Non-Delaware Law Corporate Governance Issues in M&A and Related Transactions

Synopsis

While the focus in Mergers and Acquisitions is often on Delaware, there are many corporate governance changes happening in other states and at the federal level, especially with the implementation of U.S. Securities and Exchange Commission Rule 14a-8. This course covers recent M&A cases in Maryland, the second most-popular state for incorporation, as well as strategies for dealing with shareholders and proxy access nationwide. Topics include Executive Compensation, Say-on-Pay, Say-on-Parachutes, Private Ordering, Proxy Solicitation and Forum Exclusivity Clauses. Also included are European shareholder issues and the emergence of hostile takeovers in Germany.



Outline
I. Non-Delaware Law Corporate Governance Issues in M&A and Related Transactions
    A. Introductions 
    B. Publicly-Traded Corporations in Maryland 
    C. The 2011 Non-Delaware Case of the Year 
    D. Executive Compensation and Say-On-Pay 
    E. Other Say-on Votes 
    F. The 500-Word Limit on Supporting Statements 
    G. Rule 14a-8 Proposals and Private Ordering 
    H. Proxy Solicitation 
    I. Reaching Out to Investors 
    J. Focusing on Investor Relations 
    K. German Shareholders  
    L. European Two-Tiered System and Hostile Takeovers 
    M. Forum Selection Clauses and Delaware Chancery Court


Content Provided
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The Penn State Dickinson School of Law

Founded in 1834 by Judge John Reed, The Dickinson School of Law is the oldest law school in Pennsylvania and the fifth oldest in the nation. Throughout its history, the law school has trained distinguished graduates who have gone on to become leaders of the bar, of the judiciary, of government, and of business. These alumni include the first secretary of the U.S. Department of Homeland Security, five governors, three U.S. senators, and more than 100 federal, state and county judges and countless prominent lawyers and civic leaders. In 2000, the law school merged with Penn State, one of the country’s premier research universities, and stepped into a new era of legal excellence.

Penn State Dickinson School of Law Center for the Study of Mergers and Acquisitions

The center, headed by Samuel C. Thompson Jr., former director of the UCLA Center for the Study of Mergers and Acquisitions, examines corporate, securities, tax, antitrust, and other legal and economic issues that arise in mergers and acquisitions. An important part of the center’s mission is to sponsor continuing legal education programs addressing these issues.

The Association of the Bar of the City of New York

The years following the Civil War were tumultuous ones for New York City, offering many opportunities to the dishonest. Unsavory politicians and errant members of the bench and bar were among those who took advantage of those troubled times. In December 1869, a letter was circulated among some of the city’s lawyers addressing those improprieties. It called for the creation of a new bar association to “sustain the profession in its proper position in the community, and thereby enable it ... to promote the interests of the public ....” More than 200 lawyers responded by signing a declaration of organization and in 1870 The Association of the Bar of the City of New York was born. The young organization quickly made its presence felt. Among its first activities was a campaign to defeat corrupt politicians and judges at the polls and to establish standards of conduct for those in the legal profession.

The association continues to work at political, legal and social reform, and maintaining high ethical standards for the legal profession. The association also continues to implement innovative means by which the disadvantaged may be helped. Much of this work is accomplished through the Association's more than 160 committees, each charged to consider a specific area of law or the profession.

The association has grown to more than 23,000 members. To serve them, the association strives to move ahead in many areas. The library is the largest member-funded law library in the country, and provides members with a “gateway” to online services, including free use of LexisNexis and WestLaw, while continuing to provide more traditional library services. The Small Law Firm Center, Career Management Program and other benefits are constantly evolving to serve members’ needs. More than 150 continuing legal education programs are presented annually.

The public good remains one of the association’s highest priorities. The Legal Referral Service, jointly sponsored by the association and the New York County Lawyers’ Association, provides an array of services directly aimed at serving the needs of the public. The City Bar Justice Center identifies the most pressing legal concerns of New York’s neediest and uses novel approaches to address them, often involving community participation.





