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Mergers & Acquisitions : Newsstand
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Naumburg HRC: Change in ownership of contractor does not cause obligation to re-tender, Public Procurement and M&A Alert, by Dr. Annette Mutschler-Siebert, M.Jur., Dr. Gerung von Hoff, LL.M.. 3 August 2010.
By its decision of 29 April 2010 (case no.: 1 Verg 3/10), the Naumburg Higher Regional Court (HRC) has held that a change in ownership of a limited liability company that executes contracts with public authorities, does not constitute a material change of such contracts and thus there is no obligation under public procurement law to re-tender such contracts.
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K&L Gates Expands Corporate Practice with Miami Partner, February 11, 2010.
K&L Gates welcomes Jahan Islami as a partner in its Miami office.
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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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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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Prison for Due Diligence Disclosures? (Bei Austausch von Informationen droht Gefängnis), Frankfurter Allgemeine Zeitung, Nr. 71, p. 23, by Dr. Eberhardt Kühne, Douglas F. Broder. March 25, 2009.
When acquiring a company one wants to know exactly what one is buying. Yet antitrust authorities might consider the exchange of information among potential business partners to be an "aligned behavior" of competitors. Also, if the target has its seat in certain countries, German managers sail close to the wind. Posted with permission.
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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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In Re Loral Space and Communications Inc. Consolidated Litigation, by David S. Wolpa. December 2008.
On December 11, 2008, David S. Wolpa spoke about the Delaware Chancery Court's decision in In Re Loral Space and Communications Inc. Consolidated Litigation to the Corporate Practice Committee of the Chicago Bar Association's Young Lawyers Section.
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Wenn nach dem Abschluss ein anderer Bieter gesucht wird, Börsen-Zeitung, by Dr. Eberhardt Kühne. November 26, 2008.
The Harvard Law Review recently featured an empirical study on the effects of the go-shop provisions in the U.S. takeover and M&A market. The go-shop concept doesn't seem to be widespread in Germany. The article provides background information, key features and effects of these clauses to readers in Germany and briefly analyzes their compliance with German corporate and takeover laws.
Note: This is a German-language article. Posted with permission.
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Bell Boyd Adds Attorneys Across Practice Areas, A Bell, Boyd & Lloyd press release., July 16, 2008.
Bell, Boyd & Lloyd (now K&L Gates) has added attorneys in the firm's Intellectual Property, Labor, Tax and Corporate practice groups. David B. Fournier joins Bell Boyd as a partner in the firm's Intellectual Property Group from Howrey LLP; Melissa A. Siebert returns to Bell Boyd as a partner in the Labor and Employment Group; Sharon L. DeVault comes to the firm from Mayer Brown LLP as a partner in the Estates and Trusts Group; and Brent E. Williams joins as an associate in the Corporate Group from Mayer Brown LLP.
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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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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 Climbs in M&A Industry Rankings, April 9, 2008.
Despite a worldwide slowdown in M&A activity during the first quarter of 2008, K&L Gates is ranked among the nation's top 25 law firms in several categories of Thomson Financial's First Quarter M&A Legal Advisory Review.
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Special Issues in Mergers & Acquisitions - Private Equity Considerations, Kennedy Covington Presentation, by Stephen K. Rhyne. February 2008.
SCOPE: The number and dollar volume of M&A deals, led by private equity deals, have increased dramatically since 2002. The ensuing sellers’ market has caused a convergence between private equity and strategic M&A transactions as far as some deal terms, but three distinguishing features of private equity deals will always remain: their financial focus, the multiplicity of their various facets, and the unique role of the seller’s management in these deals.
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Bell, Boyd & Lloyd Opens San Diego Office, A Bell, Boyd & Lloyd press release, February 2008.
Bell, Boyd & Lloyd (now K&L Gates) will expand its corporate, venture capital and intellectual property practices with the opening of a San Diego office that will serve as the center for the law firm's Life Sciences Group. Opening initially with thirteen attorneys and Ph.D.-credentialed technical specialists who have substantial scientific and business backgrounds, the office will offer corporate, patent procurement and patent portfolio management services to bio-pharma and other venture-funded and emerging companies.
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Mergers & Acquisitions - Private Equity: 2007 Highlights, Kennedy Covington Publication, January 2008.
