Neal Gerber Eisenberg’s corporate and securities practice complements our business clients’ focus on successful operations by providing strategic and technical advice on complex corporate transactions to implement and effectuate our clients’ objectives. Our focus includes mergers and acquisitions, venture capital and private equity transactions and joint ventures, cross-border and international transactions for publicly-traded companies, private equity and venture firms, family offices, financial institutions, middle market businesses and entrepreneurs.
Corporate & Securities Transactions
To structure corporate and securities transactions, our corporate attorneys not only draw upon abundant experience in a wide array of practice areas but also serve as more than just trusted legal counsel—we know our clients’ industries and are relied upon for our business judgment. We serve a broad scope of industries ranging from manufacturing, mining and metals, energy, technology, health care, financial services and insurance.
Mergers, Acquisitions, Joint Ventures & Alliances
We handle all aspects of structuring, planning, negotiating and achieving merger, acquisition, joint venture and alliance projects. With each new engagement, we first work to understand our clients’ objectives and challenges so that we can then set the legal framework for success. We represent buyers, sellers, management and other parties in all types of acquisition and disposition transactions, including asset and stock transactions, mergers, leveraged buyouts, recapitalizations, roll-ups, spin-offs, “going private” transactions and acquisitions of controlling, minority and strategic interests. Our services involve the full range of our corporate experience, including our knowledge of government regulatory controls and our recognized ability to establish workable deadlock resolution and exit strategies.
Finance & Lending
We provide practical, market-leading advice to help both borrowers and lenders of secured and unsecured commercial loans to close transactions efficiently. Our experience in this arena allows us to advise clients on asset-based financings, credit facilities, workouts of distressed credits, representation in foreclosure and pre-bankruptcy cases and certain banking regulatory matters. On the lender’s side, we represent bank and non-bank lending institutions in a wide spectrum of commercial credit transactions.
As a testament to our success, our corporate practice is consistently ranked in Chambers USA as a leader in corporate M&A/private equity and in U.S. News-Best Lawyers’ “Best Law Firms” annual survey. Our mining and metals transactional practice has been recognized by Chambers USA’s Energy: Mining and Metals (Transactional) Nationwide and Chambers Global since the introduction of such categories.
Public Securities Experience
Neal Gerber Eisenberg regularly represents issuers in a wide variety of public equity and debt offerings, both domestically and in multi-jurisdictional offerings. We assist our clients with all aspects of public offerings of both equity and debt, as well as with a variety of more complex offerings such as rights offerings or offerings of trust preferred securities, warrants and mortgage backed securities. Our clients range from well-known seasoned public issuers to those who have just recently become public, as well as foreign private issuers and voluntary filers. Some of our clients have substantial in-house legal departments while others have little or no in-house legal staff. We provide each of our clients, regardless of their size, with a full range of legal services tailored to meet their specific needs, including serving as acting general counsel and corporate secretary when requested. We provide our public clients with advice and counsel related to ongoing compliance with applicable securities laws, corporate governance requirements, disclosure requirements and regulations regarding public companies and their relationship with their independent auditors. We also advise and assist our clients with corporate reporting under the federal securities laws, press releases, proxy statements, Section 16 reporting, Rule 144 transactions, NYSE, AMEX and Nasdaq listing standard compliance, and a broad variety of employee compensation plans and issues, including stock option, restricted stock and pension plans. We represent boards of directors and board committees and provide counsel with respect to corporate policy, relationships with affiliated companies, director and officer liability and director and officer liability insurance, and obligations of directors and officers under various laws and regulations. We regularly advise publicly traded companies on the charters of board committees and corporate governance policies, including anti-takeover measures. Below are brief descriptions of transactions that illustrate the scope of our public securities practice:
Securities Offerings
- $224 million and $44 million secondary offerings of common shares of Primero Mining Corp. by Goldcorp, Inc. (NYSE: GG; TSX: G)
- $200 million PIPE investment by Zell Credit Opportunities Fund as a lead investor in Par Petroleum Corporation
- $150.5 million common stock “bought deal” underwritten public offering for Allied Nevada Gold Corp. (NYSE: ANV)
- Initial public offering, follow-on offerings, rights offerings, and acquisition shelf registrations by General Growth Properties, Inc. (NYSE: GGP)
- Initial public offering (common stock and senior subordinated debt) by Royal Caribbean Cruises, Ltd. (NYSE: RCL)
- Initial public offering (U.S. counsel) by Tahoe Resources Inc. (TSX: THO)
- Secondary public offering of common stock by TeleTech Holdings, Inc. (NASDAQ:TTEC)
- Secondary public offering of common stock by Great Lakes Dredge & Dock Corporation (NASDAQ:GLDD)
- Initial public offering (primary and secondary) and follow-on offering by Vistana, Inc. (NASDAQ:VSTN) of common stock
- Initial public offering by Click Commerce, Inc. (NASDAQ: CKCM)
- Public offerings (primary and secondary), follow-on public offerings (common stock and senior subordinated debt) by American Medical Holdings, Inc. (NYSE: AMI)
- Initial public offering of common stock by American Classic Voyages Co. (AMEX: AMCV)
- Concurrent public offerings of trust preferred securities and common stock by American Classic Voyages Co. (AMEX: AMCV)
- Secondary public offering of common stock of CNA Surety Corporation (NYSE: SUR)
- Follow-on offering of common stock of Capsure Holdings Corp.
