TheCorporateCounsel.net

Monthly Archives: March 2004

March 31, 2004

SEC Proposes that SROs Post

Yesterday, the SEC proposed changes to its rules that would require that SROs submit their rule filings to the SEC electronically. The proposal also would require the SROs to post the rule filings – as well as maintain a current version of their rules – on their own websites.

This should fill many practitioners with joy, as it’s often difficult to obtain SRO rule filings prior to their publication by the SEC (even though such rule changes are considered publicly available once filed with the SEC). Further, it’s sometimes difficult to quickly obtain a copy of the revised rules once a SRO rule is approved.

By the way, the SEC revised its website so that when you access “SRO Rulemaking,” there are separate webpages for each SRO – thereby making it easier to monitor each SRO’s rule proposals as they are published for comment and approved by the SEC. Thanks to Suzanne Rothwell of Skadden Arps, who always has her finger on the pulse of the SROs!

Nominating Committee Functions and Shareholder Recommendations regarding Director Nominees

In one of my more practical interviews – and certainly the longest – there is a lot of sound guidance from Ken Kopelman and Abbe Dienstag on Nominating Committee Functions and Shareholder Recommendations regarding Director Nominees.

This interview includes a number of link to sample documents, policies and disclosures that Kramer Levin has put together. And we have posted even more of their useful samples in the Nominating/Governance Committee Portal and the Shareholder Access Portal. This includes:

- Sample Nominating Committee Procedures for Identifying and Evaluating Candidates for Director
- Sample Procedures for Security Holders Submitting Nominating Recommendations (Website Disclosure)
- Sample Nominating Committee Policy Regarding Qualifications of Directors
- Sample Website Disclosure regarding Security Holder Communication with Directors
- Sample Website Disclosure Regarding Director Attendance at Annual Meetings
- Sample Proxy Disclosure Regarding Much of the Above

Director Attendance at Board Meetings

Today, the NY Times has a story about how more companies are requiring their directors to attend shareholder meetings – and holding their meetings in more convenient locations (see above for sample website disclosure on director attendance). The article erroneously attributes the director attendance trend to SOX – rather, the SEC adopted disclosure regs on director attendance on its own volition. So don’t always believe what you read (including this blog – let me know if you ever see an error!).

Got a chuckle about the anecdote of the former Dana Corp. practice of holding its shareholders’ meeting at its outside counsel’s law firm in Richmond, VA (the company is based in Ohio) – and management not even attending. And you wonder why shareholders are mad…

March 30, 2004

SEC Looking at Enforcement Action

Today, the Wall Street Journal has an interesting cover story about how the SEC is considering enforcement action regarding the timing of option grants – whether grants are made just before market-moving information is released. This arguably also would have the effect of understating the level of executive compensation, since the market-moving information would quickly put the options “in-the-money.” The article doesn’t identify any companies nor indicate whether SEC action is imminent.

As the article points out, coincidences may arise because a board might grant options at the same meeting as approving the release of quarterly earnings. This obviously is a practice to avoid going forward.

As has been reported earlier in The Corporate Counsel (see the Jan/Feb ’04 and Sept/Oct ’03 issues), the SEC’s Enforcement Division has been requesting documents related to executive compensation arrangements from a number of companies over the past year – and this likely is just one of various possible enforcement theories they are considering to tackle perceived executive compensation abuses.

Last of the SEC Speaks Notes

From PLI’s “SEC Speaks,” notes from the enforcement panel and from the accounting workshop.

The Compensation Consultants Speak Out!

If you didn’t catch the NASPP’s webcast on March 18th, the transcript is now posted regarding “What The Top Compensation Consultants Are NOW Telling Compensation Committees.”

Reliving the webcast through the transcript bore out how useful the program was in this time of transitioning beyond what is legally required in the exec comp area.

March 29, 2004

NYSE Updates – and Adds

Last week, the NYSE updated its corporate governance forms that were first made available last month. In addition, there are two new forms: one for affirming the audit committee’s composition at the time a IPO company lists on the NYSE and another to report any change of the audit committee’s composition.

The NYSE also has tweaked the instructions to Section 303A Annual & Interim Affirmations – and point out (in questions 6 and 7) that companies must submit the pdf version of the Section 303A Written Affirmations without modification, but that they can type the exhibits to the Affirmation on company letterhead.

