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Corporate Governance : Newsstand
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Dodd-Frank’s Whistleblower Bounties: An Effective Hotline May Keep You Out of Hot Water, Government Enforcement Alert, by Michael J. Missal, Matt T. Morley. September 7, 2010.
The bounty provisions of the Dodd-Frank Act make it essential for companies to reassess the mechanisms that they make available for employees to report concerns about potential corporate wrongdoing. Dodd-Frank creates enormous financial incentives for employees to report such concerns to law enforcement authorities, and in this environment, disincentives to internal reporting of concerns about improper conduct may prove costly and problematic.
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Global Government Solutions 2010: Mid-Year Outlook, K&L Gates Publication, July 2010.
In response to the shifting business and economic relationships worldwide, governments around the globe are actively increasing their involvement in the private sector. Effectively navigating the dynamic relationship between government and business has become a significant concern for organizations large and small.
As a follow up to Global Government SolutionsSM 2010: The Year Ahead report, which published in January, members of the K&L Gates Global Government SolutionsSM initiative have issued a 2010 Mid-Year Outlook, highlighting significant developments over the first six months of the year, and providing further insight into government agendas in wide range of areas, including environmental and energy policies, the implementation of financial regulatory reform and healthcare initiatives, and the changing political landscape around the world.
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Financial Regulatory Reform - The Next Chapter: Unprecedented Rulemaking and Congressional Activity, Financial Services Reform Alert, by Daniel F. C. Crowley, Bruce J. Heiman, Karishma Shah Page, Collins R. Clark, Margo A. Dey, Akilah Green, Justin D. Holman. July 7, 2010.
On June 30, 2010, the House adopted the conference report on H.R. 4173, the Dodd-Frank Wall Street Reform and Consumer Protection Act (“Dodd-Frank Bill” or “Bill”). The Senate is expected to follow suit when it returns from recess later in July. This alert provides a high-level summary and analysis of the significant aspects of the Bill. In the days ahead, K&L Gates will be issuing alerts addressing in detail the various provisions of the Bill.
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New Executive Compensation and Governance Requirements in Financial Reform Legislation, Financial Services Reform Alert, by James E. Earle. July 7, 2010.
The Dodd-Frank Wall Street Reform and Consumer Protection Act (the “Act”), while delayed as the Senate leadership searches for votes, is almost certain nevertheless to be enacted in mid-July 2010. While the Act’s primary purpose is to broadly reform the regulation of the financial services industry, within the massive text of the Act lurk new requirements that may impact executive compensation and corporate governance practices at most public companies, not just banks. This alert highlights these key executive compensation and governance changes.
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Outline of Requirements for the Organization and Management of Political Committees Under Federal and Pennsylvania Law, K&L Gates Publication, by Raymond P. Pepe. Updated February 2010.
Presentation to the Central Pennsylvania Chapter of the American Corporate Counsel Association providing concise checklist of requirements for the organization and management of political committees organized by corporations, labor unions and nonprofit associations for the purpose or raising funds to use to make contributions to candidates for election to federal office and state office in the Commonwealth of Pennsylvania.
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Global Government Solutions 2010 - The Year Ahead, K&L Gates Publication, January 2010.
2009 brought a further transformation in the relationship between business and government. Regardless of political systems or philosophies, governments around the world became more dynamic and intrusive in response to the financial crisis.
This 2010 Annual Report, prepared by members of the K&L Gates Global Government Solutions initiative, contains concise articles that seek to forecast likely government actions and priorities regarding a broad spectrum of topics.
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Climate Change Through Corporate Governance, Corporate Governance Alert, by Aaron A. Ostrovsky, Kristy T. Harlan, Eric E. Freedman. December 11, 2009.
As climate change continues to gain increased attention from legislators, regulators and investors, it is poised to have a profound effect on business in the coming years. The risks and opportunities presented by climate change will vary by industry and company, but virtually every business will be affected. How companies address climate change as part of their larger corporate governance structure may be a determining factor in their success in adapting to the rapidly changing regulatory landscape and in taking advantage of opportunities in the marketplace. Regardless of the industry and company involved, the specific risks and opportunities presented by climate change should be thoroughly analyzed and addressed by each company’s board of directors, officers and other management employees, and in applicable company policies and guidelines.
Click here for the full text.
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K&L Gates’ Global Government Solutions Help Businesses Deal with Government’s Expanding Role, October 21, 2009.
K&L Gates has launched a Global Government Solutions initiative to assist clients in managing the threats and opportunities presented by government authorities around the world.
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K&L Gates Gains New York Corporate Partner, August 20, 2009.
K&L Gates announces Vince Pisano as a partner in the firm's corporate practice.
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First Listings of Foreign Companies in Taiwan, Asia & Corporate Alert, by James J. Chen, Sin Khai Tan. August 6, 2009.
In recent times, Taiwan has seen a spate of gradual economic policy changes. Its domestic and international airports witnessed direct commercial flights to and from the mainland, limitations against investments by Taiwan enterprises into the mainland were measurably relaxed, and avenues were opened for various degrees of investments by the mainland into Taiwan. Although these changes were perceived to have been made largely with a view to improving trade and warming ties across the straits, there has been an opening up of the investment environment and markets generally.
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Exercise of Options Resulted in Hart-Scott-Rodino Violation Despite Closing into Escrow, Antitrust and Trade Regulation Alert, by Thomas A. Donovan, Ryan D. DeMotte. July 29, 2009.
Closing into escrow was insufficient to prevent a Hart-Scott-Rodino violation and the imposition of penalties upon an investor who purchased additional shares pursuant to expiring stock options during the Hart-Scott-Rodino waiting period following the investor's corrective filing on an earlier completed purchase of such shares for which he had inadvertently failed to make a filing.
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K&L Gates Strengthens Charlotte Office with Corporate Partner Addition, July 29, 2009.
K&L Gates is pleased to announce the addition of Eliab Erulkar as a partner in the firm's Charlotte office.
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K&L Gates Adds Corporate and Insolvency Partner to Growing San Diego Office, July 28, 2009.
K&L Gates welcomes Sue Hodges as a partner in the firm's San Diego office.
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K&L Gates Adds Dallas Corporate Partner, July 21, 2009.
K&L Gates welcomes Wilson Chu as a partner in the firm's Dallas office.
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China Opens Door to Overseas IPOs, Asia and Corporate Alert, by Navin K. Aggarwal, Vincent S. Tso, Yujing Shu, James J. Chen. July 20, 2009.
According to "Provisions on the Takeover of Domestic Enterprises by Foreign Investors" (the "2006 M&A Rules" or "Circular 10") , where a domestic natural person intends to take over his/her related domestic company using an offshore company which he/she established or controls, the takeover is subject to Ministry of Commerce ("MOFCOM") approval. Where a domestic natural person holds equity interests in a domestic company through an offshore special purpose vehicle ("SPV"), any transaction involving the overseas listing of that SPV is subject to the approval of the China Securities Regulatory Commission ("CSRC"). This has effectively halted the listing of many PRC businesses which did not establish an offshore holding structure prior to the introduction of Circular 10. However, it was never clear whether MOFCOM approval was required where a domestic natural person intends to take over a foreign investment enterprise of which the domestic natural person is a direct or indirect shareholder using an offshore company which he/she established or controls.
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New Amendment to NYSE Rule 452 Limits Discretionary Broker Voting in Director Elections, Corporate Alert, by William Gleeson, C. Kent Carlson, Eric Simonson, Aaron A. Ostrovsky. July 9, 2009.
Rule 452 of the New York Stock Exchange has been amended to eliminate broker discretionary voting in uncontested elections of directors (the "Amendment"). The NYSE proposed the Amendment and the SEC approved it on July 1, 2009. The Amendment applies to the voting of shares held in street name by NYSE members in connection with elections at all public companies. Because NYSE members hold the vast majority of shares held in street name, the Amendment will affect almost all public companies, except investment companies, and not just NYSE-listed companies. The Amendment will be effective for proxy voting for shareholder meetings held on or after January 1, 2010.
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Improvement of Shareholders' Rights - The German Shareholders' Rights Act, Corporate Alert, by Daniela Bohn, Dr. Mathias Schulze Steinen, LL.M.. July 9, 2009.
With the approval of the German Shareholders' Rights Act on May 29, 2009, rights for shareholders in German stock corporations will be improved. Just in time, the new law adopts the European Shareholders' Rights Directive and will come into effect on 1 August 2009. It aims to facilitate proxy voting powers of banks, enables online-attendance in general meetings for foreign shareholders, de-regulates contributions in kind, and makes business for "predatory stock holders" (räuberische Aktionäre) more difficult.
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K&L Gates Bolsters German Offices with Addition of Public Procurement, Media/Telecom, and Corporate Restructuring Lawyers, July 6, 2009.
K&L Gates welcomes Dr. Friedrich Ludwig Hausmann, Markus Runde, and Volker Gattringer as partners in the firm's Berlin and Frankfurt offices.
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Update of BaFin's Issuers' Guidelines, German Corporate Alert, by Dr. Mathias Schulze Steinen, LL.M., Daniela Bohn. June 15, 2009.
On May 20, 2009, the German Federal Financial Supervisory Authority issued an update of its Issuers' Guidelines. It is designed to provide hands-on guidance for market participants, in particular domestic and international issuers whose securities have been admitted to trading at a domestic exchange, on how to deal with the applicable laws, without, however, constituting a legal commentary. The recent update is comprehensive and has taken into account recent developments in European and German law.
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BaFin Extends Short Selling Restrictions, Corporate Alert, by Dr. Mathias Schulze Steinen, LL.M.. June 5, 2009.
The German Federal Financial Supervisory Authority announced on 29 May 2009 that it extends the prohibition of naked short sales of shares of a number of German financial and insurance sector companies as stipulated in the Decrees in September 2008. The extension shall apply until 31 January 2010. The extension can be revoked at any time.
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Will Proxy Access Enhance Director Accountability?, Harvard Law School Forum on Corporate Governance and Financial Regulation, by Aaron A. Ostrovsky, William Gleeson. June 4, 2009.
Posted with permission.
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Digging Deeper on Shareholder Proxy Access: What the SEC Should Consider, Corporate Alert, by Aaron A. Ostrovsky, William Gleeson. June 2, 2009.
The issue of allowing shareholders of public companies to include their nominees for director in the company's proxy materials ("Proxy Access") has been the subject of heated debate for years. In 2003, when there were no state law provisions addressing the issue, and in 2007 (when only the North Dakota statute addressed Proxy Access), the Securities and Exchange Commission proposed rules that would facilitate such inclusion, only to abandon the proposals. In March 2009, Delaware added Section 112 to its General Corporation Law, effective August 1, 2009, to allow for bylaws that permit Proxy Access. It has been widely expected that many other states would follow Delaware's lead and adopt similar statutes. In May 2009, the SEC announced that it would propose a new rule, Rule 14a-11, dealing with Proxy Access that would preempt key parts (but not all) of Delaware Section 112.
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K&L Gates Enters Middle East with Opening of Dubai Office, June 1, 2009.
K&L Gates is pleased to announce the opening of an office in Dubai, the firm's 33rd office worldwide.
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Guaranteed Returns for Green Energy Producers in Germany, by Dr. Christian Hullmann. May 27, 2009.
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EU Focus on Biofuel Sustainability, by Thomas Sibert. May 27, 2009.
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K&L Gates Adds Corporate, IP Litigation Partners in New York Office, May 19, 2009.
K&L Gates is pleased to welcome David Bernstein and Tedd Van Buskirk to the firm's New York office.
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New Provision of Delaware Corporate Law Addresses Bylaw for Proxy Access, Corporate Alert, by William Gleeson, C. Kent Carlson, Aaron A. Ostrovsky. April 24, 2009.
The Delaware General Corporation Law (DGCL) has been amended to add a new provision addressing bylaws that provide stockholders access to a corporation’s proxy statement in order to include the stockholders’ nominees for director. This amendment is effective August 1, 2009, which means that such bylaws, if they are adopted or proposed, could be contentious issues in the 2010 proxy season.
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New Accounting Legislation in Germany, German Corporate Alert, by Dr. Alexander Hartmann, Dr. Thomas Lappe. April 17, 2009.
