We are well into the new normal of the post-COVID-19 world. The securities team here at HSE continues to find creative ways to serve our clients during a time of significant market volatility. We have been there for several of you as you have accessed the private and public capital markets. We have closed several overnight transactions (via CMPOs, Registered Directs, and PIPEs) while also securing funds through traditional private placements of equity or debt. All of this while we and you work remotely!
During a pandemic and a time of serious social upheaval, Mark Twain’s famous words seem a little misplaced: “I have had a lot of worries in my life, most of which never happened.” Many of you, your families, employees and shareholders have had an extremely difficult four months. We will likely see further hardship until we see our local, national, and global economies return to growth. But don’t panic! This too shall pass.
The musings of many that the market will never recover are equally as misguided as the false confidence of those who believed prior to 2008 that the market would always advance. Fear tends to make everyone risk averse or indecisive. Our mission is to assuage those fears by constantly checking in on you and your business. We also strive to provide you with the best and earliest information from the regulatory bodies (SEC, Exchanges, and state governments) so that you can make the best decisions possible as you strive to grow your business in a time extraordinary uncertainty.
We certainly aren’t perfect but rest assured your best interests are what keep us awake at night. We hope you will agree after reading this newsletter that it reflects our continued concerns for you and your business.
Finally, a bit of sad news. Since our last newsletter, we lost one of the founders of our securities practice, Stu Meisenzahl. Stuart was the smartest person I have ever known and I will miss him. Our Managing Partner Craig Wittlin wrote a great tribute to Stu and his influence on the firm:
“Stuart joined our corporate practice and helped to build our market-leading securities practice, becoming a partner in 1975. His skills were broad and unique. He focused intently on the value of intellectual property rights and was a “tech transfer” lawyer before anyone knew that was a thing. He thought about complex litigation theories and consequences as part of his corporate counseling. He was an incredibly creative problem solver and one of the smartest lawyers and most strategic thinkers I have ever worked with. For me, and other young corporate lawyers who craved certainty and a clear answer, Stuart’s comfort with ambiguity and his bold creativeness could be challenging but made us far better lawyers and more effective strategists.”
Stay safe! Jim
HSE COVID-19 Resources
As the implications of COVID-19 continue to evolve, we remain committed to providing insight from across the firm to help you respond to any legal and business issues that may arise during these uncertain times. The firm has created a COVID-19 web page that is regularly updated with the latest information on a variety of legal topics including labor and employment, healthcare, tax, legislative, regulatory, immigration, construction, privacy and data security, and more. Recent topics include:
- Senate Passes Paycheck Protection Program Flexibility Act of 2020
- It’s Time for More Employees to Return to the Workplace. But What If They Refuse? - Buffalo Business First/Buffalo Law Journal
- COVID-19 CARES Act Provisions and Other Employee Benefits Developments
- Treasury Releases Forgiveness Application for Paycheck Protection Program Loans
- DOL and Treasury Announce Extensions of Benefit Plan Deadlines
- DFS Issues Guidance in Light of COVID-19 Cyber Risks
- Next Steps for PPP Loan Applicants
- UPDATED: FAQs on Providing Face Coverings for Essential Employees in New York
- New Net Operating Loss Guidance from the IRS
- The CARES Act: Relief for Residential Landlords with Federally Backed Mortgage Loans and Their Tenants
- Jim Jenkins served as moderator for, “ COVID-19: Legal Ramifications for Small Companies,” as part of the Planet MicroCap Showcase 2020 virtual panel discussion on April 21st. The Planet MicroCap Showcase brought together C level executives, MicroCap investors, financial professionals, and industry leaders for three days of presentations, one-on-one meetings, and networking.
In the News
As leaders in the legal and business communities, our attorneys regularly provide thought leadership to inform the public on a variety of relevant topics. Over the past quarter, our Securities and Capital Markets team was featured in several media outlets including the articles below:
- Press Release - Harter Secrest & Emery Helps Maxim Group Close $14.6 Million Offering
- Press Release - Harter Secrest & Emery Advises Verifyme, Inc. in $10 Million Public Offering and Uplisting to Nasdaq
- Press Release - Harter Secrest & Emery Helps Maxim Group Close $4.7 Million Offering
- Alex McClean featured in Buffalo Business First - Raising Money Became Easier for Companies – and Few People Know
- Sarah Brennan featured in Buffalo Business First - Western New York’s Emerging Legal Sectors
- Maggie Rhoda featured in Rochester Business Journal - Real Estate Investment Market May Look Different Post-COVID-19
We regularly provide insight on a range of important securities and regulatory developments through our LEGALcurrents. Below are links to some of our recent articles.
- Preventative Medicine: COVID-19 and Poison Pill Plans
- SEC Provides Guidance Regarding Investment Adviser PPP Loan Disclosure
- Nasdaq Provides Temporary Relief for Listing Requirements Amid COVID-19 Pandemic
- SEC Issues COVID-19-Related FAQs Offering Guidance on Deadline Relief
- SEC Provides Temporary Relief to Help Expedite Access to Capital for Reg CF Offerings
- Nasdaq Follows NYSE in Easing 20% Rule
- SEC Adopts Financial Disclosure Amendments for M&A Activity
Token Takedown Part II - The Collapse of Ton by Sarah H. Brennan
The article reviews Telegram’s efforts to promote their Telegram Open Network blockchain project and the SEC’s subsequent actions to effectively block the “simple agreement for future tokens” model from being a viable alternative for token projects going forward before analyzing what the SEC’s reaction may mean for future token offerings. Please click here to view.
Executive Compensation Forum
Impact of COVID-19 on Stock Ownership Guidelines by Christopher M. Potash
This article analyzes how the impact of the coronavirus pandemic on public companies’ stock prices can, in turn, impact the stock ownership guidelines for executive and directors. The article reviews typical structures of stock ownership guidelines and suggests next steps for companies to adapt their guidelines to the current environment in the capital markets. Please click here to view.
At-the-Market Offerings (ATMs)
In this issue, we provide a brief overview of an At-the-Market offering, commonly known as an ATM offering. We cover how they work, the pros and cons of this type of transaction, and key considerations when structuring an ATM. Please click here to view.
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