Mergers and Acquisitions

SEC Developments Regarding Mergers and Acquisitions


The Dodd-Frank Wall Street Reform and Consumer Protection Act has had a major impact on the financial industry as a whole, but how it pertains to the M&A arena may seem a bit unclear. The panel provides insight on the recent SEC Corporation Finance developments affecting M&A transactions as they relate to the implementation the act. Topics addressed include nonbinding shareholder vote provisions, hostile tender offer issues, proxy access, issues surrounding the use of Twitter for company communications to shareholders, and the proxy plumbing concept release.


I. Dodd-Frank Impact
   A. Non-Binding Shareholder Vote Provisions
       1. Say On Pay and Say On Frequency
       2. Say On Golden Parachutes   B. Transparency of Derivative Positions
   C. Schedule 13D and Section 16
   D. Schedule 13D Discussion
II. Hostile Deals and Lock-Ups
   A. Practice Tips
       1. Conditions to Acceptance of Tendered Shares
       2. Termination of an Offer 
B. Voting Lock-Ups and Agreements
III. Proxy Access
    A. What's It All About?
    B. Rule 14a-11
IV. To Tweet or Not To Tweet?
    A. Twitter and Legends
    B. An SEC Perspective
V. Proxy Plumbing
    A. Logistics
    B. Voting Power and Economics         
How to Obtain a Certificate

Content Provided


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 Dennis O. Garris

Dennis O. Garris
Alston & Bird LLP

Dennis O. Garris is partner-in-charge of Alston & Bird’s Washington, D.C., office and is the former co-head of the firm’s securities and mergers and acquisitions practices. He focuses his practice on securities and complex Securities and Exchange Commission (SEC) regulatory and disclosure matters and mergers and acquisitions.

Mr. Garris is a nationally known expert on SEC regulatory matters, including the proxy rules, tender offer rules, going-private rules and beneficial ownership reporting rules. From October 1997 until early 2003, he served as chief of the Office of Mergers and Acquisitions in the Division of Corporation Finance at the SEC. He began his career at the SEC in 1992.

Mr. Garris is the former chair and current vice-chair of the American Bar Association’s Subcommittee on Proxy Statements and Business Combinations of the Federal Regulation of Securities Committee. Mr. Garris has been selected by his peers for inclusion in The Best Lawyers in America in the areas of corporate governance and compliance law, mergers and acquisitions law and securities law. He is an adjunct professor of law at Georgetown University Law Center, where he has taught the course Takeovers, Mergers and Acquisitions since 1996.

Mr. Garris received his B.S. from Youngstown State University in 1989 and his M.Tax and J.D. from the University of Akron in 1992. He is admitted to practice in the District of Columbia and Ohio.

Photo of James Cole, Jr.

James Cole, Jr.
Wachtell, Lipton, Rosen & Katz

James Cole, Jr. is a partner at Wachtell, Lipton, Rosen & Katz, where he specializes in domestic and cross-border mergers and acquisitions and corporate and securities law matters. Mr. Cole’s practice has included initial public offerings, corporate governance and legal compliance. He has advised a broad range of public and private companies in a variety of industries involving transactions in the United States, Japan, the United Kingdom, France and Argentina.

Following graduation from law school, he clerked for the Honorable Stephanie K. Seymour of the U.S. Court of Appeals for the Tenth Circuit. Mr. Cole is a member of the NAACP Legal Defense & Educational Fund, Inc. board of directors.

Mr. Cole received his B.S. with honors in 1990 from the University of Illinois and his J.D. from the University of Chicago in 1995, where he served as a comment editor of the University of Chicago Law School Roundtable.

Photo of James A. Morphy

James A. Morphy
Sullivan & Cromwell LLP

James A. Morphy is a partner in the New York office of Sullivan & Cromwell LLP. Mr. Morphy provides mergers and acquisitions advice for a wide range of transactions, including both friendly and hostile acquisitions, representing buyers, sellers, special committees of independent directors and financial advisors.

Mr. Morphy was most recently recognized as Best Lawyers’ 2011 New York Mergers & Acquisitions Lawyer of the Year. He has also received numerous other accolades including: One of 15 Most Highly Regarded Individuals in Global M&A by International Who’s Who of Business Lawyers, one of “The 10 Best Lawyers to Have on Your Side” by Corporate Board Member magazine, and one of the best 25 M&A lawyers in the world in a survey by International Financial Law Review.

Mr. Morphy received his B.A., magna cum laude, from Harvard College in 1976 and his J.D. from Harvard Law School in 1979. He is admitted to practice in New York.

