Corporate Governance & Counseling

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Overview Lawyers News Publications
10/4/2012 - Alert
Kirkland & Ellis LLP
Exchanges Propose Compensation Committee Independence and Related Rules
On September 25, 2012, NYSE and Nasdaq proposed rules to implement Dodd-Frank Act’s mandate that a listed company’s compensation committee consist entirely of independent directors and related matters.
6/27/2012 - Alert
Kirkland & Ellis LLP
SEC Adopts Final Compensation Committee Independence and Related Rules
On June 20, 2012, the SEC adopted final rules to implement Section 952 of the Dodd-Frank Wall Street Reform and Consumer Protection Act of 2010.
11/2/2009 - Governance Watch
Kirkland & Ellis LLP
Kirkland Governance Watch: Despite Reprieve, 2010 Proxy Season Still Fraught with Peril
In this issue of Kirkland Governance Watch, partners Daniel Wolf and Robert M. Hayward, P.C., and associate Raymond F. Bogenrief discuss how recent revisions to the policies of SEC staff and RiskMetrics may create pitfalls in the 2010 proxy season.
8/14/2009 - Governance Watch
Kirkland & Ellis LLP
Kirkland Governance Watch: Inaugural Issue
In the inaugural issue of Kirkland Governance Watch, partners Robert M. Hayward, P.C., Carol Anne Huff, Theodore A. Peto and Daniel E. Wolf, and associate Sarah B. Gabriel summarize significant corporate governance developments in order for senior management and boards of directors to remain informed and begin to consider key planning implications and initiatives.
5/12/2009 - Alert
Kirkland & Ellis LLP
Enforcement Trends Place Greater Scrutiny on In-House Counsel
In-house counsel increasingly have become the focus of investigations and enforcement actions by both the Department of Justice and the Securities and Exchange Commission. The proliferation of white-collar cases focused on Fortune 1000 companies, however, has brought greater scrutiny on in-house lawyers based upon their knowledge of or role in business decisions.
1/7/2008 - PEN
Kirkland & Ellis LLP
Private Equity Newsletter — January 7, 2008
This issue includes the article “PBGC Holds Private Equity Fund Liable for Portfolio Company’s Pension Underfunding,” which reports that private equity funds are now exposed to a greater risk of inheriting the pension fund liabilities of their portfolio companies.
12/12/2007 - PEN
Kirkland & Ellis LLP
Private Equity Newsletter — December 12, 2007
This issue includes the article “New Rule 144 Amendments Relax Rules for Selling Restricted Securities,” which discusses the amendment’s attempt to facilitate capital raising by increasing the liquidity of restricted securities. Also featured is “New Restrictions on Investments in Sudan by Illinois Retirement Systems,” which discusses how recent Illinois legislation restricts the ability of Illinois state retirement systems to invest in Sudan.
9/12/2007 - PEN
Kirkland & Ellis LLP
Private Equity Newsletter — September 12, 2007
This issue includes the article “Kirkland Partner Jack S. Levin Testifies to House Ways & Means Committee on Taxation of Private Equity, Venture Capital and Hedge Funds,” in which Jack Levin explains the reasons to continue long-term capital gain taxation of a general partner’s carried interest in partnership-level long-term capital gain. Also featured is “SEC Proposes Changes to Accredited Investor Definition and Certain Private Offerings Under Reg D,” and “SEC Adopts New Antifraud Rule Affecting Communications and Conduct of Managers of Private Investment Funds.
6/29/2007 - M&A Update
Kirkland & Ellis LLP
M&A Notes: Are Broad Pre-Signing Market Checks Required? -- A Recent Delaware Case Objects to the Exclusion of Strategic Buyers in a Limited Sale Process

A recent Delaware Chancery Court case found that a board of directors' and its special committee's decisions to contact only potential private equity buyers and to not contact any potential strategic buyers prior to entering into a "going private" merger agreement was likely to be found to be unreasonable.  In this edition of M&A Notes, Kirkland partners Stephen Fraidin and William Sorabella discuss this recent finding.

6/18/2007 - PEN
Kirkland & Ellis LLP
Private Equity Newsletter — June 18, 2007
This issue includes the article “Proposed Legislation Would Increase Tax on Publicly Traded Private Equity Management Partnerships,” which reports that a publicly traded partnership or LLC that derives income from investment adviser or asset management services would be taxed as a corporation under the proposed legislation.
5/2/2007 - PEN
Kirkland & Ellis LLP
Private Equity Newsletter — May 2, 2007
This issue includes the article “Senate Finance Committee Convenes Panel to Discuss Private Equity Taxation; Kirkland Partner Jack Levin to Participate,” which reports that the panel is expected to review the capital gains treatment of carried interest income.
4/25/2007 - Article
Financial Times
Changes in Real Estate Law Ease Constraints on Foreign Investors

Partners Steve Tomlinson, David Patrick Eich and Nat Marrs co-authored this article regarding foreign investors' increased interest in the Chinese real estate market.

