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Mergers & Acquisitions 2012: Trends and Developments


Speaker(s): Adam M. Fox, David W. Morse, Eliza W. Swann, Eric Simonson, Ernest S. Wechsler, James Q. Walker, Kelley D. Parker, Marilyn W. Sonnie, Richard A. Goldberg, Stuart M. Finkelstein, Tanuja M Dehne
Recorded on: Jan. 5, 2012
PLI Program #: 34288

Ms. Swann has concentrated in United States and international corporate transactions and has represented a broad range of clients in acquisitions and dispositions of publicly and privately held corporations and their assets.  Her experience includes cross-border public company mergers and stock acquisitions, asset sales, joint venture formation and investment advisory work.  Ms. Swann joined Shearman & Sterling in 1998 and became a partner in 2007. 

Recent Experience Includes Representation of:

  • Liberty Global, Inc., in its acquisition of Virgin Media Inc.
  • Juniper Investment Company, LLC, in the acquisition by its affiliate of Theragenics Corporation
  • Richard M. Schulze, founder and former Chairman of Best Buy Co., Inc., in his acquisition proposal to the Best Buy Board of Directors
  • The Special Committee of the Board of Directors of Psychiatric Solutions, Inc. in its acquisition by Universal Health Services, Inc.
  • The Special Committee of the Board of Directors of Bright Horizons Family Solutions, Inc. in its sale to an affiliate of Bain Capital Partners, LLC
  • Dassault Systèmes, in its acquisition of the product lifecycle management business of IBM and in its acquisition of Les Consultants Genicom, Inc.
  • The Special Committee of the Board of Directors of HCA Inc. in its sale to a consortium of private equity investment firms
  • The Special Committee of the Board of Directors of ARAMARK in its sale to a consortium of private equity investment firms
  • Biogen Idec in its 2008 proxy contest with Carl Icahn
  • Seven-Eleven Japan Co., Ltd. in its acquisition of 7-Eleven, Inc.
  • The Special Committee of the Board of Directors of BioVeris Corporation in its acquisition by Roche Holding AG
  • Boston Scientific Corporation in its acquisition of Guidant Corporation
  • SunGard Data Systems, Inc. in its sale to a consortium of seven private equity investment firms
  • EQT Infrastructure Fund and FORTISTAR in their acquisition of Midland Cogeneration Venture Limited Partnership from GSO Capital Partners LP, Rockland Capital Energy, The Dow Chemical Company and other entities
  • Industry Funds Management Pty Ltd. in its acquisition of certain assets of Consolidated Edison, Inc.
  • Lincoln Educational Services Corporation in several acquisitions in the United States, including acquisitions of Baran Institute of Technology, Clemens College, New England Technical Institute, New England Technical Institute of Technology at Palm Beach, Briarwood College, Southwestern College of Business and Nashville Auto Diesel College
  • The Thomson Corporation in its acquisition of certain Choicepoint assets
  • Citigroup Inc. in its acquisition of Old Lane Partners, L.P.
  • Itaúsa-Investimentos Itaú S.A. in its acquisition of certain assets of the Latin American private banking business of ABN AMRO Bank N.V.
  • Boca Resorts, Inc. in its sale to The Blackstone Group
  • The Independent Committee of the Board of Directors of Molson Inc. in the merger of equals of Molson Inc. and Adolph Coors Company
  • Extended Stay America, Inc. in its sale to The Blackstone Group
  • GE Commercial Finance in its acquisition of the U.S. leasing business of IKON Office Solutions, Inc.
  • The Coca-Cola Company in the acquisition of Panamerican Beverages, Inc. by Coca-Cola FEMSA, S.A. de C.V.
  • Triangle Pharmaceuticals, Inc. in its sale to Gilead Sciences, Inc.
  • Credit Suisse First Boston, both in its purchase of the investment analysis business of HOLT Value Associates LP and in the sale of CSFBdirect to Bank of Montreal
  • Nelson Doubleday in the sale of his 50% interest in the New York Mets to Fred Wilpon
  • BOC GROUP PLC in the establishment of a joint venture with Linde AG relating to industrial gas process plants
  • Raffles Holdings Limited in its acquisition of Swissôtel Holding AG from the SwissAir Group
  • UniCredito Italiano S.p.A. in its acquisition of Pioneer Investment Management USA Inc.
  • Credit Suisse First Boston as financial advisor to Cooper Industries, Inc. in connection with its reincorporation in Bermuda
  • Morgan Stanley & Co. Inc., as financial advisor to the Special Committee of the Board of Directors of UnitedGlobalCom, Inc. in its combination with Liberty Media International, Inc.
  • Kozmo.com, Inc., in its Series D, E, F and G preferred stock financing rounds
  • Fiat S.p.A. and its majority owned subsidiary, New Holland N.V., in its acquisition of Case Corporation
  • Thyssen Industrie AG, in its acquisition of the elevator business of Dover Corporation