Overcoming the Challenges of Real-Time Disclosure

On May 19th, we will hold a webcast – “Overcoming the Challenges of Real-Time Disclosure” – during which David Martin of Covington & Burlin, Ron Mueller of Gibson Dunn, Bill Tolbert of Jenner & Block, and Stacey Geer of BellSouth Corporation will discuss how to identify and overcome the challenges inherent in the SEC’s new disclosure framework.

In B.26 of our “Sarbanes-Oxley Law Firm Memos,” we now have more than 25 law firm memos on the topic!

Revision to OECD Principles of Corporate Governance Delayed

As pointed out to me by Mike Holliday, on Saturday, the NY Times reported on page C3 that a dispute has arisen that has delayed the announcement of a final version of the revised OECD Principles of Corporate Governance. The dispute is about France wanting to insert “encouraged” in place of “permitted” in the provision about employee participation in corporate governance, such as employee representation on boards.

This dispute illustrates how difficult it is to obtain agreement among numerous nations on any set of principles – it has been amazing that there has been so much global cooperation recently, particularly in the accounting arena.

March 26, 2004

Significance of eBay Case I

I don’t know if you’ve seen the Delaware Chancery Court’s opinion in the eBay/ Goldman “spinning” case yet, but it may be worth a look. Chancellor Chandler is a thoughtful and balanced judge, but it seems to me that he went a lot farther than he had to in his decision. In only 15 pages, he manages to lower the bar for claims of demand futility in derivative actions, expand the business expectancy concept in corporate opportunity cases to include investments in equities, liberally construe the ability of plaintiffs to make aiding and abetting claims against third parties – and even imply that directors with stock options that haven’t vested may not be “independent.”

Like most of what’s going on in Delaware today, I don’t think Chancellor Chandler is breaking new legal ground – but he seems to be applying existing doctrines in a much more plaintiff-friendly way than I think he would have before the recent governance reforms.

We have posted a couple of law firm memos about the case in Section E.27 “Corporate Opportunity” of our “Sarbanes-Oxley Law Firm Memos.” Thanks to John Jenkins for jogging my memory on this one!

March 25, 2004

Gun-Jumping – Lessons in Dealing

Below is an interesting March 8th news article from Institutional Dealers’ Digest about the film “Billy Dead” that recently conducted an online IPO that was halted by the SEC (if you ever are faced with gun-jumping, don’t forget to see our sample “Risk Factors Regarding Gun-Jumping” in the “Disclosure Analysis & Samples” Practice Area):

“Less than two weeks after Civilian Capital raised the curtain on its initial public offering of Billy Dead Inc.-the first IPO for an individual movie ever attempted in the U.S.-the Securities and Exchange Commission has called “Cut.” According to SEC filings, Civilian Capital was asked to halt its offering and clarify any risks to investors before it could proceed.

Civilian, a NASD-registered broker/dealer, wants to raise up to $7.8 million to finance the production of its first film-”Billy Dead,” a murder mystery set to star Ethan Hawke that was originally slated to start production this spring. To fund the film, Civilian last Nov. 13 launched an online offering of 900,000 shares of Series A preferred stock in Billy Dead’s holding company, at $8.75 each. But shortly thereafter, Civilian returned investors’ initial funds, a move it credits to extensive news coverage of the offering that made it difficult for investors to adequately assess the offering’s risk.

Billy Dead’s latest prospectus details a number of inaccuracies and overly optimistic statements about the company that were presented by the media. (Full disclosure: IDD was first to report on the potential IPO, as far back as May 14, 2001, following up on news of registration of the shares in an Apr. 28 story and a Nov. 17 article about marketing the shares. But none of the IDD stories was cited among those containing the hype that caused the deal to be yanked.)

Civilian’s pulled IPO shows how risky it can be for companies in the process of raising capital to talk to the media, especially at a time when the SEC has been trying to become a more vigilant watchdog for investors. A spokesman for the SEC says it does not track how often IPOs are pulled, nor would it give any guidance on its reasoning. Industry observers, however, were not surprised to learn that the offering had been tabled. They say that the SEC has become more exacting in its interpretation of securities laws. Calls to Civilian were not returned.

If Civilian has become mum, it could be because its prior efforts to cultivate the media backfired. In a new prospectus filed Feb. 13, 2004, the company states that it stopped the offering on Dec. 8 “in order to reduce the risk of investors’ possible reliance on news reports and articles, or information which appeared on the underwriter’s website in a manner which was insufficiently balanced.” Underwriter Civilian Capital then returned investors’ money.

The prospectus details several of the news stories and Internet reports published in November and December 2003. It appears that after one or two news organizations misreported information about the offering, the errors snowballed when other reporters writing follow-up stories pulled incorrect information from the earlier ones.

