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Securities Filings 2013: Practical Guidance in a Changing Environment


Speaker(s): Charles F Walker, Dietrich A. King, Gregg L. Weiner, Janet L. Fisher, Keir D. Gumbs, Laura L. Delanoy, Mark A. Borges, Michael Nordtvedt, N. Adele Hogan, Steven V. Bernard, William J. Chudd
Recorded on: Sep. 26, 2013
PLI Program #: 42585

Laura L. Delanoy is a partner in the Corporate and Financial Services Department of Willkie Farr & Gallagher LLP in New York. Ms. Delanoy specializes in mergers and acquisitions, debt and equity financings, corporate governance advice, private equity and venture capital investments, and general corporate and securities law.

BAR ADMISSIONS
Ms. Delanoy is admitted to the Bar of the State of New York.

EDUCATION
Ms. Delanoy received a J.D. from Yale Law School in 1999 and an A.B. from Princeton University in 1996.


SELECTED SIGNIFICANT MATTERS
Mergers and Acquisitions - Ms. Delanoy has represented: Level 3 Communications in its pending acquisition of Global Crossing Limited and its acquisition of Broadwing Corporation; Cowen Group in its acquisition of LaBranche & Co., and Ramius LLC in its business combination with Cowen Group; MJC Associates in its sale to Evercore Partners; Atlas Holdings in its acquisition of Weyerhaeuser Co.'s Trus Joist commercial division and Atlas Holdings and Blue Wolf Capital in their acquisition of Finch Paper and the simultaneous partial disposition of woodlands to The Nature Conservancy and hydrofacilities to Brookfield Power; Integra LifeSciences Corporation in its acquisition of IsoTis, Inc.; Scientific Games, Inc. in its acquisition of Oberthur Gaming; Macklowe Property in connection with its bid to acquire Reckson Associates Realty Corp.; Oriole Partnership (comprised of Essex Property Trust, UBS Wealth Management and AEW) in connection with its bid to acquire The Town and Country Trust; Eon Labs, Inc. in its sale to Novartis AG in connection with the Hexal AG merger; Simon Property Group in its bid to acquire Taubman Centers, Inc.; and Peter Kiewit Sons', Inc. in its spin-off of Kiewit Materials Company.

SELECTED SIGNIFICANT MATTERS
Capital Markets - Ms. Delanoy has represented: Level 3 Communications, Inc. in offerings of senior notes, convertible notes and common stock; Cowen Group, Inc. in an offering of its common stock; Goldman Sachs, Lehman Brothers, and Merrill Lynch & Co. in connection with the initial public offering and secondary offerings of Brookdale Senior Living, Inc.; Ventas, Inc. in offerings of senior notes, convertible notes and common stock; Eon Labs, Inc. in connection with its initial public offering and follow-on offerings; Deutsche Bank Securities in follow-on equity offerings of Coeur D'Alene Mines Corporation and Inspire Pharmaceuticals, Inc. and various senior debt offerings by Lennar Corporation.

Financial Advisor Representations - Ms. Delanoy has represented: Centerview Partners in Ventas, Inc.'s acquisition of Nationwide Health Properties, Inc.; Credit Suisse in Novartis AG's acquisition of Alcon, Inc. and Deutsche Börse's pending acquisition of NYSE Euronext; Merrill Lynch & Co. in connection with Gilead Sciences, Inc.'s acquisition of CV Therapeutics, Inc. and Boston Scientific's acquisition of Guidant, Inc.; and Peter J. Solomon Company in connection with Phillips-Van Heusen Corporation's proposed acquisition of Tommy Hilfiger B.V., Walgreen Co.'s acquisition of Duane Reade Holdings Inc., Tween Brands, Inc.'s merger with Dress Barn, Inc., and The J. Jill Group's sale to Talbot's Inc.

Private Equity - Ms. Delanoy has represented DLJ Merchant Banking Partners in its investment (as lead investor) in Landis+Gyr Holdings AG; Warburg Pincus LLC in connection with numerous investments and dispositions, including ev3 LLC, Artesia Technologies, DirectAdvice, Martquest and Booknet Limited; Ospraie Advisors in its investments in Water Standard (CI) LP and Winergy LLC; The FeedRoom, Inc. in multiple rounds of financing; Connectmed.com in multiple rounds of financing; and Senior Whole Health in a recapitalization and financing.


Ms. Hogan currently is a Director in Global Audit at an investment bank. She focuses on audit and bank regulatory matters. Prior to her current position, Ms. Hogan's practice focused on securities law and financings, M&A, restructurings, derivatives, internal investigations, dispute resolutions, bank regulatory matters (including Volcker Rule, AML, FCPA, and OFAC), compliance and risk.

