Arnall Golden Gregory LLP counsels public and private companies, as well as officers, directors, investors, and underwriters, in matters regarding securities transactions, compliance and corporate governance.  Our clients include entrepreneurial private companies, as well as large companies listed on NYSE, NASDAQ, AMEX and OTC Bulletin Board.  We work together with these clients to provide solutions which make sense given their goals and resources.

We regularly counsel companies and underwriters in a variety of complex securities transactions, including initial and follow-on public offerings, “going private” and “roll-up” transactions, mergers, PIPES offerings, and private offerings.  While we have the sophistication to successfully implement complex transactions, we never lose touch of the personal aspects of our client service.  We strive to provide exceptional and responsive service to all of our clients.

Arnall Golden Gregory’s Securities & Corporate Governance practice provides a complete range of related legal services, including representation of:

• Companies and underwriters in connection with initial and follow-on public offerings
• Public companies in connection with their ongoing SEC filings and compliance
• Public companies considering tender offers, mergers, and going private
• Directors and committees seeking advice on meeting their fiduciary duties, corporate governance initiatives, conducting investigations, negotiating related party transactions, and addressing derivative claims
• Businesses seeking to raise capital by means of private offerings, PIPE transactions, and Rule 144A debt offerings
• Publicly and privately held businesses in the areas of corporate governance, transaction planning, and risk management
• Privately held businesses considering sales to public companies
• Officers, directors and large shareholders in connection with share acquisitions, dispositions and hedging transactions

Underwritten Public Offerings

Customary services to companies in connection with public offerings include:

• Implementing changes in corporate structure, including recapitalization and the possible adoption of “poison pills,” classified terms for directors, advance notice by-law provisions, and indemnification agreements
• Advising management and investors on the “quiet period” and publicity efforts, including the “road show”
• Drafting the registration statement and the related “red herring” and final prospectuses
• Negotiating the underwriting agreement, including details of customary representations and warranties, closing conditions, the “Green Shoe” over-allotment option, indemnification and contribution provisions
• Filing of the registration statement, responding to SEC comments, SEC effectiveness, and coordinating the entire process with the company, the lead underwriters, co-managing underwriters, underwriters’ counsel, the company’s independent public accountants, and the financial printer
• Implementing employee stock plans such as incentive stock option plans, non-qualified stock option plans, employee stock purchase plans, phantom stock and related equity compensation arrangements
• Coordinating with key shareholders and any selling security holders, including handling the details of customary “lock-up” agreements
• Preparing the filings required to be made by officers, directors and significant shareholders of each public company
• Obtaining the listing of securities for trading on the appropriate exchange

Private Offerings

• Advising business owners on structuring the company and the offering
• Negotiating with investment bankers, venture capitalists, angel investors, and other financing sources (including term sheets, letters of intent)
• Drafting offering circular and related documents
• Advising on compliance with state and federal securities laws

Corporate Governance

The Securities & Corporate Governance practice regularly addresses corporate governance issues for companies, directors, and executive officers.  Recently, the group:

• Assisted the Boards of several companies in setting up independent committees of directors to respond to shareholder derivative suits, including advice on selecting independent counsel
• Assisted several public companies in meeting the requirements of the Sarbanes-Oxley Act, including:
  • Advice on certification, including the advisability and implementation of “subcertification” procedures
  • Support on a much higher level of involvement of audit committees.  Our Securities & Corporate Governance practice includes several attorneys who are also certified public accountants
  • Revision of audit committee charters
  • Advice on internal controls, including disclosure of less-than-satisfactory systems and procedures
  • Advice on disclosure controls
  • Assistance in responding to the need to file Section 16 reports much more quickly
  • Advice as to independence of Board members and candidates
  • Advice as to whether transactions are prohibited by Sarbanes-Oxley
• Negotiated a settlement of a derivative suit involving  changes in corporate governance practices
• Represented the founder/Chairman of the Board of a NASDAQ-listed company as he responded to an attempt to remove him from office
• Represented the largest shareholder of a NASDAQ-listed company in (i) structuring a major further investment to be followed by a shareholder rights offering, (ii) negotiating with an independent committee of the Board, (iii) advising as to exchange, tax, and financial considerations, as well as fiduciary duties and disclosure
• Advised compensation committees regarding compensation plans, both as to general plans such as stock incentive plans, and as to pricing of options for particular executives.  Several team members are active in the National Association of Stock Plan Professionals
• Advised Boards of Directors as to their fiduciary duties regarding material transactions, including the sale of the business, SEC enforcement activity, possible hostile takeovers, and stock repurchases.  Assisted in several Board or Board Committee supervised investigations
• Advised a special litigation committee of the Board of Directors on the possible dismissal of a derivative lawsuit based on allegations of inadequate disclosure in connection with a public offering and related recapitalization of a multi-billion dollar company

Recent Activities of Note

The Securities & Corporate Governance practice has recently advised more than fifteen publicly held companies in handling their legal obligations to their shareholders and the public, as well as the requirements of the SEC, applicable securities exchanges, and state Blue Sky laws.  In addition to routine securities filings and advice, services provided to these public companies included:

• Represented a pharmaceuticals business in one of the five most successful IPOs in the year 2000, as well as a follow-on underwritten offering in 2001
• Advised on public securities transactions well in excess of $6 billion since June 1, 2000, including several public offerings of common stock, several mergers of public companies, and underwritten offerings of liquid yield option notes, convertible notes, and notes with attached warrants
• Assisted in updating securities-related compensation plans, including employee option plans, plans for independent directors, and employee stock purchase plans
• Advised several companies on the possibility of “going private,” and assisted several in the process
• Assisted in responding to SEC, NYSE and CBOE informal investigations
• Assisted NASDAQ-listed and NYSE-listed companies in responding to exchange inquiries related to possible delisting of shares, including in-person representation at hearings on the subject
• Represented a NYSE-listed company in connection with the tax-free spin-off of a division, including listing that company’s shares on AMEX
• Advised affiliates of public companies as to whether and when they may sell shares, emphasizing compliance with Rules 144 and 10b-5, and avoiding liability under the “short-swing profits” rules
• Advised several stockholders in connection with entering into collars, straddles and other hedging transactions designed to preserve or realize the economic value of their shareholdings while potentially deferring taxation and without resorting to open market sales
• Represented a wireless telecommunications company in connection with a placement under Rule 144A of $295 million of senior subordinated discount notes and associated warrants, including negotiation of the related indenture and placement agreement
• Represented an Ohio-based wireless telecommunications company in an SEC registered exchange offer
• Represented a NYSE-listed company in a successful SEC-registered tender offer to acquire the outstanding shares of another NYSE-listed company
• Negotiated engagement letters with investment bankers on behalf of issuers in connection with both “buy side” and “sell side” engagements, as well as “fairness opinion” letters
• Advised public companies incorporated in Great Britain, Ireland, Israel, and India on United States securities issues, including SEC filing requirements, disclosures, insider trading policies, and applicability of regulations
• Advised a CPA firm on possible violations of SEC rules
• Conducted seminars on audit committees, regulation FD, corporate takeovers, and the public offering process
• Provided comment letters to the SEC on several proposed regulations, including the accelerated filing deadlines, non-GAAP financial measures, amendments to Rule 10b-18, and reporting on internal control