Education

Cornell Law School, cum laude, J.D.
Williams College, cum laude, B.A.

Bar Admissions/Qualifications

New York, Massachusetts

Clerkship

The Hon. E. Norman Veasey, Chief Justice of the Delaware Supreme Court


Adam M. Fox has a broad-based transactional practice, representing public and private companies, including private equity sponsors and related portfolio companies, institutional clients and investment banks, in mergers and acquisitions, proxy contests, recapitalizations, public and private equity and debt securities offerings and financing transactions. He also represents public and private companies on general corporate matters, including employment, licensing, joint venture and other agreements.

He is experienced in counseling investment banking clients with respect to M&A structuring issues and fairness and valuation opinions.

Mr. Fox is known for his commitment and patience and his ability to negotiate and consummate a diverse array of transactions that meet the practical needs of clients to complete transactions while protecting and promoting their interests.

Examples of notable transactions that Mr. Fox has handled include:

  • Interactive Brokers Group, Inc., an electronic market maker and broker-dealer, in its $1.2 billion initial public offering 
  • Datascope Corporation in its $865 million sale to Swedish healthcare-equipment maker Getinge AB and prior acquisitions and dispositions, including, most recently, the $202 million sale of its patient monitoring division to China-based Mindray Medical International, Inc. and the $24 million sale of its vascular closure business to St. Jude Medical, Inc.
  • Monster Worldwide, Inc. in its $225 million acquisition of HotJobs from Yahoo!
  • ASIMCO Technologies Holdings Limited, the largest independent producer of diesel engine components in China, and its consortium of investors, led by primary equity sponsor Key Principal Partners, in its $148 million sale of ASIMCO to Bain Capital
  • B&G Foods, Inc. in its $200 million initial public offering of equity securities
  • Commerce Velocity LLC, in its sale of a majority stake to and subsequent buyback from Bear Stearns and in its sale to Fidelity National Financial

Education
University of Massachusetts at Amherst, B.B.A, summa cum laude, 1988
University of Pennsylvania Law School, J.D., 1991, associate editor of the Comparative Labor Law Journal

Bar Admission
Member, New York Bar


Eric Simonson has nearly 30 years of experience representing clients, from small privately held companies to large public companies, as well as financial investors and investment banking firms, in the following areas:

  • mergers, acquisitions and joint ventures
  • securities matters
  • corporate finance
  • technology transactions
  • general business matters
  • corporate law
  • internal corporate investigations and corporate governance
  • capital raising activities, including early stage venture capital financings and complex commercial arrangements

Mr. Simonson has extensive experience in leveraged buyouts, “going private” transactions, partnerships, corporate restructurings, and the acquisition of troubled companies and distressed assets.  He regularly counsels corporations and boards of directors in takeover defenses and acquisition strategies, including friendly and hostile acquisitions of public companies, proxy contests, tender offers, mixed consideration mergers, and the acquisition of closely held and family-owned businesses.  Mr. Simonson represents both issuers and underwriters on public offerings of debt and equity securities, 144A placements and numerous off-shore offerings complying with Regulation S.

