In a typical public company merger agreement, the target is required to continue to operate in the “ordinary course of business” prior to closing.  This covenant provides protection for the buyer who is obligated to complete the acquisition subject only to the fulfillment of limited closing conditions, including, typically, the non-occurrence of a “Material Adverse Effect,” and wants some certainty as to what it will be acquiring come the closing.  Continue Reading Operating in the Ordinary Course of Business after an Extraordinary Event: Cooper Tire & Rubber v. Apollo (Mauritius) Holdings

On Thursday, October 16, 2014, Cleary Gottlieb and The Conference Board hosted the webcast “Recent Developments Related to Earnings Guidance” from 3-4 PM. The webcast was moderated by Marcel Bucsescu, Assistant Director of The Conference Board Governance Center, and the panelists were:

  • David Lopez, Partner, Cleary Gottlieb
  • Pamela L. Marcogliese, Partner, Cleary Gottlieb
  • David Fredrickson, Chief Counsel, Division of Corporate Finance, Securities and Exchange Commission
  • Don Duffy, President, ICR

For more information on each of the panelists, click here.

For access to the recording of the webcast, please click here.

On Thursday July 10, 2014, the Society of Corporate Secretaries & Governance Professionals hosted a webcast on the topic of SEC Staff Legal Bulletin No. 20 (IM/CF), addressing the proxy voting responsibilities of investment advisers and the availability of exemptions from the federal proxy rules for proxy advisory firms. The guidance follows extensive debate among issuers, institutional investors, proxy advisory firms, advocacy groups and others regarding the role and legal status of proxy advisory firms, and the common request among them that the SEC settle uncertainty about the duties of investment advisers to vote their clients’ proxies.

Continue Reading Webcast on SEC Staff Legal Bulletin No. 20 (IM/CF)

On June 30, the Divisions of Investment Management and Corporation Finance of the SEC issued staff guidance, in the form of a Staff Legal Bulletin, addressing investment advisers’ responsibilities in voting client proxies and retaining proxy advisory firms.  The guidance also addresses the requirements of the exemptions from the federal proxy rules that proxy advisory firms may seek to satisfy.  Continue Reading SEC Issues Staff Guidance on Rules Applicable to Investment Advisers and Proxy Advisory Firms

On  June 24, 2014, Cleary Gottlieb hosted a seminar in its New York office on Cybersecurity Risk Management: Key Issues Facing Boards, Management and In-House Counsel. Guests participated in a panel discussion on key cybersecurity risk management issues, including the current threat environment; how to be prepared in the case of a breach; and what to do (and not do) in responding to a cybersecurity incident.

Continue Reading Cybersecurity Risk Management Seminar

The Delaware Supreme Court’s May 8 opinion in ATP Tour, Inc. v. Deutscher Tennis Bund, is a reminder that corporate bylaws can be muscular vehicles for addressing many aspects of corporate affairs, including innovative mechanics for resolving disputes between stockholders and fiduciaries.  The swift response to ATP by the Delaware bar, and the anticipated amendments to the Delaware General Corporation Law, are also reminders that Delaware statutory law can change rapidly in response to emerging events in the marketplace.  Finally, what will remain of ATP after the General Assembly acts (as seems likely) has important implications to the use of bylaws outside of the narrow area ATP addressed—fee-shifting—including, particularly, forum selection clauses. Continue Reading Muscular Bylaws: ATP’S Lessons of Continuing Relevance

On May 7, 2014, Cleary Gottlieb hosted a Latin America seminar in its New York office. Guests were able to participate in an array of panel discussions on trending topics in Latin America, with Cleary Gottlieb partners, representatives from Gaffney Cline, Sodali, Navigant, and Jaguar Growth Partners, and leading legal practitioners from Brazil, Chile and Mexico. Cleary Gottlieb partner Lee Buchheit provided introductory remarks on the Future of Sovereign Debt Restructuring.

Continue Reading Latin America Seminar and Cocktail Reception

Companies with securities listed on NASDAQ must file a one-time certification of compliance in regard to the amended compensation committee listing rules as provided in Rule 5605(d) and IM-5605-6 within 30 calendar days following the earlier of the issuer’s first annual meeting occurring after January 15, 2014, or October 31, 2014.

Continue Reading NASDAQ Listed? Compensation Committee Certification!

On May 2, 2014, the Delaware Chancery Court denied a motion to preliminarily enjoin Sotheby’s annual stockholder meeting based on allegations by an activist stockholder, Third Point LLC, that the Sotheby’s board of directors violated its fiduciary duties by adopting a rights plan (or “poison pill”) and refusing to provide a waiver from its terms in order to obtain an advantage in an ongoing proxy contest.  Continue Reading Rights Plans and Proxy Contests: Chancery Court Denies Activist’s Motion to Enjoin Sotheby’s Shareholder Meeting

To read this report, click here.