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Publications
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09.17.2020Is Your Board Gender Diverse Yet? Washington Public Companies Reminded of Upcoming Board Diversity RequirementUpdatesWhen the Women on Corporate Boards Act (Section 1 of Substitute Senate Bill 6037) became effective on June 11, 2020, Washington became the second state (after California) to affirmatively address gender diversity on public company boards of directors in its corporate statute.
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05.01.2020Conflicted Transactions: Cleansing Process Only Effective if Procedures Are Rigorously FollowedUpdatesIn today’s difficult economic environment, many companies—including those in the portfolios of private equity and venture capital funds—are struggling financially. For some, a transaction in which a private equity sponsor or a venture capital investor has a significant interest may provide a lifeline for the troubled company.
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08.2018Governance Perils Involved in Financing Transactions by Emerging CompaniesArticles
Deal Lawyers; pg. 10
A recent decision by Delaware’s Chancellor Bouchard, Carr v. New Enterprise Associates, Inc., highlights the potential governance challenges and risks that arise in two financing scenarios encountered by emerging companies, including those backed by venture or private equity funds. -
07.19.2018A New Virtual (Meeting) Reality for Washington CorporationsUpdatesAmendments to the Washington Business Corporation Act (WBCA) that allow Washington corporations to hold “virtual” shareholder meetings became effective in June 2018.
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09.07.2017In re Martha Stewart Living Omnimedia, Inc. Stockholder Litigation: MFW Provides Recipe for Protecting One-Sided Controller TransactionsUpdatesIn its opinion in In re Martha Stewart Living Omnimedia, Inc. Stockholder Litigation, issued in August 2017, the Delaware Chancery Court addressed a question left open under Kahn v. M&F Worldwide.
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08.18.2017Get Ready for Mandatory SEC Exhibit Hyperlinks Beginning September 1UpdatesThe Securities and Exchange Commission’s final rules requiring hyperlinking of exhibits to SEC filings will be effective for most public companies on September 1, 2017.
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02.10.2017 (Revised)Recent Whistleblower Protection Actions by SEC and Congress Add Risk to Severance AgreementsUpdatesThe SEC’s recent enforcement actions addressing severance agreement language that may violate whistleblower protections under the federal securities laws were the subject of an article by Perkins Coie attorneys Luis Mejia, Stewart Landefeld, Eric DeJong and Ann Marie Painter.
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12.2016Washington Business Entities: Law and Forms, Second EditionLawyer Publications
Lexis Publishing/Matthew Bender & Company
Perkins Coie partners Stewart Landefeld and Eric DeJong have co-authored Washington Business Entities: Law and Forms, Second Edition, an indispensable treatise for any corporate attorney and general practitioner seeking a resource and tool that provides comprehensive guidance on Washington business laws. -
11.2016Whistleblower Protection Actions Impact Severance AgreementsArticles
Two recent SEC enforcement actions highlight the possibility that severance agreements may violate whistleblower protections under the federal securities laws if not properly drafted. In a related development, Congress has provided protection to whistleblowers who disclose trade secrets to the government. Severance agreements can be drafted to address these concerns, yet protect privileged and confidential information.
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2016The IPO Handbook
Second Edition, Merrill Corporation
An initial public offering is the realization of a dream for many entrepreneurs, executives, board members and stockholders, a singular achievement that demonstrates their success in building a strong business and creating value for owners, employees and customers. View The IPO Handbook. -
11.16.2015Proxy Access Update—Preparing for the 2016 Proxy SeasonUpdatesProxy access predominated corporate governance issues for the 2015 proxy season, with over 100 proposals submitted on the topic, compared to 18 in 2014.
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08.2015Whistleblowers, NDAs and SEC Enforcement ActionArticles
Insights, Volume 29, Number 8
A recent SEC enforcement action highlights the possibility that a confidentiality provision may, in some circumstances, violate certain whistleblower protections under the federal securities laws. While companies must be attuned to these protections, there is language that companies can consider to address the SEC’s concerns. -
09.24.2014Delaware Chancery Court Applies M&F Worldwide Six-Factor Test in Private Company Freeze-Out Merger and Grants Motion to Dismiss Claims Against Controlling StockholdersUpdatesIn a bench ruling in Swomley v. Schlecht, C.A. No. 9355-VCL (Del. Ch. Aug. 27, 2014), the Delaware Chancery Court relied on the six-factor test set out in Kahn v. M&F Worldwide Corp., 88 A.3d 635 (Del. 2014), to dismiss a challenge to a private company freeze-out merger at the pleadings stage.