Mr. Simonson has represented clients in a range of industries, including technology, telecommunications, software, hardware, biotechnology and medical technology, media, chemicals, consumer products, food and nutritional products, luxury goods and services, healthcare providers and industrial products.

Mr. Simonson frequently lectures and publishes articles on M&A, joint ventures, distressed investing, private equity, technology, and corporate governance, among other topics.

Chambers USA recognizes Mr. Simonson as a leading corporate / commercial attorney and note he "is well thought of for his knowledge of public and private securities, capital markets, complex international acquisitions and LBOs."

Mr. Simonson holds a JD, cum laude, Order of the Coif, from the University of Chicago Law School, and an A.B., magna cum laude, from Colgate University, with honors in History and Economics.  While in law school, Mr. Simonson was a member of The University of Chicago Law Review. He also served as a law clerk for the Honorable Frank H. Easterbrook, U.S. Court of Appeals for the Seventh Circuit.


Ernest Wechsler has a diverse transactional-based practice focusing on domestic and cross border mergers and acquisitions, joint ventures, corporate restructuring and general corporate representations. He represents a broad range of clients including private equity funds, hedge funds and both private and publicly held operating companies in a wide range of industries. Representative clients with whom Mr. Wechsler works include AmTrust Financial Services and its affiliates, BlackRock, MSD Capital, MSDC Management, Perella Weinberg Partners and Stone Point Capital. Mr. Wechsler also represents insurance companies in the area of transactional risk products.

Mr. Wechsler was recognized as a leading lawyer by Chambers Global (2011-2012), Chambers USA (2011-2014), Legal 500 US (2010 and 2013-2014) and New York Super Lawyers (2009-2012).

Representative Clients and Transactions

  • Represent AmTrust Financial Services in M&A and investments.
  • Represent BlackRock in M&A, investments and joint ventures.
  • Represent MSD Capital and MSDC Management in private equity investments and joint ventures.
  • Represent Perella Weinberg Partners in M&A and joint ventures.
  • Represented Stone Point Capital/Trident Funds in M&A and joint ventures.

Education

  • J.D., Columbia Law School, 1990
  • Harlan Fisk Stone Scholar
  • B.S., magna cum laude, University of Pennsylvania, Wharton School, 1987

Bar Admissions

New York


James Walker concentrates in government investigations and enforcement proceedings, complex commercial litigation, professional liability and legal ethics.  Mr. Walker represents companies and senior executives in investigations of potential violations of the securities laws, and law firms and lawyers in litigations and proceedings involving investigations of criminal, regulatory and/or professional misconduct claims.  Mr. Walker is the Chair of the New York County Lawyer’s Association Professional Ethics Committee.  He has served on the New York City Bar’s Professional Discipline, Professional and Judicial Ethics, Professional Responsibility, and Securities Regulation Committees, and on the New York State Bar Association Committee on Professional Ethics, where he has been a member since 1996.  Mr. Walker frequently lecturers on legal ethics, internal investigations and corporate governance, and has published articles addressing on attorney-client privilege, professional ethics, and issues arising under the securities laws.  Mr. Walker also serves as General Counsel to Richards Kibbe & Orbe LLP.


Mr. Morse is a member of the law firm of Otterbourg P.C. in New York City.   He is presently head of the firm’s banking and finance practice. 

Since joining the firm he has specialized in the representation of banks, hedge funds, commercial finance companies and other institutional lenders in structuring and documenting loan transactions, including working capital facilities, financings for leveraged acquisitions, term loans, and second lien loans, as well as loan workouts and restructurings.  In the course of his career, Mr. Morse has worked on numerous financing transactions confronting a wide range of legal issues raised by Federal, State and international law.

Mr. Morse is a member of the Executive Board of the Association of Commercial Finance Attorneys, a member of the Commercial Finance Association Education Foundation Governing Board and a fellow in the American College of Commercial Finance Lawyers, as well as a member of the Commercial Financial Services Subcommittee of the American Bar Association and a member of the New York State Bar Association.  He has been selected for Super Lawyers since 2008 and Best Lawyers in 2013 and 2014.