4/5/2007 - Alert
Kirkland & Ellis LLP
The Media and Executive Compensation Disclosures

As more and more companies have been filing their proxy statements under the new SEC executive compensation disclosure rules, it has been interesting to observe how disclosures are interpreted and reported by the media.  This alert discusses the reaction to these disclosures and best practices for companies filing under the new rules.

3/28/2007 - Article
Daily Bankruptcy Review
For Subprime Lenders - A Primer on the Bankruptcy Code

Paul Basta, Leonard Klingbaum and Joshua Sussberg co-authored this article on the subprime lending market.

3/19/2007 - Article
Legal Times
Competition Is Good Again

Tefft Smith, Colin Kass and Scott Abeles co-authored this article regarding antitrust law.

Authors: Tefft W. Smith
3/7/2007 - PEN
Kirkland & Ellis LLP
Private Equity Newsletter — March 7, 2007
This issue includes the article “FTC Action Suggests Greater Antitrust Scrutiny of Private Equity Deals as Well as New Solutions,” which reports on the FTC allegations that a minority interest in a private equity fund’s portfolio company overlapped with another portfolio company.
1/9/2007 - PEN
Kirkland & Ellis LLP
Private Equity Newsletter — January 9, 2007
This issue includes the article “SEC Proposes Stricter Accredited Investor Test for Private Equity, Hedge and Certain Other Funds,” which reports that the SEC proposes to narrow the class of individual investors who would be permitted to invest in many private funds. Also featured is “Changes in Luxembourg Corporate Law: Impact on Private Equity Investors in Europe,” which discusses how Luxembourg now permits commonly used legal entities to implement a two-tier board structure.
1/4/2007 - Alert
Kirkland & Ellis LLP
SEC Releases Interim Final Rules Regarding Reporting and Disclosure of Equity Awards to Named Executive Officers and Directors

In what has been described in some quarters as an early Christmas present to public companies, the Securities and Exchange Commission unexpectedly released interim final rules on December 22, 2006 that significantly change the reporting and disclosure of equity-based awards to named executive officers and directors. This alert discusses these new rules.

12/14/2006 - Article
The Venture Capital Review
Private Equity Investments in China: Impact of Recent Legal Reforms
Since acceding to the World Trade Organization in December 2001, China has undertaken a series of broad legal reforms required by the WTO accession commitments, among others. Many of such reforms materially affect foreign private equity investments in China, which have grown substantially over the same period.  In this article, Kirkland Partners David Patrick Eich and Chuan Li discuss these reforms.
11/6/2006 - Article
New York Law Journal
Special Committee Law

Stephen Fraidin and Stefanie Wool co-authored this article on special committees and recommendations to ensure that their decisions withstand judicial scrutiny.

10/13/2006 - PEN
Kirkland & Ellis LLP
Private Equity Newsletter — October 13, 2006
This issue includes the article “Justice Department Reportedly Initiates Antitrust Inquiries to Private Equity Firms,” which reports that it is important to involve antitrust counsel immediately if contacted (formally or informally) by any governmental authority regarding antitrust matters.
10/1/2006 - Article
IFLR
Moving Target

David Patrick Eich, Chuan Li and Tai Hsia co-authored this article on recent Chinese M&A and private equity reform.

9/1/2006 - PEN
Kirkland & Ellis LLP
Private Equity Newsletter — September 1, 2006
This issue includes the article “New Rules For Chinese Company M&A Transactions Involving Foreign Investors,” which reports that China’s new M&A rules introduce some major changes that may impact Chinese M&A activity by foreign investors.
8/11/2006 - PEN
Kirkland & Ellis LLP
Private Equity Newsletter — August 11, 2006
This issue includes the article “Congress Changes VCOC Rules for Private Equity, Mezzanine and Other Investment Funds,” which advises that the new pension law change may provide a welcome relief from VCOC rules to some PE funds.
6/27/2006 - PEN
Kirkland & Ellis LLP
Private Equity Newsletter — June 27, 2006
This issue includes the article “Appeals Court Throws Out SEC Rule Requiring Registration of Hedge Fund Advisers,” which reports that the U.S. Court of Appeals for the District of Columbia Circuit struck down as “arbitrary” the new SEC rule requiring most hedge fund advisers to register as an investment adviser with the SEC. Also featured is “Amendments to the Publication Requirements for New York Limited Liability Entities,” which reports that recent amendments, effective June 1, 2006, have created additional specifications with respect to the publication procedures and added a requirement that such publication be certified.
5/25/2006 - PEN
Kirkland & Ellis LLP
Private Equity Newsletter — May 25, 2006
This issue includes the article “Non-U.S. Public Offerings by Private Equity Funds — A New Chapter in Fundraising,” which reports that KKR Private Equity Investors’ May 3 sale of $5 billion of partnership units on Euronext (Amsterdam) marks a new chapter for private equity fundraising.
5/16/2006 - PEN
Kirkland & Ellis LLP
Private Equity Newsletter — May 16, 2006
This issue includes the article “1200 New Targets: China’s New Foreign Strategic Investments Rules,” which announces that, for the first time, a broad group of non-Chinese investors can more freely acquire tradable shares of the 1,200-plus listed companies with securities traded on the Shanghai and Shenzhen stock exchanges.
2/14/2006 - Alert
Kirkland & Ellis LLP
SEC Overhauls Executive Compensation Rules

