Securities and Corporate Governance

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Sam Chafetz
 

Our Securities and Corporate Governance Group represents publicly held companies in connection with a wide variety of matters governed by the federal and state securities laws. As a central part of our public company representation, we regularly advise our clients on the applicable requirements of the Securities Act of 1933, the Securities Exchange Act of 1934, the rules and regulations of the Securities and Exchange Commission (SEC), the listing standards of the NYSE, AMEX and NASDAQ and state securities law compliance.

Moreover, our substantial experience and familiarity with federal and state securities laws allow us to be strategic advisors and identify for our clients the "best practices" among public companies. To best represent our clients, we learn and understand their businesses and industries so that we can be in a position to respond promptly and effectively to their legal needs.

Public Offerings. We regularly represent both issuers and underwriters in initial public offerings (IPOs), follow-on offerings, secondary offerings, private investments in public entities (PIPEs) and a range of debt financings, such as Rule 144A placements of high-yield and convertible debt. Over the past five years, we have been counsel for issuers on approximately 30 public offerings with offering proceeds in excess of $5 billion, giving us deep expertise in a full range of issues involved in bringing public offerings to market. We pride ourselves on our in-depth and up-to-date knowledge of the SEC, its review process and recent disclosure trends. Our intimate knowledge of the process benefits our clients as we help them achieve their business objectives in a timely and cost-effective manner. Each of our client teams, headed by a partner, collaborates with our clients and draws on relevant practice areas throughout the Firm. This team approach helps our clients develop their businesses and achieve their business goals in a timely and cost-effective manner.

Corporate Governance and Compliance. Our highest priority is to develop an active and ongoing counseling relationship with our clients. We strive to work together with the various individuals and groups within an organization to form a critical understanding of a client’s business and structure that will enable us to provide exceptional service tailored to the client’s needs. For many years, as part of our core corporate practice, our lawyers have counseled directors on their fiduciary duties, standards of conduct, liability issues, conflict of interest concerns, executive succession planning and corporate governance matters, as well as federal securities law compliance matters.

We have extensive experience in connection with charter design, anti-takeover defenses, federal and state securities laws and the rules and regulations arising from the Sarbanes-Oxley Act. In particular, we have advised a large number of clients on the independence requirements for corporate directors, board committee composition and roles, internal investigations, internal controls assessments, senior officer certifications of financial statements and expanded disclosure obligations. In addition, we have provided our clients with proactive counsel regarding the anticipated results of the Dodd-Frank Act, including say-on-pay, say-when-on-pay, compensation committee and adviser independence and related matters.

Our breadth of public company clients permits us to closely monitor and advise clients on proposed SEC rules on shareholder nominations of directors (proxy access), "majority vote" initiatives by various constituencies and types of shareholders, and other shareholder or advisor initiatives. As a result, we can help clients respond quickly to challenges presented by complex governance issues and new developments in SEC and NYSE and NASDAQ compliance matters.

Our lawyers assist corporate clients to develop and implement customized compliance and ethics programs and policies that address issues arising under the Sarbanes-Oxley Act and securities laws and antitrust, employment, environmental, health care and privacy laws. We have also counseled our clients on preparing for disclosure obligations mandated by the Dodd-Frank Act. Our approach focuses on each client's needs to produce a tailored and integrated compliance structure for the client's business. In addition, we provide comprehensive training opportunities for directors, senior executives and employees across a broad range of areas in order to assist our clients in implementing their compliance and ethics programs.

Securities Regulatory Practice. We regularly counsel a variety of companies concerning disclosure and regulatory issues before the SEC. Our lawyers interact on a regular basis with officials in the SEC’s Division of Corporation Finance to resolve disclosure issues. We also deal with FINRA and the SEC’s Division of Enforcement in connection with investigations and enforcement proceedings involving accounting, disclosure and other issues. In addition, our securities lawyers advise clients with respect to regulatory and disclosure issues relating to the listing standards on the principal stock exchanges in the United States.

Our lawyers work closely with clients in connection with the preparation of their SEC filings. We also provide ongoing advice concerning external communications, insider trading policies, public and private securities offerings, relationships with independent auditors, Sarbanes-Oxley and Dodd-Frank compliance. In particular, we:

  • Advise public companies on a full array of corporate governance issues, such as board of directors composition, board committee functions and director and executive officer compensation;
  • Closely monitor and update our public company clients on important changes in the federal securities laws, such as the Sarbanes-Oxley, Dodd-Frank, the JOBS Act,  and the related SEC rules as well as exchange listing requirements;
  • Advise public companies on the securities law implications of business acquisitions and dispositions;
  • Assist public companies in preparing the various reports and documents they are required to file with the SEC, including quarterly reports on Form 10-Q, annual reports on Form 10-K, current reports on Form 8-K, proxy statements and annual reports to stockholders;
  • Prepare or review the Section 16(a) reports on Forms 3, 4 and 5 that directors, officers and significant stockholders of public companies are required to file with the SEC with respect to their ownership of securities; and
  • Render legal opinions relating to transfers of restricted securities by the stockholders of public companies.

Recent Representative Public Offering Transactions. The following is a sample  of representative public offerings transactions in which we represented the issuer:

  • Initial public offerings
    • Regional airline -- $271 million initial public offering
    • Specialty retailer -- $876 million initial public offering
    • Automobile insurance company -- $170 million initial public offering
    • Internet product company -- $72 million initial public offering
    • Medical device company -- $30 million initial public offering
    • Cement manufacturer -- $17 million initial public offering
  • Follow-on public offerings
    • Multi-family real estate investment trust -- Multiple follow on offerings exceeding $1 billion
    • Medical property REIT -- Multiple follow on offerings exceeding $200 million follow on offering
    • Automobile insurance company -- $130 million follow-on offering
    • Pharmaceutical products manufacturer -- Multiple follow on offerings exceeding $250 million
    • Financial institution -- $69 million follow on offering
    • Pharmaceutical company -- Multiple follow on offerings exceeding $16 million
  • Public debt offerings
    • National bank -- $5 billion bank note program
    • Bank holding company -- Multiple subordinated debt offerings exceeding $500 million subordinated debt offering
    • Manufacturer -- $200 million subordinated note offering
    • Lending company -- $110 million debt offering
    • Regional airline -- $110 million senior convertible note offering
  • Exchange offerings
    • Oil and gas company -- $120 million public exchange offer of debt for equity and debt
  • Shelf registrations
    • Pharmaceutical products manufacturer -- $1.5 billion shelf registration
    • Pharmaceutical company - $100 million shelf registration
    • Luxury retailer - automatic shelf registration
    • Specialty retailer - automatic shelf registration
  • PIPEs with Subsequent Resale Registration
    • Medical device company - $15 million PIPE
    • Financial institution - $15 million PIPE
    • Pharmaceutical company - $2.5  million PIPE
  • S-4 Registration Statements
    • Multi-family real estate investment trust - $8.6 billion merger of equals