M&A Securities Attorney
SEC Disclosure Requirements in Mergers and Acquisitions
Mergers and acquisitions involving public companies trigger a cascade of SEC disclosure obligations that extend from the earliest material discussions through closing and beyond. Securities counsel ensures compliance with proxy rules, Form 8-K requirements, and the antifraud provisions that apply throughout the transaction.
Disclosure Obligations Throughout the Transaction
M&A transactions involving public companies create disclosure obligations at every stage. The signing of a material definitive agreement triggers a Form 8-K filing within four business days. If shareholder approval is required, the company must prepare and file a proxy statement on Schedule 14A that provides shareholders with sufficient information to make an informed voting decision. The proxy statement must disclose the terms of the transaction, the background of negotiations, any fairness opinions obtained, and the interests of directors and officers in the transaction that may differ from shareholder interests.
Insider Trading and Regulation FD Considerations
M&A transactions create heightened insider trading risk. Information about a pending merger is quintessential material nonpublic information. Companies must implement trading blackout periods, restrict the flow of information to those with a need to know, and ensure that selective disclosure to potential counterparties or financing sources is protected by confidentiality agreements. Securities counsel advises on the creation and maintenance of insider trading policies during the transaction period and ensures compliance with Regulation FD's prohibition on selective disclosure to market participants.
Post-Closing Integration Disclosure
SEC disclosure obligations do not end at closing. The acquiring company must file pro forma financial information, disclose the accounting treatment of the transaction, and update risk factors to reflect the combined entity. Integration challenges, restructuring charges, and goodwill impairment risks must be disclosed in subsequent periodic filings. Securities counsel ensures that post-closing disclosure accurately reflects the operational reality of the combined entity rather than the optimistic projections presented during the proxy solicitation process.
Frequently Asked Questions
What SEC filings are required in a public company merger?
Public company mergers typically require proxy statements on Schedule 14A, current reports on Form 8-K for material definitive agreements, and potentially tender offer filings on Schedule TO or Schedule 14D-9. The specific filing requirements depend on the structure of the transaction and whether shareholder approval is required.
When does a merger trigger SEC disclosure?
SEC disclosure obligations are triggered at multiple points: when a material definitive agreement is signed (Form 8-K), when proxy materials are filed for shareholder approval (Schedule 14A), and when the transaction closes (Form 8-K). Preliminary discussions that have not resulted in a definitive agreement present more complex materiality analysis questions.
What role does securities counsel play in M&A?
Securities counsel reviews and prepares SEC filings associated with the transaction, ensures compliance with proxy solicitation rules, advises on insider trading restrictions during the transaction period, reviews fairness opinion disclosure, and ensures that the disclosure accurately reflects the terms, conditions, and risks of the transaction.
Questions about your specific situation?
Frederick M. Lehrer is a former SEC Enforcement Attorney with over 30 years of issuer-side securities law experience. All consultations are confidential. Flat-fee engagements.