Speakers / Authors:

Photo of Bruce H. Goldfarb

Bruce Goldfarb
Okapi Partners LLC

Bruce H. Goldfarb is a founder of Okapi Partners and serves as president and chief executive officer. He works extensively with corporate and mutual fund clients, as well as third-party investor and shareholder groups, including private equity sponsors, hedge funds and arbitrage firms, in solicitation campaigns. He focuses on proxy solicitation strategy and execution for mergers and acquisitions, proxy fights and other extraordinary transactions.

Mr. Goldfarb earned a B.A. in art history from the University of Pennsylvania concurrently with a B.S. Econ., concentration in finance, from its Wharton School. He also earned a J.D. from the Columbia University School of Law.

Photo of James J. Hanks, Jr.

James J. Hanks, Jr.
Venable LLP

James. J. Hanks, Jr. is a partner in Venable LLP, in Baltimore MD. In private practice, he represents publicly and privately-held corporations in a wide variety of general corporate law and governance matters, securities offerings and other capital markets transactions. Mr. Hanks has advised buyers or sellers in more than 250 mergers or acquisitions, including many valued at more than one billion dollars.

In recent years he has served as Maryland corporate counsel to Capital Automotive, Arden Realty, Town and Country Trust, Bedford Properties, MeriStar Hospitality, Prentiss Properties, Pan Pacific, Reckson and, most recently, Equity Office Properties, Innkeepers USA Trust and Eagle Hospitality in their mergers, as well as to General Growth Properties, 3M, Huntington Bancshares and Stanley Works in acquisitions by them. He has also represented parties in cross-border mergers and acquisitions, joint ventures and other transactions. In addition, Mr. Hanks advises open- and closed-end investment companies and their directors on matters of Maryland law.

Mr. Hanks is Adjunct Professor of Law at Cornell and Northwestern Law Schools, where he has taught courses in securities regulation, mergers and acquisitions and corporate governance. He has also taught classes in corporation law at various law schools in the United States and the Republic of South Africa and at the Institute of Law in Beijing. During the Fall, 2003 he was Commerzbank Visiting Professor of Law at Bucerius Law School, in Hamburg, Germany, and taught there again in Fall 2005 and 2007 and Spring 2008, 2009 and 2010.

Mr. Hanks was a member of the Committee on Corporate Laws of the Section of Business Law of the American Bar Association from 1984 to 1990 and from 1996 to 2002. He was a liaison to the Committee from 2002 through 2009. For many years he has been actively involved in the revision of the Model Business Corporation Act, the Maryland General Corporation Law and the Maryland REIT Law, as well as being a drafter of the Corporate Director's Guidebook (3d, 4th and 5th eds.) and the Fund Director's Guidebook (all editions) and is Co-Editor of the Handbook for the Conduct of Shareholders' Meetings.

Mr. Hanks obtain his A.B. from Princeton University in 1964, his LL.B. from the University of Maryland Law School in 1967 and his LL.M. from Harvard Law School in 1969. While at the University of Maryland he was the editor of the Maryland Law Review. He served as a law clerk for the Honorable Charles Fahy on the U.S. Court of Appeals for the D.C. circuit during 1967-1968.

Photo of David A. Katz

David A. Katz
Wachtell, Lipton, Rosen & Katz LLP

David A. Katz is a partner in the law firm of Wachtell, Lipton, Rosen & Katz LLP in New York City, where he is a corporate attorney focusing on the areas of mergers and acquisitions and complex securities transactions. Mr. Katz has been involved in many major domestic and international corporate merger, acquisition and buyout transactions, strategic defense assignments and proxy contests, and has been involved in a number of complex public and private offerings and corporate restructurings. He also counsels boards of directors and board committees on corporate governance matters and crisis management.

Mr. Katz is an Adjunct Professor at New York University School of Law, a Senior Professional Fellow at New York University Center for Law and Business, and an Adjunct Professor at Vanderbilt University School of Law. Previously he was an Adjunct Professor of Management at the Owen Graduate School of Management at Vanderbilt University. He has taught Mergers and Acquisitions at New York University School of Law for over 15 years and co-teaches a joint law and business short course on mergers and acquisitions at Vanderbilt University School of Law. He also writes a bi-monthly column for the New York Law Journal on Corporate Governance.

