Law Firm News

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Law Firm News

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Schnader Attorney At Law

Dandridge Notes Local Legal Moves
Albert Dandridge III commented in an August 15, 2006 article in The Legal Intelligencer, “Morgan Lewis Brings In Sungard Legal Officer.” The article discusses the addition of Lawrence A. Gross, former general counsel and most recently chief legal officer and chief administrative officer at SunGard Data systems, as a partner in the Morgan Lewis & Bockius business and finance practice group. Albert said that Gross’ joining Morgan Lewis was probably a “marriage of opportunity” and there was most likely a skill set that fit the firm’s needs and an opportunity to solidify a relationship with SunGard.

08-15-2006

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Quarles & Brady

Quarles & Brady Streich Lang LLP Associate Elected to Board of Directors for NPower Arizona
W. LaNelle Owens, an associate of Quarles & Brady Streich Lang LLP’s Intellectual Property Law Group, was elected to the Board of Directors for NPower Arizona.

LaNelle Owens' practice is both transactional and litigation-based, covering the areas of ecommerce, licensing, patents, copyrights and trademarks. Ms. Owens also serves on the board for the Maricopa County Bar Association, President of Hayzel B. Daniels Bar Association and is a member of the American Bar Association, International Trademark Association and the Urban League Young Professionals Auxiliary. She received her B.S. in Chemistry from the University of Illinois-Champaign/Urbana and J.D. from Howard University School of Law.

08-15-2006

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Heller Ehrman, LLP

New Restrictions on Foreign M&A of Chinese Companies
On 8 August 2006, six People’s Republic of China (PRC or China) authorities1 reissued Regulations on Mergers and Acquisitions of Domestic Enterprises by Foreign Investors (New M&A Regulations). These regulations become effective on 8 September 2006, and will affect all foreign investors merging with or acquiring a domestic enterprise, particularly those using a share swap structure. Domestic enterprises are Chinese companies other than foreign investment enterprises (FIEs), i.e., Sino foreign joint ventures or wholly foreign owned enterprises. This alert highlights the major changes, red-flags the deals affected, and outlines the anticipated impact of the New M&A Regulations.

The major changes are as follows:
barriers are raised for round-trip investment, deals in which a Chinese entity that has established a company abroad re-invests in its onshore affiliate, establishing roadblocks for private equity as well as IPO deals;

a complicated new regime is introduced for share swap structures, again affecting private equity deals and IPOs;

MOFCOM approval is required for deals involving ""important industries,"" ""economic security"" and ""national treasures,"" such as famous Chinese trademarks and trade names, affecting industrial as well as private equity investors;

the regulatory regime applies to mergers and acquisitions (M&A) conducted by foreign investors through FIEs as well as the acquisition of PRC listed companies; and

better coordination is established among the six regulatory authorities involved in M&A.

We summarize the first three points below:
For round trip investment in an onshore affiliate, the New M&A Regulations require MOFCOM approval, regardless of whether the M&A is being done through a cash or share swap structure. Formerly local approval was often sufficient for cash deals. Additionally, in many cases such deals require a capital injection of at least 25% for the new onshore entity created by the round trip investment to qualify for FIE preferential treatment. MOFCOM approval will slow the completion of such deals and the injection requirement will make the deals more costly. The New M&A Regulations are designed to reinforce the foreign exchange regulations for round-trip investment issued in October 2005 (SAFE Round-trip Regulations).

The new regime for share swap structures is complex and establishes a series of deadlines, complicating the timelines for investors, investment bankers, and lawyers involved in private equity and IPO deals. A piece of the regime was foreshadowed in the SAFE Round-trip Regulations.

The highlights of the regime are as follows:
MOFCOM approval is required for all share swap deals;

the domestic company whose shares are being swapped must engage a ""M&A adviser,"" a type of professional unknown in China until now, to issue a professional opinion;

the foreign company whose shares are being swapped must be a company listed in a developed jurisdiction, unless it is a special purpose company as defined by the regulations, i.e. an offshore company established by a Chinese company or individual to enable the listing abroad of onshore assets;

the establishment of a special purpose company requires MOFCOM approval;

the MOFCOM approval for the offshore company doing the M&A via a share swap is only a threshold approval, imposing tight deadlines on the domestic company whose shares are being swapped to obtain additional approvals and registrations; and

special purpose companies listing abroad must obtain CSRC approval. This was previously not required for private Chinese companies listing abroad. After listing, additional reporting is required to MOFCOM and CSRC, and fund repatriation is required in line with the SAFE Round-trip Regulations.

We anticipate that additional regulations implementing the New M&A Regulations will be issued in the next several months. In the meantime, foreign investors, investment bankers, and lawyers should prepare themselves for a long slog.

1 Ministry of Commerce (MOFCOM), State Assets Supervision and Administration Committee, State Administration of Tax, State Administration of Industry and Commerce, China Securities Regulatory Committee (CSRC) and State Administration of Foreign Exchange (SAFE).

08-15-2006

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Holland & Hart, L.L.P.

Pension Protection Act -- Automatic Enrollment And Fiduciary Provisions
Just when you thought it was safe to go back in the water, Congress has passed another major piece of legislation that will have significant impact on retirement plans. The Pension Protection Act (H.R. 4) was passed on August 3, 2006, and President Bush is expected to sign it into law

08-15-2006

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Holland & Hart, L.L.P.

SEC Adopts Changes to Executive Compensation Disclosure and Related Matters
On July 26, 2006, the Securities and Exchange Commission voted to adopt changes to the rules requiring disclosure of: (1) executive and director compensation and security ownership; (2) related person transactions; (3) director independence; and (4) other corporate governance matters. These changes will affect disclosure in proxy statements, annual reports and registration statements, as well as the current reporting of employment arrangements on Form 8-K. The final release has not yet been issued by the SEC and we will provide additional details after the rules are published

08-15-2006

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Pillsbury Winthrop Shaw Pittman LLP

Congress Passes Sweeping Charitable Incentive and Reform Package: Considerations for Nonprofit Organizations
The pension reform bill, H.R. 4, recently passed by Congress and soon to be signed into law by President Bush, contains a sweeping package of incentives and reforms related to charities and charitable contributions. While these measures are directly applicable mainly to Section 501(c)(3) organizations, the reforms will affect many, if not most, nonprofit organizations, and numerous for-profit companies. Nonprofit organizations need to understand these changes in order to take advantage of the new charitable giving incentives and ensure compliance with heightened restrictions on certain activities.

08-15-2006

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Pillsbury Winthrop Shaw Pittman LLP

Patent Prosecution Highway Pilot Program Enacted by the United States Patent and Trademark Office and the Japan Patent Office Allows Faster Examination of Certain Applications
The United States Patent and Trademark Office (USPTO) recently announced the "Patent Prosecution Highway" (PPH) pilot program with the Japan Patent Office (JPO), to promote timely exchange of search results when an application has been filed in both offices. Under the PPH pilot program, an applicant who filed first in the JPO and received a determination of allowability of at least one claim, may request earlier examination of the corresponding claim(s) filed in the USPTO. The PPH pilot program is reciprocal, such that the JPO also offers earlier examination of claims corresponding to allowed US claims. Only US or Japanese applications filed under the Paris Convention, claiming priority to corresponding Japanese or US applications, are eligible for the PPH pilot program. Applications that entered the national stage from PCT applications are not eligible for the PPH pilot program. A description of the PPH pilot program was published on June 13, 2006, in the Official Gazette (1307 OG 61).

08-15-2006

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