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Michele M. Anderson
U.S. Securities and Exchange Commission

Michele M. Anderson is the chief of the Office of Mergers and Acquisitions in the Division of Corporation Finance of the U.S. Securities and Exchange Commission.

Ms. Anderson oversees the regulation of domestic and cross-border M&A transactions and the statutory and regulatory interpretive functions of the SEC as they relate to tender offers, proxy solicitations (both contested and non-contested), mergers, going-private transactions, reorganizations, debt restructurings and beneficial ownership reporting.

Prior to joining the Office of Mergers and Acquisitions, she served as the branch chief of the group at the SEC responsible for the review of the federal securities law filings, including registration statements, periodic reports and proxy materials, made by telecommunications companies and service providers.

Ms. Anderson earned her B.S. from the University of Colorado at Boulder and her J.D. from the University of Colorado School of Law.

Photo of Philip A. Gelston

Philip A. Gelston
Cravath, Swaine & Moore LLP

Philip A. Gelston is a partner in the Corporate Department of Cravath, Swaine & Moore LLP, and chairman of the firm’s mergers and acquisitions practice. He has extensive experience in mergers and acquisitions, joint ventures and general corporate counseling. Mr. Gelston’s practice encompasses hostile transactions (both offense and defense), complicated negotiated transactions, cross-border transactions and advising boards and senior executives.

Mr. Gelston’s clients have included Ciba Specialty Chemicals; Novartis AG; Kraft Foods, Inc.; White Mountains Insurance Group, Ltd.; OneBeacon Insurance Group, Ltd.; BAE Systems; FPL Group; Kerzner International; the independent directors of General Motors; the independent directors of Fannie Mae; British American Tobacco; The Tengelmann Group and London Stock Exchange Group, plc.

Mr. Gelston’s recent assignments include representing Kraft in its successful bid for Cadbury and the sale of its frozen pizza business to Nestlé, the independent directors of General Motors in connection with the financial and operational restructuring of GM as well as in connection with the conversion of GMAC into a bank holding company, White Mountains Insurance in its disposition of two run-off businesses to Berkshire Hathaway through a tax-free “cash rich” split-off, Kraft in the tax-free disposition of its Post cereal business to Ralcorp and its negotiations with Trian, Applebee’s International, Inc. in its proxy fight with Breeden Partners and its sale to IHOP, Novartis AG in the sale of Gerber to Nestlé, BAE Systems in its acquisition of Armor Holdings, and Tengelmann in A&P’s purchase of Pathmark Stores. He also represented the LSE concerning the United States aspects of the Nasdaq takeover bid, GTECH Corp.’s independent directors in the merger with Lottomatica, and the Special Committee of Kerzner International in the buyout of Kerzner.

Other representative assignments include advising B.A.T plc and Brown & Williamson in the combination of Brown & Williamson with RJR; White Mountains Insurance Group, Ltd. in its acquisition of CGU Corp., its restructuring of certain insurance operations with Liberty Mutual and its acquisitions of Sirius Reinsurance and Safeco Life; IGEN International Inc. in its acquisition by Hoffman La Roche; BAE Systems in its acquisitions of United Defense and the AES Business of Lockheed Martin as well as in the examination of a number of other strategic transactions; Financial Security Assurance Holdings Ltd. in its sale to Dexia S.A.; and White Mountains Insurance in its redomestication to Bermuda.

Mr. Gelston has also advised boards and senior management of clients, such as White Mountains, General Motors, Kraft, OneBeacon, FPL Group, Fannie Mae and Kerzner on governance and takeover defense issues.

Mr. Gelston was cited as being one of the country’s leading practitioners in the mergers and acquisitions area by Chambers USA: America’s Leading Lawyers for Business in 2008, 2009 and 2010 and by Chambers Global: The World’s Leading Lawyers for Business in 2010. In addition, Cravath’s mergers and acquisitions practice received a high ranking by Chambers for being “knowledgeable and responsive, with excellent levels of service.” He was also named in The Best Lawyers in America in 2009 and 2010 as a leader in mergers and acquisitions law.

Mr. Gelston received an A.B. cum laude from Harvard College in 1974, where he was elected to Phi Beta Kappa, and a J.D. magna cum laude from Harvard Law School in 1977, where he was the Supreme Court Note Editor of the Law Review and was awarded the Sears Prize. After a one-year clerkship with Hon. John M. Wisdom of the U.S. Court of Appeals for the Fifth Circuit, he joined Cravath in 1978. Mr. Gelston became a partner in 1984.


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Course Code : 776455

Release Date: 08/10/2011
Length: 1hr 11min
Recorded Date: 10/7/2010
Format Type: Video

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