- Secondary public offering of common stock by Alberto Culver Co. (NYSE: ACV)
- Follow-on MJDS cross-border public offerings of common stock by Glamis Gold Ltd. (NYSE: GLG)
Rights Offerings
- Rights offering of warrants to purchase $425 million of common stock of Danielson Holding Corporation (AMEX: DHC)
- Rights offering of warrants to purchase $42 million of common stock of Danielson Holding Corporation (AMEX: DHC)
- Rights offerings of warrants and contingently issuable warrants to purchase common stock of Covanta Holding Corporation (NYSE: CVA)
Debt Offerings
- $1 billion public debt offering for Goldcorp, Inc. (NYSE: GG; TSX: G), $550 million aggregate principal amount of 3.625% senior notes due 2021and $450 million aggregate principal amount of 5.450% senior notes due 2044.
- “Bought deal” Rule 144A placement of Cdn$400 million aggregate principal amount of 8.75% senior notes due 2019 by Allied Nevada Gold Corp. (NYSE-AMEX: ANV) with contemporaneous interest rate and currency swaps to 8.375% in U.S. dollars
- Registered public offering of $400 million aggregate principal amount of 5.875% senior notes due 2024 by Covanta Holding Corporation (NYSE: CVA)
- Registered public offering of $400 million aggregate principal amount of 6.375% senior notes due 2022 by Covanta Holding Corporation (NYSE: CVA)
- Registered public offering of $400 million aggregate principal amount of 7.250% senior notes due 2020 by Covanta Holding Corporation (NYSE: CVA) and contemporaneous public tender offer for $375 million of 1.00% Senior Convertible Debentures due 2027
- Concurrent public offerings of $375 million of 1.00% Senior Convertible Debentures and $125 million of common stock by Covanta Holding Corporation (NYSE: CVA)
- Rule 144A offering of $400 million of 3.25% Convertible Senior notes by Covanta Holding Corporation (NYSE: CVA)
- Rule 144A offering of $2.6 billion of commercial mortgaged-backed securities by General Growth Properties, Inc.
As part of our public offering experience, we have worked with all of the “bulge bracket” underwriting firms as well as several regional underwriting firms, and enjoy productive working relationships with each of them.
(Updated as of January 1, 2024)
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Background
The Corporate Transparency Act of 2019 (“CTA”) became effective on January 1, 2024. Under the CTA, all “reporting companies” must file a Beneficial Ownership Information (BOI) report with the Financial Crimes Enforcement Network (“FinCEN”) and comply with the reporting requirements of the CTA. Noncompliance may result in civil penalties, fines and criminal sanctions.
Overview
The following is a general summary description of certain aspects of the CTA. This summary is not definitive or comprehensive, and is qualified in its entirety by reference to the CTA and the regulations, guidance, and interpretations promulgated or published with respect thereto.
Reporting Companies
The CTA defines reporting companies as corporations, limited liability companies, limited partnerships and other similar entities created by filing a formation document with an individual state.
Entities Exempt from Reporting Requirements
The CTA exempts 23 types of entities from the definition of “reporting companies.” Generally, these exempt entities fall into 3 categories:
- Entities that are regulated by government authorities, such as the Securities and Exchange Commission, and already disclose information regarding beneficial ownership to a government or regulatory body;
- Large operating companies, generally meaning privately held entities that have (i) at least 20 full-time U.S. employees, (ii) over $5 million in annual gross receipts or sales, and (iii) an operating physical presence in the U.S.; and
- Certain tax exempt entities.
When and How to File
Due Date of Initial BOI Report:
- Reporting Companies Formed Between January 1, 2024 and December 31, 2024. Reporting Companies formed between January 1, 2024 and December 31, 2024, must file their initial Beneficial Ownership Information (BOI) Report with FinCEN within 90 days after formation.
- Reporting Companies Formed On or After January 1, 2025. Reporting Companies formed on or after January 1, 2025 must file their initial Beneficial Ownership Information (BOI) Report with FinCEN within 30 days after formation.
- Reporting Companies Formed Prior to January 1, 2024. Reporting Companies formed prior to January 1, 2024 must file their initial Beneficial Ownership Information (BOI) Report with FinCEN prior to January 1, 2025.
How to File:
If you are required to report your company’s beneficial ownership information to FinCEN, you will do so electronically by accessing the BOI E-Filing portal at https://boiefiling.fincen.gov. The E-Filing portal permits a reporting company to either (a) fill out a web-based version of the report and submit it online, or (b) complete a PDF version of the report which will need to be uploaded to the BOI E-Filing portal. Both methods require the filing to be done online and reports cannot be mailed or faxed to FinCEN.