First off, the prospectus cites a Nov. 19, 2003, article from the Associated Press that incorrectly reported the Billy Dead offering as a Nasdaq IPO, when the shares were actually slated to trade on the Over the Counter Bulletin Board (OTCBB). “These statements, which were additionally stated in slightly altered forms in other articles and reports, are erroneous,” says the new prospectus.

The prospectus also hints that some news stories carried overly optimistic comments from Civilian’s management when it was supposed to be in the quiet period after filing for the IPO.

“In an article in The Economist dated Dec. 2, 2003, Barry Poltermann, President of Civilian Capital, is quoted as saying that the offering is on track to close.’”

The prospectus goes on to name a Bloomberg wire article first published on Nov. 13, 2003, that was reprinted in various publications, including the Chicago Tribune, that quoted Poltermann’s views about the offering’s success: “My confidence is off the charts,’” he told Bloomberg. “I’ve been working on this for four years. We wouldn’t do it if we weren’t extremely confident.” Civilian’s plans to launch another six film IPOs and raise up to $60 million by the end of 2004 were also reported in the articles.

To clarify the uncertainty of these statements, the latest prospectus goes to great lengths to point out there is no assurance that even the Billy Dead offering will be completed, or that Civilian’s plans for other film IPOs will come to fruition. “When considering the merits of this investment, investors should not rely on any representations of confidence made by the underwriter in their ability to raise sufficient funds to close this offering, or plans of the underwriter to pursue similar film offerings in the future,” it states.

A third problem hinted at in the prospectus was one journalist’s own interpretations of the offering’s risks and how they might be offset. Citing a Dec. 15, 2003, article from Business Week, the prospectus indicates that the journalist went too far by discussing hypothetical returns for the film and contingency plans Civilian might use to pay back investors if “Billy Dead” were to make an unsuccessful box office debut.

“This hypothetical scenario was not based on any information provided to the author by management or Civilian Capital,” states the prospectus. “We believe the author analyzed information that appears in the Management’s Plan of Operation’ section of this prospectus and based the potential returns upon his estimates and assumptions that are inherently subject to significant uncertainties and contingencies, primarily concerning the timing and cost of the Film’s distribution. Billy Dead, Inc. has never made, and does not intend to make, any public financial projections about the performance of the film Billy Dead, Inc. was formed to produce.”

Why the SEC Acts

Bankers say there are a variety of reasons the SEC can halt an offering. “But it’s usually because of the CEO or CFO mistakenly giving a quote when they shouldn’t have,” says the head of equity capital markets for one midsize firm. That’s why most securities firms go out of their way to avoid the media once they have filed an offering, he explains.

“It’s rare the SEC would penalize a company for hype if the company had nothing to do with it,” adds the banker. Once an offering is tabled, however, the costs can be significant. The refiling charges and associated legal fees are one thing; then there’s the risk that slowing up a deal could scare off investors, who have long been leery of Hollywood.

After failed efforts by the Street to fund limited partnerships for groups of films in the 1980s, bankers say investors have since shied away from anything exclusively film-related. Only investments in major entertainment conglomerates-such as The Walt Disney Co. and Time Warner Inc., whose returns are not solely tied to the performance of films-have been able to attract mainstream investors.

Nonetheless, the financial success of a few recent independent films has piqued investors’ interest. But such success stories are still few and far between. Indeed, the profitability of independent films reported in conjunction with Civilian’s offering showed up as another SEC concern, according to Billy Dead’s prospectus.

“Both [a] CBS Marketwatch Internet article and the Associated Press article referred to [Civilian] officials as stating that in certain instances low-budget films have a greater chance at profitability than more costly projects,” it states. “These statements attributed to Mr. Fuhrman [Billy Dead Inc.'s CEO] or to representatives of Billy Dead, Inc. have been repeated, sometimes in slightly altered forms, in several other press articles.”

Another example cited is a quote from Poltermann that aired on NPR’s “On the Media” program on Nov. 21, 2003. “I’m not saying that it’s still not a very risky game,” Poltermann is quoted as saying. “The movie business is hit-driven. But it doesn’t have to be Blair Witch Project’ or My Big, Fat Greek Wedding’ to do very well. In fact, last year Y Tu Mama Tambien’ was actually more profitable [on] a return-on-investment basis than My Big, Fat Greek Wedding.’”