In the securities area, Ms. Hogan has worked for underwriters and issuers in a wide array of industries on offerings of diverse types of securities, including investment grade debt, IPOs of common stock, trust preferred securities, medium-term note programs, 144A offerings, debt tenders, and consent solicitations. She regularly advises on SEC reporting, disclosure and corporate governance issues. Throughout her career, Ms. Hogan has worked on more than 125 offerings totaling over $200 billion.

In the M&A area, she has experience with public company tender offers, going-private transactions, spin-offs, joint ventures and private equity deals.

Her corporate work in the restructuring and bankruptcy area involves diverse industries, including airlines, automotive, chemicals, energy and utilities, financial institutions, gaming, hotels and leisure, real estate, and retail.

In regulatory, compliance, risk and internal investigations, her work has included FCPA and whistleblower matters, SEC and FINRA regulatory matters, AML, Volcker Rule and corporate governance work.

She has practiced corporate law at some of New York City’s largest firms, including Cravath, Swaine & Moore LLP for over 10 years, and Cadwalader, Wickersham & Taft LLP, Shearman & Sterling LLP and Willkie, Farr & Gallagher, and has been an equity partner at Linklaters LLP and White & Case LLP.

SELECTED RECOGNITION

  • Nationally ranked for six years as a leading lawyer in the area of capital markets by Chambers USA: America's Leading Lawyers for Business
  • Named in New York Best Lawyers – 2013, 2014 and 2015

DIRECTORSHIPS

  • Past Trustee of The Spence School, New York
  • Past Chairman and Trustee of The School for Strings, New York
  • Past director of non-for-profit and several private companies


Janet L. Fisher is a partner based in the New York office.

Ms. Fisher's practice focuses on corporate finance transactions and securities law matters, including public and private debt and equity offerings in the United States and elsewhere for domestic and foreign issuers, financings related to corporate restructurings and joint ventures. Ms. Fisher represents both corporate issuers and investment banks and has extensive experience in the regulation of investment companies and investment advisers, as well as the creation and operation of private equity funds in the United States and abroad. Ms. Fisher's transactional work has included representation of the underwriters in connection with the privatizations of China Southern Airlines and Credit Lyonnais and the Central Bank of the Philippines in its inaugural Yankee bond offering. Recently, Ms. Fisher's practice has focused on matters of corporate governance, and she regularly advises a number of Fortune 500 companies as to board structure and practices and other governance and compliance matters, including under the Sarbanes-Oxley Act.

Ms. Fisher lectures and is widely published on various aspects of the U.S. securities laws and other corporate finance topics. She is a co-author of The Sarbanes-Oxley Act: Analysis and Practice (Aspen Publishers, 2003). Ms. Fisher is recognized as a leading securities lawyer by The Best Lawyers in America.

Ms. Fisher joined the firm in 1984 and became a partner in 1993. From 1994 to 1997, she was resident in the Hong Kong office. She received a J.D. degree, cum laude, from the University of Chicago Law School in 1984, a Masters of Arts from Princeton University in 1981, and an undergraduate degree, magna cum laude, from Smith College in 1979.

Ms. Fisher is a member of the Bar in New York. Her native language is English, and she is fluent in French. 


Chuck Walker is co-chair of Skadden’s Litigation Group in the Washington, D.C. office. Mr. Walker has substantial experience representing individuals and corporations in investigations by the Securities and Exchange Commission, the Financial Industry Regulatory Authority, the United States Department of Justice, and state regulatory agencies, and in conducting corporate internal investigations. He frequently represents clients in highly sensitive and complex regulatory enforcement matters such as those involving allegations of insider trading, misleading or incomplete disclosure, improper accounting and other forms of financial fraud. He also represents individual and corporate clients in parallel investigations conducted by both the Securities and Exchange Commission and the United States Depart- ment of Justice.

In addition to a number of recent corporate internal investigations on behalf of both audit committees and management, some of Mr. Walker’s notable engagements include success- fully defending a bank holding company in connection with an SEC investigation of alleged financial statement fraud; the representation of a public company, its officers and employees in a concurrent SEC/U.S. Department of Justice investigation of alleged accounting fraud; and defending a foreign private issuer in a parallel SEC/U.S. Department of Justice inquiry relating to the issuer’s financial reporting and disclosure.