Dear clients, colleagues and friends: While the challenges in the leveraged loan markets received significant attention over the latter half of 2007, Kennedy Covington’s Mergers & Acquisitions and Private Equity practices enjoyed another busy and successful year. Our deal flow in 2007 was strong throughout the year, buoyed by significant continued activity in the middle market in the second half, and our outlook for these middle market transactions in 2008 remains cautiously optimistic. In 2007, we closed more than 80 M&A and private equity transactions across the country involving total consideration of more than $3 billion.
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Courts Deny Preliminary Injunction Against Organic Foods Retailing Merger Despite Company Documents Suggesting Anticompetitive Intent, Antitrust and Trade Regulation Alert, by Thomas A. Donovan, James R. Weiss. September 26, 2007.
In June 2007, the Federal Trade Commission filed suit in federal district court to enjoin Whole Foods Market, Inc.’s acquisition of Wild Oats Markets, Inc. In its Complaint, the FTC relied heavily upon inflammatory comments from Whole Foods’ CEO to company insiders regarding how the transaction would eliminate Whole Foods’ competition and protect the company from the entry of new competition. Although Whole Foods was fortunate in diverting the trial court’s attention from the disturbing statements of its CEO to the more mundane matters of its economist’s testimony and industry marketing studies, merging parties would be well-served to be more careful about how their personnel describe the competitive impact of proposed mergers. This Alert discusses the details of the court’s decision and outlines what can be learned from this case for parties considering acquisition.
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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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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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K&L Gates Representing Microsoft in Landmark Acquisition, May 22, 2007.
K&L Gates is serving as lead counsel to Microsoft Corp. in its recently announced agreement to acquire aQuantive, Inc.—the largest acquisition in Microsoft history.
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K&L Gates’ New York Office Continues Recent Growth with Partner Addition, May 17, 2007.
Stephan Mallenbaum has joined the New York office of K&L Gates.
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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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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 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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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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2006 Highlights - Mergers & Acquisitions/Private Equity, Kennedy Covington Publication, January 2007.
Dear clients, colleagues and friends:
This year marks the 15th anniversary of the first private equity deal closed by Kennedy Covington. We wanted to take a moment to thank you for the opportunities to work with you in 2006 and in years past, and to share some of our notable accomplishments from this past year.
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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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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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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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K&LNG and SJ Berwin LLP Advise on Major Investment in Abford House Unit Trust, October 5, 2006.
K&LNG has advised Heron International in its purchase of 50% of the units in Abford House Unit Trust.
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K&LNG Furthers M&A Presence with Partner Addition in Firm’s New York Office, September 25, 2006.
Sandy K. Feldman has joined K&LNG New York as a partner in the firm's M&A 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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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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Controllers Regime’—HM Treasury Consultation, presented at Mergers & Acquisitions in the Investment Management Industry, by Philip J. Morgan. June 21, 2006.
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Merger Control and Restrictive Covenants, presented at Mergers & Acquisitions in the, by Neil A. Baylis. June 21, 2006.
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Acquisitions of Investment Management Businesses in the UK and the U.S., presented at Mergers & Acquisitions in the Investment Management Industry, by Stuart Borrie, Michael C. McLean. June 21, 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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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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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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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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K&LNG Representing Education Management Corporation in $3.4 Billion Going-Private Transaction, March 15, 2006.
K&LNG is representing Education Management Corporation in the first going-private transaction in the for-profit, post-secondary education market.
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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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Hart-Scott-Rodino Thresholds Increased, Antitrust & Trade Regulation Alert, by Thomas A. Donovan. February 2006.
Pursuant to legislation adopted in 2000, there is now an annual adjustment in the dollar values in the size-of-transaction and size-of-person tests that are used to determine what mergers and acquisitions must be filed with the Federal Trade Commission and Antitrust Division of the United States Department of Justice under the Hart-Scott-Rodino Antitrust Improvements Act of 1975, as amended (the "HSR Act"). Beginning on February 17, 2006, only transactions valued at $56.7 million or more will be required to complete the premerger notification process under the HSR Act. In addition, the adjustments in dollar values affect the transaction-size criteria which determine the amount of the filing fee paid for transactions in which a filing is required.
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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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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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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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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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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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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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Preston Gates & Ellis LLP Names Nine New Partners, November 17, 2004.
