At last week’s PLI Securities Regulation panel on public company mergers, Brian Breheny, the Chief of the Office of M&A at the SEC indicated that:
1. The Office of M&A’s number one priority is fixing the problems created by the split in the circuits regarding 14d-10. Brian said not to expect the SEC to adopt a brightline test – but reminded the audience that the SEC has consistently taken the view that bona fide compensation arrangements should not raise 14d-10 issues. However, it wasn’t clear how the SEC will propose to solve the problem other than that it has now concluded that a rule amendment is necessary.
2. The SEC is closely studying the NASD’s rule proposal regarding fairness opinions and is also reviewing its own fairness opinion disclosure rules.