The Herrick Advantage
On September 17th, Herrick's Corporate Department will host its Eighth Annual Capital Markets Symposium. This year a distinguished panel of financial and legal experts will opine on recent developments in U.S. and international banking regulations, focusing on Dodd-Frank capital requirements and the disengagement of banks from the securities markets under the Volcker Rule.
Herrick Corporate Partner
Stephen D. Brodie will moderate the discussion following a
keynote address by Thomas O'Neill, founding member of the
Kimberlite
Group, LLC and Co-CEO of Kimberlite
Advisors, LLC.
In addition, Herrick Corporate Partners
Richard M. Morris and
Patrick D. Sweeney will join other speakers in discussing a
wide range of related topics, including Basel III's leverage
ratio framework and disclosure requirements, and the potential
impact of bank departures from the securities markets.
For more information, email RSVP@herrick.com.
Amendments to Delaware General Corporation Law Effective August 1,
2014
On July 15, 2014, Delaware amended various provisions of
the Delaware General Corporation Law. The changes, which go into
effect on August 1, 2014, address the following areas:
- Mergers Without Stockholder Vote, Section 251(h): This
section provides that public corporations may include a provision
in a merger agreement that, in certain circumstances, allows for
the approval of a second-step merger following a public tender or
exchange offer without the need for a stockholder vote. The
amendment to this section clarifies that the merger agreement may
merely permit, rather than require, that the merger occurs through
Section 251(h), thus allowing the parties to later execute the
merger through a different statutory provision if they wish. Among
other changes to this section, the amendment clarifies that the
tender or exchange offer may exclude certain target corporation
stock and permits the use of this section when one merger party is
an interested stockholder. The amendment to this section only
applies to merger agreements executed on or after August 1,
2014.
- Actions by Written Consent with Future Effective Dates,
Sections 141(f) and 228(c): The amendment expressly permits
director or stockholder consents to corporate actions to take
effect at a specified future date, but no later than 60 days after
the person gives the consent, provided that the director or
stockholder still retains that position at the specified future
date and has not revoked the consent.
- Incorporator Unavailability, Sections 103(a)(1) and 108:
The amendment provides that if an incorporator becomes unavailable
for any reason, such as death or incapacity, a person for whom the
incorporator was acting may execute documents on behalf of the
corporation. The amendment also eliminates the previous limitations
on reasons for an incorporator's unavailability.
- Amendments to Certificate of Incorporation without Stockholder Approval, Section 242: This section has been modified to allow corporations to amend certain provisions in the certificate of incorporation absent stockholder approval, including, for example, changing the name of the corporation or removing certain stale provisions in the original certificate of incorporation.
Delaware Law Concerning Safe
Destruction of Documents Containing Personal Identifying
Information
Delaware recently enacted a new law relating to the destruction of
personal identifying information by companies. Effective as
of January 1, 2015, any commercial entity seeking to dispose of
personal identifying information will be required to protect such
personal identifying information by taking reasonable steps to
shred, erase, destroy or modify such information to make it
entirely unreadable or undecipherable. Under the law, a
"commercial entity" may be any corporation, business
trust, estate, trust, partnership, limited partnership, limited
liability partnership, limited liability company, association,
organization, joint venture, or other legal entity, whether or not
for profit. The law defines "personal identifying
information" as a consumer's first name or first initial
and last name in combination with (i) his or her signature, (ii)
full date of birth, (iii) social security number, (iv) passport
number, (v) driver's license or state identification card
number, (vi) insurance policy number, (vii) financial services
account number, (viii) bank account number, (ix) credit card
number, (x) debit card number, and/or (xi) any other financial
information or confidential health care information.
The purpose of the Delaware law is to protect individuals
against the unauthorized access to or use of their personal
identifying information. In furtherance of these objectives,
the law provides that any company that violates the new law may
face a suit from the Delaware Attorney General and/or any
individual who incurs actual damages due to a violation of the
law. Such aggrieved individual may be awarded treble damages
by the courts.
Given that more than one million companies have been formed or
incorporated in Delaware, the new data destruction law will affect
a large number of companies that were not previously subject to the
data retention and destruction provisions of the Gramm Leach Bliley
Law, the Health Insurance Portability and Accountability Act of
1996 and other similar federal legislation or regulations.
The Delaware law does not apply to banks, financial institutions,
and certain health insurers, healthcare facilities and consumer
report agencies, already subject to similar federal laws.
Governments and governmental agencies are also exempt from the
Delaware law.