Preston Gates & Ellis LLP announces that it has named nine new partners across the firm in Hong Kong, Portland, Seattle and San Francisco
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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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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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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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K&L Counsels Principal Financial Group in $1.2 Billion Acquisition by Citigroup, May 20, 2004.
Attorneys from K&L advised The Principal Financial Group, Inc. in its $1.2 billion sale of Principal Residential Mortgage, Inc. to CitiMortgage, Inc.
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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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K&L’s Washington Office Counsels Mid-Atlantic Medical Services, Inc. (MAMSI) in $3 Billion Merger with United Health, February 11, 2004.
Kirkpatrick & Lockhart LLP’s Washington office represented longtime client Mid-Atlantic Medical Services, Inc. (MAMSI) in its $3 billion merger with United Health Group.
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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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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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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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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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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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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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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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Romney Slams Tax Door on IP Holding Companies, Mass High Tech, by Walter G. Van Dorn, Martin S. Allen. May 26, 2003.
This article discusses tax legislation introduced by Massachusetts Gov. Mitt Romney and enacted by the legislature that put an end to a devise for saving Massachusetts corporate excise tax.
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Department of Justice Attacks Premerger Cooperation, Antitrust & Trade Regulation Alert, by Thomas A. Donovan. May 2003.
This Update discusses the government's pursuit of injunctive relief and civil penalties with respect to the pre-closing conduct of two merging competitors, Gemstar International and TV Guide, even though the merger itself was not challenged. It emphasizes the importance to merging companies of maintaining independent decision-making up until the closing of the transaction and of restricting the pre-closing flow and use of confidential information.
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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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Governor Proposes “Closing Corporate Net Income Tax Loopholes”, Pennsylvania Tax Alert, by Peter A. Gleason, Raymond P. Pepe, W. H. Snyder, Jacqueline Jackson-DeGarcia. April 2003.
This Alert summarizes some significant changes in the taxation structure of the Commonwealth proposed by Governor Rendell, including changes to two perceived "loopholes" in the corporate net income tax structure. The proposed legislation, if implemented, may substantially complicate tax reporting requirements and result in additional tax litigation.
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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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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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The Department of Revenue Imposes Additional Real Estate Transfer Tax on Electric Generation Facilities, Pennsylvania Tax Alert, by Raymond P. Pepe, Jacqueline Jackson-DeGarcia. October 2002.
This Alert summarizes action recently initiated by the Pennsylvania Department of Revenue recalculating real estate transfer tax liabilities for the sale of many electric generation facilities that have occurred since the adoption of the Electric Generation Customer Choice & Competition Act in December 1996.
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2002 Federal Tax Legislation-Expansion of Net Operating Loss Carrybacks, Tax Alert, by Walter G. Van Dorn. May 2002.
Summarizes the provisions of the March 9, 2002 federal income-tax law temporarily enlarging the present 2-year and 3-year net-operating-loss-carryback periods to 5 years, retroactive to the 2001 tax year, for which tax returns may already have been filed, or soon will be. It alerts affected taxpayers to the need to review their situations and likely take prompt action relative to the pertinent tax elections governing the application of loss carrybacks.
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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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Due Diligence in International M&A Transactions: The Team of Experts, Business Law International, by Scott D. Newman, Jon Grouf. January 2002.
The authors - from K&L and the Dutch law firm of Loyens and Loeff - discuss the team of experts required in cross-border mergers and acquisitions transactions. These include experts in the fields of competition, commercial law, environment, accounting, investment banking, commercial banking, intellectual property and technology, internet research, tax, employment, product liability, foreign corrupt practices, money laundering, privacy, tariffs, real property, risk and valuation.
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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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Private Investment Partnerships Provide Flexibility in Tax Planning, Journal of Taxation of Investments, by Theodore L. Press. 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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Client Advisory Regarding Election to 'Mark to Market' as of January 2, 2001, Client Advisory, by Walter G. Van Dorn. March 2001.
Explanation of provision of 1997 federal tax law concerning marking certain assets (such as stock) to market value by a deemed sale, to be identified on year 2001 income tax return, and various consequences. Explanation of provision of 1997 federal tax law concerning marking certain assets (such as stock) to market value by a deemed sale, to be identified on year 2001 income tax return, and various consequences.
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