Contractual blockers have become a common tool in offerings of preferred stock and warrants to cap an investor’s beneficial ownership at 4.9% or 9.9% — which can effectively prevent the investor from becoming subject to Section 13(d) or Section 16. That is, unless the blocker is considered “illusory.” Here’s a recent development on contractual blockers that Alan shared earlier this month on Section16.net:
It has become settled law that a blocker in a derivative security can be effective to cap the holder’s beneficial ownership at an amount not exceeding the cap so long as the blocker is contractually binding. The SEC filed an amicus brief in 2001 supporting that position provided that the blocker is not “illusory.” The SEC’s brief listed four factors it considers relevant to whether a blocker is illusory. In a recent decision dismissing a complaint filed by Bed Bath & Beyond against an investment fund and its manager, a judge in the SDNY applied those factors in finding that blockers included in derivative securities acquired by the fund were not illusory.
The fund invested in BB&B on February 7, 2023, by purchasing three derivative securities: convertible preferred stock, warrants to purchase more preferred stock, and common stock warrants. The preferred stock and the common stock warrants contained blockers limiting the fund’s ownership to no more than 9.9% of the outstanding common stock. The strike prices of the derivatives allowed the fund to buy common stock at discounted prices, which the fund began doing immediately through serial conversions, each for a number of shares that kept the fund below the cap, followed by a sale of the acquired shares before submission of the next conversion request. Within two weeks the number of outstanding shares doubled, and within three months BB&B filed for bankruptcy.
BB&B challenged the validity of the blockers and sought $310 million in short-swing profits. The defendants argued that the blockers were contractually binding and therefor effective to limit ownership. The court agreed the blockers were binding but also agreed with the SEC (and BB&B) that a blocker also must not be illusory. The court then addressed the SEC’s factors.
Whether the blocker is easily waivable by the parties. BB&B argued that the parties could have agreed at any time to amend the derivatives to eliminate the blockers. The court said that argument was “nonsensical” and would render every contract illusory. In any case, the documents expressly prohibited amendment of the blocker provisions.
Whether the blocker lacks an enforcement mechanism. The plaintiff argued that BB&B had no way to determine whether the fund’s ownership exceeded the cap and that, in any case, BB&B lacked the will to enforce the blockers because BB&B would have been “thrilled” to receive the additional cash. The court said an enforcement mechanism existed because the fund was required to represent in each conversion or exercise request that the issuance would not cause the fund to exceed the cap. Whether BB&B had any interest in enforcing the caps was not relevant. BB&B also argued that it could not have enforced the blockers because a side letter prohibited it from requesting any information from the fund beyond the conversion and exercise requests. The court said a blocker can be valid even if enforcement rests with the derivative’s holder. The terms of the blockers also served as an enforcement mechanism, in that the blockers provided that any issuance in excess of the cap would be null, void and cancelled ab initio, and that any excess shares would be cancelled and not eligible to vote at meetings of stockholders.
Whether the blocker has not been adhered to in practice. The fund submitted 90 exercise and conversion requests, including 15 during the first two days after acquiring the derivatives. Following each exercise, the fund immediately sold the acquired shares and submitted another exercise request. BB&B argued that the fund remained the beneficial owner of sold shares until the sales settled, meaning the cap was regularly exceeded. The court concluded that shares the fund sold could be excluded from the fund’s beneficial ownership calculation because shares are deemed sold when the seller is irrevocably committed to the transaction, which occurs on the trade date, not the settlement date.
Whether the blocker can be avoided by transferring the securities to an affiliate. The plaintiff didn’t argue that the blocker could be avoiding by transferring the securities to an affiliate, so the court didn’t address this factor.
The court’s decision serves as a useful guide in drafting blocker provisions. Also useful is the court’s statement (in footnote 8) that the SEC’s list of factors that tend to support a conclusion that a blocker is valid does not suggest that the absence of those factors undermines the validity of a blocker.
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According to a recent report from The Conference Board, more than seven out of ten S&P 500 companies disclose their use of AI as a risk factor. That’s up from just 12% in 2023. This excerpt from a CFO Dive article on the report highlights some of the specific types of risks that companies are addressing in their disclosures:
Reputational risk is the most widely disclosed issue, at 38%, according to the report. This reflects the potential impact of losing trust in a brand in the case of a service breakdown, mishandling of consumer privacy or a customer-facing tool that fails to deliver.