Delaware Supreme Court Confirms that Verbal Director
Resignations are Effective under § 141(b) of the Delaware
General Corporation Law
The Delaware Supreme Court recently affirmed a Chancery Court
ruling upholding the verbal resignation of a director of Biolase,
Inc. amid a dispute between Oracle Partners, L.P., Biolase's
largest stockholder, and Federico Pignatelli, its Chairman and
CEO. Director Alexander Arrow orally resigned his
directorship at a board meeting and Paul Clark was elected a
director in his place. Pignatelli planned Arrow's
resignation and Clark's appointment to the board, but changed
his mind upon learning that Clark had aligned himself with a
faction of the board that wanted to remove Pignatelli from his
position as CEO and subsequently claimed that Clark's
appointment was improper and invalid. Upon Pignatelli's
change of course, Oracle brought suit, seeking a declaration that
Arrow had properly resigned and that Clark had replaced him.
Pignatelli argued, among other things, that §141(b) of the
Delaware General Corporation Law requires that a director's
resignation be in writing and thus Arrow's resignation was
invalid. The Chancery Court disagreed and ruled that both
Arrow's oral resignation and Clark's subsequent appointment
to the board were effective.
Upon appeal, the Delaware Supreme Court affirmed, stating that the
Chancery Court's decision "that Arrow could resign from
the board of directors by means of an oral statement under
§141(b) is not legally erroneous." Section 141(b)
of the DGCL states that "[a]ny director may resign at any time
upon notice given in writing or by electronic transmission to the
corporation." The Delaware Supreme Court noted that the
lower court took a "sensible and reasonable" approach and
held that the term "may," as used in §141(b), does
not mean "may only." In doing so, the Delaware
Supreme Court upheld a line of Chancery Court decisions dating back
to 1984 that have found the written resignation language in
§141(b) to be "permissive" rather than mandatory and
that such language does not, therefore, rule out director
resignation by other means.
Biolase, Inc. v. Oracle Partners, L.P., No. 270, 2014, 2014 WL
2619404 (Del. June 12, 2014)
Delaware Chancery Court Addressed Corporate Benefits
Doctrine
The Delaware Chancery Court recently considered a case
where a stockholder of a public company, Astoria Financial
Corporation, notified Astoria's board of directors that certain
of its recent SEC filings were not in compliance with federal law
(specifically, the Dodd-Frank Wall Street Reform and Consumer
Protection Act), and subsequently sued Astoria for attorneys'
fees incurred by the stockholder in investigating the
non-compliance and writing a demand letter to the board.
Under the corporate benefits doctrine, a stockholder may receive
attorneys' fees where (i) the underlying cause of action was
meritorious, (ii) the action producing benefits to the corporation
was taken by the defendants before a judicial resolution was
achieved, and (iii) the resulting corporate benefit was causally
related to the lawsuit. The policy behind this doctrine, which is
in contrast to the general rule of the American legal system that
each party pays its own legal fees, is to incentivize private
actors to police corporate misconduct.
In this case, the stockholder sent a demand letter to the board of
directors of Astoria outlining the Dodd-Frank reporting violations
and recommending actions. The board responded by curing the
violations, as recommended. The board refused to reimburse the
stockholder's legal fees, however, and the stockholder brought
suit under the corporate benefits doctrine. The stockholder argued
it was entitled to receive attorneys' fees as it presented a
meritorious claim for breach of fiduciary duties and conferred a
benefit on Astoria stockholders by bringing Astoria into compliance
with applicable law.
The Court granted Astoria's motion to dismiss, as the Court did
not find that any of the stockholder's allegations of breach of
fiduciary duties by the directors, for failure to ensure compliance
with new reporting obligations under the Dodd-Frank Act, were
meritorious. The Court further stated that when a stockholder
notifies the board of directors that a corporate loss may be
avoided, whether to pay this stockholder for his efforts is in the
discretion of the board and not a court matter. "It is only
when benefits result from a demand to address corporate wrongdoing
under Rule 23.1 [derivative actions by shareholder]...that it is
appropriate for the Court to intervene." Expanding further,
the Court stated so long as the board acts consistent with its
fiduciary duties, "what resources to devote to oversight . . .
is a core board function, and not a stockholder function. Only
where the stockholder has acted on behalf of the corporation
because those whose duty it is to act, the directors, have breached
their fiduciary duties . . . will the stockholder be entitled [to
attorneys' fees]..."
Amendments to the Delaware LLC Act, the Limited Partnership
Act and the Revised Uniform Partnership Act
Delaware passed proposed amendments to Section 18-305 of
the Limited Liability Company Act, Section 17-305 of the Revised
Uniform Limited Partnership Act and Section 15-403(d) of the
Revised Uniform Partnership Act to confirm that a member of a
limited liability company, the limited partner of a limited
partnership, or the partner of a general partnership, may make a
books and records request to the limited liability company or
partnership, as the case may be, in person or by an attorney or
other agent. In addition, Delaware also amended Section
18-305 of the Limited Liability Company Act and Section 17-305 of
the Revised Uniform Limited Partnership Act to add a new subsection
which provides that a limited liability company or a limited
partnership is required to maintain a current record of the name
and last known address of each member and manager, or each partner,
as the case may be.
