Negotiating Public Acquisitions: A Mock Negotiation

Synopsis

Cash acquisitions dominate the M&A marketplace. Negotiating Acquisitions of Public Companies explores U.S.-based publicly traded Delaware corporations, with shares listed on the United States Securities Exchange. This expert panel engages in mock negotiation, as they reveal strategy and demonstrate how these deals work. Topics include two-step acquisitions, standstill sgreements, ownership thresholds and deal protection provisions.



Outline

Negotiating Public Acquisitions: A Mock Negotiation

I Negotiating Public Acquisitions 
    A. Introduction 
    B. Threshold Considerations 
    C. Best Price Rule 
    D. One-Step Mergers Examined 
    E. Standstill Agreements 
    F. Setting Up the Negotiation 
        1. Problem With the Standstill 
        2.The Fall-Away 
        3. Enforceability of Standstill Agreements 
        4. Exclusivity Agreements 
        5. Definitive Acquisition Agreements 
        6. Minimum Condition and Ownership Thresholds 
        7. Techniques for Attaining Ownership Thresholds 
    G. Public Relations and the Deal 
    H. Negotiating the Deal 
        1. Tender Offer Conditions 
        2.Material Adverse Effect 
        3. Non-Reliance Clauses 
        4. Deal Protection Provisions 
    I. Break Up Fees 
        1. What is the Norm? 
        2. Equity Value vs. Enterprise Value 
    J. Antitrust Rules 
    K. Reverse Break Up Fees



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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 Richard E. Climan

Richard Climan
Dewey & LeBoeuf LLP

Richard E. Climan is a partner in Dewey & LeBoeuf's Mergers and Acquisitions Practice Group and a member of the firm's global Executive Committee. He regularly negotiates and advises clients on a broad variety of acquisition transactions and related matters, including mergers, divestitures, auction transactions, tender offers, defensive strategies, going-private transactions, leveraged buy-outs and cross-border transactions. He has handled some of the most prominent acquisitions in the technology and life sciences sectors, including large acquisitions for such companies as Dell, Brocade Communication Systems and Gilead Sciences.

For more than 20 years, Mr. Climan has been an active member of the Committee on M&A, an international committee of the ABA’s Section of Business Law with more than 4,000 members. He was the Chair of that Committee from 2002 to 2006, and currently serves on the Committee's Executive Council. He also currently serves as the Co-Chair of the task force responsible for preparing and publishing the Dealmakers' Dictionary of M&A terminology. In addition, he has been appointed to serve on the Committee on Corporate Laws.

The National Law Journal included Mr. Climan on its most recent list of the 100 most influential lawyers in America. In 2011, the International Who's Who of Merger and Acquisition Lawyers named him one of the 10 most highly regarded M&A lawyers in the world, and Euromoney's Legal Media Group named him one of America's top 25 pre-eminent M&A practitioners. Also in 2011, Mr. Climan was one of 10 "legal innovators" profiled by the Financial Times. In addition, in 2011, for the sixth consecutive time, Mr. Climan was named one of the 500 leading lawyers in America by Lawdragon. He was also named one of the top 100 lawyers in California by The Daily Journal in 2010 and 2011. Mr. Climan is included in The Best Lawyers in America; the Chambers Global Guide to the World’s Leading Lawyers; and The International Who’s Who of Corporate Governance Lawyers.

Mr. Climan received an A.B. cum laude from Harvard College in 1974 and received a J.D. cum laude from Harvard Law School in 1977.

Photo of George R. Bason

George A. Bason
Davis Polk & Wardwell LLP

Mr. Bason is the global co-head of Davis Polk’s mergers and acquisitions practice. His practice is devoted primarily to the merger, acquisition, merchant banking and joint venture areas. He also has experience in cross-border transactions, restructurings, takeover defenses and corporate governance issues, as well as in providing general corporate and securities law advice. He has been involved in numerous and varied acquisition transactions.

Mr. Bason was recognized as one of only 10 “Most Highly Regarded Individuals” by Law Business Research’s Who’s Who Legal – The International Who’s Who of Mergers & Acquisitions Lawyers 2010, which described him as “‘superb’…a renowned name ‘without whom any discussion of the M&A scene in New York would be simply incomplete.’” 

He was named a “Dealmaker of the Year” for 2008, “Dealmaker in the Spotlight” for October 2009 and most recently “Dealmaker of the Week” in December 2010 by The American Lawyer.

Mr. Bason received his J.D., cum laude, from Harvard Law School in 1978, and his A.B., magna cum laude, from Harward College in 1975. He is admitted to practice in New York State, before the U.S. District Courts for the Southern and Eastern Districts of New York, and is a Avocat à la Cour in Paris, France.