On 1/27/06, the SEC published proposed rules that completely overhaul the disclosure rules with respect to executive and director compensation (both in terms of persons covered and the compensation disclosed), related party transactions, director independence and other corporate governance matters.  This alert discusses these changes.

6/7/2005 - M&A Update
Kirkland & Ellis LLP
M&A Notes - June 7, 2005
In May 2005, the Delaware Supreme Court in VantagePoint Venture Partners 1996 v. Examen, Inc. held that Delaware law, not California law, applied when determining the required vote for a merger involving a Delaware corporation having significant ties to California.  In this edition of M&A Notes, Kirkland partner Eva Davis comments on the implications of this ruling.
1/19/2005 - M&A Update
Kirkland & Ellis LLP
M&A Notes - January 19, 2005

NASD recently requested comment on whether it should propose rules to regulate the identification and disclosure of conflicts of interest of investment banks rendering fairness opinions and to require investment banks to follow specified procedures when rendering fairness opinions.  In this issue of M&A Notes, Kirkland partners Thomas W. Christopher and R. Scott Falk, and associate William B. Sorabella offer their views on these matters.

10/25/2004 - Alert
Kirkland & Ellis LLP
New Law Imposes Strict Deferred Compensation Tax Rules

The "American Jobs Creation Act of 2004" signed by the President on October 22, 2004, imposes strict new tax rules on nonqualified deferred compensation.  This alert examines the new rules and their implications for affected businesses.

10/25/2004 - Alert
Kirkland & Ellis LLP
Nonqualified Deferred Compensation Arrangement Changes and Automatic IRA Rollover of Cash-Out Distributions

This alert highlights two important changes in the laws governing employee benefits. First, the American Jobs Creation Act of 2004, signed by President Bush on October 22, radically alters the income tax rules for deferred compensation, generally effective January 1, 2005. Second, the Department of Labor issued final regulations on a safe harbor for plan sponsors to select providers and investments for mandatory rollovers from qualified plans to individual retirement accounts.

6/30/2004 - M&A Update
Kirkland & Ellis LLP
M&A Notes - June 30, 2004

In what is apparently a case of first impression, the United States Court of Appeals for the Second Circuit found that a stockholder opposing a merger cannot mail to the subject company's other stockholders a duplicate copy of the company's proxy card without complying with the proxy rules of the Securities Exchange Act of 1934.  In this edition of M&A Notes, Kirkland partners Thomas W. Christopher and Andrew E. Nagel, and associate William B. Sorabella discuss this ruling and its implications.

4/27/2004 - Alert
Kirkland & Ellis LLP
SEC Adopts Expanded Form 8-K Reporting Requirements

On March 11, 2004, the SEC adopted amendments to Form 8-K promulgated under the Securities Exchange Act of 1934. The amendments were originally proposed in June 2002 and are responsive to the "real time issuer disclosure" requirements of Section 409 of the Sarbanes-Oxley Act of 2002. These amendments significantly expand the number and type of events that must be reported on Form 8-K, accelerate the time in which these events must be reported, create a limited safe harbor from liability for failure to timely file certain of the required Form 8-K reports and make other related changes to the form.