SEC Issues Interpretive Guidance on Accredited Investor
Verification
On July 3, 2014, the Division of Corporation Finance of
the Securities and Exchange Commission issued new Compliance and
Disclosure Interpretations ("CDIs") clarifying how
issuers of securities may make accredited investor determinations
in compliance with Rule 506(c) of Regulation D, promulgated under
the Securities Act of 1933, as amended (the "Act").
Under Rule 506(c), an issuer is permitted to engage in general
solicitation of a securities offering without registration under
the Act, provided the issuer takes reasonable steps to verify a
purchaser's accredited investor status.
The Rule allows the issuer to verify a purchaser's accredited
investor status by applying an income test or a net worth
test. Two of the CDIs clarify the general application of
these tests to purchasers with non-U.S. income and purchasers who
hold assets jointly with someone other than a spouse:
- Where a purchaser has annual income reported in a non-U.S.
currency, the issuer may apply the income test either by using the
exchange rate as of the last day of the year being reported, or the
average exchange rate for such year; and
- Where a purchaser holds assets jointly with a non-spouse, the issuer is permitted to include those assets in calculating the purchaser's net worth, but only to the extent of the purchaser's percentage ownership in the assets.
Additionally, the Rule provides a number of non-exclusive safe
harbors, compliance with which is deemed to be
"reasonable" for purposes of verifying a purchaser's
accredited investor status. The remaining CDIs provide
specific guidance as to the application of the income and net worth
tests in the context of the Rule's safe harbors:
- An issuer who verifies a purchaser's income by reviewing
his or her IRS forms for the last two years is generally entitled
to rely upon a safe harbor. However, if IRS forms are not
available for each of the last two years, the issuer is not
entitled to rely on the safe harbor, and instead must apply a
principles-based approach which may require the issuer to obtain
written representations of the purchaser's income and to review
additional documentation.
- Similarly, issuers are not entitled to rely upon a safe harbor
where the purchaser provides foreign tax forms. The CDIs
indicate that, in such a scenario, an issuer may still reasonably
conclude that a purchaser is accredited by reviewing tax forms from
foreign jurisdictions that impose penalties similar to those
imposed in the U.S. for falsely reported income.
- When applying a net worth test to determine accredited investor status, an issuer may not take advantage of the Rule's safe harbors by reviewing tax assessments that are more than three months old, or by examining non-U.S. consumer or credit reports. In either of these cases, the issuer would need to take additional steps to verify the purchaser's net worth.
Although the CDIs indicate that the SEC strictly interprets the
Rule's safe harbors, issuers are still afforded flexibility in
applying a principles-based approach to making accredited investor
determinations. Where safe harbors are unavailable, issuers may
still rely upon the Rule provided diligent and reasonable steps are
taken to verify a purchaser's accredited investor status.
The SEC Explains A Few Things Directors of Public Companies
Should Know
On June 23, 2014, the U.S. Securities and Exchange Commission Chair
Mary Jo White delivered a speech entitled "A Few Things
Directors Should Know About the SEC." The speech focused
on the role directors played as gatekeepers for shareholders,
self-reporting of wrongdoing, and how the whistleblower program
works.
The SEC explained that directors are essential gatekeepers who
share the SEC's mission to ensure that investors can invest
with confidence. Directors are expected to oversee the
business and affairs of the company and to prevent, detect and stop
violations of the federal securities laws. Directors, along
with senior management under the purview of the board, should set
expectations, including a standard of good corporate governance and
rigorous compliance. Directors should ensure that the
company's disclosures are accurate, the finances have been
adequately and transparently reported and audited, and the
management is carrying out business as agreed upon. In
addition to understanding the company's business model, the
associated risks, its financial condition, its industry and its
competitors, directors should consider the view of regulators and
listen to their shareholders' concerns.
The SEC acknowledged that, even in the best run companies,
wrongdoing will almost inevitably occur. The SEC discussed
the benefits for self-reporting and cooperating with the SEC,
including a reduced penalty, and the downsides in deciding not to
self-report. The SEC explained that cooperation means more
than complying with subpoenas. Rather, cooperation requires a
sincere and thorough partnering with the SEC to uncover all of the
relevant facts.
Last, the SEC briefly described the whistleblower program that was
created under the Dodd-Frank Act. The whistleblower program
provides monetary awards to individuals who provide original
information to the SEC that leads to enforcement action resulting
in monetary sanctions that exceed $1 million. The SEC
explained that the whistleblower program encourages whistleblowers
to first report any misconduct internally, a factor which the SEC
considers when determining the amount of the monetary award.
The SEC expects directors to foster a culture that affirmatively
encourages employees to report any wrongdoing without any fear of
retaliation.
The SEC also discussed two cases brought against audit committee
chairs, noting that while it has brought cases against directors,
such cases should not discourage directors from serving on
boards. The SEC explained that in such cases, there were
"clear lines crossed by directors not doing their jobs, and
then some."
For a full transcript of the speech, go to http://www.sec.gov/News/Speech/Detail/Speech/1370542148863
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