December 9, 2004

Three New Bloggers Are Born!

On, I am excited to announce that three new bloggers are slaving away. As blogging is the highlight of my day (ain’t that sick!), I am always glad to see others express themselves. Former SEC Staffer Jim Moloney and Rob Bujarski of Gibson Dunn are manning “Moloney’s M&A Scoop” – and Scott Sher of Wilson Sonsini is running with “Trust & Antitrust – The Antitrust Blog.”

Here is a recent blog from Jim and Rob:

The SEC Speaks at the ABA Fall Meeting

On Friday, November 19th the ABA Subcommittee on Proxy Statements and Business Combinations chaired by Dennis Garris (partner at Alston & Bird), met in Washington DC. At this meeting senior members of the SEC staff, including Brian Breheny, Chief of the Office of Mergers & Acquisitions (OM&A), and Nick Panos, Special Counsel in OM&A, addressed several topics of interest to M&A practitioners.

One issue that may come as a surprise to many is the staff’s position that materials prepared by an investment bank as “pitch materials” and provided to a company that is considering a potential transaction may be deemed a “report, opinion or appraisal” under Item 1015 of Reg MA (formerly known as Item 9 reports), that must be summarized in the company’s SEC filings relating to such transaction, even where the investment bank is not retained by the company to advise on the transaction and does not receive any fees or other compensation in connection with the transaction.

The key to the staff’s decision rests with the degree to which the materials contain substantive analysis and the extent to which the Company’s Board considers and relies upon the materials in its deliberations with respect to the proposed transaction. In the situation discussed by the staff, although the bankers argued that the materials were “pitch materials,” the staff deemed the materials a report since the materials consisted of multiple presentations to the Board over an extended period of time and included specific analyses and recommendations that contributed valuable information used to structure the transaction presented to security holders. The staff also reminded the audience that when there are material differences between preliminary and final versions of an Item 1015 report, each version will be viewed as a separate report that must be summarized in the company’s SEC filings.

Also of interest is the staff’s continued position that insurgents who solicit proxies by sending management’s proxy card to security holders and request that such cards be returned to management may continue to rely on the exemption in Rule 14a-2(b)(1) under the Securities Exchange Act despite the Second Circuit’s recent decision to the contrary in MONY Group, Inc. v. Highfields Capital Management, 368 F.3rd 138 (2nd Cir. 2004). While staff is adhering to its long-standing position that such activities are exempt solicitations and insurgents need not file their own proxy statements, they are advising callers who seek guidance on this issue that the Second Circuit takes a different view.

Lastly, it was noted that Mara Ransom, Special Counsel in OM&A, is currently working on a rulemaking project that will hopefully resolve some of the conflicting case law on the “best-price” provisions in Rule 14d-10 under the Securities Exchange Act. As many of you know the Seventh and Ninth Circuits have split, with each adopting different tests as to when severance payments, golden parachutes and similar compensation arrangements in business combination transactions run afoul of the best-price rule. Brian Breheny expects to have something published by early next year. We are hopeful!

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My Chinese Delegation Experience

It’s my b-day today, so I thought I would take liberties with another personal anecdote. A few weeks back, I was asked to address a delegation from China – consisting of legislative and regulatory members – on how they can develop their own version of Sarbanes-Oxley. Having spoken to other international groups in the past – such as IOSCO – I thought I knew what to expect.

But I was wrong. There were separate translators for what I said – and what members of the delegation replied – and it took an hour just to cover the basics of independent boards. It will be interesting (and perhaps scary) to see what they come up with if they adopt something. Proud to say that a translation of my joke about my baldness went through just fine. For my b-day party, I gotta try that 6th Annual Santa Stumble, put together by some former SEC Staffers.

404 Trends Emerging for Next Year

Here is some interesting info from last week’s newsletter: “As public companies strive to meet compliance deadlines for Section 404 of the Sarbanes-Oxley Act, trends related to how companies will implement an efficient and effective process beyond the initial year of compliance are beginning to emerge, according to the results of a new survey released by Ernst & Young.

The survey, the third in a series (and oddly enough, not yet posted in E&Y’s Internal Controls Library), is part of an ongoing study from Ernst & Young’s Business Risk Services practice entitled “Emerging Trends in Internal Controls.” The study takes an in-depth look at emerging trends in Section 404 compliance, and polls nearly 100 large, public companies
representing a diverse cross-section of industries. This survey provides an update on the progress large public companies are making in 404 compliance and addresses key issues such as the level of effort involved; the amount of testing being done; key areas of remediation; and the extent and frequency of executive and audit committee oversight and communications.

The survey shows a sharp increase in the urgency of public company first-year efforts to meet compliance deadlines, with 46 percent of companies expecting largely to complete evaluation and testing of 404-related controls only one to two months before their fiscal year end, compared to only 13 percent in the previous survey. In addition, 30 percent of companies reported the time they expect to spend complying with Section 404 has increased by nearly 50 percent, due in large part to the increased number of controls identified for testing.

With 404-related controls testing comprising the largest portion of ongoing effort beyond the first year of compliance, trends for addressing this important area are beginning to emerge. In Year 2, companies anticipate that their testing resources will continue to be primarily those dedicated to 404 testing, as well as resources supplied by Internal Audit functions. In many cases, third-party resources are expected to be used to support these functions, in addressing the unique skills and cyclical demands for testing.

Some companies are also using or exploring the potential to use control self assessment (80 percent), continuous controls monitoring and analytics (48 percent), and, to a lesser extent, management self testing to support their Year 2 efforts.

“After dedicating an extraordinary level of effort to meet 404 compliance deadlines, companies are starting to look ahead in towards 404 sustainability while containing costs and finding value in the process,” said Tom Bussa, Global Director of Ernst & Young’s Business Risk Services.

“Although most are still primarily focused upon first-year compliance, there is increasing recognition that a long-term view and plan are required.”

In fact, most companies are now beginning to build the infrastructures and embed the technologies needed to sustain 404 compliance for the long term. In addition, many are also recognizing additional benefits from investments. For example, nearly two-thirds of companies expect to benefit from improved financial processes. Approximately 40 percent expect to extend risk coverage beyond financial reporting, and more than one-third are anticipating benefits stemming from systems enhancements.”