The new prospectus says these statements are “not balanced representations of potential film profitability because they do not represent the fact that numerous films or groups of films released at the same time were less profitable than the cited films or groups of films.”

March 24, 2004

Phone Number Crisis at the

Remember that Seinfeld episode where Kramer effectively killed Elaine’s phone number (I think he gave out her number as a fax line). That’s when Elaine had to get a new phone number because the “212″ area code wasn’t available to her – which thus rendered her undateable.

Well, the same type of thing is happening at the SEC’s HQ. So many new staffers have been hired that the omnipresent “942-” prefix is no longer available. Instead, new staffers have phone numbers with a “824-” prefix. And for the trivia buffs, what is the difference between 942 and 824? Answer is that you subtract a one from the first digit and flip the order of the last two…

And Even More “SEC Speaks” Notes

These PLI “SEC Speaks” notes are from the panel with staffers from the Office of Chief Accountant.

PCAOB News

After a long search, the PCAOB has hired the head of its enforcement arm – Claudius Modesti formerly served as an assistant prosecutor in the U.S. Attorney General’s office for the Eastern District of Virginia.

By the way, the SEC has proposed the PCAOB’s investigations and adjudication rulemaking as well as its conforming amendments to its interim standards from the attestation rulemaking for comment (note that the attestation standards themselves have not yet been proposed out by the SEC).

March 23, 2004

The General Electric Proxy Statement

In anticipation of the April 28th annual shareholders meeting, I just received my copy of the General Electric proxy statement in the mail. Below are some interesting tidbits:

1. Severance Pay - As publicized last week, GE will now allow shareholders to approve any severance packages for the Named Executive Officers if a severance package is worth more than 2.99 times an executive’s salary and bonus. However, GE doesn’t currently enter into employment agreements nor severance arrangements with its NEOs.

Interestingly, I can’t find this development mentioned in the proxy statement – instead, it’s a new #10 in GE’s Management and Compensation Committee’s Key Practices. These Key Practices were attached as an appendix to last year’s proxy statement, but not this year.

This development is also noteworthy because the Teamsters Affiliates Pension Plan had a similar shareholder proposal on GE’s ballot last year that was narrowly defeated. So GE probably took this action in response to that voting result.

2. Number of Shareholder Proposals - The GE proxy statement includes 15 shareholder proposals that collectively run 20 pages. Nearly a third of the entire proxy statement! Last year, GE had 13 shareholder proposals.

3. Voluntary Reporting of Quasi-Business Use of Aircraft - In footnote 2 of the Summary Compensation Table, GE discloses the incremental value of the personal use of aircraft by the chair and vice chair – even though that use is considered by GE to be a business expense (because GE’s updated executive security program requires that those two officers use company aircraft for personal travel). So this detailed information is available in a footnote, but not included in the “Other Annual Compensation” column.

4. Format of Proxy Statement - It’s printed on 5″ by 8″ tissue paper with one-eight margins. This baby is compact and light-weight. It’s not easy to read – but the online version of the proxy statement is quite nice. Clearly the way to go to save trees!

Demystifying Delisting of Securities

I have always found the deregistration of a company’s securities to be quite confusing (and when I was in Chief Counsel’s office in Corp Fin, it was a common question from callers).

Learn how to better understand this process from my interview with M. Ridgway Barker and Randi-Jean G. Hedin on Guidelines for Delisting.

March 22, 2004

More on Private Company Research

Thanks to research wunderkinds Marissa Andrea and Cindy Alfieri of Agilent Technologies, below are more resources regarding private companies (it’s a follow-up to my March 5th blog – all of which is now part of the our new “Private Company Research” Practice Area):

Subscription-Based Services

1. VentureSource and VentureExpert – These are Venture Capital databases that monitor private start-up activity. The focus is finally moving beyond US-centric and there are several deals involving Canadian, Israeli and European startups now.

2. ORBIS – This database searches private and public European company info. The information reported is coming from mandatory government filings (whether you’re a private or not – it’s a European requirement), rather than as information that companies voluntarily submit. There are about 5 million companies from Europe profiled, 110,000 from Japan, 1.4 million from the US. There is a product in ORBIS called Zephyr that you can use for M&A information.

3. DataStarWeb (Dialog, a Thomson company) – This database is heavy with European company information. It’s very strong in pharma/biotech but contains industry information across the board.

4. Dun & Bradstreet - If a company report is not available on the D&B database, one can be requested for a fee. Although, since D&B obtains some of its information by phoning the company with a questionnaire – but the information is only as accurate or complete as what the private company is willing to disclose. Other D&B information is gathered from what is available in public records: Secretary of State Filings, UCC, liens, and so on.

