Public Companies

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by Jonathan M. Hoff, Lawrence A. Larose, Frank J. Scaturro

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In the wake of corporate scandals and diminished confidence in business and the financial markets, the need has never been greater for a handbook detailing how to operate a responsible public company. Public Companies is designed to aid directors, officers and general counsel of public companies and those intending to go public. More than just a “how-to” guide, it is a comprehensive examination of corporate governance, internal controls and law compliance requirements, as well as the many other issues one needs to consider to be a responsible corporate citizen. Coverage includes legal obligations, best practices, new developments and pragmatic approaches to common problems for start-up companies and well-established businesses alike.

You'll get advice and analysis from start to finish—from the decision to go public to organizing the corporation, doing an IPO and meeting ongoing reporting and registration requirements. You'll learn all about setting up law compliance programs, implementing finance and accounting controls, complying with the regulatory scheme created by the Sarbanes-Oxley Act of 2002, and communicating with shareholders. You'll also find chapters on e-commerce, financially troubled companies and other important subjects.

Public Companies is the complete guide for executives, lawyers and entrepreneurs dedicated to establishing or sustaining a responsible public company.

Book #00666; looseleaf, one volume, 802 pages; published in 2002, updated as needed; no additional charge for updates during your subscription. Looseleaf print subscribers receive supplements. The online edition is updated automatically. ISBN: 978-1-58852-104-0

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  • Availability: Available
  • Brand: Law Journal Press
  • Product Type: Books
  • Edition: 0
  • Page Count: 802
  • ISBN: 978-1-58852-104-0
  • Pub#/SKU#: 666
  • Volume(s): 1

Author Image
  • Jonathan M. Hoff
Jonathan M. Hoff is a partner in the Litigation Department in the New York office of Cadwalader, Wickersham & Taft LLP. He has written extensively on securities and corporate litigation and counseling, current developments in mergers and acquisitions, the business judgment rule, and stockholder litigation. Mr. Hoff received his undergraduate degree from the University of California at Berkeley and his law degree from UCLA.

Author Image
  • Lawrence A. Larose
Lawrence Larose is a partner with Winston & Strawn LLP's corporate department and heads the firm's financial restructuring practice, a part of the firm's restructuring and insolvency group. Mr. Larose assists corporate clients with sophisticated in-court and out-of-court restructurings, including mergers and acquisitions and other financial transactions. Much of his experience involves counseling major financial institutions, including investment banks, commercial banks, financial guarantors, and insurance companies.

Among his most prominent cases, Mr. Larose is the lead counsel in the recent restructuring of MBIA Insurance Corp., the largest financial guaranty insurer in the world, and represents parties in the restructuring of Syncora Guarantee, Inc. and Financial Guaranty Insurance Company. Mr. Larose was also lead corporate counsel in the Confederation Life Insurance Company and Mutual Benefit Life Insurance Company cases, the two largest life insurance industry restructurings in U.S. history. He also was chief restructuring counsel to Foster Wheeler Ltd., one of the nation's largest out-of-court restructurings.

Mr. Larose is a member of the American Bar Association, The Association of the Bar of the City of New York, the New York State Bar Association, and the New York County Lawyers Association. Mr. Larose received a B.A., summa cum laude, in 1980 from Tufts University and a J.D., magna cum laude, in 1983 from Georgetown University Law Center, where he was a member of the Georgetown Law Journal.

Author Image
  • Frank J. Scaturro
Frank J. Scaturro is a partner with Fisher Broyles. He specializes in commercial litigation and political law, with a focus on securities and regulatory issues; matters in connection with government institutions and political campaigns; and issues of constitutional law. Mr. Scaturro has been active in elective politics for over 20 years, including as a candidate for Congress, and has experience both inside and outside all three branches of the federal government. He has extensive background in constitutional law, including past service as Counsel for the Constitution on the Senate Judiciary Committee. He has also taught courses on constitutional law and the legislative process as a Visiting Professor at Hofstra Law School. Mr. Scaturro has published a number of books and articles in his areas of specialty, including The Supreme Court's Retreat from Reconstruction (2000), an exploration of 13th, 14th, and 15th - Amendment jurisprudence, a well as in history and politics, where his publications include President Grant Reconsidered (1998), a reassessment of U.S. Grant's presidency, and a collaboration with Senator Arlen Specter on Never Give In: Battling Cancer in the Senate (2008), the senator's memoir on his struggle with Hodgkin's lymphoma.