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06.12.2014New Simplified Conversion Process for Washington Corporations and Limited Liability CompaniesUpdates
Starting June 12, 2014, Washington law allows for the “conversion” of Washington corporations and limited liability entities into a variety of other business entities in Washington and other states through the simple adoption of a plan of conversion and the filing of articles of conversion with the Secretary of State.
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03.25.2014M&F WorldWide: Delaware Supreme Court Upholds Business Judgment Review in Controlling Stockholder TransactionUpdatesWhen a controlling stockholder’s buyout of a company has been challenged by minority stockholders, Delaware courts have generally subjected the transaction to entire fairness review, the most rigorous standard of review in corporate law
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02.18.2014SEC Relief for "M&A Brokers:" Not Required to Register as Broker-DealersUpdatesThe Chief Counsel of the SEC’s Division of Trading and Markets recently issued an important no-enforcement letter regarding the status of a person engaged in effecting transactions in connection with the transfer of ownership of a privately held company. This SEC letter is notable not only for the conclusions that it reaches but also for the fact that it follows a significant speech by the same SEC staff lawyer regarding the same and related broker-dealer status questions.
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09.28.2012Delaware Safe Harbor for Controlling Stockholders in a Third-Party Merger: Pro Rata Consideration to All Stockholders and a Diligent Sale ProcessUpdatesWhen a company with a controlling stockholder seeks to sell itself to a third party, the rights of the controlling stockholder and its obligations to minority stockholders are not always clear, tempting plaintiffs to test the boundaries of the controlling stockholder’s duties.
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02.17.2011The Financial Reform Act: SEC Adopts Final Say-on-Golden Parachute Rules—Practical AdviceUpdatesThe final rules require companies to include disclosure regarding certain golden parachute arrangements in proxy statements relating to proxy solicitations seeking shareholder approval of a merger or similar significant corporate transaction, as well as in other types of SEC filings.
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02.17.2011The Financial Reform Act: SEC Adopts Final Say-on-Pay and Say-on-Frequency Rules— Practical AdviceUpdatesThis update summarizes the key aspects of the final rules on the say-on-pay and say-on-frequency votes and provides practical advice on steps companies can take in anticipation of the upcoming proxy season.
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04.06.2010NASDAQ Eliminates Duplicative Press Release and Notification RequirementsUpdatesOn March 15, 2010, the Securities and Exchange Commission approved Nasdaq's proposed rule change to modify its requirements pertaining to public disclosures by listed companies. In an effort to eliminate duplicate disclosures, the Nasdaq rule change will allow companies to make a public announcement by filing a Form 8-K, where required by SEC rules, or by issuing a press release.
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12.16.2009Amendments to NYSE Corporate Governance Requirements Are Effective for 2010 Annual Reports and Proxy StatementsUpdatesOn November 25, 2009, the Securities and Exchange Commission approved in their entirety the proposed amendments to the corporate governance requirements of the NYSE Listed Company Manual. These amendments will become effective January 1, 2010.
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01.18.2008Preparing for "E-Proxy Season": A Practical Guide to the New E-Proxy RulesUpdates
In 2007 the Securities and Exchange Commission adopted amendments to the proxy rules that will require companies to post their proxy materials on a publicly available Internet website. Proxy materials include proxy statements, proxy cards, information statements, annual reports to security holders, notices of shareholder meetings, additional soliciting materials, and any amendments to such materials. The e‑proxy rules do not apply to proxy materials relating to business combination transactions.
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10.29.2007Back to Writing Basics: SEC Says Executive Compensation Disclosure Needs Better Analysis, Clarity and OrganizationUpdatesThe Securities and Exchange Commission recently reviewed the executive compensation disclosure of 350 companies under its new rules adopted in 2006. Following this review, the SEC issued comment letters to the companies reviewed and then issued a report that follows the general themes that run throughout these comment letters.