3/15/2004 - M&A Update
Kirkland & Ellis LLP
M&A Notes - March 15, 2004
In what is apparently a case of first impression, a federal district court recently held that a stockholder opposing a merger can mail to the subject company's other stockholders a duplicate copy of the company's proxy card, together with instructions as to how to use the card to vote against the merger, without complying with the proxy rules of the Securities Exchange Act of 1934. This decision makes it possible for a stockholder that opposes a proposed merger or other transaction requiring stockholder approval to facilitate a vote by other stockholders against the transaction without complying with these proxy rules.
2/4/2004 - M&A Update
Kirkland & Ellis LLP
M&A Notes - February 4, 2004
A court may be reluctant to give full effect to an exculpatory provision in a corporation's charter which purports to limit the personal liability of a director for monetary damages for breach of fiduciary duties. Directors must be aware of their duty to act in good faith, and should not rely too heavily on exculpatory charter provisions. Kirkland partners Stephen Fraidin, Daniel J. Eisner and David D. McCusker discuss this issue in the February 4, 2004 edition of M&A Notes.
12/12/2003 - M&A Update
Kirkland & Ellis LLP
M&A Notes - December 2003
Shareholders with large voting positions that seek to increase their holdings may trip up state control share acts which deny shares their voting rights when certain ownership thresholds are crossed. Kirkland partner Stephen Fraidin and associate Natalie Silver discuss these issues in the December 2003 edition of M&A Notes.
6/12/2003 - M&A Update
Kirkland & Ellis LLP
M&A Notes - June 12, 2003
Two recent Federal Court Decisions raise serious questions regarding the enforceability of certain important "boiler plate" provisions in the typical confidentiality agreements used in the proposed sale of the stock of a company and in merger agreements. Kirkland partners Stephen Fraidin and Yosef J. Riemer comment on these developments in the first issue of M&A Notes. This publication is in pdf format, which requires Acrobat Reader.
3/1/2003 - Article
Corporate Counsel
What Every Compensation Committee Member Should Know About Corporate Governance Reforms
Carter Emerson and Robert Hayward offer their expertise on corporate governance reforms.  This article is in pdf format, which requires Acrobat Reader.
1/1/2003 - Article
Corporate Counsel
Putting Audit Committee Reform In Its Historical Context: Revolution or Evolution?
Kirkland lawyers Gerald Nowak and Stephanie Liang wrote this article about corporate governance.  It is the first in a series of six and examines the audit committee's historical relevance.
6/13/2001 - Article
Kirkland & Ellis LLP
Corporate Investing: Strategic Alliance Issues and Considerations
Los Angeles corporate attorneys Eva H. Davis and Juliette M. Harrhy have written this informative article on the whys, hows, benefits and risks of strategic alliances. This article appeared in the Spring 2001 issue of The Venture Capital Review. This is a PDF file which requires Acrobat Reader.
10/1/2000 - Article
The Venture Capital Review
How VC/PE Funds Can Deliver Special LTCG Tax Benefits to Individual LPs and GPs
In this article, four partners in our Chicago office, Jack S. Levin, Jeffrey T. Sheffield, Donald E. Rocap, and William R. Welke, discuss the changes in federal income tax law that grant two important tax benefits to an individual who owns stock of a qualified small business. The article appeared in the Fall 2000 issue of The Venture Capital Review. This is a PDF file which requires Acrobat Reader.
10/1/1999 - Article
The Venture Capital Review
Structuring a Buyout -- What Every VC Professional Must Know
In this article, corporate partner Jack S. Levin describes the key elements on which a private equity or venture capital professional should focus in structuring the buyout of an existing company. The article appeared in the Fall 1999 issue of The Venture Capital Review. This is a PDF file which requires Acrobat Reader.
5/1/1999 - Article
The Venture Capital Review
Five New Tax Developments Private Equity Investors Must Know in Structuring a Buyout or Venture Investment
Chicago partners Jack S. Levin and William R. Welke describe five tax developments important to every private equity investor. The article appeared in the Spring 1999 issue of The Venture Capital Review. This is a PDF file which requires Acrobat Reader.
5/1/1998 - Article
The Venture Capital Review
Structuring Buyouts for "Recap" Accounting--Maximizing Target's Post-Acquisition Book Earnings and IPO Value
In this article, Chicago partners Jack S. Levin and William R. Welke explore ways to structure a private equity fund's leveraged buyout of a target in order to obtain the benefits of "recap" accounting. The article appeared in the Spring 1998 issue of The Venture Capital Review. This is a PDF file which requires Acrobat Reader.
1/1/1997 - Article
The Venture Capital Review
Important Fund Formation Developments -- Or Five Things Every Private Equity Fund Sponsor Must Know
As the number and size of fund formations have escalated, the interrelated tax, SEC, economic, and negotiating issues encountered in structuring a private equity fund have both changed and multiplied. Chicago partners Jack S. Levin, Bruce I. Ettelson and Donald E. Rocap review five important developments in structuring a private equity fund. The article appeared in the 1997 issue of The Venture Capital Review. This is a PDF file which requires Acrobat Reader.
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