Deciding Whether To Go Public

§ 1.01 Costs and Benefits of Becoming a Public Company
[1] Introduction
[2] Financing Alternatives
§ 1.02 The Initial Public Offering
[1] The Players and their Roles
[2] Structuring the Offering
[3] After the Registration Statement is Filed
[4] Effectiveness of the Registration Statement and Post-Effective Period
§ 1.03 the Initial Public Offering
[1] Securities Act Liability
[2] Securities Exchange Act Obligations
§ 1.04 Source Materials
[1] List of State Blue Sky Offices
[2] Due Diligence Checklist
[3] Underwriting Agreement

Basic Corporate Organization

§ 2.01 Introduction
§ 2.02 Articles of Incorporation
§ 2.03 Bylaws
§ 2.04 Adequate Capitalization
[1] Authorized Shares of Stock
[2] Preemptive Rights
[3] Blank Check Preferred Stock
§ 2.05 Removal and Replacement of Directors
§ 2.06 Director and Officer Indemnification Issues
§ 2.07 Structural Defenses
[1] Staggered Board of Directors
[2] Restrictions on Stockholder Actions in Connection with Stockholder Meetings
[3] Supermajority Voting Requirement
[4] Fair Price Provisions
§ 2.08 Stockholder Meetings and Voting
[1] Meetings
[2] Cumulative Voting
[3] Say-on-Pay Voting
§ 2.09 Organization of the Board of Directors
[1] Function and Purpose
[2] Structure
[3] Sample Audit Committee Charters
§ 2.10 State Laws of Incorporation
[1] Delaware Certificate of Incorporation
[2] New York Certificate of Incorporation
[3] California Articles of Incorporation
§ 2.11 State Bylaws
[1] Delaware Bylaws
[2] New York Bylaws
[3] California Bylaws
§ 2.12 Advance Notice of Annual Meeting Structural Defense Provision
§ 2.13 Fair Price Provisions
§ 2.14 Public Purpose Corporations
[1] Flexible Purpose Corporations
[2] Benefit Corporations

Registration and Reporting Requirements

§ 3.01 Introduction
§ 3.02 Exchange Act Registration and Reporting Triggers
[1] Listing on a National Exchange
[2] Over-the-Counter Securities
[3] Nonregistered Reporting Companies
§ 3.03 Forms and Procedures
[1] Form 10
[2] Form 8-A
[3] Separate Registrations
§ 3.04 Exchange Act Reporting and Other Requirements
§ 3.05 Voluntary Registration
§ 3.06 Deregistration
§ 3.07 Periodic Reporting Requirements
[1] Annual Report on Form 10-K
[2] Quarterly Report on Form 10-Q
[3] Report on Form 8-K
[4] Filing Extensions
§ 3.08 Proxy Solicitations
[1] Federal Securities Laws
[2] State Corporate Laws
[3] Stock Exchange Rules
[4] Stockholder Meeting Material
[5] Proxy Information
[6] Content of the Proxy Statement
§ 3.08A Executive Compensation
[1] Overview
[2] Key Reporting Requirements
[3] Effect of Emergency Economic Stabilization Act of 2008 on Executive Compensation
§ 3.09 Section 16: Insiders
[1] Insiders
[2] Section 16(a) Reporting—Forms 3, 4, and 5
[3] Section 16(b)—Disgorgement
[4] “Groups”for Purpose of Section 16
[5] Other Section 16 Rules
§ 3.10 Section 13(d): Ownership Reporting Requirements
[1] Schedule 13D
[2] Schedule 13G
§ 3.11 EDGAR
§ 3.12 Confidential Treatment
§ 3.13 Examples of Proposed Disclosure About Critical Accounting Estimates

Fiduciary Duties

§ 4.01 Introduction
§ 4.02 Duty of Care
[1] Generally
[2] Judicial Review: Business Judgment Rule and Heightened Review
§ 4.03 Duty of Loyalty
[1] Generally
[2] Judicial Review: Business Judgment Rule
[3] Application to Particular Cases
[4] Criminal Liability: “Honest Services”Statute
§ 4.04 Duty of Disclosure
§ 4.05 Control Issues
[1] Fiduciary Duty of Controlling Stockholder
[2] Other Control Contexts
§ 4.06 Trading from a Fiduciary Duty Perspective