In early April 2009, the two German federal legislative bodies finally passed the comprehensive Accounting Law Modernization Act (Bilanzrechtsmodernisierungsgesetz, BilMoG). The new law is, among other aspects, intended to bring German GAAP closer to IFRS and US GAAP. It is broadly acknowledged that requiring all corporations and commercial partnerships to use IFRS would not be appropriate due to the complexity and the significantly higher costs associated with IFRS relative to German GAAP.
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New German Legislation Introducing Restrictions on Foreign Investments, German Corporate Alert, by Daniela Bohn, Dr. Mathias Schulze Steinen, LL.M.. April 8, 2009.
On 13 February 2009, the German parliament passed much-anticipated restrictions on foreign investments in German enterprises by amending the Foreign Trade Act (Außenwirtschaftsgesetz) ("FTA"). The amendments provide the German government with expanded powers to restrict or block the acquisition of stakes in German companies under certain circumstances. Although the implications of the amendments for potential investors are supposed to be rather limited, they will have an effect on the structuring of acquisitions in Germany.
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Relevant Aspects of the German Stimulus Package II, German Stimulus Plan Alert, by Daniela Bohn, Dr. Mathias Schulze Steinen, LL.M., Dr. Frank Thomas. March 26, 2009.
Responding to the unexpected and powerful deterioration in the economic outlook, the German Parliament adopted the "Pact for employment and stability in Germany" (Gesetz zur Sicherung der Beschäftigung und Stabilität in Deutschland) on 2 March 2009.
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K&L Gates Enhances European Cross-Border Transactional Capabilities with Addition of Paris Corporate Partner, March 24, 2009.
K&L Gates is pleased to announce the addition of Jay Aragonés to the firm's Paris office.
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K&L Gates Advises on £9.3 Million Placing and Subscription by Patagonia Gold plc, March 19, 2009.
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American Recovery and Reinvestment Act of 2009 Permits Deferral of COD Income, Suspends AHYDO Rules, Creates Other Business Incentives, Tax Alert, by Thomas J. Lyden, Jared D. Mobley, Theodore L. Press, Roger S. Wise. March 2, 2009.
The American Recovery and Reinvestment Act of 2009 ("Act"), passed by the House and Senate on February 13, 2009, and signed into law by President Obama on February 17, 2009, contains a number of temporary tax incentives for businesses, and especially small businesses. This alert discusses the corporate tax provisions contained in this Act.
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Climate Change: A Mounting Disclosure Risk?, K&L Gates Publication, by Stephen K. Rhyne, Sean M. Jones, James R. Wyche, Julia R. Rhue. February 2009.
As the public attention to climate change continues to heighten, and with more climate change initiatives being proposed, public companies must assess how climate change and its consequences affect their disclosure obligations. This memorandum summarizes the federal securities rules that govern a public company’s disclosure obligations and discusses a number of considerations relevant to a company’s assessment of its climate change disclosure obligations.
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K&L Gates Advises on Acquisition of Iotech Limited, February 5, 2009.
Corporate lawyers from K&L Gates' London office advised shareholders of Iotech Limited on the sale of the international polyurethane manufacturer's entire issued share capital.
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REIT Update: Top Developments in 2008, Corporate and Tax Alert, by Phillip J. Kardis II, Thomas J. Lyden, Roger S. Wise, Anthony Green. February 3, 2009.
The top tax and securities law developments affecting real estate investment trusts (REITs) in 2008.
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K&L Gates Adds to European Operations with Launch of Frankfurt Office, January 15, 2009.
K&L Gates has established its second office in Germany with the opening of a Frankfurt location, which includes the addition of partners Mathias Schulze Steinen and Frank Thomas.
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Corporate/Securities Commentary, Antifraud, the Internet, Your Web Site, and the Blogosphere, Corporate Alert, by Phillip J. Kardis II. January 7, 2009.
To encourage the use of the Internet as an information delivery tool while protecting investors against fraud, the Commission, in 2000, issued systematic guidance on the electronic delivery of disclosure documents and company liability for their Web site’s content. Since the 2000 Electronic Release, company Web sites have continued to progress to include company-sponsored blogs and shareholder forums as well as variety of other information of interest to investors – information produced both by the company and third-parties. With the release of Commission Guidance on the Use of Company Web Sites in August 2008, the Commission has revisited a variety of issues with respect to the application of the antifraud provisions of the Federal securities laws to company Web sites.
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Corporate/Securities Commentary, It May Be the Information Superhighway, But Can it Deliver “Fair Disclosure”?, Corporate Alert, by Phillip J. Kardis II. January 7, 2009.
Securities and Exchange Commission offers additional guidance on the use of company websites in meeting Regulation FD disclosure requirements.
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SEC Proposes IFRS Roadmap, Corporate Alert, by Phillip J. Kardis II, Anand D. Nair, Anthony Green. December 29, 2008.
The U.S. Securities and Exchange Commission (“SEC”) recently proposed for public comment a roadmap for the mandated use by U.S. issuers of financial statements prepared in accordance with International Financial Reporting Standards (“IFRS”) as issued by the International Accounting Standards Board (“IASB”) (“Proposal”), as opposed to the current requirement of U.S. generally accepted accounting principles (“GAAP”). Under the Proposal, the SEC would determine in 2011 whether adopting IFRS would be in the public interest and, if so, mandate that U.S. issuers use IFRS in filings with the SEC beginning in 2014.
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K&L Gates Advises Singer Capital Markets Limited on First AIM Transaction Since Successful MBO, December 22, 2008.
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REITS: Need Cash? IRS Provides Temporary Relief, Corporate/Tax Alert, by Phillip J. Kardis II, Roger S. Wise. December 15, 2008.
While real estate may be all about location, location, location, for real estate investment trusts (REITs) the three most important things in 2008 and 2009 are: Liquidity, Liquidity, Liquidity. Unfortunately, REITs are facing a liquidity double whammy. REITs generally cannot rely on retained earnings for growth or for other liquidity needs because REITs must distribute substantially all of their taxable income each year in order to maintain their favorable tax treatment, but in the current environment REITs also are having trouble accessing the capital markets to meet these needs. The Internal Revenue Service recently announced helpful guidance that should make it easier for a REIT to satisfy its distribution requirements with a taxable stock dividend, so that the REIT can hold onto its cash. In addition, a REIT may be able to deal with these issues by suspending or significantly reducing its cash distributions or deferring its dividend payments.
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SEC Changes Foreign Private Issuer Registration Exemption, Corporate Alert, by Phillip J. Kardis II, Lorraine Massaro, Anand D. Nair, Anthony Green. December 12, 2008.
Review of SEC's recent amendment to Rule 12g3-2(b) of the Securities Exchange Act exempting certain foreign private issuers from registering securities under the Securities Exchange Act.
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K&L Gates Establishes Global Distressed Real Estate Task Force, November 24, 2008.
Cross-office, interdisciplinary group will focus on assisting clients investing in, holding, or managing troubled real estate.
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Bell Boyd Advises Hospital Laundry Services in Sale to Blue Wolf Capital Fund II, L.P., A Bell Boyd & Lloyd press release, November 20, 2008.
Bell, Boyd & Lloyd LLP (now K&L Gates) advised Wheeling, Illinois based Hospital Laundry Services in the sale of its assets to Blue Wolf Capital Management LLC in a transaction that will keep the 35-year-old company and its management team operating in its home base and increase employment by about 20 percent.
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The Foreign Corrupt Practices Act: US Legislation with Global Implications, PLC’s US Special Report, by Dick Thornburgh, Edward J. Fishman, Michael J. Missal, Jeffrey B. Maletta, Matt T. Morley. November 2008.
This article first appeared in PLC’s US Special Report and is reproduced with the kind permission of the publishers. Subscription enquiries 020 7202 1200.
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SEC Adopts Amendments to Rules Regarding Foreign Private Issuer Reporting and Disclosure Obligations, Corporate Alert, by Phillip J. Kardis II, Anand D. Nair, Anthony Green. November 18, 2008.
The Securities and Exchange Commission (the “SEC”) has adopted amendments (the “Amendments”) to the rules regarding disclosure and registration requirements for foreign private issuers. The Amendments are intended to enhance the information available to investors in U.S. public markets; and are part of a larger initiative with respect to the disclosure and other requirements applicable to foreign private issuers in light of the increased globalization of the securities markets.
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K&L Gates Advises on Reverse Takeover of Griffin Group PLC, November 18, 2008.
Lawyers from K&L Gates's London office recently assisted Alexander David Securities in its AIM admission through the reverse takeover of the Griffin Group plc.
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RFID Consortium Receives Favorable Review from Department of Justice, A Bell, Boyd & Lloyd press release, October 24, 2008.
The U.S. Department of Justice has issued a favorable Business Review Letter to Bell Boyd client, the RFID Consortium LLC, moving forward its efforts to commercialize UHF RFID technology and ultimately reduce consumer costs.
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Bell Boyd Welcomes 14 New Associates, A Bell, Boyd & Lloyd press release, September 2, 2008.
Bell, Boyd & Lloyd (now K&L Gates) today welcomes the firm's first-year class of 14 associates who have joined practice groups throughout Bell Boyd's Chicago office. The new lawyers, who already have or will begin work today, will practice in the Corporate, Intellectual Property, Litigation, Health Care, Labor and Real Estate groups.
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SPACtacular Times for Investors, Commerce Germany, by Dr. Thomas Lappe, Dr. Rüdiger von Hülst. July 2008.
SPACs (special purpose acquisition companies) have become more and more important in Europe after arriving from the US. Whilst the SPAC's only purpose is acquiring an operating company, an LOI with the seller has to be reached within 12 to 18 months and the transaction has to be closed within 24 months of the IPO. Since SPAC activities tend to be not as highly leveraged as private equity and are therefore less affected by the credit crisis, they may become an alternative approach to financing acquisitions in Europe.
Posted with permission.
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Faro Technologies, Inc. and AGA Medical Corporation, in Separate Actions, Settle Foreign Corrupt Practices Act Charges Arising Out of Alleged Payment of Bribes to Chinese Government Officials, Foreign Corrupt Practices Act Alert, by Brian F. Saulnier, Paul C. McCaffrey, Matthew J. Fader. June 30, 2008.
On June 3 and 5, 2008, the Department of Justice entered into separate settlements of alleged Foreign Corrupt Practices Act ("FCPA") violations with AGA Medical Corporation and Faro Technologies, Inc., both of which were alleged to have paid bribes to government officials in the People's Republic of China. These two recent settlements highlight the potential pitfalls of doing business in China without a rigorous FCPA compliance program and that today's FCPA enforcement environment is not limited only to large companies. This alert summarizes certain facts regarding each settlement and emphasizes basic compliance measures that may be followed to minimize the possibility of FCPA problems.
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Short Selling Disclosure — New FSA Rules, Investment Management / Corporate Alert, by Philip J. Morgan, Manjinder Cacacie, Danny Asher Brower. June 19, 2008.
The Financial Services Authority (FSA) announced on Friday 13 June 2008 new disclosure rules relating to short positions in companies during a rights issue period. The new rules come into force this Friday, 20 June 2008. The FSA took this step in response to the recent market volatility in the shares of companies undertaking rights issues.
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Unpublished Price Sensitive Information - New Voluntary Code Published, Investment Management / Corporate Alert, by Philip J. Morgan, Neil Robson. June 9, 2008.
A new voluntary code on the handling of inside information has just been published by the FSA. It is vital reading for anyone who has to deal with issues relating to price sensitive information and contains good practical guidance on the steps to be taken when dealing with inside information.
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Financial Reporting Council to Update the Combined Code, Corporate Alert, June 4, 2008.
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SEC Issues Updated Interpretations on Form 8-K Filing Requirements, Corporate Alert, by Phillip J. Kardis II, Anand D. Nair, Anthony Green. May 16, 2008.