Mr. Walker rejoined Skadden after serving as securities commissioner for the state of Dela- ware from 1996 to 1999. Earlier in his career, he served as a deputy attorney general for the state of Delaware and special counsel for the Securities and Exchange Commission.

Mr. Walker is a member of the firm’s Ethics Committee. He also serves on the firm’s Client Engagement and Diversity committees.

Mr. Walker has authored numerous articles on state and federal securities law issues and is the co-author of a leading guide on SEC procedure, The SEC Enforcement Process: Practice and Procedure in Handling an SEC Investigation (Bloomberg BNA, 2014).

Education

J.D., New York University School of Law

M.A., Northwestern University

B.A., Boston University (magna cum laude)

Bar Admissions

District of Columbia

New York

Associations

Member, Board of Directors of the Washington Lawyers’ Committee for Civil Rights and Urban Affairs

Government Service

Securities Commissioner, State of Delaware

Deputy Attorney General, State of Delaware

Litigation Section, Office of the General Counsel, Securities and Exchange  Commission


Keir Gumbs is a partner in the corporate and securities practice at Covington & Burling LLP. Keir started his career at the SEC, where he served for six years - first as a staff attorney, later as a Special Counsel in the Office of Chief Counsel in the SEC’s Division of Corporation Finance and finally as counsel to SEC Commissioner Roel Campos.

Keir is recognized as a leading authority on securities regulation and corporate governance who represents a cross-section of constituencies in securities and governance matters, including companies ranging in size from Fortune 50 companies to venture-backed firms, as well as public pension funds, hedge funds, faith-based investors and trade associations.


Representative Matters

At Covington, Keir’s practice is equally distributed into the following three categories:

  • Advising companies, investors and regulated entities with respect to ongoing securities regulatory compliance - including preparing SEC filings, as well as Dodd-Frank and Sarbanes-Oxley developments.
  • Advising boards and investors with respect to corporate governance developments - regarding matters such as board and committee independence, cybersecurity, internal controls, shareholder proposals, proxy access, enhancing political spending disclosures and similar matters.
  • Advising companies and investors on a variety of transactional matters, including securities offerings, crowdfunding, IPOs, mergers, tender offers, share repurchase programs and similar matters.

Representative CLIENTS

  • Corporate clients include large public companies, as well as small newly public or private companies representing a range of industries, including consumer goods, pharmaceuticals, oil and gas and FinTech.
  • Investor clients include the Council of Institutional Investors and CalPERS, as well as private investors and hedge funds.
  • Pro bono clients include faith-based organizations, such as the Interfaith Center for Corporate Responsibility, microfinance organizations, such as Kiva, as well as organizations focused on sustainability and the environment, such as the Center for Responsible Travel.

Honors and Rankings

  • Most Influential Black Lawyers, Savoy Magazine (2015)
  • Who’s Who Legal, Corporate, M&A and Governance (2015)
  • "D.C. Rising Star”, National Law Journal (2014)
  • DC Super Lawyers, Securities & Corporate Finance (2014-2015)
  • "Trailblazers Under 40", National Bar Association (2014)
  • America's Leading Business Lawyers, Securities: Regulation: Advisory (2012-2015), Chambers USA
  • “2011 Rising Star of Corporate Governance”, Millstein Center for Corporate Governance and Performance
  • Selected as one of the "People to Watch" in the National Association of Corporate Directors 2011 and 2012 “Directorship 100”

 EDUCATION

  • University of Pennsylvania Law School, JD
  • Ohio State University, B.A.
    -Big Ten Championship Track Team
    -Ohio State University Track Team, Co-Captain
    -Scholar Athlete Award
    -President’s Leadership Citation Beenie Drake Scholarship

Memberships and Affiliations

  • Board Member, Society of Corporate Secretaries and Governance Professionals
  • American Bar Association
  • National Bar Association


Mark A. Borges is a principal with Compensia, Inc., a management consulting firm providing executive compensation advisory services to compensation committees and senior management of knowledge-based companies. From April 2003 until September 2007, he was a principal for Mercer in the firm’s Washington Resource Group in Washington, DC. Previously, Mr. Borges was a Special Counsel in the Office of Rulemaking, Division of Corporation Finance with the United States Securities and Exchange Commission.  Before that, he was General Counsel for ShareData, Inc.  Mr. Borges practiced law with the firms of Ware & Friedenrich (now DLA Piper) from 1987 to 1992 and Pillsbury, Madison & Sutro (now Pillsbury Winthrop) from 1982 to 1987.  From 1981 to 1982, he served as law clerk to the Honorable Marion T. Bennett of the United States Court of Claims in Washington, DC.