He has given presentations as part of programs sponsored by The Practising Law Institute, lectured to the Association of Commercial Finance Attorneys and the New York Chapter of the Commercial Finance Association and has been an instructor in the Commercial Finance Association’s Advanced Legal Issues Workshop and Loan Documentation Workshop.  He is the winner of the 2008 Harry H. Chen Memorial Award of Excellence presented by the Commercial Finance Association.  Mr. Morse is a representative from the Commercial Finance Association in its participation in one of the current projects of the United Nations Commission on International Trade Law (UNCITRAL) concerning secured transactions law.

Mr. Morse has also conducted in-house seminars to institutional lenders on such topics as commercial loan documentation, the structuring of multi-corporate financings, proposal letters and commitment letters, international lending transactions, intercreditor agreements, loan workouts and Chapter 11 financings.

Mr. Morse joined the law firm of Otterbourg P.C. after graduation from the New York University School of Law.  He received his undergraduate degree from Amherst College in Amherst, Massachusetts. 


Richard A. Goldberg has a broad practice that includes transactional work and the representation of public and private companies.  He advises on a broad range of mergers and acquisitions and corporate finance matters. Mr. Goldberg has counseled issuers, private equity firms and investment banks on domestic and international mergers and acquisitions. His transaction experience includes tender offers, proxy contests,  joint ventures, exchange offers, going private transactions, spin-offs, and acquisitions and restructuring transactions involving troubled companies,  inside and outside of bankruptcy. Mr. Goldberg also has deep experience representing issuers in high yield financings and equity financings. His extensive industry experience includes healthcare, life sciences, technology, structured finance, gaming, real estate and apparel.

Mr. Goldberg is widely published and frequently lectures on topics involving mergers and acquisitions and federal securities laws. He serves as the chair of the Practising Law Institute's program on mergers and acquisitions.

Significant Representations

Representative m&a transactions that Mr. Goldberg has handled include:

  • Representation of Dava Pharmaceuticals in its $600 million sale to Endo Pharmaceuticals.
  • Representation of Mesa Group Holdings Gnbh in its sale to affiliates of Permira.
  • Representation of Tufco Technologies, Inc. (NASDAq: TFCO) in its sale to affiliates of Griffon.
  • Representation of Inhibitex, Inc. (NASDAQ: INHX) in its $2.5 billion sale to Bristol-Myers Squibb.
  • Representation of Bluefly, Inc. (NASDAQ: BLFY) in its sale to affiliates of Clearlake Capital.
  • Representation of The Lightstone Group and Arbor Realty Trust in their $8 billion acquisition of Extended Stay Hotels from The Blackstone Group.
  • Representation of a group of bondholders in the $600 million acquisition of Greektown Casino in a chapter 11 proceeding.
  • Representation of Steel Partners in the $300 million recapitalization of indebtedness of its portfolio company, WHX Corporation (NASDAQ: WXCO).
  • Representation of Goody’s Family Clothing (NASDAQ:GDYS) in its $300 million sale to Prentice Capital and GMM Capital Management.
  • Representation of Cantor Fitzgerald and eSpeed, Inc (NASDAQ: ESPD) in connection with their formation of a joint venture with Williams Energy, Coral Energy, Dominion Energy, Axia Energy, TXU Energy and Dynegy.
  • Representation of Angelo Gordon and Eureka Capital in their acquisition of National Home Health Care (NASDAQ: NHHC).
  • Representation of the principal shareholder in connection with the $500 million sale of ILC Industries, a leading defense industry manufacturer, to Behrman Capital.
  • Representation of shareholder group in recapitalization and emergence from bankruptcy of Hawaiian Airlines (NASDAQ: HA).
  • Representative corporate finance transactions that Mr. Goldberg has handled include:
  • Representation of Monster Worldwide (NYSE:MWW) in the 144A offering of $143.5 million in convertible senior notes.
  • Representation of Griffon Corporation (NYSE: GFF) in the 144A offering of $600 million in senior notes.
  • Representation of Portfolio Recovery Associates (NASDAQ: PRAA) in the 144A offering of $287.5 million in convertible notes.
  • Representation of Griffon Corporation (NYSE: GFF) in the 144A offering of $550 million in senior notes.
  • Representation of Greektown Superholdings in the $385 million 144A offering of senior secured notes.
  • Representation of Griffon Corporation (NYSE: GFF) in the 144A offering of $100 million in convertible notes.
  • Representation of Bluefly, Inc. (NASDAQ: BFLY) in a series of convertible note and equity financings by Soros Private Equity Partners, Rho Ventures, Maverick Capital and Prentice Capital.