The Division of Corporation Finance of the Securities and Exchange Commission (the "SEC") has released updated interpretive guidance, as of April 10, 2008, relating to Form 8-K filing requirements. This update replaces previously issued interpretations regarding Form 8-K set forth in (i) the July 1997 Manual of Publicly Available Telephone Interpretations, (ii) the June 13, 2003 Frequently Asked Questions Regarding the Use of Non-GAAP Financial Measures, and (iii) the November 22, 2004 Form 8-K Frequently Asked Questions. In certain instances, the updated guidance incorporates, removes and/or modifies existing interpretations. In other instances, the updated guidance clarifies prior publications. Accordingly, this guidance reflects the current consolidated source regarding SEC Staff guidance on Form 8-K.
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SEC Eliminates Requirement for Private Foreign Issuers to Provide Reconciliation of Financial Statements to U.S. GAAP, Corporate Alert, by Phillip J. Kardis II, J. Eric Holland, Anthony Green. May 8, 2008.
On December 21, 2007, the Securities and Exchange Commission (the "SEC") issued Release No. 33-879 to announce amendments to Form 20-F and conforming changes to Regulation S-X under the Securities Exchange Act of 1934 (the "1934 Act") and the Securities Act of 1933 (the "1933 Act"), respectively, as well as conforming amendments to other forms, rules and regulations under each of the 1934 Act and the 1933 Act. Effective March 4, 2008, these changes allow foreign private issuers to file with the SEC financial statements which are prepared in accordance with International Financial Reporting Standards ("IFRS") as issued by the International Accounting Standards Board ("IASB") without having to reconcile the financial statements to generally accepted accounting principals as used in the United States ("U.S. GAAP"). The changes were adopted by the SEC in order to allow issuers to access the capital markets in the United States at a lower cost and to provide investors with a better understanding of global investment opportunities through the use of the more standardized and widespread IFRS rather than through the use of various national accounting standards.
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SEC Disclosure Issues with Respect to Fair Value Measurements, Corporate Alert, by Phillip J. Kardis II, J. Eric Holland, Anthony Green. May 2, 2008.
In March 2008, the Division of Corporation Finance of the Securities and Exchange Commission (the "SEC") released an illustrative letter to certain public companies which reported a significant amount of asset-backed securities, loans carried at fair value or the lower of cost or market, and derivative assets and liabilities on the financial statements prepared by such companies and included in their most recent Form 10-K. The illustrative letter identifies a number of disclosure issues that these public companies may wish to consider in preparing the Management’s Discussion and Analysis ("MD&A") for their upcoming quarterly reports to be filed on Form 10-Q, particularly with respect to Statement of Financial Accounting Standards No. 157, Fair Value Measurements ("SFAS 157").
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SEC Revised Form S-11 to Permit Historical Incorporation by Reference, Corporate Alert, by Phillip J. Kardis II, J. Eric Holland, Anthony Green. April 28, 2008.
On April 10, 2008, the Securities and Exchange Commission (the "SEC") issued Release No. 33-8909 to announce amendments to Form S-11 which (a) allow an issuer that has previously filed annual reports for its most recently completed fiscal year under the Securities Exchange Act of 1934 (the "Exchange Act") to incorporate by reference previously filed Exchange Act reports and documents and (b) conform the cover page of Form S-11 to allow issuers to indicate whether they are relying on Rule 415 under the Securities Act of 1933 (the "Securities Act") with respect to securities being offered on a continuous or delayed basis. Filed pursuant to the Securities Act, Form S-11 is used for the registration of securities issued by real estate investment trusts and securities issued by other issuers whose business is primarily that of acquiring and holding for investment real estate, interests in real estate or interests in other issuers whose business is primarily that of acquiring and holding real estate or interests in real estate for investment. The SEC adopted these amendments in order to further integrate the Securities Act and the Exchange Act filings by conforming the Form S-11 amendments to those amendments adopted on June 29, 2005, with respect to Form S-1 and Form F-1 which are both filed under the Exchange Act.
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The Companies Act 2006, April 2008 Update, by Stuart Borrie. April 2008.
This is the latest of our series of updates on the Companies Act 2006. For further information please see our summary of the provisions of the Act and our January 2007, March 2007, June 2007, July 2007,September 2007(1), September 2007(2), January 2008 and March 2008 updates.
This update looks at changes in relation to accounts and reports and to auditors which came into force on 6 April 2008.
If you would like further information please phone or email your usual contact at K&L Gates.
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INNOVATION 2 EXIT: Raising Capital and Executing Exits, K&L Gates Presentation, Conrad E. Everhard and Stephan J. Mallenbaum., April 17, 2008.
This program included presentations from industry experts discussing the entire lifespan of technology-driven companies, from fundraising to executing effective exit strategies. A panel of venture capitalists also discussed the fundraising process and their strategies for driving successful exits.
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K&L Gates London and Berlin Offices Represent New Client Continental AG in a Joint Venture with Zytek Group, April 1, 2008.
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The Companies Act 2006, Corporate Update, by Stuart Borrie. March 2008.
This is the latest of our series of updates on the Companies Act 2006. For further information please see our summary of the provisions of the Act and our January 2007 , March 2007 , June 2007 , July 2007, September 2007(1) , September 2007(2) and January 2008 updates.
This update looks at changes coming into force on 6 April 2008, including changes to the rules governing company secretaries, execution of deeds by companies and distributions.
If you would like further information please phone or email your usual contact at K&L Gates.
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K&L Gates Expands Berlin Office with Corporate and TMT Partner Hires, March 18, 2008.
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Overriding Interest, K&L Gates Publication, by Steven D. Cox, Milton P. McIntosh, Bonny Hedderly. Spring 2008.
An update for clients and contacts on recent development in UK real estate law and practice.
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The Companies Act 2006 - New Implementation Timetable, Corporate Update, by Stuart Borrie. January 2008.
You will have seen various press reports regarding the delayed implementation of parts of the Companies Act 2006.
In December 2007, following consultations, the latest version of the implementation timetable was announced by Stephen Timms, Minister of State for Competitiveness. This update looks at the new timetable.
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Kennedy Covington Annual Report to Clients and Friends, Kennedy Covington Publication, January 2008.
Year in review publication to clients and friends, including letter from Managing Partner, service philosophy, recognition, update on all practice areas including addition of partners and associates, community development, and diversity commitment.
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The United Kingdom’s Corporate Law Overhaul: The Companies Act 2006, The Corporate Governance Advisor, by Stuart Borrie. January/February 2008.
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China Passes New Labor Contract Law In Effort To Achieve Its Goal Of Maintaining A “Harmonious Society”, Metropolitan Corporate Counsel, by Yujing Shu, David K.Y. Tang, Kelly Zhu. December 2007.
The comprehensive Labor Contract Law was passed on June 29, 2007 by the Chinese Standing Committee of the National People’s Congress (the highest legislative body in China) and will take effect starting January 1, 2008. The authors examine the differences in the new law vis-à-vis previous legislation, and discuss its implications for U.S. firms doing business in China.
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Succeeding in China: Solutions to Business Operating Issues, presented via webinar, by David K.Y. Tang, Clifford Ng, Yujing Shu, Howard Chen. October 10, 2007.
At this program, a panel of K&L Gates lawyers addressed the many issues facing companies already operating in China. They examined case studies combined with their own experience, to give the audience insight into the potential solutions to some of the key operational and structural problems faced by foreign companies. Click here to view an archived version of the webinar.
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The Companies Act 2006 - Corporate Update, by Stuart Borrie. September 2007.
1 October 2007 is the first major implementation date for the Companies Act 2006. Among the provisions which will come into force on that date are provisions which relate to access to a company's register of members, business reviews, shareholder rights, political donations and the appointment of auditors of private companies.
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The Companies Act 2006 - Resolutions and Meetings, Corporate Update, by Stuart Borrie. September 2007.
1 October 2007 is the first major implementation date for the Companies Act 2006. Among the provisions which will come into force on that date are provisions relating to company meetings and resolutions.
The Act makes significant changes to the law relating to resolutions and meetings, particularly for private companies. The changes include a shortened notice period for special resolutions (subject to the provisions of the company's articles of association) and enhanced rights for proxy holders. The changes for private companies include a new procedure for written resolutions and the abolition of the requirement to hold annual general meetings (unless the company's articles provide otherwise). Changes for listed companies include a requirement to publish the results of any poll taken and new rights for shareholders to demand an independent report on a poll.
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K&L Gates advises new client Seymour Pierce in AIM flotation of market leading South China business, September 6, 2007.
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Bell, Boyd & Lloyd Represents Parlano in Sale to Microsoft, A Bell, Boyd & Lloyd press release, August 2007.
Microsoft Corporation announced yesterday that it intends to acquire Bell, Boyd & Lloyd (now K&L Gates) client Parlano Inc., maker of MindAlign, a leading application for enterprise group chat. Microsoft plans to add Parlano's group chat functionality as a new feature of Microsoft (R) Office Communications Server and Microsoft Office Communicator, Microsoft's server and client software for presence, instant messaging, conferencing and VoIP.
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The SEC's New Rules on Internet Availability of Proxy Materials Provide Companies with Proxy Delivery Options, Securities Alert, by Kristen L. Stewart, Jeffrey W. Acre. August 24, 2007.
Following the SEC’s recent adoption of rules on the Internet availability of proxy materials, public companies will need to consider a number of issues in determining how they will comply with the new rules. While the possibility of significant cost savings associated with the new “notice only option” for delivery of proxy materials may tempt some companies to rely heavily on Internet availability, potential pitfalls related to this option are likely to cause other companies to continue to mail hard copies of proxy materials in the traditional manner. In either case, the new rules raise new compliance issues which companies must address during the course of their proxy solicitation planning.
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K&L Gates advises founder and majority shareholder John Spiers, on sale of Bestinvest to 3i, July 30, 2007.
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Real Estate Investment Trusts in Germany, Corporate / Real Estate Update, by Dr. Thomas Lappe, Alexander Schmitt. July 2007.
With legislation as of 28 May 2007 (Gesetz uber deutsche Immobilien-Aktiengesellschaften mit börsennotierten Anteilen; REITG) Germany made way for a new Act introducing Real Estate Investment Trusts for the first time in German law. The law came into effect retrospectively as of 1 January 2007 and aims at a tax-privileged mobilization of real estates of German companies while improving the equity ratio of real estate holding companies.
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Bell Boyd Represents LKQ Corporation in Keystone Acquisition, A Bell, Boyd & Lloyd press release, July 2007.
Bell, Boyd & Lloyd (now K&L Gates) is serving as exclusive outside counsel to LKQ Corporation (Nasdaq: LKQX) in the company's $811 million cash acquisition of Keystone Automotive Industries, Inc. (Nasdaq: KEYS).
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The Companies Act 2006, Corporate Update, by Stuart Borrie. 26 June 2007.
The codification of directors' duties under the Companies Act 2006 has been one of the most publicised and controversial of the changes to law made by the Act. This update summarises the codified duties and the related derivative claim provisions. The parts of the Act which relate to the directors' duties (other than those dealing with conflicts of interest) and to derivative claims will come into force on 1 October 2007.
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K&L Gates Lawyers Ranked in 2007 Chambers USA Client’s Guide, June 15, 2007.
Fifty-one K&L Gates lawyers have been ranked in the 2007 Chambers USA Client’s Guide.
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Creditors Cannot Sue Directors for Breach of Fiduciary Duty While in Zone of Insolvency, K&L Gates Corporate Alert, by William Gleeson. June 2007.
The Delaware Supreme Court recently resolved important questions about fiduciary duties of directors to creditors. The Court ruled that
- creditors may not maintain a direct action against directors for breach of fiduciary duties to creditors for conduct while the company is insolvent or in the zone of insolvency;
- creditors may maintain a derivative action against directors for breach of fiduciary duties to creditors for conduct while the corporation is insolvent.
The Court did not directly address derivative suits by creditors for breach of fiduciary duties to creditors based on conduct while the company is in the zone of insolvency, but the logic of the Court’s opinion indicates that such suits would not be allowed.
The case, North American Catholic Educational Programming Foundation, Inc. v. Gheewalla, opinion here , was decided by the Delaware Supreme Court on May 18, 2007.
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K&L Gates Miami Expands International Reach with Addition of Germany-Focused Corporate and Transactional Partner, June 7, 2007.
Mark S. Scott has joined K&L Gates' Miami office as a partner in the firm's corporate and transactional practices.