Mr. Borges is the author of SEC Executive Compensation Disclosure Rules (2nd Ed.), published by the American Bar Association, and a co-author of the Lynn, Borges & Romanek Executive Compensation Disclosure Treatise and Reporting Guide. He is also an Adjunct Professor at the Georgetown University Law Center, teaching a course of the securities law aspects of executive compensation.

A California native, Mr. Borges graduated from Humboldt State University in 1976.  He received his J.D. from Santa Clara University in 1979 and an L.L.M. in Taxation from New York University in 1981.  He is a member of the American Bar Association.

His telephone number is (415) 462-2995 and his electronic mail address is mborges@compensia.com.


Steve Bernard is a partner at Wilson Sonsini Goodrich & Rosati, where he specializes in representing U.S. and non-U.S. companies in domestic and cross- border public offerings, mergers and acquisitions, and SEC compliance. Steve has extensive experience in cross-border corporate transactions, including the initial public offering of Trintech Group Plc, which was the first simultaneous dual- listing of American Depositary Shares on Nasdaq and the Neuer Markt, the acquisition  of Applied Learning Limited, an Australian Stock Exchange-listed company, through a scheme of arrangement, the $1.6 billion sponsored global secondary offering of American Depositary Shares by Infosys Technologies Limited,           the public-to-private transaction for Transware Limited, and the structuring        and implementation of Logitech International's Global Share Program. His  practice includes all aspects of public and private company representation, including private financings and corporate governance. He also has represented underwriters in numerous public offerings and investors in venture capital financings.

Prior to joining Wilson Sonsini Goodrich & Rosati, Steve practiced law with Fried, Frank, Harris, Shriver & Jacobson in New York.

SELECT PUBLIC COMPANY CLIENTS:

  • CSR plc
  • Infosys Technologies Limited
  • Logitech International S.A.
  • Mesoblast Limited
  • SolarCity Corporation
  • Spirent Communications plc
  • Xenon Pharmaceuticals Inc.
  • Xero Ltd.

SELECT TRANSACTIONS:

  • BofA Merrill Lynch in the IPO of Taiwan-based SemiLEDs Corporation
  • Barclays Capital in the IPO of Ellie Mae, Inc.
  • Business Objects, S.A. in its acquisition of Acta Technology, Inc.
  • CSR plc in its listing of its ADRs on Nasdaq and global self-tender
  • Dubai Silicon Oasis Authority, an agency of the Dubai government, in its development and services agreements with U.S. semiconductor companies
  • Logitech International S.A. in its acquisition of LifeSize Communications, Inc.
  • Morgan Stanley in the IPO of AVG Technologies N.V.
  • Sirenza Microdevices, Inc. in its merger with RF Micro Devices, Inc. SolarCity Corporation in its IPO
  • Trintech Group plc in its sale to Spectrum Equity Investors Xenon Pharmaceuticals in its IPO

EDUCATION:

J.D., New York University School of Law, 1991 B.A.,

Foreign Affairs, University of Virginia, 1988

HONORS:

  • Named in Northern California Super Lawyers in 2009, 2010, 2013, and 2014

ASSOCIATIONS AND MEMBERSHIPS:

  • Chair, Securities Filing Program, Practising Law Institute Lecturer, Practising Law Institute

SELECT PUBLICATIONS:

  • "Trading Activities in Connection with Distributions: Regulation M," Practising Law Institute, 2012
  • "Quarterly Reports on Form 10-Q," Practising Law Institute, 2014
  • "Preparation of the Annual Report on Form 10-K," Practising Law Institute, 2014
  • "Interim Reports on Form 8-K," Practising Law Institute, 2014
  • "Risk Factors Disclosure and the Private Securities Litigation Reform Act," Practising Law Institute, 2012
  • "Registration Statements under the Securities Exchange Act of 1934: Form 10 and Form 8-A," Practising Law Institute, 2014
  • "Third-Party Legal Opinions in Acquisitions of Privately Held Companies," Practising Law Institute, 2008
  • "Resales of Securities under Rule 144 and Rule 144A," Practising Law Institute, 2008

SELECT RECENT SPEAKING ENGAGEMENTS:

  • Guest Speaker, "Private Company Exits: M&A vs. IPO," UC Berkeley School of Law, 2014
  • Keynote Speaker, "US IPOs by Non-US Companies," London, May 2011
  • Speaker, "The Future Role and Form of Disclosure Documents - The US Perspective," Amsterdam, May 2011
  • Panel Speaker, "Balancing Strategic with Financial Objectives in Corporate Venture Investments," London, May 2011