 

 

Photo of Frederick S. Green

Frederick S. Green
Weil, Gotschal & Manges, LLP

Frederick S. Green is the co-chair of Weil’s Transactions Practice (Mergers and Acquisitions, Private Equity and Infrastructure Investment), and serves on the firm’s Management Committee. He is an established practitioner with broad experience in corporate and securities transactions.

Mr. Green's primary areas of practice include business combinations (mergers, acquisitions, spin-offs and joint ventures), advising clients and Boards of Directors with respect to corporate governance and fiduciary duties, and counseling with respect to a broad range of commercial affairs. Mr. Green also regularly advises investment banking firms in merger & acquisition matters.

Mr. Green received his J.D. from Fordham University in 1979, and his B.S., magna cum laude, from the University of Pennsylvania in 1976. He is admitted to practice in New York State, and before the U.S. District Courts for the Southern and Eastern Districts of New York .

Photo of Joel I. Greenberg

Joel I. Greenberg
Kaye Scholer, LLP

Joel Greenberg is the Senior Corporate Partner and Co-Chair of the Canada Group at Kaye Scholer LLP. He concentrates in U.S. and cross-border mergers and acquisitions of public and private companies, representation of financial sponsors, and securities transactions. He also advises publicly held and private companies on a wide variety of corporate governance and day-to-day corporate as well as transactional matters. He is the immediate past Chair (2006–2009) of the Committee on Mergers & Acquisitions of the American Bar Association Section of Business Law.

Mr. Greenberg is the Senior Corporate Partner and Co-Chair of the Canada Group at Kaye Scholer. He concentrates in U.S. and cross-border mergers and acquisitions of public and private companies, representation of financial sponsors, and securities transactions. He also advises publicly held and private companies on a wide variety of corporate governance and day-to-day corporate as well as transactional matters. He is the immediate past Chair (2006–2009) of the Committee on Mergers & Acquisitions of the American Bar Association Section of Business Law.

Mr. Greenberg is a frequent lecturer on mergers and acquisitions topics, and has spoken at programs sponsored by the American Bar Association, the Association of the Bar of the City of New York, the Association of Corporate Counsel, the Center for International Legal Studies, Columbia Law School, Harvard Law School, the Inter-Pacific Bar Association, International Financial Law Review, Law Journal Seminars, Penn State Dickinson School of Law, Stanford Law School, UCLA School of Law, University of Chicago Graduate School of Business, University of Miami School of Law and University of Texas School of Law. He co-chairs the annual National Institute on Negotiating Business Acquisitions, presented by ABA's Section of Business Law.

Mr. Greenberg is included in The Best Lawyers in America, Euromoney’s Guides to the World’s Leading Mergers and Acquisitions Lawyers and Corporate Governance Lawyers, and Chambers USA: America’s Leading Lawyers for Business.

Mr. Greenberg received his J.D. from Yale Law School in 1974, and his B.S. from New York University in 1967. He is a member of the New York Bar.

 

Photo of Tom Johnson

Tom Johnson
Abernathy MacGregor Group, Inc.

Tom Johnson is the Managing Director and Head of M&A at The Abernathy MacGregor Group. He oversees Abernathy MacGregor’s Mergers and Acquisitions practice, having helped guide clients through a diverse range of high-profile takeovers, cross-border acquisitions and contested mergers situations during the last few years. He also specializes in proxy contests, crisis communications, and defense against activist investors, with a particular expertise in media strategy, having spent more than a decade as a financial journalist prior to joining Abernathy MacGregor in 2005.

Among Mr. Johnson’s more recent M&A advisory work includes advising sanofi-aventis on its unsolicited bid for Genzyme, Hewlett Packard in its acquisitions of 3Par and ArcSight, Comcast in its acquisition of NBC Universal from General Electric, Wachovia in its merger with Wells Fargo & Co., Barclays PLC in its purchase of certain Lehman Brothers assets and Mittal Steel in its unsolicited takeover of Arcelor. He has also completed transaction work for Alcatel SA, CVS, Starwood Capital Group, Yahoo!, Bank of New York, and Washington Mutual.

In addition, Mr. Johnson has extensive experience assisting companies in proxy contests and defense against activist shareholders, including Sovereign Bancorp, Yahoo!, Quality Systems, Yahoo!, Blockbuster, Cutter & Buck and Center Bancorp, among others He has also helped a number of companies with long-term brand building campaigns and guiding them through the initial public offering process.

Prior to joining Abernathy MacGregor in 2005, Mr. Johnson spent four years running the North American Mergers and IPO desk for the Reuters news agency, where he also served as editor-in-charge of the Investment Banking and Finance desk. Before joining Reuters, Mr. Johnson spent two years at CNN Financial News, where he helped create and run the M&A and IPO desk for the company’s online news service. Earlier, he spent nearly four years as a senior reporter at The Daily Record, a business and legal newspaper in Baltimore, covering banking and financial companies, economic development, and state politics.