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Fostering a Culture of Compliance: a Former in-House Lawyer’s Perspective, IM Insight, an interview with Edward G. Eisert., June 4, 2007.
SEC officials often tout the benefits of developing a culture of compliance, frequently claiming that “good compliance is good business.” In this interview, K&L Gates partner Edward Eisert suggests some steps that legal and compliance professionals can take to foster an organizational culture of compliance. Please note: access to this interview is limited to current IM Insight subscribers only.
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K&L Gates Advises on £350 Million Disposal of Devonport Royal Dockyard, May 10, 2007.
K&L Gates has advised Kellogg Brown & Root Holdings Limited, Balfour Beatty Plc and The Weir Group Plc on the £350 million sale of Devonport Management Limited to Babcock International Group Plc.
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Industrial Growth Trends in India, Kennedy Covington Publication, May 2007.
A previous issue of International Insights (the first part of a three part series on doing business in India) provided an overview of best practices for contracting with Indian parties. Part two is a general description of high growth sectors in the Indian market economy, as well as a summary of investment guidelines for foreign investors.
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Legal Update — Corporate Law Changes in the UK, Metropolitan Corporate Counsel, Volume 15, No. 5, by John D. Vaughan, Stuart Borrie. May 2007.
The Companies Act 2006 was put on the statute book on 7 November 2006, and it constitutes a total re-write of UK corporate law. The last major re-write of UK corporate law, the Companies Act 1985 is being replaced. This article explores the more major changes so that General Counsel and senior in-house lawyers may be better informed as they are implemented.
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Arrival of New York Partner Builds Out K&L Gates’ Finance Practice, April 30, 2007.
Tony Nolan has joined K&L Gates as a partner in the firm's finance practice.
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Kennedy Covington Among Top U.S. Private Equity and Venture Capital Law Firms, Kennedy Covington Press Release, April 17, 2007.
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The Companies Act 2006 - March Update, The Companies Act 2006, by Stuart Borrie. March 2007.
This update gives details of the Government's announcement of its timetable for implementation of the Act and those provisions of the Act which came into force on 6 April 2007 which affect directors and public company takeovers.
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Can Smaller Companies Use Window Shop Provisions in M&A Transactions?, K&L Gates Corporate, M&A and Securities Alert, by William Gleeson, Chris K. Visser. March 2007.
A significant opinion involving Revlon duties issued by the Delaware Court of Chancery brings into question, for directors of smaller companies, a familiar technique used to satisfy the directors’ duty of care in M&A transactions – the use of a “window shop” provision to allow for a post-signing market check.
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Bank Share Security, Butterworths Journal of International Banking and Financial Law, by Jonathan Lawrence. February 2007.
Case report on whether a company which is the subject of share security could amend and exercise powers under its articles to prohibit a bank from perfecting its security.
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Bank Accounts - Civil Recovery, Butterworths Journal of International Banking and Financial Law, by Jonathan Lawrence. February 2007.
Case report on whether a claim for a civil recovery order should proceed where the persons against whom the order was sought had not been prosecuted.
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K&L Gates Los Angeles Welcomes Former Assistant U.S. Attorney to Firm’s Litigation Practice, January 22, 2007.
Fred D. Heather has joined K&L Gates' litigation and white collar/criminal defense practice.
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The Companies Act 2006, Corporate Alert, by Stuart Borrie. January 2007.
This alert summarises the key changes being introduced by the long awaited Companies Act 2006. We look at how this complex Act will change current company law. Topics covered include directors' liabilities, financial assistance, communications, AGMs and accounts.
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The Companies Act 2006 - Implementation, Corporate Update, by Stuart Borrie. January 2007.
The Companies Act 2006 (the "Act") is being brought into force in stages. This update describes the key provisions newly implemented or about to be implemented.
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Bank as Security Trustee, Butterworths Journal of International Banking and Financial Law, by Jonathan Lawrence. January 2007.
Case report on whether a bank security trustee should accept a direction or exercise its own judgment.
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Annual Report to Clients and Friends, Kennedy Covington Publication, January 2007.
Year in review report to clients and friends: You have made this a very special time for Kennedy Covington. Because of your loyalty and confidence, our firm is celebrating two significant milestones: our 50th anniversary and our growth to more than 200 attorneys.
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SEC Adopts E-Proxy Rules to Allow Posting of Proxy Materials on Website; Proposes Mandatory Adoption, Corporate Alert, by Phillip J. Kardis II, David Keith Gaston, Anthony Green. December 2006.
With the growth of the use of electronic communications by investors, the Securities and Exchange Commission (the "SEC") has adopted rules to permit shareholders to receive proxy materials utilizing now common methods of communication. This Alert describes amendments to the proxy rules under the Securities Exchange Act of 1934, as amended, adopted by the SEC that permit companies to electronically deliver proxy materials via a “notice and access” model, other than for business combinations, using websites to shareholders who have not otherwise requested paper copies. This Alert further notes that the SEC also voted to propose rule changes that would make the "notice and access" model mandatory for all solicitations other than business combination transactions.
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SEC to Propose New Interpretive Guidance on Sarbanes-Oxley 404, Preston Gates & Ellis Corporate/Securities Alert, by William Gleeson, Richard A. Kirby, Brendan R. McDonnell, Eric Simonson, Chris K. Visser, Byron W. Dailey, Raymond L. Veldman, Jeffrey A. Shady. December 15, 2006.
On December 13, 2006, the Securities and Exchange Commission ("SEC") voted to propose new interpretive guidance to be used by management of public companies in their evaluation of internal controls over financial reporting under Section 404 of the Sarbanes-Oxley Act. The SEC has not yet released the text of the proposed guidance, but an SEC press release and a speech by a Commissioner indicated that the guidance would provide management with increased flexibility in implementing Section 404. The interpretive guidance would allow management to focus on risk and materiality, based on the particular complexities and size of the company.
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Working with a Legal Team / Faculty Aging and Retirement Legal Issues, presented to the Presidential Leadership Intensive Week, by Thomas R. Johnson. December 4, 2006.
A presentation to presidents of 90 seminaries and theological schools regarding how to work with lawyers, including knowing when you need one, selection, interaction, billing issues and types and scope of relationships. The presentation also covers legal issues involved in dealing with aging faculties.
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Preston Gates & Ellis LLP Names 15 New Partners, November 30, 2006.
Preston Gates & Ellis LLP, announces that it named 15 new partners in its Seattle, San Francisco, Spokane, Washington, D.C. and Beijing offices.
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AIM Alert, K&LNG Publication, by Owen E. Waft. November 2006.
Kirkpatrick & Lockhart Nicholson Graham advises on first AIM admission of a US company to use SIS to facilitate electronic settlement of Regulation S securities
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Employers Should Beware of Broad Employee Indemnification, Preston Gates & Ellis Publication, by Jennifer M. Coughlin, Peter E. Moye, Steven R. Peltin, Todd Reuter, Joan M. Travostino, Douglas S. Parker, Kathleen O. Peterson. November 9, 2006.
Many companies indemnify employees against claims arising out of employment. Those indemnification obligations routinely arise under articles of incorporation or by-laws, or may be part of executive employment agreements. As one company recently learned to its dismay, the wording of documents creating such indemnity obligations must be precise.
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SEC Amends Tender Offer "Best-Price Rule", Preston Gates & Ellis Publication, by William Gleeson, Chris K. Visser, Richard A. Kirby, Eric Simonson, Raymond L. Veldman. November 3, 2006.
On November 1, 2006, the Securities and Exchange Commission ("SEC") issued a release setting forth amendments to the "best-price rule" contained in Rules 14d-10(a)(2) and 13e-4(f)(8)(ii) under the Securities and Exchange Act of 1934. These amendments clarify that the best-price rule only applies to consideration offered and paid for securities tendered in a tender offer — and not to employment compensation arrangements. These amendments apply to both third party and company tender offers.
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The New Do-It-Yourselfers, The Deal, by Charles H. Purcell, Margaret A. Niles. October 2006.
Reasons why proprietary funds may be smart alternative options for institutional investors.
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K&LNG New York Expands Commercial Finance Practice with Addition of Partner Marc J. Veilleux, September 19, 2006.
Marc J. Veilleux has joined K&LNG New York as a partner in the firm's commercial finance practice.
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SEC Offers Further Relief for Smaller Public Companies and Many Foreign Private Issuers from Section 404 Compliance, Preston Gates & Ellis Corporate Securities/Mergers and Acquisitions Alert, by William Gleeson, Chris K. Visser, Eric Simonson. August 9, 2006.
The SEC issued two releases in its effort to grant smaller public companies, many foreign private issuers, and newly public companies additional time for compliance with Section 404 of the Sarbanes-Oxley Act of 2002. The relief is in furtherance of the "next steps for Sarbanes-Oxley implementation" announced by the SEC on May 17, 2006, and includes some new initiatives not previously announced.
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K&LNG Advises Nomura on the First-Ever Direct Primary Listing on the Official List of the London Stock Exchange, August 8, 2006.
K&LNG advised Nomura Code Securities Limited in its role as sponsor to Napo Pharmaceuticals, Inc. on its £11.9 million placing and admission of its shares to trading on the Official List.
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Chinese companies seek the right securities niche, Portland Business Journal, by Clifford Ng. August 2006.
Partner Clifford Ng discusses the major issues that Chinese companies looking to list in overseas stock markets must consider.
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SEC Adopts New Executive Compensation Disclosure Rules, Preston Gates & Ellis Corporate Securities/Mergers and Acquisitions Alert, by Richard B. Dodd, William Gleeson, Chris K. Visser. July 27, 2006.
The Securities and Exchange Commission ("SEC") unanimously voted on July 26th to approve proposed new disclosure rules relating to executive officer and director compensation, related person transactions, director independence and other corporate governance matters, and security ownership of officers and directors.
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K&LNG Lawyers Ranked in 2006 Chambers USA Client’s Guide, July 14, 2006.
Twenty-five K&LNG lawyers have been ranked in the 2006 Chambers USA Client’s Guide.
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Waiver of the Attorney-Client Privilege: A Balanced Approach, Washington Legal Foundation, by Dick Thornburgh. 2006.
This monograph begins with a brief section on the history of protections for attorney-client communications in the corporate context. The current debate is not over the parameters of the privilege, but "when the government should get access to material that is clearly privileged." The Monograph's secton section focuses on government policies that are eroding the privilege in the corporate context and how such policies impact the charging decisions of prosecutors and the settlement decision of companies. The Monograph concludes with several wise suggestions on how government can better balance the competing interests of protecting attorney-client communications and law enforcement, and how companies might ensure cooperation with the government short of offering a wavier of the privilege. The privilege belongs to the corporate client, who should be able to choose how and when to assert it within the rules of the court. Copies can be obtained by contacting Washington Legal Foundation at 202-588-0302.
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The London Stock Exchange AIM Market, Securing Capital through an Initial Public Listing, Dual Listing, Reverse Takeover or PIPE, presented via webinar, June 20, 2006.
K&LNG assembled an all-star panel with extensive, real-world experience in AIM related transactions to provide insight on how your company might benefit from an AIM listing. Click here to download the presentation or view the webinar.
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Delaware Supreme Court Clarifies Directors’ Fiduciary Duty of Good Faith, Corporate eAlert, a Hughes & Luce publication, June 15, 2006.
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Disney: The Delaware Supreme Court Speaks, Preston Gates & Ellis Corporate Securities/Mergers and Acquisitions Alert, by Richard B. Dodd, William Gleeson, David J. Perry, Eric Simonson. June 14, 2006.
On June 8, the Delaware Supreme Court issued its decision ending the long-running and much-followed litigation involving, among other things, whether the directors at The Walt Disney Company breached their fiduciary duties in connection with the employment and later termination of employment of Michael Ovitz. In re The Walt Disney Co. Deriv. Litig., Del. No. 411, 2005 (June 8, 2006).
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K&LNG advises Sportech plc on £12.5m Sale of its Bet Direct Business, June 14, 2006.
K&LNG London advised Sportech plc on the sale of its Bet Direct division to 32Red plc.
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New Regulations Specify Retirement Plan Trading Prohibition and Notice Requirements During Blackout Periods Under Sarbanes-Oxley Act, Preston Gates & Ellis Employment & Labor Alert, by Deirdre C. Thomas. June 6, 2003.