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01.24.2007Who Is Your Constituency? Pending Washington State Bill Could Impact Fiduciary Duties of Directors of Washington CorporationsUpdatesRecently introduced Washington House Bill 1111 and its Senate counterpart, Senate Bill 5294, would add Washington to the list of states with so-called "constituency statutes." If adopted, these bills will significantly change the standards of conduct that apply to directors of corporations organized in the State of Washington.
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04.10.2006More Relief for Smaller Public Companies? Advisory Committee Makes Sweeping RecommendationsUpdatesIn early 2006, the SEC's Advisory Committee on Smaller Public Companies issued an exposure draft of its "final report," which makes recommendations that would dramatically reduce the cost of Sarbanes-Oxley compliance for smaller issuers, including "scaling" SEC regulation for the smaller capitalization companies that represent over 80% of all public companies, but only 6% of total market capitalization, and a new private offering exemption. The Advisory Committee will send its report to SEC Chairman Cox on April 23, 2006.
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03.25.2005Help May Be on the Way for Smaller Public CompaniesUpdatesThe SEC is forming an Advisory Committee on Smaller Public Companies. The Committee will assess the effect of the Sarbanes-Oxley Act and other securities regulations on smaller public companies and will recommend appropriate changes to the SEC, based on the following objectives: protecting investors; examining whether the current regulations impose costs on smaller companies proportionate to their benefits; identifying methods to minimize costs and maximize benefits; and facilitating capital formation by smaller companies.
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11.23.2004NYSE Amends Listing Standards to Clarify Corporate Governance RequirementsUpdatesThe Securities and Exchange Commission recently approved and made effective amendments to the New York Stock Exchange corporate governance standards, Section 303A of the NYSE Listed Company Manual, primarily to clarify standards that were adopted last year. This Update summarizes the amendments and offers practical guidance.
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04.20.2004Recent NASD Rule 2790 Restricts the Purchase and Sale of Securities from Initial Public Offerings by MembersUpdatesWhile the Securities and Exchange Commission and self-regulatory organizations like the stock exchanges and Nasdaq have been preoccupied over the past two years with disclosure and governance reforms mandated by the Sarbanes-Oxley Act of 2002, a recently adopted National Association of Securities Dealers rule, Rule 2790, is designed to help reform the initial public offering market, which is showing increasing signs of life. The new NASD rule generally prohibits NASD members from selling equity securities from IPOs to any account in which NASD members, broker-dealers or other "restricted persons" have a beneficial interest. Compliance with the rule became mandatory on March 23, 2004.
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04.02.2004MD&A Trends and Uncertainties—What Should a Company Disclose?UpdatesIn the SEC's recent focus on the quality of management's discussion and analysis, or MD&A, disclosure, it has re-emphasized the need to identify and analyze material trends, demands, commitments, events and uncertainties that could impact a company's liquidity, financial condition or operating results. This disclosure, the SEC believes, is critical to understanding a company's reported financial information and the extent to which reported information is indicative of future results or financial condition.
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03.30.2004SEC Amends Form 8-K to Expand Required Disclosure and Accelerate Filing DeadlineUpdatesThe SEC has adopted amendments to Form 8-K in response to the "real time issuer disclosure" mandate in Section 409 of the Sarbanes-Oxley Act of 2002. Amended Form 8-K is intended to provide investors with more and faster disclosure of important corporate events.
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02.19.2004SEC Issues Interpretive Guidance on Item 201(d) Equity Compensation Plan Information Table and Item 601(b) Filing RequirementsUpdatesIn response to an American Bar Association request for guidance, the SEC recently issued interpretive guidance and clarifications addressing equity compensation plan disclosure issues under Regulation S-K, Items 201(d) and 601(b). The SEC's interpretive guidance and clarifications included: Guidance on aggregation of narrative description and filing of non-shareholder-approved individual equity compensation arrangements; Treatment of a non-shareholder-approved amendment to add more securities to a shareholder-approved plan; Disclosure required for assumed equity compensation plans; and Proper location for the equity compensation plan information disclosure required by Item 201(d).
