are generally supportive, unsupportive, or “on the fence” when it comes to reincorporation proposals. Analysis can inform a likely vote outcome and can identify what levers the company has available to increase the likelihood of shareholder support.
– Monitor the Landscape. The legal frameworks that may make reincorporation more or less appealing can change over time. We expect shareholders’ views will also evolve. Boards considering reincorporating should closely monitor these developments.
The memo also includes recommendations to boards and management teams that have gone beyond the evaluation stage and are seeking shareholder approval of a reincorporation proposal. Among other things, FTI stresses the importance of a cohesive campaign to secure shareholder support, the need for a compelling company-specific rationale behind reincorporating that goes beyond “less litigation,” and the extent to which reincorporation may be perceived to put shareholder rights at risk.
When I taught my law school classes, I would always touch on the “Race to the Bottom” among states competing for corporate franchise dollars and mention that New Jersey had the early lead in the competition in which Delaware ultimately prevailed. Exxon – f/k/a Standard Oil of New Jersey – was always my example of a company that chose The Garden State early on and that has remained there for more than a century. However, Exxon’s not likely to be a New Jersey corporation much longer, since it recently filed a preliminary proxy statement with the SEC asking shareholder to approve a move to Texas.
Exxon also filed soliciting materials containing the following talking points to explain the redomiciliation proposal to its shareholders:
Key message: Texas, as you likely are aware, is ExxonMobil’s home. After careful evaluation, our Board has determined that aligning our legal domicile with our operational home – Texas – benefits both shareholders and the Company, all while preserving shareholder rights.
– ExxonMobil is a Texas corporation in all but name, with most senior corporate executives and all corporate functions based in the state for the last 35 years. Our global headquarters are in Texas; approximately 30% of our global employees are based in Texas. Of the company’s U.S. employees, approximately 75% work in Texas and our U.S.-based research facilities are in Texas.
– We work in a long-cycle, complex industry where legal stability and certainty are critical. We believe Texas legislators, judges, and juries that are more familiar with our business are more likely to provide legal certainty.
– Texas has been deliberate in offering businesses a predictable and common-sense regulatory environment designed to support innovation, job creation, and economic growth, strengthening shareholder value over the long-term.
– The move would in no way alter our commitment to protecting shareholder rights. The Board compared shareholders’ rights under New Jersey and Texas law and believes the economic and voting rights of shareholders are comparable, and stronger in some areas. Importantly, the Company is not adopting any elective provisions of the Texas corporate statute that could be viewed as weakening shareholder rights as compared to New Jersey law.
I’ve got a couple of thoughts about Exxon’s proposed move. First, these talking points seem to check all of the investor relations boxes that FTI recommended in the memo I just blogged about. Second, like Sal Tessio, I understand that this is “just business,” and Exxon wants New Jersey to know that it’s always liked it.
That being said, I’m a little melancholy about the decision, because it represents the closing of a very long and storied chapter in American corporate history. In that regard, check out Article FIFTH of Exxon Mobil’s current certificate of incorporation, which continues to list all of its founding shareholders, including John D. Rockefeller and the other trustees of The Standard Oil Trust.