Originally published in the Employment & Labor Law Department Update Spring 2003
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K&LNG assists in designing new compliance rules for electronic settlement of Reg S securities on AIM, by Jeremy J. Landau, Owen E. Waft, Alan J. Berkeley. June 2006.
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A Guide to Establishing a Business in the United Kingdom, by Stuart Borrie. May 2006.
A comprehensive guide outlining the key issues which apply to the setting up of a UK business.
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K&LNG Advises Velti Plc on Its Placing of Shares and Admission to AIM, Velti is First Greek-Based Company to be Floated on AIM, May 9, 2006.
K&LNG has advised software provider Velti Plc on its £10 million placing and admission of its shares to trading on AIM.
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K&LNG Advises W.H. Ireland on Eleksen RTO, May 4, 2006.
Kirkpatrick & Lockhart Nicholson Graham LLP (K&LNG) has advised W.H. Ireland Limited in its role as financial adviser on the RTO, nominated adviser and broker to Bora Communications Plc.
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Valuation of Stock for Options and SARs: Recent Guidance under Section 409A of the IRC, Preston Gates & Ellis Corporate Securities/Mergers and Acquisitions Alert, by Michael C. Ormsby, Robert D. Starin, David J. Perry. May 26, 2006.
Section 409A of the Internal Revenue Code imposes burdensome tax consequences (including acceleration of income recognition and the application of a 20% penalty) on recipients of certain types of deferred compensation. This deals with Section 409A.
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Preston Gates & Ellis Hires Five New Associates, Two Of Counsel, April 1, 2006.
Preston Gates & Ellis LLP announces that it has added seven attorneys in its Seattle, Washington, D.C., and Hong Kong offices.
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Whose Workforce is it Anyway? The WARN Act in the M&A Context, Preston Gates & Ellis Labor, Employment and Benefits Alert, by Joan M. Travostino, Todd Reuter, Steven R. Peltin, David J. Perry, Peter E. Moye, Douglas S. Parker, Kathleen O. Peterson. March 30, 2006.
For nearly 20 years, the Worker Adjustment and Retraining Notification Act (WARN Act) has compelled many employers to consider providing advance notice of plant closures and mass layoffs — including in an M&A context. A recent United States Court of Appeals decision provides a useful primer on employer duties under the WARN Act in connection with the sale of assets.
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Budget 2006 Highlights - Real Estate, Real Estate Alert, by Oliver W. Gutman, Ian Fraser, Victoria Green, Nigel Beadsworth, Richard D. Woolich, Peter Young. 2006.
The tax department of Kirkpatrick & Lockhart Nicholson Graham LLP in London has prepared two flyers summarising the new tax measures contained in this year's budget that are most relevant to your business. This is the real estate tax flyer.
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Budget 2006 Highlights - Corporate Finance, Corporate Finance Alert, by Oliver W. Gutman, Ian Fraser, Victoria Green, Nigel Beadsworth, Richard D. Woolich, Peter Young. 2006.
The tax department of Kirkpatrick & Lockhart Nicholson Graham LLP in London has prepared two flyers summarising the new tax measures contained in this year's budget that are most relevant to your business. This is the corporate finance tax flyer.
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K&LNG Counsels HELIO LLC in Partnership with MySpace.com, a Leading Social Networking Web Site, March 1, 2006.
K&LNG advised client Helio LLC in its partnership with MySpace.com.
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Tax Points, by Oliver W. Gutman, Ian Fraser, Victoria Green, Nigel Beadsworth, Richard D. Woolich, Peter Young. March 2006.
Tax Points, is a short and accessible publication for anyone with an interest in hearing about recent developments in tax and includes a mixture of recent news and general points of interest. Future editions will feature articles on recent changes in legislation, significant cases and HMRC published guidance as well as articles on topics that may not be new but are relevant to UK businesses.
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Neukom Nominated for ABA Leadership, February 14, 2006.
William H. Neukom, chair of Preston Gates & Ellis LLP, was nominated Sunday to become president-elect of the American Bar Association.
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Regulation G and Financial Measures that Exclude the Effect of FAS 123R, Preston Gates & Ellis Corporate Securities/Mergers and Acquisitions Alert, by William Gleeson, Devin W. Stockfish. February 7, 2006.
Financial measures that exclude the effects of accounting for share-based payment transactions in accordance with FAS 123R (such as Net Income Before Share-Based Payment Charge) are non-GAAP financial measures under Regulation G and Item 10(e) of Regulation S-K.
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SEC Proposes Changes to Executive Compensation Disclosure Requirements and Related Matters, Corporate eAlert, a Hughes & Luce publication, February 7, 2006.
On January 27, 2006, the Securities and Exchange Commission (the “SEC”) published proposed rules that would:
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Overhaul disclosure requirements for executive and director compensation, including a new Compensation Discussion and Analysis section modeled after the Management’s Discussion and Analysis concept;
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Reorganize and consolidate the disclosure rules for related party transactions, director independence and certain other corporate governance matters;
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Amend the disclosure of security ownership of officers and directors to require disclosure of the number of shares pledged by management; and
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Amend Form 8-K to focus current disclosure of executive compensation arrangements on unquestionably or presumptively material events.
This paper looks at the implications of the new rules and advises on how to make the transition to the new rules less burdensome.
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K&LNG London Continues Growth with Top Corporate Partner Hire, January 30, 2006.
Kevin Dean has joined K&LNG's London office as a partner in the firm's corporate practice.
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Preston Gates & Ellis LLP Names Thirteen New Partners, January 23, 2006.
Preston Gates & Ellis LLP announces that it has named thirteen new partners in its Seattle, Spokane, Orange County, San Francisco and Washington, D.C., offices.
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Preston Gates & Ellis Hires Three New Associates, January 17, 2006.
Preston Gates & Ellis LLP announces the addition of three associates to its Seattle office
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K&LNG Reinforces Corporate Presence in Miami with Addition of Partner Martin T. Schrier, January 12, 2006.
Martin T. Schrier has joined K&LNG's Miami office as a partner in the firm's corporate transactions practice.
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K&LNG Counsels Client in $15 Million Consolidation with Online Media Company, January 9, 2006.
K&LNG represented broadband services provider Planeta Networks, Inc. in its merger with online Latin music destination Batanga.com.
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SEC Revises Accelerated Deadlines for Filing Periodic Reports, Corporate eAlert, a Hughes & Luce publication, January 9, 2006.
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Purchase of Unlisted UK Companies - Equity Incentive Issues, Metropolitan Corporate Counsel, by Ian Fraser, Peter J. Marathas. January 2006.
U.S. purchasers and sellers of UK private or other unlisted companies should familiarize themselves with important differences in approach between the UK and the U.S. to dealing with employer equity incentive arrangements in corporate transactions. Often, U.S. plans will provide that outstanding equity rights are either assumed by a purchaser or are “cashed out” (eg. stock options would be cancelled in return for a cash payment equal to the deal consideration minus the exercise price). In U.S. corporate transactions, these plan provisions often mean that a cash out is the preferred method for dealing with outstanding equity rights. UK equity plans, on the other hand, often permit employees to exercise rights for a set period after closing, which would be somewhat unusual in a U.S. transaction, and this can give rise to various issues that should be addressed in the transaction agreements.
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K&LNG Publishes Second Edition of Sarbanes-Oxley Act: Planning & Compliance Treatise, December 20, 2005.
K&LNG announces that it has published the second edition of its treatise Sarbanes-Oxley Act: Planning & Compliance.
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SEC Scrutinizes Backdating of Stock Options, Securities Enforcement/Corporate Alert, by Michael A. Hickey, Timothy R. Bowers, Derek Meisner. December 2005.
This Alert summarizes the SEC’s recent scrutiny of the timing of option grants by publicly-traded companies and provides recommendations designed to help a public company prevent the manipulation of option grant dates.
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Starting a Business in the UK, Metropolitan Corporate Counsel, by Stuart Borrie, John D. Vaughan. December 2005.
When setting up a business in the UK it is necessary to give careful consideration to the business vehicle that will best suit a client’s needs. This article gives an overview of some of the key characteristics of the various ways a business presence in the UK can be established. Which approach is used will need to take account of a wide variety of factors, including the commercial risks, rewards and opportunities.
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Sarbanes-Oxley Act: Planning & Compliance, A comprehensive treatise authored by lawyers from K&LNG, to help companies understand and comply with the Sarbanes-Oxley rules and regulations, by Diane E. Ambler, Lorraine Massaro, Kristen L. Stewart, with additional contributions from numerous K&LNG lawyers. November 2005.
More than three years since the passage of the Sarbanes-Oxley Act ("the Act"), corporate America is still wrestling with many unanswered questions. Some of these relate to the Act itself. Others relate to increasing SEC activity, both in terms of new rules and enforcement proceedings. To help companies answer these questions and comply with their new obligations, Kirkpatrick & Lockhart Nicholson Graham LLP and Aspen Publishers are pleased to announce the 2nd Edition of Sarbanes-Oxley Act: Planning & Compliance.
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Proposed Rules Changing Risk-Based Capital Requirements, K&LNG Alert, by Steven H. Epstein, Rebecca H. Laird, Ira L. Tannenbaum. November 2005.
This Alert discusses the recent Advanced Notice of Proposed Rulemaking in the Federal Register that seeks comments on a number of potential revisions to the existing financial institution risk-based capital structure. These proposed changes could affect the pricing, availability, structure and terms of loans, securitizations, letters of credit and similar bank products.
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K&LNG New York Continues Expansion of Corporate Finance Practice with Addition of Two Partners, October 4, 2005.
Willie E. Dennis and Robert S. Matlin have joined K&LNG's New York office as partners.
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Form Of Summary Memorandum And Sample Corporate Policy On Insider Trading, ALI-ABA Business Law Course Materials Journal, by Alan J. Berkeley. October 2005.
This article is a brief overview of the law and lore of insider trading and a sample policy that may deter insider trading. Posted with permission.
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Impact of The Walt Disney Corporation Derivative Litigation, Preston Gates & Ellis Corporate Securities/Mergers and Acquisitions Alert, by William Gleeson, Eric Simonson, David J. Perry. September 27, 2005.
On August 9, 2005, in The Walt Disney Company Derivative Litigation, the Delaware Chancery Court, after a 37-day trial, ruled in favor of the directors of The Walt Disney Company, finding that they did not violate their fiduciary duty of good faith. The plaintiffs in the litigation were shareholders who sued derivatively on behalf of the corporation. They sought damages from the directors in the amount by which the compensation paid to Michael Ovitz under his employment agreement (the "OEA") was "excessive."
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SEC Votes to Postpone 404 Compliance for Non-Accelerated Filers and to Propose Changes to Accelerated Filer Definition and Due Dates for 10-Ks and 10-Qs, Preston Gates & Ellis Corporate Securities/Mergers and Acquisitions Alert, by William Gleeson, Chris K. Visser. September 22, 2005.
On September 21, 2005, the SEC voted to extend for an additional year the compliance date for filing internal control reports for public companies that are not accelerated filers. These internal control reports are required pursuant to Section 404 of the Sarbanes-Oxley Act.
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Partner Scott Greenburg Rejoins Preston Gates & Ellis, Greenburg to Lead Corporate Governance Practice, August 24, 2005.
Scott Greenburg has rejoined Preston Gates & Ellis LLP's Seattle office as a partner in the firm's business law practice.
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SEC Adopts Amendments to Rules 16b-3 and 16b-7 and Item 405 of Regulations S-K and S-B, Preston Gates & Ellis Corporate Securities/Mergers and Acquisitions Alert, by William Gleeson, Chris K. Visser, Eric Simonson. August 5, 2005.
Last week the Securities and Exchange Commission (" SEC") adopted amendments to two rules that exempt certain transactions from the private right of action to recover short-swing profit provided by Section 16(b) of the Securities Exchange Act of 1934 (the "Exchange Act").1 The amendments are intended to reverse the Third Circuit’s decision in Levy v. Sterling Holding Co.2 and clarify the exemptive scope of these rules, consistent with statements in previous SEC releases. The SEC also amended Item 405 of Regulations S-K and S-B to harmonize this item with the two-business day Form 4 due date and mandated electronic filing and Web site posting of Section 16 reports.
