John Elofson’s practice focuses on securities offerings and compliance and mergers and acquisitions. He has represented clients in a variety of industries in debt and equity offerings, mergers, stock and asset purchases, joint ventures, tender offers, and proxy contests. He frequently advises clients on reporting obligations under the federal securities laws and stock exchange rules as well as on corporate governance matters and takeover defenses.
Mr. Elofson joined Davis Graham & Stubbs LLP in 2004 after practicing for five years in the corporate department of Wachtell, Lipton, Rosen & Katz in New York City. Following the completion of his legal studies, Mr. Elofson served one-year terms as a law clerk for the Honorable Shira A. Scheindlin of the U.S. District Court for the Southern District of New York and for the Honorable Douglas H. Ginsburg of the U.S. Court of Appeals for the District of Columbia.
While pursuing his legal education at Columbia University, Mr. Elofson was a James Kent Scholar in 1995-96 and 1996-97, a Harlan Fiske Stone Scholar in 1994-95, and the recipient of the Class of 1912 Prize in 1994. He also served as the Managing Editor of the Journal of Law & Social Problems from 1996 to 1997. He is an adjunct professor at the University of Denver Sturm College of Law and has written numerous articles on corporate law. His community activities include service as an officer of the Denver Scholarship Foundation, a provider of college scholarships and related services to graduates of the Denver Public School system.
Columbia University, J.D., 1997
University of Colorado, M.A., 1992
University of Colorado, B.A., 1989
Mr. Elofson has represented, among others:
On March 24, 2015, the U.S. Supreme Court decided Omnicare v. Laborers District Council Construction Industry Pension Fund, a case with which public companies should be familiar before their next issuance of securities.
SEC Eases Debt Tender Offer Procedures
Two recent cases from the Southern District of New York may undermine the ability of companies with debt subject to the Trust Indenture Act (TIA) to engage in bondholder-approved restructuring of that debt, and create uncertainty as to the issuance of new TIA-qualified debt.
Please join Davis Graham & Stubbs LLP; Bill Odom, Fraud Investigation & Dispute Division of EY; Mark Dorman, Endeavour Capital; James Hillary, Independence Capital Asset Partners; and your public company peers for our 9th annual event.
Council of Petroleum Accountants Societies
After a period of relative stability, volatility in global oil prices has returned with a vengeance in recent weeks. Slow economic growth in many regions, OPEC inaction, and surging U.S. production have combined to cause a precipitous fall in the price of oil, which continues to hit new multiyear lows.
Recent trends in SEC comments issued to oil and gas companies, and an enforcement action against one such company, illustrate current SEC priorities relating to the industry.
We are now at the point in the calendar-year reporting cycle when comments of the SEC staff on annual reports for the prior year, and the current year’s proxy statements, have generally become publicly available.
Please join DGS; Julie Lutz, SEC Regional Director; John Walsh, U.S. Attorney for the District of Colorado; Rebecca Franciscus, SEC Attorney Advisor; and your public company peers for our 8th annual event. Topics will include securities and other enforcement trends affecting public companies, an update on securities offering reform, and preparing for the 2014 proxy season.
On July 10, 2013, the U.S. Securities and Exchange Commission ("SEC") fulfilled its Congressional mandate by adopting new rules that will dramatically affect the landscape for unregistered securities offerings in the United States. These new rules authorize the use of general advertising and general solicitation methods in accredited investor-only offerings under the newly amended Rule 506. Historically, securities offerings that were not registered with the SEC were uniformly described as "private offerings," because that was their common identifying feature – the securities could not be publicly offered. With the adoption of new Rule 506(c), that common understanding has been eliminated.
On July 2, 2013, the U.S. District Court for the District of Columbia vacated the rule adopted by the Securities and Exchange Commission implementing the statutory provision of the Dodd-Frank Wall Street Reform and Consumer Protection Act mandating disclosure by oil and gas and mining companies of payments to certain governments. The regulation required disclosure on a new Form SD for fiscal years ending after September 30, 2013. The matter was remanded back to the SEC to draft a new rule more consistent with the statutory intent.
40 Davis Graham & Stubbs LLP attorneys have been recognized as 2012 Colorado Super Lawyers or Rising Stars, which is published by Thomson Reuters. The listing will be featured in the April issues of 5280 Magazine and Colorado Super Lawyers.