Mr. Katz is a member of the American Bar Association, Section on Business Law, where he is Co-Chair of the Committee on Mergers and Acquisitions Task Force on the Dictionary of M&A Terms. He is a member of the Committee on Mergers and Acquisitions Subcommittee for Acquisitions of Public Companies, and a member of the Federal Securities Laws Committee.

In 2004, Mr. Katz was chosen by The American Lawyer as one of the 45 highest performing members of the private bar under the age of 45. In 2005 and 2012, he was selected by The American Lawyer as a Dealmaker of the Year. In 2007 and 2009, he was named by Directorship as one of the 100 most influential players in corporate governance, and in 2009, 2010, 2011 and 2012, he was named Who's Who Legal's Mergers and Acquisitions Lawyer of the Year. He is also a member of the Board of Directors of The Partnership at Drugfree.org.

Mr. Katz is a member of the New York State Bar Association, the Association of the Bar of the City of New York, the Society of Corporate Secretaries and Governance Professionals and the National Association of Corporate Directors.

Mr. Katz graduated magna cum laude with a B.A. from Brandeis University in 1985 and cum laude with a J.D. from the New York University School of Law in 1988.

Photo of John F. Olson

John Olson
Gibson, Dunn and Crutcher, LLP

John F. Olson is a founding partner of Gibson, Dunn & Crutcher’s Washington, D.C. office. Mr. Olson has extensive experience in general representation of business organizations as to corporate governance, corporate securities, corporate finance, and merger and acquisition matters.

A frequent lecturer at legal and business seminars, Mr. Olson co-chairs various seminars on an annual basis. He is on the planning committee for the San Diego Securities Regulation Institute and the advisory committee for the Practising Law Institute’s Annual Securities Regulation Institute. He is the author of more than 100 articles and a member of the editorial advisory boards for a variety of securities and corporate law publications. Mr. Olson is the co-author of Director and Officer Liability: Indemnification and Insurance, published by West Publishing (revised 2002) and has edited several other books on securities law issues.

Mr. Olson recieved his LL.B. from Harvard University in 1964 and his B.A. from the University of California, Berkeley in 1961.

Photo of Harald Selzner

Harald Selzner
Shearman & Sterling LLP

Harald Selzner is a partner in the Corporate/M&A Group of Shearman & Sterling LLP. He is the co-head of the global Mergers & Acquisitions practice group, and an elected member of the firm’s Policy Committee. He has served as the European Managing Partner, a member of the Senior Leadership Team and was the Co-Managing Partner of the German offices of Shearman & Sterling LLP. He has extensive experience in domestic and cross-border M&A transactions, corporate restructurings, public takeovers and private equity transactions.

Mr. Selzner has advised multinational clients, including Allianz, ACP, Axel Springer, Daimler, Droege, E.ON, General Atlantic, Gerling, Heckler & Koch, Investcorp, IPIC, IVG Immobilien, Jil Sander, Novartis, RAG Stiftung, REPower and Sateri, in significant transactions.

In 2009/2010 Mr. Selzner was a member of the Adam Opel Task Force instituted by the German Federal Government and chaired by Secretary of State Jochen Homann (BMWi). He has been recognized and recommended as one of the leading lawyers for mergers and acquisitions in Germany by JUVE, WiWo, Chambers, Legal 500 and Who’s Who Legal.

Mr. Selzner is a member of the German Bar Association (Deutscher Anwalt Verein.) He also holds memberships in DAJV; the German-American Law Association (Deutsch-Amerikanische Juristen-Vereinigung e.V ,) and the VGR; Association for Corporate Law (Gesellschaftsrechtliche Vereinigung.)

Mr. Selzner has authored and co-authored several publications, including, "Munich Lawyer’s Handbook GmbH Law," (2nd edition, 2009,) and "Notary Handbook on Corporate Transactions," (2011).

Mr. Selzner received his DJUR From the University of Bonn in 1994.

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Details

Course Code : 776407

Release Date: 7/10/2012 12:00:00 AM
Length: 1hr
Format Type: Video
Recorded Date: 10/13/2011

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