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12.01.2003SEC Adopts Final Nasdaq Corporate Governance RulesUpdatesThe Securities and Exchange Commission recently approved the Nasdaq Stock Market's corporate governance rules, which finalize Nasdaq corporate governance proposals made over the last 18 months. The most significant changes from Nasdaq's most recent corporate governance rule proposals include: Amending the "bright line" tests for director independence, including: A narrower definition of "family member," and Expanded application of the relationships that preclude a finding of independence to apply not only to directors, but also to family members.
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12.01.2003SEC Approves Final NYSE Corporate Governance StandardsUpdatesThe Securities and Exchange Commission recently approved the New York Stock Exchange's corporate governance listing standards, which finalize NYSE corporate governance proposals made over the last 18 months. The most significant changes from NYSE's most recent proposal (in April 2003) include: Accelerating of the effectiveness dates relating to board and committee independence requirements.
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07.07.2003Revisiting the Regulation of Non-GAAP Financial Information and Disclosure of Earnings Information: The SEC Publishes GuidanceUpdatesThe Securities and Exchange Commission (SEC) recently responded to a variety of Frequently Asked Questions (FAQ) regarding Regulation G and related rules (in effect since March 28, 2003).
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06.26.2003SEC Adopts Final Rules Relating to Management's Report on Internal Control Over Financial ReportingUpdatesOn June 5, 2003, the Securities and Exchange Commission (SEC) posted its final rules for management's report on "internal control over financial reporting" and the related "attestation" by the issuer's outside auditors. Of the many detailed features of Sarbanes-Oxley and its implementing rules, few strike non-accountants as more technical and obscure than those relating to "internal controls."
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05.05.2003SEC Issues Final Rule to Implement Audit Committee Requirements of Section 301 of Sarbanes-OxleyUpdatesThe SEC has adopted a final rule to implement the audit committee requirements of Section 301 of the Sarbanes-Oxley Act of 2002 (Sarbanes). The new Securities Exchange Act rule, Rule 10A-3, directs NYSE, Nasdaq and other national securities exchanges or associations (Exchanges) to require listed issuers to comply with audit committee requirements relating to:
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03.27.2003NYSE Amends Proposals Regarding Director IndependenceUpdatesThe New York Stock Exchange (NYSE) submitted amended and restated listing standards proposals relating to director independence to the Securities and Exchange Commission (SEC) on March 12, 2003. The amended and restated proposals:
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02.14.2003SEC Issues Final Rule Requiring Enhanced MD&A Disclosure of Off-Balance Sheet Arrangements and Aggregate Contractual ObligationsUpdatesThe Securities and Exchange Commission (SEC) has adopted final rules requiring public companies to include in Management's Discussion and Analysis of Financial Condition and Results of Operations (MD&A):
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01.18.2003SEC Proposes Rules to Implement Sarbanes-Oxley's Audit Committee Independence RequirementsUpdatesLast week, the SEC released proposed rules to implement the audit committee independence and whistleblower provisions of Section 301 of the Sarbanes-Oxley Act of 2002. Sarbanes-Oxley (Sec. 301) requires the SEC to adopt final rules by April 26, 2003, directing all national securities exchanges and national securities associations ("SROs"), including NYSE and Nasdaq, to prohibit the listing of any security of an issuer that is not in compliance with the audit committee requirements set out in Section 301. The proposed rules cover:
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01.14.2003SEC Proposes Rules Requiring Electronic Filing and Web Site Posting of Section 16(a) ReportsUpdatesThe Securities and Exchange Commission has proposed rules that will require public companies' officers, directors and principal shareholders who are subject to Section 16(a) of the Securities Exchange Act of 1934 to electronically file their Forms 3, 4 and 5 beneficial ownership reports. The rules will also require public companies to post these reports on their Web sites.
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01.10.2003SEC Proposes Safe Harbor to Exclude Certain Research and Development Companies From Investment Company Act of 1940UpdatesThe SEC recently proposed Rule 3a-8 under the Investment Company Act of 1940 (1940 Act), which would exempt certain bona fide research and development companies from investment company status under the 1940 Act. Proposed Rule 3a-8:
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01.06.2003SEC Proposes Amendments to Rule 10b-18 Stock Repurchase "Safe Harbor"UpdatesThe Securities and Exchange Commission has proposed amendments to the timing, price and volume conditions of Rule 10b-18, the Exchange Act rule that governs public companies' repurchases of their common stock. The proposed changes provide companies with more flexibility in their stock buybacks, especially in times of extreme market disturbance.
