Businesses of all types and sizes throughout the United States, Mexico and beyond bring their disputes to Gardere's litigation team and receive practical, responsive, boutique-style attention in return. Our clients have access to the firepower and value of a well-known and highly-regarded Firm's capabilities and interdisciplinary strengths.
Gardere has a national and international energy practice formed around our Energy Industry Team, which is a multidisciplinary group of approximately 80 attorneys with diverse backgrounds, experience and skills specific to the energy industry. Our team includes attorneys who have served as in-house counsel for major energy companies, providing a depth of insight into our clients' needs, issues and concerns. We understand and regularly practice in virtually every sector of the energy, and we represent a wide variety of industry participants from multinational corporations to individuals.
From our offices in the United States and Mexico, our International Practice helps clients operate in today’s global economy. We have more than 30 professionals operating as a boutique within an Am Law 200 law firm and are able to provide focused service with the resources of a large firm. We understand that clients who are engaged in the global marketplace need lawyers who can operate seamlessly across multiple jurisdictions. Our international experts are multi-lingual, are culturally fluent and intimately familiar with various legal systems across the world, especially those in Latin America. Whether you need help with commercial transactions, regulatory matters, customs and import regulations, immigration matters, M&A and joint ventures, international disputes, or international tax planning, Gardere’s international team is here to assist you.
We represent domestic and foreign private funds in all aspects of fund formation, fund operations, platform and add-on acquisitions, and portfolio company operations. Our team has a reputation for being the go-to-lawyers for private equity funds, hedge funds, venture capital funds and family offices. We are known for our vast deal experience, the efficient way we staff and manage our work, and the way we maintain our relationships. We get deals done with sophisticated, strategic, and practical advice tailored to the needs of our clients.
*Not admitted to practice law.
The Securities and Exchange Commission recently approved the NASDAQ listing rules (.PDF) to comply with the SEC’s Rule 10C-1 under the Securities Exchange Act of 1934, as amended. Rule 10C-1 (.PDF) was adopted, as required by the Dodd-Frank Wall Street Reform and Consumer Protection Act, to require securities exchanges to adopt rules regarding the independence of compensation committees and advisers to compensation committees. The approved NASDAQ listing rules are not materially different than the proposed listing rules described in the Fromthesoxup entry on October 29, 2012, though those proposed rules were somewhat revised in December 2012 and early-January 2013. Unlike as proposed, however, the approved or final listing rules are not immediately effective.
One of the requirements is that a compensation committee (a) have the authority and resources to retain and pay compensation advisers, (b) assess or consider, when selecting any such adviser, the six independence factors stated in Rule 10C-1 (which are also stated in the approved or final listing rules), which indicate a conflict of interest on the part of such adviser, and (c) be responsible for overseeing and compensating its advisers. The approved or final listing rules clarify that:
This requirement will be effective on July 1, 2013. Accordingly, a NASDAQ-listed issuer should, by that effective date, (a) review and, as necessary, revise the charter of its compensation committee (if any) or the resolutions authorizing a majority of its independent directors to determine executive compensation to ensure that the compensation committee or the majority of independent directors, as the case may be, has the required authority, resources, direction, and responsibilities and (b) conduct an assessment of each of its advisers (other than those who are exempt) with respect to the independence standards. A NASDAQ-listed issuer will be obligated to certify compliance with this requirement to NASDAQ within 30 days after the deadline.
The second requirement is that each compensation committee member be independent not only under NASDAQ’s current independence standards, but also by not accepting (or having accepted while a committee member) any consulting or advisory fee or other compensation from the issuer, other than for board or committee service. The board of a NASDAQ-listed issuer must also consider whether a compensation committee member is affiliated with the issuer, but affiliation is not a prohibition against serving on the compensation committee.
The third requirement is that a NASDAQ-listed issuer have a compensation committee consisting of two or more independent directors and have a formal written committee charter, subject to annual review.
The last two requirements will be effective for a NASDAQ-listed issuer by the issuer’s first annual meeting after January 15, 2014 or, if earlier, October 31, 2014. Again, an issuer will be obligated to certify compliance with these requirements to NASDAQ within 30 days after the deadline. Accordingly, a NASDAQ-listed issuer has a few months to prepare for compliance with those requirements. If the issuer does not have a compensation committee with a written charter, it should work toward the establishment and appointment of such a committee and the adoption of such a charter. Whether or not the issuer currently has a compensation committee, it should begin to assess the qualifications of current or prospective compensation committee members in light of the new independence requirements.
A NASDAQ-listed issuer that is a smaller reporting company is exempt from these new requirements, except for most of the third requirement (i.e., having a compensation committee of at least two directors who are independent under the current listing standards). A smaller reporting company, unlike other NASDAQ-listed issuers, will not be required annually to review and assess the adequacy of its compensation committee charter.
OUR TAKE: Fortunately, NASDAQ and the SEC have attempted to provide NASDAQ-listed issuers adequate time to comply with the new requirements of the final listing rules. It would be prudent for each NASDAQ-listed issuer to take the time to review those rules and prepare for compliance.
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