Cybersecurity risk is cited by 20% of firms. AI increases the attack surface, and companies are also at risk from third-party applications.
Legal and regulatory risks are also a major issue, as state and federal governments have rapidly attempted to set up security guardrails to protect the public, while providing enough support for companies to continue innovation.
We cover SEC disclosure and corporate governance risks here, but if you’re on the front lines of risk management for AI, cyber, and other emerging technologies, be sure to subscribe to our AI Counsel Blog, where we roll up our sleeves and address some of the more granular issues that legal and compliance personnel are confronting when trying to manage the risks of emerging technologies.
Morris Nichols’ Kyle Pinder and Cleary’s J.T. Ho and Helena Grannis recently published this article on how to take the next step and implement a retail voting program. The authors note that the first step in the process is making sure a company understands its shareholder base, and then, as this excerpt discusses, determine whether that program will be effective:
Once the size and voting behavior of the retail investor base is understood, companies should consider how effective a retail voting program may be in helping meaningfully improve retail investor engagement over the long term, including participation in voting and potentially to help pass, or pass at higher levels, management proposals, before they decide to adopt such a program. A company with a significant concentration of votes with several large institutional shareholders or high levels of institutional holders may find that the retail program will not substantially impact voting outcomes.
Further, companies will want to consider how much movement there is in their retail investor base. Maintaining an effective program will depend on the company’s ability to have proxies as of a particular record date. If there is significant movement in the retail base throughout the year, the company will need to engage in continual program enrollment, the program may not be as effective as anticipated as a result. Similarly, the program permitted by the SEC requires that retail investors be allowed to opt out of the program at any time and override voting instructions in particular votes, which would allow movement in voting out of a program.
This illustrates a further consideration: companies will need to invest in significant long-term engagement with retail investors to implement, refresh and maintain a program. The platform and communications to get investors to opt in as well as annual reminders may not be insignificant from a process, administrative and, potentially, cost perspective.
Once these two steps are completed, the final two steps are to determine the design of the program and determining how it will be perceived by shareholders. The article offers guidance on both of these issues, noting some specific drafting requirements for the program’s terms that necessary to comply with Delaware law, and the need to engage with shareholders to determine their sentiment toward the program prior to implementing it.
The US is considering moving to a semi-annual reporting system for public companies. There’s been a lot of speculation about what will happen if the US eliminates mandatory quarterly reporting, but based on his own country’s experience in scrapping mandatory quarterly reporting, this article from a Swedish financial regulator suggests that the answer might just be nothing:
[I]n 2014 the mandatory requirement was scrapped, in part because coming EU-regulations made it difficult to have quarterly reports mandatory. Also, the debate at that time, a period with very few IPO’s, was that the regulatory burden kept small companies from being listed. The mandatory quarterly requirement therefore had to go.
Trading statement
The half-year report was still mandatory, since Swedish companies are following IFRS. NASDAQ Stockholm also kept a requirement for the companies to issue a full-year (quarterly-like) report within two months of the final day of the year, because the annual report normally arrives late, after approximately four months. Consequently, the first and the third quarter report became voluntary. Companies only had to present a trading statement with very few numbers. However, they had to explain why this report was more useful to investors, than a comprehensive quarterly report.
Absolutely nothing
What happened? Nothing, absolutely nothing. Some companies, very few, changed the name of the Q1 and Q3 report to “quarterly statement”, but in essence the information was the same. (Footnote: The last ten years NASDAQ Stockholm and the unregulated markets in Sweden has been one of the most expansive IPO-markets in the world, so obviously quarterly reporting was not a limitation).
Although it’s a stretch to assume that US public companies will go the way of Sweden’s if mandatory quarterly reporting is eliminated, my guess is that investors will reward those who do continue to provide a steady flow of quarterly information, and that some of the potential downsides to reporting on a semi-annual basis may further encourage many companies to maintain the status quo.
I hope you were able to join us on Tuesday for our “2025 Proxy Disclosure Conference” and yesterday for our “22nd Annual Executive Compensation Conference.” Thanks again to all of valued sponsors, terrific speakers, and everyone at CCRcorp who made these events possible!
As always, our 15 panels covered a lot of ground on a wide range of topics over the past two days, and if you found that your notetaking was sometimes unable to keep pace or if you had to miss parts of the conferences, well, as they say on TV – “hey relax guy!” – because archives of the sessions will be available to attendees in the near future.