Who can File:
Anyone who the Reporting Company authorizes to act on its behalf—such as an employee, owner, or third-party service provider—may file a BOI report on the Reporting Company’s behalf. When submitting the BOI report, individual filers should be prepared to provide basic contact information about themselves, including their name and email address or phone number.
What Information must be Reported
- Information About the Reporting Company. The Reporting Company will need to report (i) its full legal name, (ii) its Tax ID number (FEIN), (iii) its jurisdiction of formation, (iv) its address (principal place of business), and (v) whether the reporting company desires to obtain a FinCEN Identifier Number (discussed below).
- Information about Beneficial Owners. The Reporting Company will need to report and provide information for each “Beneficial Owner.” Beneficial Owners generally consist of:
- Each individual who, directly and indirectly through intermediary entities, owns or controls at least 25% of the ownership (equity on a fully diluted basis) of the Reporting Company; and
- Each individual who, directly or indirectly, exercises substantial control over the Reporting Company. Substantial control generally means an individual (i) having authority, directly or indirectly, over the appointment or removal of any senior officer or a majority or dominant minority of the board of directors (or similar body) of the Reporting Company, (ii) having any (direct or indirect) direction, determination, or decision power over, or substantial influence over, important matters affecting the Reporting Company, including but not limited to: (A) the nature, scope, and attributes of the business of the Reporting Company, including the sale, lease, mortgage, or other transfer of any principal assets of the Reporting Company; (B) the reorganization, dissolution, or merger of the Reporting Company; (C) major expenditures or investments, issuances of any equity, incurrence of any significant debt, or approval of the operating budget of the Reporting Company; (D) the selection or termination of business lines or ventures, or geographic focus, of the Reporting Company; (E) compensation schemes and incentive programs for senior officers of the Reporting Company; (F) the entry into or termination, or the fulfillment or non-fulfillment of significant contracts of the Reporting Company; (G) amendments of any substantial governance documents of the Reporting Company, including the certificate of organization or similar formation documents, this Agreement, and significant policies or procedures of the Reporting Company; and (H) any other form of direct or indirect substantial control over the Reporting Company.
Company Applicants
Each Reporting Company formed on or after January 1, 2024 also must report its “Company Applicants.” Company Applicants are the individuals (up to 2 individuals) who directly filed (physically or electronically) the document that created the company and the individual who was primarily responsible for directing or controlling such filing. Unlike Reporting Companies formed on or after January 1, 2024, Reporting Companies formed prior to January 1, 2024 do not need to report their “Company Applicants.”
Information Required for each Beneficial Owner
For each Beneficial Owner, the Reporting Company will need to report such individual’s:
- Legal name;
- Date of Birth;
- Residential Street Address;
- State Driver’s License # or Passport #.
An image of the state driver’s license or passport (which includes the photograph of the Beneficial Owner) will need to be uploaded with the report.
FinCEN Identifiers
Individuals who are Beneficial Owners or Company Applicants may electronically apply for a unique 12-digit identifying number that FinCEN will issue upon request. Once a FinCEN identifier is issued to an individual, Reporting Companies may report such individual’s FinCEN identifier in place of the otherwise required personal information about the individual.
To obtain a FinCEN Identifier, an individual will need to provide to FinCEN the following information:
- Legal name;
- Date of Birth;
- Residential Street Address;
- State Driver’s License # or Passport #.
An image of the state driver’s license or passport (which includes the photograph of the applicant) will need to be uploaded with the FinCEN Identifier application.
To request a FinCEN identifier, individuals will need to obtain a login.gov account and sign in through login.gov. The login.gov website includes guidance about how to create an account.
Updates
If there are changes to the information reported by a Reporting Company after filing its Beneficial Ownership Report, the Reporting Company must file an updated report within 30 days after the date the change occurs. Similarly, if an individual obtains a FinCEN Identifier and the information provided on the application changes, such individual must update that individual’s FinCEN Identifier application within 30 days after such change.
Penalties
It is unlawful to willfully provide false or fraudulent beneficial ownership information or documentation or to willfully fail to report complete or updated beneficial ownership information. A person that violates the requirements of the CTA may be liable for civil penalties of not more than $500 for each day that a violation continues and may be fined not more than $10,000 and imprisoned for not more than 2 years, or both.
Client Actions
Clients should familiarize themselves with the specific and detailed reporting requirements under the Corporate Transparency Act as applicable to entities that they own, control, or operate and familiarize themselves with the CTA’s requirements. These requirements can be complex and difficult to navigate.
For additional information, please visit:
If you need assistance or further guidance regarding compliance with the CTA or have related questions, please reach out to your Neal Gerber Eisenberg attorney.
The content above is based on information current at the time of its publication and may not reflect the most recent developments or guidance. Please note that this publication should not be construed as legal advice or a legal opinion on any specific facts or circumstances. The contents of this publication are intended solely for general purposes, and you are urged to consult a lawyer concerning your own situation and any specific legal questions you may have.
The alert is not intended and should not be considered as a solicitation to provide legal services. However, the alert or some of its content may be considered advertising under the applicable rules of the supreme courts of Illinois and certain other states.
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