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K&LNG Identified by Industry Study as Top Corporate Law Firm in Pittsburgh, July 6, 2005.
Corporate Board Member Magazine has named K&LNG the best corporate law firm in Pittsburgh for the second year in a row.
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Bad Boys (and Girls) Get Clawed Back, Benefits Law Journal, Richard E. Wood, L. Rahmond Staggers., Summer 2005.
This article summarizes the design of "bad boy" and "clawback" forfeiture provisions in executive compensation plans and arrangements and examines issues relating to the enforceability of such provisions. Posted with permission.
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Letters of Intent: Look Before You Leap, Preston Gates & Ellis Corporate Securities/Mergers and Acquisitions Alert, by William Gleeson, Eric Simonson, Raymond L. Veldman. June 30, 2005.
In the world of mergers and acquisitions, letters of intent and similar preliminary agreements1 are a widely used precursor to more comprehensive definitive agreements. When a deal falls apart before the definitive agreement is entered into, the letter of intent often becomes the subject of litigation between the parties. This article discusses some of the benefits and pitfalls of entering into a letter of intent and offers some practical suggestions.
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Strategies for Dealing with New SEC Policy to Publicly Release Responses to Staff Comment Letters, Preston Gates & Ellis Corporate Securities/Mergers and Acquisitions Alert, by William Gleeson, Chris K. Visser, Devin W. Stockfish. May 24, 2005.
On May 12, 2005, the Securities and Exchange Commission ("SEC") began the process of publicly releasing comment letters and response letters relating to disclosure filings made after Aug. 1, 2004.
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Seventh Circuit Holds No Private Right of Action under Section 13(d) Absent an Accumulation of Stock—Rejects SEC’s Position, Preston Gates & Ellis Corporate Securities/Mergers and Acquisitions Alert, by William Gleeson, Eric Simonson. May 10, 2005.
On April 25, 2005, the United States Court of Appeals for the Seventh Circuit, in Edelson v. Ch’ien, 2005 U.S. App. LEXIS 7527 (7 th Cir., April 25, 2005), on a question of first impression before the Court, ruled that absent a tender offer "or other accumulation or aggregation of stock that could affect corporate control" there is no private right of action for alleged violations of Section 13(d) under the Securities Exchange Act of 1934, as amended. The opinion, by Judge Ripple (joined by Judges Bauer and Manion) is significant not only for its direct holding, but also for the fact that the Court expressly rejected the argument of the United States Securities and Exchange Commission (the "SEC"), as amicus curiae, that a private right of action should exist for all stockholders for improper or incomplete disclosures on Schedules 13D, regardless of whether the omitted or improper disclosures relate to any accumulation of stock.
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Important Lessons from the SEC Enforcement Action Against Tyson Foods Regarding Disclosure of Perquisites, Preston Gates & Ellis Corporate Securities/Mergers and Acquisitions Alert, by William Gleeson, Eric Simonson, G. Scott Greenburg. May 4, 2005.
The Securities and Exchange Commission's ("SEC") well publicized enforcement action against Tyson Foods Inc. ("Tyson Foods") and its former chairman, Donald Tyson, which was settled on April 28, 2005, provides a number of lessons for public companies and their officers and directors relating to the adequacy of proxy disclosures regarding perquisites.
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K&LNG Deepens U.K. Corporate Practice with Addition of Partner Martin Lane, April 13, 2005.
Martin Lane joins K&LNG's corporate practice in London, effective May 1.
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Kirkpatrick & Lockhart Nicholson Graham LLP Advises Telit Communications Plc on its £23 million Placing and IPO on AIM, April 11, 2005.
Kirkpatrick & Lockhart Nicholson Graham LLP has advised Telit Communications Plc on a £23 million placing and admission of its shares to trading on AIM.
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Kirkpatrick & Lockhart Nicholson Graham LLP Advises AIM-Listed Multi Group Plc on its Reverse Takeover of Berry Recruitment Holdings Limited, April 5, 2005.
K&LNG has advised Multi Group Plc on its reverse takeover of Berry Recruitment Holdings Limited.
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Kirkpatrick & Lockhart Nicholson Graham LLP Has Advised Afren Plc on £8 Million Placing and Admission to AIM, March 22, 2005.
Kirkpatrick & Lockhart Nicholson Graham LLP advised Afren Plc on a placing of 40,000,000 new Ordinary Shares to raise approximately £8 million.
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Kirkpatrick & Lockhart Nicholson Graham advises on £12.5 million AIM Vendor Placing and Secondary Issue, K&LNG Alert, by Jeremy J. Landau. March 18, 2005.
Kirkpatrick & Lockhart Nicholson Graham advised Nipson Digital Printing Systems Plc on a placing of 6,000,000 new Ordinary Shares of 1 pence each, at 80 pence per share, to raise approximately £4.8 million.
In addition, Kirkpatrick & Lockhart Nicholson Graham also acted in relation to a shareholder placing placed on behalf of the majority shareholder Koonras BV BVBA Group and certain other shareholders, of 9,708,385 existing Ordinary Shares of 1 pence each, at 80 pence per share.
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The American Jobs [for Lawyers and Accountants] Creation Act of 2004, TEQ Magazine, by J. Stephen Barge. March 2005.
The American Jobs Creation of 2004 has gotten a lot of attention, as it should since it provides American business with $140 billion in tax cuts. While the act gives manufacuring and technology-related companies tremendous opportunities to win big, a lot of hard and detailed work will be required for those companies to cash in fully. Posted with permission.
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The WorldCom and Enron Settlements and Their Implications for Corporate Boards, Corporate Alert, by David J. Lehman, Michael Winterhalter. February 2005.
This Alert provides a brief summary of the WorldCom and Enron settlements and offers steps that management can take to mitigate the risk of personal liability for directors serving on their boards.
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SEC Publishes Frequently Asked Questions Regarding New Form 8-K, Preston Gates & Ellis Publication, November 29, 2004.
On November 23, 2004 the Staff of the Division of Corporation Finance at the Securities and Exchange Commission (SEC) published long-awaited answers to 30 frequently asked questions (FAQs) regarding the implementation and interpretation of the new Form 8-K disclosure items that have been in effect since August 23, 2004.
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The Language of Law: Fault in Our Legal System, Executive Counsel, by Peter J. Kalis. Fall 2004.
This article discusses the steady erosion of fault as the validating principle for legal liability in our system of justice. He discusses the extent of this erosion not being widely appreciated, and its consequences for our legal system not generally being understood. Posted with permission.
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The Risks of Chasing Sales, Mergers for Sales' Sake, Boston Business Journal, by James P. O'Hare, Ronan O'Brien. September 10-16, 2004.
This article discusses the considerations a management team should make before entering merger or acquisition talks. Posted with permission.
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The End of Low Taxes on Dividends?, Implications for the Last Quarter of This Year, Preston Gates & Ellis Tax Alert, by Andrew H. Zuccotti, Charles H. Purcell. September 1, 2004.
Currently, the tax rate on dividend income is 15%, which is the lowest tax rate imposed on dividend income in decades. This low rate was enacted in 2003. Prior to that time dividends were subject to tax at the rate applicable to ordinary income. (At this time, the highest rate of tax applicable to ordinary income is 35%.)
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Family Limited Partnerships in Pennsylvania, presented to the National Business Institute, by Barbara A. Simanek. August 18, 2004.
This presentation discusses the various issues involved in establishing a family limited partnership in the state of Pennsylvania.
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Pacific Coast Opportunities: A guide to foreign acquisition of businesses and real property, Preston Gates & Ellis Publication, August 16, 2004.
This guide briefly considers matters such as federal and state tax issues, government approvals and reporting procedures, environmental concerns and questions of real property title.
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K&L Bolsters Capital Markets and Structured Finance Practice with Arrival of Phillip J. Kardis II, July 7, 2004.
Mr. Kardis, who will be Of Counsel in the Washington office, concentrates his practice on complex corporate, securities and financing transactions.
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Section 404 of Sarbanes-Oxley: Auditing Standard No. 2, Preston Gates & Ellis Publication, by Robert S. Jaffe. July 7, 2004.
On June 17, 2004 the Securities and Exchange Commission ("SEC") approved Public Company Accounting Oversight Board ("PCAOB") Auditing Standard No. 2, An Audit of Internal Control Over Financial Reporting Performed in Conjunction with an Audit of Financial Statements ("Standard No. 2").
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Strategies for Dealing with New SEC Policy to Publicly Release Responses to Staff Comment Letters, Preston Gates & Ellis Publication, by Robert S. Jaffe. June 30, 2004.
The Securities and Exchange Commission ("SEC") announced on June 24th its decision to make all SEC comment letters and company responses to these letters publicly available on its website at www.sec.gov. This new policy will apply to public company disclosure filings made after August 1, 2004 that are reviewed by the SEC's Division of Corporation Finance and Division of Investment Management.
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A Recipe for Success: One Firm's Struggle to Stand Out from the Crowd When Recruiting Law Students, Legal Times, June 7, 2004.
This article explores unique trends employed by law firms to recruit diverse candidates.
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Massachusetts Adopts New Business Corporation Act, Corporate Alert, by John C. Hutchins, Benjamin M. Hron. June 2004.
The content of this Alert should be of immediate interest to business corporations incorporated in Massachusetts, but is also relevant for other corporations doing business in Massachusetts.
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The Return of the IPO, hosted by Business Wire/Boston, by James P. O'Hare. May 7, 2004.
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The Business of Law: Improving Efficiencies with Legal Administrators, Headnotes, Dallas Bar Association, Mary Lou Weiss., April 1, 2004.
This article explores the vital role of the Legal Administrator in the daily functioning of a law firm. Specifically, legal administrators are responsible for financial management of business operations, professional development of legal personnel, staffing and marketing, to name a few. The role of legal administrators in achieving cost-effective and efficient operations is invaluable to a firm's growth and longevity. Posted with permission.
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Sarbanes-Oxley Act of 2002: Implications for Environmental Counsel, prepared for the Pennsylvania Bar Institute's Environmental Law Forum 2004, by Kristen L. Stewart, Jeffrey W. Acre. March 31, 2004.
This paper discusses the certain parts of the Sarbanes-Oxley Act that represent examples of those rare securities developments that must be understood by environmental lawyers, as well as securities lawyers.
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Do The Right Thing, Pittsburgh Post-Gazette, by Dick Thornburgh. March 30, 2004.
This article discusses, from the author's standpoint as the examiner in the WorldCom scandal, the opportunities corporate America has to create a business culture that emphasizes ethical conduct. Posted with permission.
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A Crisis in Corporate Governance? The WorldCom Experience, presented to the Executive Forum, California Institute of Technology, by Dick Thornburgh. March 22, 2004.
This address explores the proposition that recent corporate scandals have created a true crisis in American business and financial communities.
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SEC Adopts Additional Form 8-K Disclosures and Accelerated Filing Requirement, Business Department E-News Alert, by Robert S. Jaffe. March 22, 2004.
On March 16, 2004 the Securities and Exchange Commission ("SEC") issued final rules (the "Amendments") intended to be responsive to the "real time issuer disclosure" mandate in Section 409 of the Sarbanes-Oxley Act of 2002, which requires public companies to disclose material information "on a rapid and current basis." The Amendments are intended to provide investors with better and faster disclosure of important corporate events. Companies must comply with the new Form 8-K requirements effective as of August 23, 2004.
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Sarbanes-Oxley's New Crimes, Enhanced Penalties and Ways to Avoid Them, presented to the Pennsylvania Bar Institute, by Mark A. Rush. February 2004.
This presentation reviews the new SOX statute and significant changes in the enforcement regime and sentencing issues. It highlights the benefits of corporate reform through the institution or further development of compliance programs and internal investigations. It also discusses pragmatic approaches and considerations when drafting a corporate policy and guide to employees who may be contacted by law enforcement officials.
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Kirkpatrick & Lockhart/Los Angeles Welcomes New Corporate and Securities Partner, January 27, 2004.
