Navigating Investment Banking Issues in M&A Transactions

Synopsis

Navigating Investment Banking Issues in M&A Transactions follows a fictitious public Delaware corporation as a controlling shareholder makes an unsolicited proposal to acquire all outstanding shares. The Board forms a special committee, which retains financial and legal advisors, prepares projections and the deal moves forward. The agreement is promptly challenged in Delaware Chancery Court over the amount of disclosure required of the Board. The panel follows the evolution of Delaware disclosure requirements from cases like Skeen, through Pure Resources to Netsmart and Maric.



Outline

Navigating Investment Banking Issues in Mergers and Acquisitions

I. Banking Issues in Mergers and Acquisitions
    A. The Hypothetical Setup
    B. Special Committee Powers
    C. Disclosing Projections
        1. Delaware Case Law 
        2. More Delaware Case Law 
    D. Remedies Discussion
    E. Disclosures Regarding Financial Analysis
    F. Banker Conflicts and the Law
    G. How to Fix What Went Wrong
    H. Final Points



Content Provided
By




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 Stephen M. Kotran

Stephen Kotran
Sullivan & Cromwell LLP

Stephen M. Kotran was elected a partner at Sullivan & Cromwell LLP in 1998 and is a member of the firm’s Mergers and Acquisitions, Financial Institutions and Private Equity groups. Mr. Kotran represents participants and financial advisors in connection with mergers and acquisitions transactions, including negotiated and hostile acquisitions of public companies, negotiated sales of private companies, subsidiaries and divisions, private equity transactions, leveraged buyouts, formation of joint ventures, and asset sales.

Mr. Kotran is a frequent speaker on mergers and acquisitions matters for the Practising Law Institute, the Association of the Bar of the City of New York, and various other professional organizations. He is a member of the Committee on Negotiated Acquisitions and the Committee on Federal Regulation of Securities of the Business Law Section of the American Bar Association and of the Special Committee on Mergers, Acquisitions & Corporate Control Contests of the Association of the Bar of the City of New York. Mr. Kotran has been recognized as a leading mergers and acquisitions lawyer in Chambers USA – America’s Leading Lawyers for Business (2007), The Best Lawyers in America (2008 - announced), New York Super Lawyers (2007), The Lawdragon 500 - Leading Lawyers in America (finalist, 2007), The Lawdragon 500 – Leading Dealmakers in America (2007) and The Lawdragon 500 – New Stars, New Worlds (2006) and as a leading insurance transactional lawyer in Chambers USA - America’s Leading Lawyers for Business (2007).

Mr. Kotran’s mergers and acquisitions assignments have spanned a wide range of industries, with particular emphasis on insurance companies and other financial institutions and technology companies.

Mr. Kotran received his J.D. from University of Virginia Law School, Order of the Coif, in 1990 and his A.B. from Harvard University in 1985.

Photo of Jonathan K. Layne

Jonathan K. Layne
Gibson, Dunn & Crutcher, LLP

Jonathan K. Layne, a partner in Gibson, Dunn & Crutcher, LLP. He joined the firm in 1979 and is based at the Century City office in Los Angeles. Mr. Layne is Co-Chair of the Firm's Mergers & Acquisitions Group and is a member of the Firm's Executive Committee. He focuses on mergers and acquisitions, public offerings of equity (including IPOs) and debt, corporate finance and securities law, and has extensive experience in Board of Directors, Special Board Committee and corporate governance representations.

Mr. Layne is a member of the Business Law Sections of the American Bar Association and the State Bar of California, and of the Business and Corporations Law Section of the Los Angeles County Bar Association. Mr. Layne is also a member of the Board of Directors of the California Chamber of Commerce, the Board of Trustees of Emory University and is a past Chairman of the Board of Trustees and President of The John Thomas Dye School, an independent elementary school. He also is a frequent lecturer on mergers and acquisitions, corporate and securities law topics.

