When You Think FINANCIAL REFORM, Think Fulbright. TM August 12, 2010 How the New Financial Reform Legislation Affects Publicly Held Companies: Disclosure, Corporate Governance, Enforcement and Other Requirements

2 Todays Presenters Darryl Anderson Partner, Fulbright & Jaworski L.L.P. Houston Harva Dockery Partner, Fulbright & Jaworski L.L.P. Dallas Gregg Berman Partner, Fulbright & Jaworski L.L.P. New York

3 Gregg Berman Corporate Partner Fulbright & Jaworski L.L.P. Houston Harva Dockery Corporate Partner Fulbright & Jaworski L.L.P. Dallas

4 Dodd–Frank Although aimed at the financial regulatory system, the Act will affect most public companies

5 What You Need to Know Corporate Governance Executive Compensation

6 Provisions Related to Corporate Governance Proxy Access : Not mandated but enabled CEO / Board Chairman Structure Disclosure Broker Voting Say on Pay Say on Golden Parachutes Enhanced Compensation Committee Standards Clawback Policy

7 Provisions Requiring Enhanced Disclosure Pay vs. Performance Internal Pay Ratio Hedging

8 Other Aspects Revised accredited investor definition

Timing and What Now?

10 Darryl Anderson Litigation Partner Fulbright & Jaworski L.L.P. Houston

Dodd-Frank Impact on Enforcement Increased Governmental Enforcement Increased Private Litigation Rulemaking Process

Whistleblower Provision In any covered judicial or administrative action, or related action, the Commission... shall pay an award or awards to 1 or more whistleblowers who voluntarily provided original information to the Commission that led to the successful enforcement of the covered judicial or administrative action, or related action, an aggregate amount equal to (A) not less than 10 percent, in total, of what has been collected of the monetary sanctions imposed in the action or related actions; and (B) not more than 30 percent, in total, of what has been collected of the monetary sanctions imposed in the action or related actions.

Whistleblower Qualifications Original information Led to successful enforcement action $1 million or more in aggregated sanctions Cannot be criminally convicted in relation to same scheme Cannot be used to circumvent SOX reporting requirements for auditors

Scope of Whistleblower Qualifying Activities Anything enforceable by the SEC is subject to a whistleblower report

Protections Afforded Whistleblowers Anti-retaliation provision No arbitration May proceed anonymously No reasonable basis for report required?

Administrative Proceedings Monetary penalties available Administrative proceedings a more viable forum

Expanded Substantive Liability Aiding and Abetting Liability Extraterritorial Enforcement Jurisdiction

Criminal Provisions Statute of Limitations Extended Review of Sentencing Guidelines

Sources of Increased Private Litigation Increased disclosure obligations Whistleblower actions Potential restrictions on arbitration clauses

What the Future Holds Rulemaking authority could lead to further increases Study of effect of arbitration provisions Study of fiduciary standards for broker-dealers Study of private aiding and abetting cause of action

Protecting Your Business from Increased Exposure in the Dodd-Frank World Review and revise compliance programs Make employee hotlines user-friendly Evaluate use of arbitration provisions and implement protections Stay abreast of the rulemaking activities that impact your business

22 Harva Dockery Corporate Partner Fulbright & Jaworski L.L.P. Dallas

Dodd-Frank and Diversity Establishment of Offices of Minority and Women Inclusion for each agency Duties of each office director Procedures for review and evaluation of contract proposals and hiring service providers Ability to cancel contracts Promotion of diversity in each agency's workforce Annual reports to Congress from each office

24 Continuing Education Information If you are requesting CLE credit for this presentation, please complete the evaluation that Fulbright will send via tomorrow. If you are viewing a recording of this web seminar, most state bar organizations will only allow you to claim self-study CLE. Please refer to your states CLE rules. If you have any questions regarding CLE approval of this course, please contact your bar administrator. NY CLE Number If you should have any questions regarding credit, please Victoria Beard at

25 Questions? Darryl Anderson Partner, Houston Fulbright & Jaworski L.L.P Gregg Berman Partner, New York Fulbright & Jaworski L.L.P Harva Dockery Partner, Dallas Fulbright & Jaworski L.L.P

26 When You Think FINANCIAL REFORM, Think Fulbright. TM AUSTIN BEIJING DALLAS DENVER DUBAI HONG KONG HOUSTON LONDON LOS ANGELES MINNEAPOLIS MUNICH NEW YORK RIYADH SAN ANTONIO ST. LOUIS WASHINGTON, D.C FULBRIGHT [ ]