IPOs and M&A

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Compliments of over 100 of our DLA Piper colleagues around the world, DLA Piper has launched Finance Rules of the World, which gives you answers to key legal questions that you may consider when initially looking at financing or investing in particular jurisdictions. The interactive Finance Rules of the World website lets you compare regimes across more than 35 jurisdictions in EMEA, Asia Pacific and the US in the areas of borrowing and lending; issuing and investing in debt securities; establishing, investing in, marketing and managing hedge funds and…
Continue Reading Finance Rules of the World: see how different jurisdictions allow for finance & investment

From our colleagues Paolo Morante, Steven E. Levitsky, Laura Kam and Adam Steene:

The Federal Trade Commission has announced its annual revision to the jurisdictional thresholds under the Act. The new thresholds will go into effect 30 days after publication in the Federal Register, which is expected in the next few days.

Under the new thresholds, no transaction will be reportable unless, as a result of it, the acquiring person will hold voting securities, assets, or noncorporate interests of the acquired person valued above $80.8 million (increased…
Continue Reading Hart-Scott Rodino Thresholds Revised

The Division of Corporation Finance of the Securities and Exchange Commission has announced that “Tandy” representations are no longer needed in filing review correspondence.

If you have been involved in filing a registration statement any time after 2004, you have probably seen Tandy language.  Named after Tandy Corporation, the first company to receive a letter requesting this language, Tandy representations required, in the event that a company requested acceleration of the effective date of a registration statement, to acknowledge in writing that:

  • should the SEC or the staff,

…
Continue Reading Corp Fin no longer requires “Tandy” representations for file reviews

Article prepared by and republished courtesy of our colleagues Sanjay M. Shirodkar and David P. Lewis; originally published here: https://www.dlapiper.com/en/us/insights/publications/2016/01/the-hot-list-2016-proxy-season-trends

As we enter 2016, we want to bring your attention to a few items that we believe will play prominent  roles in the 2016 proxy season.  In 2015, proxy access, shareholder activism and newly adopted or proposed rules from the Securities Exchange Commission were some of the big-ticket items.  These and other issues are on the hot list for this coming season. We also include a list of action items you may wish to consider as you plan for the 2016 proxy season.

Please keep in mind that the following Hot List is a summary only and is not intended to be specific legal or tax advice.  We encourage you to call the authors of this client alert or your DLA Piper contact if you have any questions or would like to discuss any of the issues described below in the context of your company.
Continue Reading The Hot List: 2016 Proxy Season Trends and Action Items

The PCAOB has adopted new rules and accompanying amendments to auditing standards, which require audit firms to disclose the names of each audit engagement partner, as well as information regarding other audit firms that participated in any audit of a public company. The new rules are intended to provide investors with more information about the partner and firms involved in the audit in order to facilitate evaluating audit quality, and to incentivize auditors to organize audit teams carefully.

The new rules will require auditors to file with the PCAOB a new Form AP, Auditor Reporting of Certain Audit Participants, for each issuer audit, disclosing:

  • The name of the engagement partner;
  • The names, locations, and extent of participation of other accounting firms that took part in the audit, if their work constituted 5% or more of the total audit hours; and
  • The number and aggregate extent of participation of all other accounting firms that took part in the audit whose individual participation was less than 5 percent of the total audit hours.

Continue Reading Audit Firms Must Disclose Engagement Partner

Every so often a public company finds itself unable to file periodic reports for a protracted time.  For example, a company may upgrade auditors and the new firm may advise of the need to re-audit prior years, which can take significant time.  Until there is a reliable starting point for financial statements, new filings are in limbo.  As time marches on, the older missed filings have less and less signficance to investors but would still entail the same amount of effort and expense to complete as any periodic report.

Over…
Continue Reading SEC guidance on “catching up” delinquent filers

Earlier today PitchBook released its M&A Report for Q3 2015 and the stats indicate continued strength in merger and acquisition activity.

While the overall deal count for Q2 2015 was down (4,250 deals with an aggregate value of $416 billion) as compared to the prior quarter (4,803 deals with an aggregate of $560 billion) and prior year (5,183 deal with an aggregate of $373 billion), the average transaction size spiked to $1.103 billion in Q2 2015 as compared to $795.3 million in Q1 2015 and $231.9 million in Q2 2014.
Continue Reading Merger activity remains strong in Q3 2015; average deal size spikes

The SEC has proposed rules requiring listed issuers to adopt and comply with written “clawback” policies. These policies would need to provide that, if a listed issuer is required to prepare an accounting restatement due to the material noncompliance of the issuer with any financial reporting requirement under the securities laws, then the issuer will recover the amount of any incentive-based compensation erroneously awarded to an executive officer. The listed issuer would also be required to disclose its clawback policy, disclose information about actions taken pursuant to its policy, and file its policy as an exhibit to its annual report.
Continue Reading SEC Proposes Clawback Rules

Yesterday the SEC issued its long-awaited “pay-versus-performance” rule proposal. The rules would add a new paragraph (v) to Item 402 of Regulation S-K. In short, the proposed rules would require a new table comparing “executive compensation actually paid” to the “total shareholder return” (TSR) of the company and its peers, as well as a discussion of the relationship between these amounts.

Here is a quick summary of the main requirements of the proposal:Continue Reading SEC Proposes “Pay-Versus-Performance” Rules

In light of the SEC’s first enforcement action against a company for impeding whistleblower activity in violation of Rule 21F-17, employers may wish to consider clarifying in their agreements, policies and practices that involve confidentiality obligations that employees may provide truthful information to the SEC or other governmental agencies concerning potential violations of law.

Rule 21F-17, adopted pursuant to the Dodd-Frank Act, provides in relevant part:

(a) No person may take any action to impede an individual from communicating directly with the Commission staff about a possible securities law violation, including enforcing, or threatening to enforce, a confidentiality agreement … with respect to such communications.

KBR, a Houston-based global technology and engineering firm, had a practice of conducting internal investigations in response to complaints regarding potential illegal or unethical conduct, which included interviewing employees (including those who had lodged a complaint). KBR required witnesses in these internal investigations to sign a confidentiality statement that included the following language:

I understand that in order to protect the integrity of this review, I am prohibited from discussing any particulars regarding this interview and the subject matter discussed during the interview, without the prior authorization of the Law Department. I understand that the unauthorized disclosure of information may be grounds for disciplinary action up to and including termination of employment.

The SEC acknowledged that it was not aware of any employee in fact being prevented from communicating directly with SEC staff, or of KBR taking any action to enforce these confidentiality statements. Nevertheless, the SEC concluded that that the language in the confidentiality statement impeded communications with the SEC staff about potential securities violations by requiring permission from KBR’s legal department or face the prospect of discipline.
Continue Reading Carefully Draft NDAs to Avoid Whistleblower Concerns