Law Compliance

§ 5.01 Introduction
§ 5.02 Law Compliance Programs
[1] Responsibility for Law Compliance
[2] Objectives
[3] Components
[4] Role of Legal Counsel
[5] Management Reports
[6] MD&A Disclosure Compliance
[7] Tailoring Compliance to the Sentencing Guidelines
§ 5.03 Finance and Accounting Controls
[1] Foreign Corrupt Practices Act
[2] Make and Keep Books, Records, and Accounts
[3] Devise and Maintain System of Internal Accounting Controls
[4] The Internal Auditing Function
§ 5.04 Policies
[1] Code of Conduct
[2] Record Retention Policy
[3] Employment and Confidentiality Agreements
[4] Stock Options and Golden Parachutes
§ 5.05 Regulatory Framework
[1] The Federal Securities Laws
[2]  Employment and Labor Law
[3] Antitrust
[4] Environmental Law
[4] False Claims Act

The Sarbanes-Oxley Act

§ 5A.01 Introduction
§ 5A.02 Disclosure and Certification Requirements
[1] Changes to Periodic Reporting Requirements
[2] Certifications
§ 5A.03 Corporate Responsibility Safeguards
§ 5A.04 Public Company Accounting Oversight Board
§ 5A.05 Auditor and Audit Committee Independence
[1] Auditors
[2] Audit Committees
§ 5A.06 Civil and Criminal Liability
[1] Fraud Accountability and White Collar Crime Penalty Enhancements
[2] Insider Trading
[3] Whistleblower Protection
[4] Guidance for Prosecution and Enforcement Proceedings
§ 5A.07 Rules of Conduct
[1] Rules of Ethics for Corporate Executives
[2] Rules of Ethics for Attorneys
[3] Analyst Conflicts of Interest
[4] Records Retention
§ 5A.08 Stock Exchange Requirements in Response to the Sarbanes-Oxley Act
§ 5A.09 Impact of the Sarbanes-Oxley Act
§ 5A.10 Form: Certification for Section 302
§ 5A.11 Form: Certification for Section 906

Dealing with Stockholders

§ 6.01 Introduction
§ 6.02 Interacting with the Media and Analysts
[1] Selective Disclosure
[2] Entanglements
[3] Content of Disclosures: Forward-Looking Statements
[4] Investor Relations: Communications and Legal Issues
§ 6.03 Stock Exchange Requirements—NASDAQ and NYSE
[1] Disclosure
[2] Stockholder Approval
[3] Voting Rights
[4] Stockholder Meetings
[5] Distribution of Annual and Interim Reports
[6] Solicitation of Proxies from Stockholders
§ 6.04 Stockholder Proposals
[1] Methods of Making Stockholder Proposals
[2] Eligibility and Procedural Requirements for a Stockholder Proposal
[3] When a Stockholder Proposal May Be Excluded
[4] Communicating with Other Stockholders
§ 6.05 Conducting a Stockholder Meeting
[1] Developing an Agenda
[2] Quorums and Voting
[3] Keeping Track of Stockholders
[4] Taking Minutes
[5] Dealing with Unruly Stockholders
§ 6.06 Source Materials
[1] Agenda for Annual Meeting of Stockholders
[2] Minutes of Annual Meeting of Board of Directors


§ 7.01 Introduction
§ 7.02 Kinds of Insurance
[1] Directors and Officers Liability Insurance
[2] Fidelity Insurance Policies
[3] Commercial General Liability and Property Insurance
[4] Errors and Omissions Insurance

Legal Issues Affecting E-Commerce

§ 8.01 Introduction
§ 8.02 Enforceability of Electronic Contracts
[1] Clickwrap Agreements
[2] Electronic Signatures
§ 8.03 Online Privacy
[1] Collection of Personal Information and Preferences
[2] Creation of a Privacy Policy and Use of Privacy Guidelines
[3] Unsolicited Commercial E-Mail
§ 8.04 Protection of Intellectual Property
[1] Copyright
[2] Trademark
[3] Patent and Trade Secrets
[4] Protecting Intellectual Property
§ 8.05 Jurisdiction
[1] Personal Jurisdiction
[2] Choice of Law

When Good Companies Go Bad: Legal Obligations and Options of Financially Troubled Entities

§ 9.01 Introduction
§ 9.02 Fiduciary Duties of Directors of Financially Distressed Corporations
[1] Duties upon Insolvency of a Corporation
[2] Duties when the Corporation is in the Vicinity of Insolvency
[3] Duties of Directors in Emergency Situations
[4] Understanding and Identifying an Insolvent Corporation
[5] Deepening Insolvency
§ 9.03 Restructuring Alternatives for Financially Troubled Entities
[1] Introduction
[2] Identifying the Problem
[3] Factors Determining Restructuring Alternatives
[4] Restructuring Alternatives—In-Court vs. Out-of-Court
[5] Specific Restructuring Issues
§ 9.04 Special Restructuring Concerns for Internet-Related Enterprises