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11.06.2002New Disclosure Requirements for Publicly Traded Companies Doing Business in California: The California Corporate Disclosure ActUpdatesOn September 28, 2002, Governor Gray Davis signed the California Corporate Disclosure Act (the "Disclosure Act"). The Disclosure Act becomes effective on January 1, 2003, and will require more frequent and, for public corporations, additional disclosure by California corporations and foreign corporations qualified to transact business in California.
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05.17.2002SEC Proposes New "Application of Critical Accounting Policies" Section in MD&AUpdatesOn May 10, 2002, the Securities and Exchange Commission (SEC) proposed an amendment to Regulation S-K that would require companies to add a new section, "Application of Critical Accounting Policies," to Management's Discussion and Analysis of Financial Condition and Results of Operations (MD&A) included in annual reports, registration statements, and proxy and information statements. This new section would contain disclosure about:
Presentations
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12.08.2020
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12.2016Proxy Season RoundtableSpeaking EngagementsGeorgeson/Perkins Coie Joint Seminar
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12.2015Proxy Season RoundtableSpeaking EngagementsGeorgeson / Perkins Coie Joint Seminar
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12.2015Proxy Season Review & OutlookSpeaking EngagementsGeorgeson/Perkins Coie Joint Seminar
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11.2015Proxy Statement Interactive Seminar - Corporate Governance Communications Strategies for Shareholder EngagementSpeaking EngagementsRR Donnelley Interactive Seminar Series
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01.2015Preparing for the 2015 Proxy SeasonSpeaking EngagementsPerkins Coie Public Company Series Seminar
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11.2014Proxy Season Review & OutlookSpeaking EngagementsGeorgeson/Perkins Coie Joint Seminar
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03.2014Insider TradingSpeaking EngagementsPacific Northwest Chapter of the Society of Corporate Secretaries Spring Meeting
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01.2014Preparing for the 2014 Proxy SeasonSpeaking EngagementsPerkins Coie Public Company Series Seminar
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12.2011Here Comes the Proxy Season!Speaking EngagementsCorporate & Securities Law Insights Seminar
Founder Insights
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How to Classify Employees as Exempt or Nonexempt
When hiring employees, a company should ensure it is complying with applicable federal, state, and local laws regarding employee minimum wages, withholdings, and other applicable requirements. To ensure compliance, employers must first determine whether an employee is “exempt” or “nonexempt.” Nonexempt employees are entitled, among other things, […]
The post How to Classify Employees as Exempt or Nonexempt appeared first on StartupPercolator.
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How to Prepare for an Equity Financing
We have covered in past FTTWs how to value your startup and how much capital to raise. Once your startup decides to pursue equity financing, you should start to prepare for the investor due diligence process. On the business side, you will need to prepare a business plan and should take steps such as obtaining management references, interviews and background reviews, customer/user references, technical/product reviews, financial statements and business model reviews.
The post How to Prepare for an Equity Financing appeared first on StartupPercolator.
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What Every Startup Needs to Know
On Wednesday, June 26th, Perkins Coie’s Palo Alto office hosted the startupPerColator event, “What Every Startup Needs to Know.” Lowell Ness, a Perkins Coie partner in the Emerging Companies & Venture Capital (ECVC) practice, moderated a panel which included Herb Stephens of NueHealth, Thomas Huot of VantagePoint Capital, Jennifer Jones of Jennifer Jones and Partners, Yuri Rabinovich of Start-up Monthly, and Olga Rodstein of Shutterfly.
The post What Every Startup Needs to Know appeared first on StartupPercolator.
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Surviving the Series A Crunch: Financing Alternatives
The “Series A Crunch,” which is the significant decline in the number of startup companies per quarter that are completing their first equity financing, appears to be deepening.
The post Surviving the Series A Crunch: Financing Alternatives appeared first on StartupPercolator.