Education
Queens College, The City University of New York, B.A., 1974
Vermont Law School, J.D., 1978, Cum laude, editor of the Vermont Law Review, member of the National Moot Court Team

Bar Admissions/Qualifications
New York

Speaking Engagements

  • Mergers and Acquisitions 2014: Trends and Developments — Practising Law Institute, New York, NY (January 16, 2014)
  • Mergers and Acquisitions 2013: Trends and Developments — Practising Law Institute, New York, NY (January 17, 2013)
  • Mergers & Acquisitions 2012: Trends and Developments — Practising Law Institute, New York, NY (January 5, 2012)
  • Mergers & Acquisitions 2011: Trends and Developments — Practising Law Institute, New York, NY (January 10, 2011)
  • Mergers & Acquisitions 2010: Trends and Developments — Practising Law Institute, New York, NY (January 11, 2010)
  • Developments Affecting M&A Deal Structure — Presented to the New York Chapter of the Association of Corporate Counsel, New York, NY (March 22, 2006)
  • Distressed M&A and Restructuring — Practicing Law Institute, New York, NY (November 6, 2003)

Publications

  • SEC Approves Final Rules that (1) Permit General Solicitation and General Advertising in Rule 506 and Rule 144A Offerings and (2) Disqualify “Bad Actors” from Using Rule 506 to Offer Securities — DechertOnPoint (July 26, 2013)
  • Negotiating the Purchase Agreement— Practicing Law Institute (2014)
  • A Guide to Mergers & Acquisitions — Practicing Law Institute (2008)
  • Distressed M&A and Restructuring-Bankruptcy Vs. Out of Court Restructuring; Case Studies; The Zone of Insolvency — Practicing Law Institute (November 2003)


A partner in the Corporate Department and a member of the Mergers and Acquisitions, Media and Entertainment and Corporate Governance Groups, Kelley Parker has a broad transactional practice focusing on a range of corporate matters.

Her experience includes:

  • Advising Time Warner in its $17.6 billion acquisition of Adelphia Communications Corporation and the related split-up with Comcast Corporation;
  • Representing Time Warner in its restructuring of its $9 billion cable partnership with the Newhouse publishing family;
  • Representing Time Warner in the restructuring of a $9 billion regional cable partnership with AT&T and later Comcast;
  • Representing publisher Hollinger International in its cross-border battle for control of the sale of The Daily Telegraph and The Sunday Daily Telegraph after self-dealing allegations surfaced against Conrad Black, the former Chairman and CEO;
  • Representing the controlling shareholder and CEO of broadcaster Emmis Communications in his bid to take the company private;
  • Representing the Estate of Jack Kent Cooke in the sale of the Washington Redskins NFL franchise and stadium for $800 million;
  • Advising the CEO of Emmis Communications in a bid for the Washington Nationals MLB franchise;
  • Advising a private equity fund manager in his bid for the Chicago Cubs MLB franchise; and
  • Advising the MLB in connection with the announced sale of the Texas Rangers by Tom Hicks and affiliates to a group headed by Nolan Ryan for more than $500 million; and
  • Representing Emmis Communications in its sale of two large-market radio stations to a group led by the former CEO of Tribune with financial backing by GTCR.