Mr. Johnson graduated with honors from Towson State University, with a degree in Mass Communications.

Photo of Rachel Posner

Rachel Posner
Georgeson, Inc.

Rachel Posner is the Senior Managing Director and General Counsel of Georgeson, Inc. She works with clients to help them obtain favorable shareholder vote results on proxy contests, shareholder proposals, compensation plans and other corporate governance matters.

Prior to joining Georgeson in 2008, Ms. Posner was an associate at Fried, Frank, Harris, Shriver & Jacobson LLP in New York, where she advised Fortune 50 companies and others on proxy contests, mergers and acquisitions and corporate governance matters.

Ms. Posner has appeared on industry panels, including The Deal’s M&A Outlook 2009 and The Corporate Dealmaker Forum. Rachel regularly speaks at law firms and investment banks to provide insight on governance issues. She has also contributed to various industry publications.

A member of The Society of Corporate Secretaries and Governance Professionals and the National Investor Relations Institute, Ms. Posner earned her B.A. from Columbia University in 1999 and her J.D. from the Benjamin N. Cardozo School of Law in 2002.

 

Photo of Lisa A. Schmidt

Lisa A. Schmidt
Richards, Layton & Finger, P.A.

Lisa A. Schmidt focuses her practice on advising and representing Delaware corporations, their directors, and other constituencies in corporate litigation. She has litigated numerous corporate control, corporate governance, appraisal matters, and contractual disputes in the Delaware courts. Ms. Schmidt also advises corporations, their directors, and special committees on corporate governance and fiduciary duties.

Recently she successfully represented Selectica and its board of directors in the first case dealing with the use of a poison pill with a 4.99 percent trigger and the first Delaware case addressing a stockholder’s intentional triggering of a poison pill. The Delaware Supreme Court’s landmark decision in the case is expected to have far-reaching significance for corporations and their directors.

Ms.Schmidt is a frequent speaker on issues of Delaware corporate law. She co-authored a chapter on corporate governance in Successful Partnering Between Inside and Outside Counsel, and revised and updated chapter 4 of The Delaware Law of Corporations and Business Organizations.

Ms. Schmidt received her J.D. from the Dickinson School of Law in 1991, and her B.A. from Drew University in 1988. She is admitted to practice in Delaware and before the U.S. Court of Appeals for the Third Circuit.

Photo of MJ Moltenbrey

MJ Moltenbrey
Dewey & LeBoeuf, LLP

MJ Moltenbrey represents clients before the Department of Justice and Federal Trade Commission, state attorneys general, and in federal courts on a wide array of issues, including mergers, civil and criminal conduct cases, and administrative proceedings.  

Ms. Moltenbrey represents clients through civil and criminal conduct investigations by the federal and state antitrust authorities, and has defended clients in federal court cases and FTC proceedings. She also has helped guide numerous complex mergers through review by federal and state agencies, including Monsanto’s acquisition of Delta and Pine Land, Xstrata’ s acquisition of Falconbridge, Ltd., and Expro International Group’s acquisition of Power Well Services.

Ms. Moltenbrey was formerly the director of civil non-merger enforcement in the DOJ’s Antitrust Division. In that position, she was the Antitrust Division’s senior career official responsible for civil conduct investigations and litigation. During her 17 year DOJ career, Ms. Moltenbrey also served as chief of the Civil Task Force and as trial attorney in the Transportation Section. Among the matters that Ms. Moltenbrey was involved in at the DOJ were: United States v. Microsoft (monopolization), United States v. Visa Int’l et al. (anticompetitive agreements in joint venture) and United States v. Airline Tariff Publishing Co., et al. (price coordination).

Ms. Moltenbrey has been recognized as a leading US antitrust lawyer by Chambers USA "America’s Leading Business Lawyers," Global Competition Review’s "International Who’s Who of Business Lawyers," and "Washington Super Lawyers."

Ms. Moltenbrey received her J.D., magna cum laude, order of the coif, from Boston College Law School in 1984, and her B.A., cum laude, from Boston College in 1981. She is admitted to practice in Massachusetts and the District of Columbia, and before the U.S. District Court for the District of Columbia, the U.S. Supreme Court, the U.S. Court of Appeals for the District of Columbia, and the Massachusetts Supreme Judicial Court.

 

 

 

 

 

 

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Details

Course Code : 776409
Release Date : 3/22/2012 12:00:00 AM
Recorded Date : 10/13/2011
Length : 1hr 41min
Format Type : Video

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