Arthur Berner has been the firm-wide head of the Business Transactions Section consisting of more than 175 lawyers. He has divided his career between in-house legal service and major law firm practice. He has a broad based international and domestic practice in all aspects of corporate governance, capital markets, public and private securities offerings, mergers and acquisitions and financing. He represents all segments of restaurant, insurance, biotech, oil and gas, oil field service, health care and financial service companies, including compliance, workouts, and asset securitization. Mr. Berner has spoken and written widely on issues of corporate governance and the role of management, the Board and the Audit Committee. He has advised all three segments on compliance issues and standards. Mr. Berner has actively participated in a number of listings of U.S. companies on the AIM-London Stock Exchange.
Selected Client Representations
- Representing numerous public companies in their initial public offering and follow-up offerings.
- Handling over 100 mergers, stock and asset acquisitions.
- Acting as "outside general counsel" to a number of public and private companies.
- Representing public companies in friendly and hostile tender offers for control.
- Completing a number of Rule 144A debt financings.
- Representing public and private venture capital funds in financings and follow-up acquisitions.
- Representing special committees in stock option and Sarbanes-Oxley reviews.
- The placing of multi-billion dollars of private and public debt and equity securities in the U.S. and International markets.
- Represented the company, the audit committee and the special committee in the resolution of government led securities investigations and related derivative and class action law suits.
Mr. Berner is also called on to act as special independent counsel to advise public and private companies on corporate governance, Sarbanes-Oxley and corporate finance matters.
Recent Speeches and Publications
- Author - "Public-Private Investment Program," Haynes and Boone Alert (2009)
- Speaker - "The Role of the Special Committee" (2008)
- Speaker - "Stock Option Backdating - 'Witch Hunt' or Governance Failure" (2006)
- Speaker - "The London AIM Market" (2006)
- Speaker - "The Effect of Sarbanes-Oxley on Private Companies" (2004)
- Speaker - "Sarbanes-Oxley - Do you Really Want to Go Private? - It May Not Make a Difference" (2004)
- Speaker - "Recent Developments Under Sarbanes-Oxley" (2002)
- Speaker - "Public Companies and Their Auditors - Clash of the Titans" (2003)
- "The Independent Audit Committee and its Role in the Post-Enron Environment," Houston Business Journal, 2002
- Speaker - "Understanding the New NYSE, SEC and Legislative Rules" (2002)
- Speaker - "What the Independent Director Needs to Know in the Post-Enron Environment" (2002)
- Speaker - "Counseling the Board of Directors - Post-Enron, World-Com and Global Crossing" (2002)
- Speaker - "Everything You Needed to Know to Go Public" (2001)
- Speaker - "Strategic Issues for Emerging Technology Companies - Preparing to Go Public" (2000)
- Speaker - "Documenting the Sale of a Public or Private Business" (2000)
Professional Recognition
- Chambers USA - Leading Corporate/Mergers and Acquisitions Lawyer in Texas (2008-2009)
- Texas Super Lawyer - Mergers and Acquisitions (2009)
- Who's Who - multiple years
Selected Representative Experience
Acquisition of Public Restaurant Company
Represented a New York Stock Exchange listed restaurant company in a number of acquisitions of public and private restaurant companies in 50 states including dealing with leasehold, environmental, liquor license, and other regulatory matters.
$1.2 Billion Buyout - Restaurant and Casino Company
Represented the company in a $1.2 billion management led-buyout of a NYSE casino, hotel and restaurant company.
$400 Million - Public Note Exchange - Restaurant
Offer to exchange $400 million in aggregate principal amount of its 9.50% Senior Notes due 2014 for a similar amount of outstanding notes. Offer was 99.8% successful.
Sale of International Sealant Manufacturer
Represented the Selling Stockholders in the sale of one of the world's largest sealant manufacturers to an International private equity firm for an enterprise value of $144 million.
Acquisition of Public Property and Casualty Insurance Company
Represented a New York Stock Exchange property and casualty insurance company in the acquisition of another New York Stock Exchange property and casualty insurance company in an initial hostile takeover attempt that ended in a friendly transaction.
Franchise Acquisition - Restaurant
Represented Acquiror in the acquisition of 40 franchised restaurants in a multi-state transaction.
Sale of Medical Device Company
Represented the seller in the sale of a privately-held medical device company to a publicly held strategic buyer.
Sale of 120 Restaurants
Represented a major NYSE national restaurant and hospitality company in the $192 million sale of the company's restaurant concepts consisting of 120 restaurants in 35 states.
Multi-Practice Team Leader - Acquisition, Corporate Governance and Regulatory Issues
Represented clients in dealing with the SEC; plaintiff class action and derivative counsel; and other constituencies in dealing with stock options backdating and other governance issues, including adopting new corporate governance procedures, handling SEC civil enforcement claims, special litigation committees, and counsel for members of the Board.
Acquisition of Multinational Manufacturer
Represented a group of private investors in the acquisition of a multinational manufacturer requiring senior and subordinated debt and equity financing, handling of multinational environmental, real estate, licensing and joint venture issues and transfer of over 1,000 patents in 40 countries.