K&L is pleased to announce that Jeryl A. Bowers, a leading corporate and securities attorney, has joined its Los Angeles office as a partner. Mr. Bowers' law firm and corporate law department experiences will significantly benefit K&L's firmwide corporate practice.
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New IRS Regulations Narrow the Application of Tax Shelter Disclosure Rules, Business Department E-News Alert, by Robert S. Jaffe. January 15, 2004.
The IRS and Treasury recently issued amended final regulations that significantly limit the circumstances under which taxpayers are required to disclose "confidential transactions" under the tax shelter disclosure rules.
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NASD Publishes "New Issues" Rules, Preston Gates & Ellis Business Department E-News Alert, by Robert S. Jaffe. January 9, 2004.
Previously, NASD Conduct Rule IM-2110-1, the "Free-Riding and Withholding Interpretation" ("Interpretation"), governed the manner in which NASD members could distribute newly issued public securities trading at a premium ("hot issues"). Under the Interpretation, NASD members were prohibited from selling hot issues to accounts in which persons deemed to be "restricted persons" directly or indirectly held an interest. In October of 1999, the NASD proposed to restructure and make substantive amendments to the Interpretation, to be promulgated as new NASD Rule 2790. The Securities and Exchange Commission announced on October 24, 2003 that it approved NASD Rule 2790, and on December 23, 2003 the NASD published Rule 2790, making it effective on a voluntary basis on that date.
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Is Your Board Vulnerable? Part 2, Health Law Alert, by Edward V. Weisgerber. January 2004.
The duties, responsibilities and failures of institutional directors and boards of directors have never been more focused in the public’s eye. Large scale failures and scandals have raised legitimate questions of the roles of boards and how they undertake and discharge their duties. This Alert is part two of a special three-part series on the roles and responsibilities of hospital directors, detailing steps to a better board.
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Is Your Board Vulnerable? Part I, Health Law Alert, by Edward V. Weisgerber. January 2004.
The duties, responsibilities and failures of institutional directors and boards of directors have never been more focused in the public’s eye. Large scale failures and scandals have raised legitimate questions of the roles of boards and how they undertake and discharge their duties. This Alert is part one of a special three-part series on the roles and responsibilities of hospital directors, detailing steps to a better board.
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Corporate Compliance Programs: Weaving an Effective Compliance Web, Preston Gates & Ellis Corporate/Securities Alert, by Gary J. Kocher, Julie A. Halter, Chris K. Visser. December 10, 2003.
Simply put, corporate compliance programs are designed to prevent and detect violations of the law. Compliance programs make good business sense because they: reduce the likelihood of a violation of the law; lower the costs of a violation; and build a values-based culture. In spite of these benefits, compliance programs are not as prevalent as one would imagine.
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Sarbanes-Oxley Planning and Compliance, A comprehensive, practical guide to help companies understand and comply with their obligations under the Sarbanes-Oxley Act of 2002, by Diane E. Ambler, Kristen L. Stewart, with additional contributions from various K&L attorneys. November 2003.
Written as a resource for corporate counsel, compliance professionals and lawyers in private practice, but also of interest to chief financial and operating officers and corporate board members, Sarbanes-Oxley Planning and Compliance outlines the provisions of the Act and provides companies large and small with the tools they need to comply.
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SEC Final Rules Regarding Nominating Process Disclosure and Shareholder Communications, Preston Gates & Ellis Business Department E-News Alert, by Stephan H. Coonrod. November 25, 2003.
The Securities and Exchange Commission ("SEC") issued final rules yesterday that would require companies to make enhanced disclosures regarding the operation of their board nominating committees and new proxy statement disclosures regarding the means, if any, by which shareholders may communicate with directors.
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New NYSE and NASD Rules Regarding Standards for Listed Companies, Preston Gates & Ellis Business Department E-News Alert, by Stephan H. Coonrod. November 20, 2003.
On November 4, 2003, the Securities and Exchange Commission ("Commission") approved new rules proposed by the New York Stock Exchange, Inc. (the "NYSE") and the The Nasdaq Stock Market, Inc. ("Nasdaq") intended to strengthen the corporate governance standards and ensure director independence for listed companies. These new corporate governance listing standards supplement the corporate governance reforms already adopted by the Commission pursuant to the Sarbanes-Oxley Act of 2002.
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Joining a corporate board: Look before you leap, Mass High Tech, by James P. O'Hare, Ronan O'Brien. November 17, 2003.
This article discusses the various considerations to take before joining a board of directors. Posted with permission.
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SEC Proposed Rules Regarding Shareholder Access to Proxies for Director Elections and, Preston Gates & Ellis Business Department E-News Alert, by Stephan H. Coonrod. November 13, 2003.
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What’s the Difference?, Legal Times, by Marc S. Martin. September 8, 2003.
This commentary uses the author’s firsthand experiences to convey to law students the differences between practicing law for government agencies, private business, and law firms.
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All Three Branches of Government Intervene in FCC’s Media Ownership Proceeding, FCC Regulatory Commentary, by Marc S. Martin, Sean Hunt. September 2003.
In a dramatic escalation of the political debate over the Federal Communications Commission's ("FCC's) recently revised broadcast ownership rules, yesterday the U.S. Court of Appeals for the Third Circuit issued a stay of the FCC's final rules. This action takes place as the Senate is reportedly poised to pass a bill that would roll back key provisions of the FCC's broadcast ownership decision, and shortly after the House passed an appropriations bill that would prevent the FCC from spending any money on actions that would result in any entity exceeding the "national television multiple ownership rule." The Office of Management and Budget previously issued a statement on behalf of the Administration that if Congress passes any legislation which seeks to effectively veto the FCC's broadcast ownership decision, the President's senior advisors would recommend that he veto such legislation.
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The Sarbanes-Oxley Act: Turning Lawyers Into Corporate Whistleblowers?, Preston Gates & Ellis Corporate/Securities Alert, by Richard A. Kirby. August 25, 2003.
Section 307 of the Sarbanes-Oxley Act of 2002 dictates that the Securities and Exchange Commission (SEC) set up a process where attorneys working for public companies could report "evidence of a material violation of securities law or breach of fiduciary duty or similar violation by the company" to appropriate company leadership. This provision sparked an immense amount of controversy and initiated a flood of comments from private lawyers and public companies directed at the SEC as the Commission considered how to implement this provision of Sarbanes-Oxley.
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Fine Print, The Deal, Jeffrey Donohue, Eileen Smith Ewing., August 11, 2003.
This article discusses changes in the Small Business Innovation Research Grant program that will affect the biotechnology and medical device industries.
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New NYSE and NASD Rules Regarding Shareholder Approval of Equity Compensation Plans, Preston Gates & Ellis Business Department E-News Alert, by Stephan H. Coonrod. August 7, 2003.
The Securities and Exchange Commission recently approved new rules proposed by the New York Stock Exchange ("NYSE") and National Association of Securities Dealers ("NASD") that require shareholder approval (subject to certain exceptions) of all equity compensation plans and material revisions to such plans. These rules generally apply to equity compensation plans adopted after June 30, 2003 or pre-existing plans that subsequently become materially amended. While many of the NYSE and NASD provisions are similar, the rules are still different and may be administered differently. Companies should review their equity compensation plans and other arrangements and the new applicable rules in order to plan for the new shareholder approval requirements.
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ADVO Selects Kirkpatrick & Lockhart LLP as Legal Counsel, August 4, 2003.
ADVO, Inc. announced that it has selected K&L to meet the company's legal needs. Stephen L. Palmer, a partner in K&L's Boston office, will be responsible for ADVO's legal matters effective August 1, 2003.
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Directors Remuneration Update, NGJ Update, August 2003.
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Quick, Who Knows What an SDN Is?, Corporate Counsel, by Marc S. Martin. July 2, 2003.
As in-house counsel, if you don't know what a specially designated national is or don't have an Office of Foreign Assets Control compliance program in place, your company may be playing Russian roulette every time it engages in a transaction. Learn how to help your company to avoid the expensive business failures and public relations disasters that can result from OFAC violations.
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Corporate Governance Update, NGJ Alert, July 2003.
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SEC Final Rules Regarding Audit Committee Standards for Listed Companies, Preston Gates & Ellis Business Department E-News Alert, by Stephan H. Coonrod. June 13, 2003.
As directed by the Sarbanes-Oxley Act of 2002 ("Sarbanes-Oxley"), the Securities and Exchange Commission (the "SEC") recently adopted a new rule directing the national securities exchanges and national securities associations such as the New York Stock Exchange and the Nasdaq Stock Markets (called self-regulated organizations or "SROs") to prohibit the listing of any security of an issuer that is not in compliance with the audit committee requirements established by Sarbanes-Oxley.
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Kirkpatrick & Lockhart Attorneys to Speak at BIO 2003 in Washington, D.C., June 12, 2003.
K&L attorneys will moderate and speak on two panels at the upcoming BIO 2003 conference, in Washington, D.C. from June 22 – 25, 2003. The panels will address the topics: “Drug Development Licensing: New Rules for an Old Game” and the “FDA’s Regulation of Electronic Records Under Part 11".
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New SEC Rules Implementing Internal Control Disclosure Requirements under Section 404 and Amendments to Certain Disclosure and Certification Requirements under Sections 302 and 906 of the Sarbanes-Oxley Act of 2002, Securities Alert, by Diane E. Ambler, Cary J. Meer, Sean Hunt. June 2003.
The SEC has adopted final rules required under Section 404 of the Sarbanes-Oxley Act of 2002 (the "Act"). The final rules set forth the requirements implementing the internal control provisions of Section 404 of the Act (the "Internal Control Provisions"). Each accelerated filer (generally a company that is subject to the reporting requirements of Section 13(a) or 15(d) of the Exchange Act and has an aggregate market value of common equity of $75 million or more) must comply with the adopted Internal Control Provisions as of the end of its fiscal year ending on or after June 15, 2004 (April 15, 2005 for non-accelerated filers, including foreign private issuers and small business issuers). This Alert discusses the SEC's rulemaking.
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Sarbanes-Oxley Update: New Rules for Earnings Releases, Preston Gates & Ellis Business Department E-News Alert, by Stephan H. Coonrod. April 30, 2003.
On July 30, 2002, President Bush signed into law the Public Company Accounting Reform and Investor Protection Act of 2002 ("Sarbanes-Oxley"). Among the many goals of Sarbanes-Oxley was the enhancement and integrity of the financial disclosures of public companies. One specific concern was the disclosure by public companies of financial information that is not in accordance with generally accepted accounting principles (so called "non-GAAP financial measures").
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Washington Business Corporation Act Amendments: Shareholder Voting Group Rights, Shareholder Notice Requirements and Stock Splits, Preston Gates & Ellis Corporate/Securities Alert, by Stephan H. Coonrod. April 18, 2003.
Washington Business Corporation Act Amendments: Shareholder Voting Group Rights, Shareholder Notice Requirements and Stock Splits The Washington Business Corporation Act ("WBCA") provides default rules that apply to all Washington corporations. On April 17, 2003, Washington Governor Gary Locke signed into law Senate Bill 5123, which contains significant amendments to the WBCA to clarify and amend certain of the default rules in the areas of shareholder voting group rights, shareholder notice requirements and stock splits. These amendments will become effective on July 27, 2003.
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Corporate Indemnification Agreements: Selected Issues to Consider, published by K&L, April 2003.
This publication highlights certain issues for consideration in the context of comprehensive indemnification agreements between a corporation and selected corporate representatives. Many companies are giving increased thought to personal liability issues faced by directors, officers and senior management as a result of ongoing regulatory reforms and recent highly publicized corporate events. As described in this publication, an indemnification agreement is one potential tool in a framework of possible protections that may be available to try to adequately safeguard corporate representatives against personal liability from actions taken on behalf of the corporation.
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SEC Proposed Rules Regarding Audit Committee Standards for Listed Companies, Preston Gates & Ellis Corporate/Securities Alert, March 18, 2003.
Complying with the congressional mandate of Section 301 of the Sarbanes-Oxley Act of 2002, the Securities and Exchange Commission (the "SEC") recently proposed a new rule directing the national securities exchanges and national securities associations (called self-regulated organizations or "SROs") to prohibit the listing of any security of an issuer that is not in compliance with the audit committee requirements established by Sarbanes-Oxley.