Free Information

1. BRB Publications - BRB Publications is well known in the public records retrieval industry and has gathered links to state and county sites containing public records data. Often, when you are unable to find anything at all on a private company, at the very least you should be able to uncover a Secretary of State or other public filing that can confirm basic information about the company (for example, when and where the company incorporated).

2. US Patent & Trademark Office - If intellectual property is your main concern, checking the USPTO’s free databases will reveal a private company’s patents/trademarks, if any.

3. Wayback Machine - What if the private company no longer exists, but you still need information? Try the Wayback machine! If the company had a website and if the Wayback Machine captured it, you might be able to get some basic information about the company.

4. Regional Newspapers - You can find out a lot of information about a private company by looking at regional newspapers where the company is either headquartered or residing as a subsidiary.

5. Free Lists from Top Business Magazines - Top company lists are a good source of private company data. These lists are usually revised each autumn and list by rank and in alpha order. See Forbes – The 500 Top Private Companies; INC. 500 – The Fastest Growing (Private) Companies in America; RobMagazine – Top 300 Private Canadian Companies; and Red Herring Magazine – Red Herring Top 100 Private Companies Reshaping Business.

Don’t Forget to Ask Yourself – Is It Really a Private Company? Some companies masquerade as privates but are really subsidiaries of a public company, so you should check the Directory of Corporate Affiliations. If it is a subsidiary of a public company, check the parent’s annual report for additional references to the subsidiary.

March 19, 2004

Marsh & McLennan Nomination Renders

In the face of the first potential “opt-in” proposal – one that might have triggered the SEC’s shareholder access framework, Marsh & McLennan nominated a director candidate put forth by four pension plans (who combine to own 1.3% of the company’s equity). As a result, the shareholder proposal was withdrawn by the pension plans.

The investor nominee is a former US Attorney in New York, who now works at Dorsey & Whitney. This is an interesting development and might be a harbinger of what will typically happen when companies receive “opt-in” proposals. Historically, it has been rare that a company would acknowledge investor involvement in the selection of a nominee.

Another Exchange Heard From

A little late to be addressing this question, but someone asked in our Q&A Forum whether AMEX follows the NYSE or Nasdaq as to when the new governance standards take effect (i.e. do the new disclosures have to be included in this year’s proxy statement)? I have confirmation from the AMEX staff that they follow the Nasdaq approach – so AMEX-listed companies must include the new disclosures in this year’s proxy statements.

Evolving Compensation Practices

On the heels of yesterday’s popular NASPP webcast – “What The Top Compensation Consultants Are NOW Telling Compensation Committees” – the NASPP has launched a Q&A Discussion Forum devoted to evolving compensation practices.

A number of well-known compensation consultants and compensation critics have signed on to help monitor the forum and answer questions. Within its first hour, there were nearly a dozen – many of them provocative – questions posted!

March 18, 2004

The Hewlett-Packard Annual Meeting Yesterday,

Yesterday, at Hewlett-Packard’s annual meeting, a majority of shareholders cast votes in favor of a shareholder proposal that requested that the company expense options. Management had vigorously opposed the proposal.

According to TheStreet.com, shareholders cast 1.2 billion votes in favor of the measure and 921 million against. In 2003, the company’s net income of $2.5 billion would have been reduced $762 million to $1.8 billion if the company had expensed options using the fair-value method. Annual earnings would have been cut from 83 cents to 59 cents.

In addition, all but one of H-P’s directors received the support of over 90% of the votes cast, including its audit committee members – despite the urging of CalPERS for shareholders to vote against these five audit committee members because they approved Ernst & Young as both the H-P’s auditor and tax adviser. CalPERS has taken this position universally this year – and as a result, it has voted against the audit committee members at a number of companies.

CalPERS had more success with the director that works for Dewey Ballantine, while the law firm provided legal services to H-P. Last week, CalPERS publicly criticized the director for having a “poor attendance record and a business relationship with the company that CalPERS believes could impair his objectivity.” The preliminary voting results show that this director received withhold votes from over 30% of the votes cast.

Ethics Programs – The Role of the Board: A Global Study

In our “Code of Ethics” and “Compliance Training” Portals, we have posted an executive summary of a 2003 report from The Conference Board on the role of the Board in the design, implementation, and monitoring of corporate ethics programs. The full report can be purchased for $140 ($35 for Conference Board members) at the Conference Board website.