ADMISSIONS:

  • State Bar of California
  • State Bar of New York


Mr. Chudd is a member of Davis Polk’s Corporate Department, concentrating in mergers and acquisitions, joint ventures and related matters. His experience includes a wide variety of U.S. and international mergers and acquisitions transactions, including the following:

  • Comcast in its:
    • pending merger with Time Warner Cable and related transactions with Charter Communications
    • commercial agreements with Verizon Wireless
    • investments in Clearwire with Google, Intel, Sprint, Time Warner Cable and others
  • Shire in its acquisitions of ViroPharama, Lumena Pharmaceuticals, SARcode Bioscience, Lotus Tissue Repair, FerroKin BioSciences and New River Pharmaceuticals
  • MSCI in its acquisitions of IPD Group and RiskMetrics, and its disposition of Institutional Shareholder Services Inc. (ISS)
  • Maidenform on its acquisition by Hanesbrands
  • Ameriprise Financial in connection with its sale of its deposits business to Barclays
  • VF Corporation in its acquisition of The Timberland Company
  • Federal Reserve Bank of New York and the U.S. Treasury in connection with the recapitalization of American International Group (AIG)
  • ExxonMobil in its acquisition of XTO Energy
  • Roche in its going-private acquisition of Genentech
  • PartnerRe in its acquisition of ParisRe
  • Warner Chilcott on the amendment to its global collaboration agreement with sanofi-aventis
  • AstraZeneca in its $16 billion tender offer for MedImmune
  • Credit Suisse in its investment in Ospraie Group

Mr. Chudd has also represented Tailwind Capital Partners and other private equity funds in their acquisitions and investments. Mr. Chudd is currently based in Davis Polk’s New York office.


Dietrich King is the Assistant Director of the Office of Financial Services I in the Division of Corporation Finance at the U.S. Securities and Exchange Commission.  Working in Disclosure Operations, Mr. King directs and supervises the work of attorneys and accountants engaged in the analysis and review of filings made under the Securities Act of 1933 and the Securities Exchange Act of 1934.  He previously served in Disclosure Operations as the Legal Branch Chief in the Office of Consumer Products and as an Attorney-Advisor in the Office of Manufacturing and Construction and the Office of Beverages, Apparel and Mining.  Prior to joining the Commission in 2007, Mr. King practiced corporate and securities law with Harter, Secrest & Emery LLP in Rochester, New York.  He received his J.D. from St. John’s University School of Law in 2000 and his B.A from Grinnell College in 1995.


Michael Nordtvedt is a partner at Wilson Sonsini Goodrich & Rosati, where he focuses on the representation of public and private technology, medical device and life sciences companies through all stages of their growth, as well as investment banks and venture capital and private equity firms.

Michael specializes in corporate and securities law, including general corporate representation, public offerings, private placements, and mergers and acquisitions. He also has considerable experience in counseling publicly held companies on disclosure matters and complex securities laws issues. Michael frequently represents investment banks in their underwriting transactions and he also has broad transactional experience representing venture capital and private equity firms. Throughout the course of his career he has had responsibility for structuring and negotiating in excess of $40 billion in public and private financing transactions, for both companies and investment banks.

Prior to joining the firm in 2007, Michael practiced in the corporate group at Davis Polk & Wardwell in New York and Menlo Park, California. Michael also served in the United States Navy as an engineering officer aboard USS Lake Champlain (CG57), as executive and weapons officer aboard USS Monsoon (PC4), and at the Pentagon as an action officer responsible for international technology transfer issues.

SELECT CLIENTS:

Public companies represented in public offerings, mergers and acquisitions, and corporate law and governance include:

  • Eastman Kodak Company
  • Expedia
  • Fluidigm
  • The Greenbrier Companies
  • Impinj
  • NanoString
  • NightHawk Radiology
  • Omeros
  • Rambus
  • Salesforce.com
  • Sarepta Therapeutics
  • SMART Modular Technologies
Investment banks represented in public offerings and private placements include:
  • BofA Merrill Lynch
  • Credit Suisse
  • Deutsche Bank Securities
  • Goldman Sachs
  • Jefferies
  • J.P. Morgan
  • Morgan Stanley
  • Thomas Weisel Partners
  • UBS Securities

EDUCATION:

J.D., Georgetown University Law Center, 2001
Magna Cum Laude; Order of the Coif; Editor, The Georgetown Law Journal

B.S.F.S., Georgetown University, 1994
Magna Cum Laude, Phi Beta Kappa