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Preston Gates' Orange County Office Significantly Expands its Technology, Life Sciences and Corporate Practice, February 6, 2003.
Four partners have joined the Orange County office of Preston Gates & Ellis LLP.
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New Regulations Under Sarbanes-Oxley Retirement Plan Blackout Periods: Trading Prohibition and Notice Requirements , Preston Gates & Ellis Business Department E-News Alert, by Stephan H. Coonrod. March 25, 2003.
On July 30, 2002, President Bush signed into law the Public Company Accounting Reform and Investor Protection Act of 2002 (also referred to as the Sarbanes-Oxley Act of 2002 and referred to herein as the "Act").
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Final Rules on Corporate Codes of Ethics and Audit Committee Financial Experts under the Sarbanes-Oxley Act, Preston Gates & Ellis Corporate/Securities Alert, February 11, 2003.
On July 30, 2002, President Bush signed into law the Public Company Accounting Reform and Investor Protection Act of 2002 (also referred to as the Sarbanes-Oxley Act of 2002 and referred to herein as the "Act"). The Act provides for enhanced financial disclosures for public companies and mandates improved corporate governance practices.
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Proposed Life Insurance Employee Notification Act, Corporate Alert, by Neal R. Brendel, Roberta D. Anderson. February 2003.
This Alert highlights the Life Insurance Employee Notification Act, legislation which was reintroduced in the House on January 28, 2003 as H.R. 414 (previously H.R. 4551) and requires disclosure of corporate-owned life insurance (COLI) policies to current and former employees.
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Government Grants Provide Useful Capital, But There Are Hidden Costs, Mass High Tech, by Michael A. Hickey, Jeffrey Donohue. January 27, 2003.
This article is a brief introduction to Small Business Innovation Research ("SBIR") and Small Business Technology Transfer ("STTR") grants, which are sponsored by a variety of federal agencies including the National Institutes of Health and the Department of Defense and brief discussion of the advantages and disadvantages of those programs. Posted with permission.
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Summary of Proposed Changes to Reporting Requirements Under Form 8-K, Preston Gates & Ellis Corporate/Securities Alert, January 17, 2003.
As a result of the enactment of the Public Company Accounting Reform and Investor Protection Act of 2002 (also referred to as the Sarbanes-Oxley Act of 2002, referred to herein as the "Act"), the adoption of SEC releases implementing the Act, and the adoption of additional SEC releases, there have been a number of proposed changes to the reporting requirements under Form 8-K. This summary outlines the releases, the general purpose of each release and the corresponding schedule for the adoption of the proposed reporting requirements.
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Deemed IRAs Following IRS Proposed Regulations, Benefits Law Journal, by Michael A. Hart. Winter 2003.
Deemed IRAs face an uphill battle in gaining acceptance by employers and employees alike. Proposed Regulations regarding these elusive IRAs offer clarification and guidance, however, which may increase their popularity. This article summarizes the requirements for Deemed IRAs under the Internal Revenue Code (IRC) and the Employee Retirmenet Income Security Act of 1974, as amended (ERISA), taking the Proposed Regulations into account.
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Transfer Agents Beware: A request to Remove a Restrictive Legend May Be the Equivalent of a Request to Register Transfer, Securities Transfer Association, Inc. Newsletter, 2002 - Issue 2, by Robert E. Feyder. 2002.
This article discusses how a transfer agent should carefully consider requests to remove restrictive legends from stock certificates because in some jurisdictions, including Delaware, such requests are deemed the equivalent of requests to register transfer under the Uniform Commercial Code. Posted with permission.
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Can Directors And Officers Recover From Their Corporation Fees They Incurred To Obtain Indemnity From The Corporation Under Applicable Indemnification Agreements And Bylaws? New York And Delaware Courts Take Different Approaches, Corporate Alert, by Thomas M. Reiter, Alan Tamarelli. November 2002.
This Alert discusses recent case law regarding the recovery of so-called "fees on fees," an issue of interest to all corporate directors and officers, and suggests that corporation may wish to address expressly in their bylaws or indemnity agreements, to the extent they have not already done so, whether fees on fees will be recoverable.
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Biomedicial Intellectual Property: Strategize Now or Litigate Later, Mass High Tech, by Thomas F. Holt, Jr.. August 5, 2002.
Taken from the perspective of scientists whose work is sponsored by universities or research institutions, this article identifies critical errors that can erode the researchers' intellectual property rights in technology with commercial potential.
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The Sarbanes-Oxley Act and the New Order of Corporate Disclosure, Securities Alert, by Nicholas G. Terris, Jeffrey B. Maletta. August 2, 2002.
The Alert discusses the landmark Sarbanes-Oxley Act.
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New Law Requires Accelerated Ownership Reporting by Officers, Directors and Principal Security Holders, Securities Law Alert, by Cary J. Meer, Richard E. Wood. August 2002.
Summarizes another change in corporate governance resulting from the Sarbanes-Oxley Act: the imposition of a two business day filing requirement for Form 4 ownership reports. In addition to covering open market purchases and sales of stock, the two business day reporting requirement will apply to common transactions in stock options and other derivative securities. Failure to strictly comply with the reporting requirements must be disclosed in the company's annual proxy statement and 10-K annual report.
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SEC Adopts Rules Implementing Accelerated Filings of Quarterly and Annual Reports and Section 16 Reports, Securities Law Alert, by Alan J. Berkeley, Cary J. Meer, Marc Mehrespand, Richard E. Wood. August
2002.
This Alert summarizes rules adopted by the Securities and Exchange Commission on August 27, 2002, that implement accelerated reporting requirements for company quarterly and annual reports and ownership reports under Section 16 of the Securities Exchange Act of 1934.
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Planning for Business Continuity: Legal Responsibilities/Liabilities of Management and Directors, presented at Computer Network Technology's Business Continuation/Disaster Avoidance Seminar, by Susan P. Altman. May 16, 2002.
Presents practical legal tools for companies to use in information security planning.
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New SEC Rules-The Deluge Continues, Securities Law Commentary, by Thomas F. Cooney, III. May 1, 2002.
On April 30th, the SEC voted 3-0 to require companies to disclose, in a separately captioned section of the "Management's Discussion and Analysis" ("MD & A") section of annual reports, registration statements and proxy and information statements, information regarding critical accounting estimates that are made by a company in applying its accounting policies, and information regarding the initial adoption of an accounting policy. These proposed rules have the potential to put companies in a very difficult disclosure position, since the basis for and process of making material estimates and assumptions is not often easily described.
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Strategic Partnerships: Key Considerations, presented at Building Effective Partnerships and Alliances, by Dirk Michels. April 16, 2002.
Presents an overview of the types of strategic alliances and considerations regarding copyrights, patents, trademarks and trade secrets.
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Corporate Disclosure: Enron Reforms Begin to Take Hold, Mass High Tech, by Michael S. Caccese. April 1, 2002.
In response to the events surrounding Enron, the Securities and Exchange Commission issued numerous changes to long standing corporate reporting requirements. This article summarizes these changes and discusses possible future changes.
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New SEC Rules-The Deluge Begins, Securities Law Commentary, by Alan J. Berkeley. April 2002.
Discusses two recently proposed revisions to the SEC's periodic reporting rules. The first, a requirement to file Form 10-Qs within 30 days after the end of a quarter and to file Form 10-Ks within 60 days after the close of a fiscal year, is terrifying because of the shortened time span. The second proposal is confusing in that it requires companies to file, using Form 8-K, transactions in the company's securities by its officers and directors in addition to the individual's requirement to file a Form 4 or Form 5 for the same transactions.
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Questions and Answers About an Issuer’s Ability to Obtain Investors in Private Placements, ALI-ABA Course of Study Materials, Regulation D Offerings and Private Placements, by Alissa A. Parisi. March 2002.
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Frequently Asked Questions About the Resale of Restricted Securities, ALI-ABA Course of Study Materials, Regulation D Offerings and Private Placements, by Alissa A. Parisi. March 2002.
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SEC Enforcement Chief Threatens Officers and Directors of Public Companies with Increased Sanctions for Deliberate Violations of the Securities Laws, Securities Enforcement Alert, by Glenn R. Reichardt. February 21, 2002.
Discusses a speech by SEC Enforcement Chief Stephen Cutler before the Glassr LegalWorks 20th Annual Federal Securities Institute in Hallandale, Florida on February 15, 2002.
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Carpe Diem-‘Enron’ Facilitates Major Changes in SEC Corporate Disclosure Rules, Securities Law Commentary, by Alan J. Berkeley. February 2002.
This piece summarizes proposed corporate disclosure reforms announced by the SEC that reflect several important conceptual shifts in disclosure practice.
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Insurance Facts Businesses Should Know in the Wake of September 11, The Journal of Investment Compliance, by Roberta D. Anderson. Winter 2002.
This article provides a broad overview of certain insurance-related facts of which businesses should be aware, including the types of insurance coverages potentially implicated by events such as those that occurred on September 11.
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Cross-Border Deal? Use Cross-Border Due Diligence, New York Law Journal, by Scott D. Newman, Jon Grouf. November 13, 2001.
This purpose of this article is to provide U.S. practioners with an awareness of certain issues which may arise in due diligence in cross-border M&A transactions. Topics covered include competition, corrupt practices, money laundering, the environment, employment law, IP, the Internet and privacy issues.
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Revenue Recognition Issues and Cases, presented at Revenue Recognition Seminar, by David Mishel. November 12, 2001.
Presents sample cases and the issues surrounding revenue recognition.
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Determining the Priority of Competing Claims to Collateral in the Revised Article 9 of the Uniform Commercial Code, prepared for Lorman Education Services’ Revised Uniform Commercial Code Seminar, by Raymond P. Pepe. November 9, 2001.
Discusses changes to rules concerning the priority of claims to collateral among competing security interests, lien creditors and purchasers of collateral under the revised Article 9 of the Uniform Commercial Code.
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Changes to Decennial Filing Requirements Affect Organizations’ Names, K&L Alert, by Charles M. Grimstad, Megan Carpenter. November 2001.
This Alert summarizes additional amendments to Act 34 of 2001 that requires corporations or associations to file a decennial registration of its corporate name, proper name, mark, or insignia in order to prevent appropriation of the name by another in Pennsylvania.
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Private and Public Sector Licensing, Prepared for BIO 2001 International Convention & Exhibition, by Dirk Michels, Robert J. Sherry. June 22, 2001.
Provides a substantial overview of issues to be considered in licensing transactions with companies and governmental agencies.
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Some FAQs and Answers About Corporate Disclosure, ALI-ABA Course of Study Materials, Securities for Nonsecurities Lawyers, by Alissa A. Parisi. June 2001.
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Private Investment Partnerships Provide Flexibility in Tax Planning, Journal of Taxation of Investments, by Theodore L. Press, Tara C. Sirmans. Summer 2001.
The article provides a wide-ranging overview of the tax, ERISA, and relevant federal securities laws aspects of non-corporate investment vehicles, both domestic and foreign, that are not registered under the Investment Company Act and do not make public offerings of their securities. The article includes discussion (as well as some practical considerations) regarding, among other things, entity classification rules, partnership taxation, taxation of investment operations, unrelated business taxable income, and nonresident alien withholding.
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ESOPs in Corporate Acquisitions: What Every Buyer Should Know About the Target Company’s ESOP, Benefits Law Journal, by Michael A. Hart. Spring 2001.
The acquisition of a corporation owned in whole or in part by an employee stock ownership plan presents the acquiring corporation with a number of issues that do not arise in most corporate acquisitions. This article addresses some of those issues with a view toward demystifying the process of acquiring an ESOP company.
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Raising Capital Through Online Offerings, News & Notes (Compliance and Legal Division - Securities Industry Association), by David Mishel. March 2001.
The article summarizes the statutes, rules, regulations and no-action letters applicable to public and private online offerings.
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Legal Aspects of Doing Business in California: Successful Ways into the US Market, A Paper prepared for seminars in Germany, by Dirk Michels. February 28 - March 15, 2001.
This paper provides basic information about legal issues to be considered by German business people interested in expanding their operations into the United States, particularly California.
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