Other recent experience includes:

  • Representation of Reckitt Benckiser Group plc in its $1.4 billion acquisition of Schiff Nutrition followingBayer Healthcare’sbid for Schiff and an unsolicited competing tender offer by Reckitt Benckiser;
  • Representation of Great Wolf Resorts, Inc. in its sale to an affiliate of Apollo in a transaction valued at $798 million, following a public bidding contest between affiliates of Apollo and KSL Capital Partners;
  • Representation of Fifth and Pacific in the sale of Juicy Couture, Liz Claiborne, Monet, Dana Buchman, Kensie and Mac & Jack brands;
  • Representation of Harbinger Group, Inc. in its sale of $400 million of preferred equity to an affiliate of Fortress;
  • Representation of the selling shareholders of privately held Marchon Eyewear in sale to Vision Services Plan for $735 million;
  • Representation of the special committee of the board of directors of The BISYS Group, Inc. in the sale of the financial services company to Citigroup for $1.45 billion;
  • Representation of Banque Populaire Group and Caisse d’Epargne Group in the restructuring of bond insurer CIFG Holding, Ltd.;
  • Representation of the publicly traded Interstate Hotel & Resorts, Inc. in its sale to a joint venture between Thayer Lodging and Shanghai Jin Jiang International Hotels in a transaction valued at approximately $307 million; and
  • Regularly advising fund clients, including Elliott Associates, Eton Park and Reservoir Capital, in private investments and portfolio company M&A.

She is a frequent speaker on M&A topics, including recent PLI Seminars M&A Trends & Developments and Doing Deals:  The Art of M&A Transactional Practice.

Kelley was a member of The Georgetown Law Journal and was elected to the Order of the Coif.

EDUCATION
J.D., Georgetown University Law Center, 1993
magna cum laude

B.B.A., University of Oklahoma, 1990
with honors

Recognition
“Restructuring Deal of the Year” by International Financial Law Review (2009)


Marilyn Sonnie is a corporate and transactional lawyer with extensive experience in public company mergers and corporate governance. She also has a strong background in restructuring work and private equity transactions. Marilyn is actively involved in corporate counseling, including advising companies and their boards on shareholder activism including proxy contests, unsolicited takeover proposals, takeover preparedness, corporate governance, disclosure, and fiduciary issues. She recently lead a ground-breaking Social Impact Bond transaction involving New York State and Social Finance Inc. Her extensive cross-border experience has included a number of transactions for Russian clients.

Representative public transactions in which she has played a key role include Michael Baker Corporation's sale to an affiliate of DC Capital, Emulex's settlement with Elliott Associates following shareholder activist activity, Chrysler's sale out of bankruptcy to a Fiat-sponsored entity, Dana Corporation's bankruptcy exit with a private equity sponsor, Harman International Industries' attempted sale to Kohlberg Kravis Roberts and GS Capital Partners, Sprint and Nextel's merger-of-equals, International Steel's merger with Mittal Steel, R.J. Reynolds' business combination with British American Tobacco's U.S. business and its acquisitions of Santa Fe Natural Tobacco and the Nabisco Group holding company, Williams Communications' chapter 11 case and sale of equity to Leucadia National.

In addition, Marilyn has extensive knowledge in capital markets, having traded government securities at Security Pacific National Bank and McDonald and Company Securities, Inc.

Experience Highlights

  • Social Finance drives Social Impact Bond Pay for Success project
  • Emulex issues $175 million of Convertible Senior Notes in Rule 144A offering
  • Michael Baker Corporation acquired by Integrated Mission Solutions for $396.5 million

Areas of Focus

  • Mergers & Acquisitions
  • Joint Ventures & Strategic Alliances

Education

Case Western Reserve University (J.D. summa cum laude 1993; Order of the Coif; Class Rank, 3d; Articles Editor, Law Review); The Johns Hopkins University (S.S. 1981)

Bar Admissions
 
Ohio and New York