Mr. Layne has been selected by Chambers and Partners as a Leading Mergers and Acquisitions Lawyer for 2005 through 2011 and as a Leading Capital Markets: Debt & Equity Lawyer for 2007 through 2011 for its Chambers USA America's Leading Lawyers for Business directories. He also has been named among "The Best of the Bar" for Corporate Transactions by the Los Angeles Business Journal and was named by Best Lawyers as its 2011 Los Angeles Securities Lawyer of the Year.

Mr. Layne is a graduate of The College of William and Mary where he earned a B.A. in economics and of Emory University School of Law and Emory University Goizueta Business School, where he received a joint J.D./M.B.A. degree. He graduated from law school with distinction and was a member of the Order of the Coif and Managing Editor of the Emory Law Journal, and he graduated from graduate business school as a member of Beta Gamma Sigma, the business honor society. He is admitted to the California Bar.

Photo of Kevin Miller

Kevin Miller
Alston & Bird LLP

Kevin Miller is a partner in Alston & Bird's Corporate Transactions & Securities Group and the head of Alston & Bird's Financial Advisors Practice. The firm is regularly ranked by The American Lawyer and Corporate Control Alert among the leading counsel to investment banks acting as financial advisors, and over the last year, Alston & Bird has advised large and midsized financial advisors on over $40 billion of M&A transactions. Mr. Miller is also the co-head of Alston & Bird’s M&A Practice Quality Team.

Prior to joining the firm he served as the head of Credit Suisse First Boston’s Investment Banking Division’s legal group for the Americas. He is a frequent author and speaker on M&A topics, including recent legal and regulatory developments, fairness opinions, stapled finance and the role of investment bankers. Kevin is a member of the advisory boards of DealLawyers.com and the Deal Lawyers newsletter. He is also a frequent contributor to the DealLawyers.com Blog and PLI Securities Law Practice Center.

Mr. Miller received his J.D. from Rutgers University in 1990, his M.A. from the University of Michigan in 1985, and his A.B. from the University of Michigan in 1981. He is admitted to practice in New York.

Photo of Samuel C. Thompson, Jr.

Samuel C. Thompson Jr.
The Penn State Dickinson School of Law

Samuel C. Thompson Jr. joined Penn State’s Dickinson School of Law in July 2007 as a professor of law and the founder and director of Penn State’s Center for the Study of Mergers and Acquisitions. The Center examines corporate, securities, tax, antitrust, and other legal and economic issues that arise in mergers and acquisitions and hosts continuing legal education programs addressing these issues.

Professor Thompson, who previously was a professor of law at the University of California Los Angeles School of Law and director of the UCLA Law Center for the Study of Mergers and Acquisitions, is a highly regarded scholar of corporate and international tax, corporate governance, and antitrust and is the author of 16 books and more than 75 articles. His teaching interests focus on the corporate, securities, tax, and antitrust aspects of mergers and acquisitions as well as international tax, investment banking, taxation of business entities, and economic growth policy.

Throughout his distinguished career, Professor Thompson has held a number of notable positions, such as head of the tax department of Schiff Hardin & Waite in Chicago; tax policy advisor, on behalf of the U.S. Treasury Tax Assistance Office, to the South African Ministry of Finance in Pretoria, South Africa; Attorney Fellow in the Securities and Exchange Commission’s Merger and Acquisitions Office; consultant on merger and acquisition issues to the Federal Trade Commission; and professor in residence at the European Commission’s Antitrust Merger Taskforce in Brussels. On several occasions he has testified about tax policy before the U.S. House of Representatives Committee on Ways and Means and the House Judiciary Committee. He formerly served as dean of the University of Miami School of Law and has been a professor and distinguished visiting professor at the University of Virginia School of Law and the Jacquin D. Bierman Visiting Professor of Taxation at Yale Law School.

As a law student, Professor Thompson worked on a university-sponsored civil rights project near Leland, Mississippi, before beginning service as an officer in the United States Marine Corps, where he rose to captain and received the Navy Commendation Medal for service in Vietnam. He played varsity football at his undergraduate school, West Chester University.

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Details

Course Code : 776411
Release Date : 4/10/2012 12:00:00 AM
Recorded Date : 10/13/2011
Length : 48min
Format Type : Video

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