Online Publications
12/29/2009 -
SEC Amends Disclosure Rules for Executive Compensation and Corporate Governance
The U.S. Securities and Exchange Commission (SEC) recently adopted amendments to its rules affecting disclosure of executive compensation and corporate governance matters. This alert summarizes the key changes.
11/12/2009 -
SEC to Allow More Shareholder Proposals Related to Risk Management and CEO Succession Planning
On October 27, 2009, the staff of the Division of Corporation Finance (“Staff”) of the U.S. Securities and Exchange Commission (“SEC”) issued Staff Legal Bulletin No. 14E, which provides guidance about how the Staff will consider under the SEC’s proxy rules shareholder proposals relating to risk issues or to CEO succession planning.
08/10/2009 -
July Madness: In Maverick Case, the SEC Tosses an Air Ball
On July 17, 2009, sports enthusiast Mark Cuban won a significant victory when a federal trial court in Dallas dismissed the SEC’s insider trading charges against him.
07/09/2009 -
SEC Proposes Rule Amendments to Facilitate Rights of Shareholders to Nominate Directors
On June 10, 2009, the U.S. Securities and Exchange Commission (the “SEC”) proposed a series of amendments to rules promulgated under the Securities Exchange Act of 1934 (the “Exchange Act”) to facilitate shareholders’ rights to nominate directors.
04/06/2009 -
Public-Private Investment Program
On March 23, 2009 the Treasury Department, in conjunction with the Federal Deposit Insurance Corporation (“FDIC”) and the Board of Governors of the Federal Reserve System (the “Federal Reserve”), announced the creation of the Public-Private Investment Program (“PPIP”), which is designed to provide public support to catalyze the purchase and sale of legacy assets through Public-Private Investment Funds (“PPIF”).
02/12/2009 -
SEC Mandates Interactive Data Financial Reporting
The Securities and Exchange Commission (SEC) issued rules that will require most public companies to file financial statements with the SEC in eXtensible Business Reporting Language (XBRL). Interactive data in XBRL format permits users of financial information to automatically download financial data directly into documents and analytical tools.
06/16/2006 -
Stock Option Backdating--How Big Are The Problems And What Should You Do?
Recently, over 40 public companies have come under investigation by the SEC or the Justice Department for improperly backdating options, and it is likely that more public companies will come under investigation in the future. At issue is whether option grants to executives and others were backdated to coincide with dates when a company’s stock price was low, thereby increasing the potential profits realized by the holders of the options if and when exercised. Improper backdating may be intentional or a result of faulty corporate procedures. In either event, serious accounting, tax, and disclosure issues result.
03/01/2006 -
IPO ALERT: Accessing the Capital Markets
Small-cap and mid-cap companies now face sharply increased costs for being publicly traded (due in part to the Sarbanes-Oxley Act) and substantially less following by research analysts on Wall Street. As a result, the prospects for IPOs by small and companies are currently bleak.
11/28/2005 -
2006 ISS U.S. Corporate Governance Policy Updates
Sarbanes-Oxley: Regulating Lawyers
Attorneys Don't Get A Pass From Sarbanes-Oxley
01/31/2003 -
24 - SEC Adopts New Rules on Auditor Independence
On January 28, 2003, the SEC published additional rules regarding the independence of accounting firms that audit the financial statements of public companies. These rules are a result of the Sarbanes-Oxley Act of 2002 (the “Act”) and were adopted by the SEC in accordance with Section 208(a) of the Act, although certain aspects of the rules expand upon the auditor independence provisions of the Act.
01/28/2003 -
SEC Adopts Rules Governing Determination and Disclosure of Audit Committee Financial Experts
01/24/2003 -
SEC Adopts Rules Governing Disclosure of Non-GAAP Financial Measures and Amendments to Form 8-K
01/24/2003 -
SEC Adopts Code of Ethics Disclosure Rules
12/04/2002 -
SEC Proposes Rules to Federalize Professional Conduct for Lawyers Practicing Before the SEC
11/01/2002 -
SEC Proposes Rules on Internal Controls, Ethics Codes and Financial Experts on Audit Committees
09/18/2002 -
NYSE Submits Changes to Corporate Accountability and Listing Standards to SEC for Approval
09/10/2002 -
SEC Issues Final Rules On Accelerated Filing Deadlines for Certain Public Companies
09/04/2002 -
SEC Issues Final Rules on Certification of Disclosure in Quarterly and Annual Reports
08/30/2002 -
Sarbanes-Oxley Prohibition on Loans to Executives May Conflict with Compensation Practices
08/30/2002 -
Sarbanes-Oxley Act of 2002: SEC Adopts Amendments to Accelerate Section 16 Filings
08/28/2002 -
Sarbanes-Oxley Act Section 302 Certification
08/14/2002 -
Sarbanes-Oxley Act of 2002: Important Changes to Insider Reporting Deadlines under Section 16
08/09/2002 -
Sarbanes-Oxley Act of 2002: Suggestions for Compliance
08/02/2002 -
Considerations for Sarbanes-Oxley Act Certification
07/31/2002 -
Sarbanes-Oxley Act of 2002 Promises Far-Reaching Implications for Public Companies
06/11/2002 -
NYSE Recommends New Rules to Enhance Corporate Governance and Disclosure
04/01/2002 -
Audit Committee and Board Issues in the Aftermath of Enron