Attendees should receive an email next week with a link to our 2025 Conference Archives page. Members of TheCorporateCounsel.net, CompensationStandards.com, Section16.com and DealLawyers.com who registered for the conferences can use their existing logins to access the Proxy Disclosure Archives and the Executive Compensation Archives. In order to earn CLE credit for the archived sessions of the 2025 Proxy Disclosure & 22nd Annual Executive Compensation Conferences, you’ll need to follow the instructions outlined in our CLE FAQ page.
The unedited transcripts for the conferences will be added to the archive pages in the near future – and we’ll let you know when they’re up.
Finally, we bid farewell to our 2025 PDEC Conferences with one more quote from Fear and Loathing in Las Vegas:
“Maybe it meant something. Maybe not, in the long run, but no explanation, no mix of words or music or memories can touch that sense of knowing that you were there and alive in that corner of time and the world. Whatever it meant.”
Mahalo from Las Vegas, everybody – and safe travels!
Earlier this month, Meredith blogged about some advice that Cicely LaMothe, Deputy Director of Disclosure Operations & former Acting Corp Fin Director had for “digital asset treasury companies,” or DATCos, concerning the disclosures that the Staff expects to see from them. This DLA Piper blog takes a deep dive into the DATCos and addresses a variety of legal and business considerations associated with them. This excerpt reviews the capital markets tools being deployed in support of DATCo strategies:
A broad range of capital market tools is being leveraged to financially engineer DAT strategies, including at-the-market (ATM) offerings, private investments in public equity (PIPE), equity lines of credit (ELOC), convertible notes, warrants, preferred equities, de-SPACs, reverse mergers, and innovative credit facilities linked to staking yields and/or treasury performance.
ATM programs, which allow control over the timing of sales with minimal market impact, enable DATs to target sales when shares are trading at a premium to the treasury token’s net asset value and pause sales when market conditions are not favorable. PIPEs have gained traction among newly public or smaller companies looking to efficiently raise capital for digital asset reserves.
Convertible notes, coupled with derivative structures to help mitigate dilution, have also become attractive instruments, especially for high-growth companies seeking to rapidly scale their digital asset reserves. High demand for DATs in the convertible bond market has recently allowed such companies to negotiate favorable terms, such as zero-interest coupons and high conversion premiums. Companies announcing DAT strategies alongside capital raises have experienced significant stock movement.
The momentum in strategically deploying capital-raising tools for financial engineering is expected to continue throughout 2025.
Other topics covered in the blog include the reasons for institutional investors’ interest in DATCo equities, DATCo trading strategies, corporate governance issues and regulatory developments.
Bass Berry’s Kevin Douglas & Toyin Edogun recently blogged about considerations for IPO companies when considering whether to list on Nasdaq or the NYSE. In case you’re ever asked to jump on a Zoom call to discuss this topic, this excerpt will provide you with a handy cheat sheet for summarizing the differences between the two exchanges:
– The NYSE functions as an auction market in which participants transact directly with each other, whereas market participants on the Nasdaq make purchases and sales via a market maker.
– Nasdaq’s annual listing fees are generally more favorable to listed companies than the NYSE’s listing fees. For example, the current maximum annual listing fee for companies listed on the NYSE is $500,000, compared to a maximum annual listing fee for companies listed on Nasdaq of $193,000. Additionally, while the NYSE imposes a fee to list additional shares, Nasdaq does not charge a fee for the listing of additional shares.
– Companies listed on Nasdaq have the ability to participate in certain widely-recognized Nasdaq-specific indices, including the Nasdaq-100 Index (which includes 100 of the largest non-financial companies listed on the Nasdaq), which do not have an NYSE equivalent. The inclusion of companies in such recognized indices may increase the visibility and potential trading volume of companies included in any such index.
– While the corporate governance requirements of each exchange are quite similar, there are certain differences between these corporate governance requirements, with the Nasdaq’s requirements being slightly less stringent on balance.
The blog also reviews the comparative performance of the two exchanges over the past couple of years in attracting new IPO candidates, and also discusses recent moves from one exchange to the other by existing public companies.
You can register to attend today’s conference online and receive access to the archive of yesterday’s program by visiting our online store or by calling us at 800-737-1271. Our conferences are bundled together into a single two-day event for registration and pricing, so your purchase will cover both events.
