TheCorporateCounsel.net

In our “Regulation G/Non-Gaap Measures Portal,” we have added a new “Analysis of Common Non-Gaap Measures.” Among other matters, this analysis covers 13 common non-gaap measures, complete with links to sample disclosures. These common measures include:

– Earnings Before Interest and Taxes (“EBIT”)
– Earnings Before Interest, Depreciation and Amortization (“EBITDA”)
– Earnings Before Interest, Taxes, Depreciation, Amortization and Rent (“EBITDAR”)
– Economic Value Added (“EVA”)
– Free Cash Flow (“FCF”)
– Funds from Operations (“FFO”)
– Net Asset Value (“NAV”)
– Net Operating Income (“NOI”)
– Net Operating Profit After Tax (“NOPAT”)
– Operating Cash Flow (“OCF”)
– Operating Earnings
– Operating Profit
– Standard & Poor’s Core Earnings

ABA Spring Meeting Notes on M&A

At the ABA Spring Meeting in Seattle a week ago, new Office of Mergers & Acquisitions Chief Brian Breheny made these observations:

– SEC considering amendments to “best price rule” – Rule 14d-10(a)(2) – to remedy differing approaches by courts
– Staff considering expanding application of position re: “lock ups” in merger transactions to other situations, including restructurings
– on October 27, 2003, the SEC settled enforcement proceeding for violation of “going private” rules in SEC v. Wilkerson
– On April 1, the Second Circuit overturned a district court in this order and issued an injunction against Highland Capital in connection with MONY/AXA merger – sending photocopies of management’s proxy card to shareholders does constitute the furnishing of a “form of revocation” and is not an exempt solicitation