The Dodd-Frank Wall Street Reform and Consumer Protection Act (the "Act"), signed into law by President Obama on July 21, 2010, expands protections afforded to whistleblowers and creates new incentives for individuals to report corporate wrongdoing. The whistleblower provisions set forth in the Act are currently effective, but the SEC has indicated that rules will be forthcoming on this matter.
On August 25, 2010, the Securities and Exchange Commission ("SEC") adopted final rules that will implement-for the first time - "proxy access," i.e., a requirement that companies include shareholder nominations to the board of directors in the proxy materials prepared by the company. In addition, the new rules include a provision that will prevent companies from excluding shareholder proposals that seek to establish alternative, and more expansive, proxy access procedures in the company's governing documents.
The Dodd-Frank Wall Street Reform and Consumer Protection Act ("Dodd-Frank"), while primarily directed at firms in the financial services industry, includes changes related to executive compensation that have a significantly broader reach. Many provisions apply to all public companies, some apply only to exchange-listed companies and some exempt foreign private issuers or companies that have only public debt. In some, but not all, cases the body that is charged with drafting the implementing rules has been granted exemptive authority and instructed to take into account the impact on smaller reporting companies.
The Dodd-Frank Wall Street Reform and Consumer Protection Act (the "Act"), signed into law by President Obama on July 21, 2010, contains new disclosure requirements for mine operators, "resource extraction issuers," and users of "conflict minerals" originating in the Democratic
Republic of the Congo.
DGS partner John Elofson was featured in a Denver Business Journal story on August 21, 2009, about hostile takeovers. Elofson said lower share values during the economic downswing mean more exposure to corporate raiders and activists, a position made more tenuous by Colorado law for companies incorporated here.
The credit crisis and low commodities prices have combined to create a difficult financing environment for many companies in the oil and gas business, and have caused a significant slowdown in acquisition activity. Current conditions, however, also present opportunities for financing, acquisition and development transactions that will allow companies to position themselves for future success.
On December 29, 2008, the Securities and Exchange Commission adopted final rules amending and expanding disclosure requirements regarding oil and gas reserves and related matters.1 The new rules represent a major overhaul of a disclosure regime that has been in place without significant change for more than two decades, and should bring companies' reserve disclosures more in line with current industry practice and technology.
The Securities Exchange Commission recently issued an interpretative release regarding the use of company websites to disclose information to investors.
In each of two recent decisions, JANA Master Fund, Ltd. v. CNET Networks, Inc. and Levitt Corp. v. Office Depot, Inc., the Delaware Court of Chancery held that a dissident stockholder was entitled to propose business and/or nominate directors at a company’s annual meeting without providing advance notice pursuant to the company’s bylaws. These decisions suggest that the Delaware courts are likely to construe advance notice bylaws in an extremely narrow manner. Accordingly, companies should review their bylaws to ensure that their advance notice provisions are sufficiently clear and comprehensive to serve their intended purpose.
Davis Graham & Stubbs partners Laura Riese, John Jacus and John Elofson will be panelists for a national oil and gas industry roundtable in Houston on April 26-27. The conference, “Measuring Return on Environment” will be presented by MetaVu, a business consulting firm in Denver.
Davis Graham & Stubbs is pleased to announce that three of its attorneys have become partners in the firm, effective January 1, 2007. The new partners are Ryan Arney, John Elofson and Michelle Shepston.
On July 19, 2005, the Securities and Exchange Commission issued a final release adopting broad changes to its rules governing the registration of securities under the Securities Act of 1933. The changes, intended to streamline and modernize the registration process, include a relaxation of “gun-jumping” restrictions on communications prior to and during the offering process and a liberalization of certain aspects of the shelf registration process.
On January 13, 2005, Google, Inc. and its general counsel, David Drummond, reached a settlement with the SEC pursuant to which Google and Drummond were ordered to cease and desist from violating Section 5 of the Securities Act of 1933. Like many technology companies, Google compensates its employees in part by granting them stock options. Because options are considered “securities” for the purposes of the Securities Act, they are subject to the registration requirements of the act unless an exemption is available. The SEC found that Google, in reliance on Drummond’s advice, improperly failed to register large numbers of stock options it had awarded to its employees in the years preceding its IPO.