– How to Attend Online: Our conferences are hosted online through the RingCentral Events platform. When you register for the conferences, you’ll receive a registration confirmation email that will contain your personalized “Magic Link.” Just click on that link to be instantly directed to the event. The Magic Link acts as an “access pass” into the event. It is unique to you and cannot be shared with others. It bypasses the need for registered users to sign into RingCentral Events and brings you directly into your RingCentral Events account and into the event.
Once in the event, click the “Stage” button from the menu on the left of the webpage. In order to view the session currently playing on stage, you will need to press the play button on the video. If you need technical assistance, members of our team will be available within the platform and via email at info@ccrcorp.com to assist you throughout the conferences. If you need technical assistance, members of our team will be available via email at info@ccrcorp.com to assist you throughout the conferences.
– Access to Archives & On-Demand CLE: Your registration includes access to the conference archives, which will be available until October 23, 2025 – but you’ll need your confirmation email to access them so be sure to retain it! One big reason to make sure you do that is that if you can’t attend the conferences live, you may earn on-demand CLE credit by viewing the archives. See these “CLE FAQs for Archived Conference Sessions (ON DEMAND)” for more information.
– Thanks to Our Sponsors! A huge “thank you” to our sponsors who have helped make these events possible. Our platinum sponsor for this year’s conferences is Goodwin, our gold sponsor is Ballard Spahr, our silver sponsors are Cooley, King & Spalding, Kirkland & Ellis, Latham & Watkins, Morrison Foerster, O’Melveny, Sidley, Troutman Pepper Locke, and Wilson Sonsini – and a special shoutout to our breakfast roundtable sponsors Cleary and Dragon GC. We are extremely grateful for their support of these fine law firms and businesses and invite you to join them in sponsoring next year’s conferences.
Finally, here’s today’s Fear and Loathing in Las Vegas quote:
“We’d be fools not to ride this strange torpedo all the way out to the end.”
Privilege issues in internal investigations can be difficult to navigate, so the 6th Circuit’s recent decision in In re: First Energy Corporation overruling a district court decision holding that the attorney-client and work product privileges didn’t apply when the investigation was initiated for business advice is welcome news for public companies and their advisors. Here’s an excerpt from Wachtell’s memo on the decision:
In FirstEnergy, shareholders brought a securities fraud class action suit against FirstEnergy and sought in discovery documents from FirstEnergy’s internal investigations related to a bribery scheme. The district court ordered broad production of the company’s internal investigation files, reasoning that privilege and work-product protection did not apply because the company “initiated the investigations for business advice, not legal advice” and “later used the fruits of the investigations for business decisions.”
The Sixth Circuit took the rare step of granting mandamus and vacating the lower court’s order compelling the production of the internal investigation materials. The Sixth Circuit held that there is “no way to affirm the district court’s ruling without abandoning nearly a half century . . . of jurisprudence concerning the scope of the attorney-client privilege and work-product doctrine or without discouraging full and frank communication between companies and their attorneys when investigating their own wrongdoing.”
The memo notes that the Court also held that limited disclosures to the government in connection with a deferred prosecution agreement and providing documents to the company’s auditors didn’t waive applicable privileges. The Court based that conclusion on the fact that the material disclosed “was not privileged, was already discoverable, or consisted of ‘bare conclusions from the investigation,’ not ‘the substance of the[] attorney’s advice.'”
This Woodruff Sawyer blog discusses employed lawyer insurance policies, which are intended to protect in-house attorneys in the (rare) situations in which they find themselves being sued for malpractice by the corporation that employs them. This excerpt summarizes the coverages typically provided by those policies:
Employed lawyers insurance can cover the general counsel of a company, other staff attorneys, and, in some cases, legal assistants and paralegals acting under the supervision of an in-house attorney.
Some policies cover attorneys who are not employed by a company but who are acting on behalf of the company pursuant to a written agreement.
Typical coverage limits for employed lawyers policies range from $1 million to $5 million. The limit a company will purchase depends on factors like the risk tolerance of the company, the number of employed lawyers on staff, and the nature of the legal services provided.
The policy usually covers:
– All claims made against employed lawyers (unless specifically excluded) that arise out of the performance of, or alleged failure to perform, legal services for the employer
– Legal fees and expenses incurred in defense of employed lawyers accused of legal malpractice
– Amounts paid in damages or settlements, in some cases
– Punitive damages with “most favorable jurisdiction” language (with some insurers)
The blog also identifies some typical exclusions, which include securities claims, liability arising from non-legal professional services, certain employment practices claims, misappropriation of trade secrets and bodily injury, emotional distress and property damage claims. – John Jenkins
