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Securities Offerings 2012: A Public Offering: How It Is Done


Speaker(s): Alan L. Beller, Andrew J. Pitts, Brian S. Korn, David K. Boston, David M. Lynn, Debbie O'Connell, Jami Friedman, John W. White, Joseph H. Kaufman, Lona Nallengara, Meredith B. Cross, Pamela A. Long, Robert Evans III, Sarah E. Beshar, Shelley E. Parratt, William C. Fredericks
Recorded on: Apr. 11, 2012
PLI Program #: 34358

Jami Friedman is a Director and Assistant General Counsel in the Debt Capital Markets group at Bank of America Merrill Lynch. Ms. Friedman focuses on high yield capital markets and liability management transactions. Prior to joining Bank of America Merrill Lynch, Ms. Friedman practiced law with the firm of Cahill Gordon & Reindel LLP.


Andrew J. Pitts is a partner in Cravath’s Corporate Department.  He is a generalist corporate lawyer who advises on a broad range of corporate issues and has a significant corporate finance practice.

Mr. Pitts’s finance practice focuses on public and private securities offerings for investment banking clients and issuers. Principal areas of concentration include the transportation and insurance industries and, from a product perspective, equity derivatives and equity-linked securities. Mr. Pitts also regularly represents investment banking clients and issuers in connection with liability management transactions, including debt tender and exchange offers and consent solicitations.

Mr. Pitts’s advisory work covers, among other things, corporate governance, public company disclosure obligations and director and officer liability issues (including D&O insurance). Mr. Pitts also frequently teams with other Cravath partners in complex merger and acquisition transactions.

Recent financing transactions include: (i) the initial public offerings of AeroVironment, Inc., Apollo Global Management LLC, FleetCor Technologies, Freescale Semiconductor, Hyatt Hotels Corporation, Morgans Hotel Group, Quintana Maritime Limited, Teekay Tankers Ltd. and WebMD Health Corp.; (ii) secondary equity offerings for DreamWorks Animation SKG, ON Semiconductor, Seaspan Corporation and Tumi Holdings; (iii) preferred stock offerings for Axis Capital Holdings Limited, PNC, Seaspan Corporation and Tsakos Energy Navigation; (iv)high-yield debt offerings for Ashland, Brunswick, Level 3 Communications, Rite Aid and Standard Pacific; and (v) convertible preferred and/or debt offerings for Asbury Automotive, Conseco, Dollar Financial, Emdeon, GSI Commerce, Protective Life, RTI International Metals, Terex, United Rentals and XPO Logistics. Recent tender or exchange offers include representation of the dealer managers in transactions for Commonwealth Telephone, Dominion Resources, Eastman Kodak and Reed Elsevier. Mr. Pitts also acts as designated underwriters’ counsel in connection with the debt and equity offerings of several investment grade corporations, including Air Products & Chemicals, Alcoa, Conoco, Harris Corporation, Loews Corporation, Marathon Oil and PNC.

Mr. Pitts authored an article entitled “Corporate Governance Considerations for the Pre-IPO Company,” published in the Fall 2007 issue of Bloomberg Corporate Law Journal. He also co-authored an article, along with John White, entitled “SEC Finalizes Offering Reforms,” which appeared in the August 2005 edition of International Financial Law Review.

Mr. Pitts has been repeatedly cited as one of the leading practitioners in capital markets by, among others, Chambers USA: America’s Leading Lawyers for Business from 2007 through 2012; Chambers Global: The World’s Leading Lawyers for Business from 2008 through 2013; The Legal 500 from 2010 through 2012; IFLR1000: The Guide to the World’s Leading Financial Law Firms from 2007 through 2013; The Best Lawyers in America from 2011 through 2013; and The International Who’s Who of Capital Market Lawyers.  Cravath was recognized in 2007 as a leading law firm in the shipping industry by Chambers Global.

Mr. Pitts was born in Rochester, New York. He received a B.A. from Trinity College in 1988, a J.D. summa cum laude in 1994 from Boston University, where he was Notes Editor of the Law Review and received the Alumni Achievement Award, and an M.B.A. from Boston University in 1995. Mr. Pitts joined Cravath in 1995 and became a partner in 2003.


Debbie O'Connell is a partner in the SEC Services Group within PwC's National Professional Services Group. Debbie stands out as a seasoned expert in the technology industry that people rely on for insight and guidance in solving their most difficult business issues. Debbie uses her extensive experience to help clients and other partners anticipate issues and resolve critical business, operational and accounting matters. With a diverse background in the technology, retail and consumer products industries over the last 20 years, her expertise is wide-ranging and includes SEC reporting matters, public and private capital markets activities, and complex accounting matters. Debbie's clients have ranged from large highly recognized multi-national corporations such as Eastman Kodak Company, L-3 Communications, and 3M Corporation, to smaller public and private companies. 

A graduate of Boston College, Debbie is a member of the AICPA and is a Certified Public Accountant licensed in Massachusetts, New York and New Jersey.
 


Sarah Beshar

As a partner in Davis Polk's Corporate Department, Ms. Beshar represents clients in U.S. and global capital markets transactions and advises on general securities and corporate governance issues. She regularly works for issuers and underwriters and has taken a leading role in public and private debt and equity offerings, including initial public offerings, secondary and convertible offerings and investment-grade and non-investment-grade debt. Ms. Beshar has also advised many companies in connection with their general corporate governance, compliance and securities work. A recent noteworthy transaction was advising the underwriters on the General Motors $23.1 billion initial public offering, which was the largest IPO in history.

Ms. Beshar also has significant experience in the development of new financial products, including various types of synthetic exchangeable securities and other equity-, index-, commodity- and currency-linked products for retail and institutional investors. She is lead counsel to JPMorgan Chase on their registered and unregistered structured products issuance programs.

WORK HIGHLIGHTS

  • Completed the largest initial public offering in history ($23.1 billion initial public offering of General Motors)
  • Has represented Morgan Stanley, J.P. Morgan Securities, Credit Suisse First Boston, Banc of America and other banks in capital markets transactions
  • Advises on JPMorgan Chase's structured products programs and other complex securities
  • Completed the largest debt offering in U.S. history (General Motors' $17.6 billion debt sale)

Recent Transactions

  • Advised on the $101.9 million SEC-registered secondary offering of EnerSys
  • Advised on the General Motors $23.1 billion initial public offering
  • Advised J.P. Morgan Securities Inc. in connection with the Range Resources equity and guaranteed high-yield offering
  • Advised Limited Brands on its $500 million guaranteed high-yield notes offering
  • Advised Patriot Coal Corporation on its $250 million SEC-registered offering of high-yield senior notes


RECOGNITION
Ms. Beshar is listed as a leading lawyer in Chambers Global: The World's Leading Lawyers for Business and Chambers USA: America's Leading Lawyers for Business.

OF NOTE

  • Trustee, University of Western Australia (America)
  • Trustee, Magdalen College, Oxford University


PROFESSIONAL HISTORY

  • Partner, 1994-present
  • Associate, 1986-1994


Alan L. Beller is a preeminent legal advisor and recognized thought leader regarding securities law, capital markets and corporate governance.  He is a Senior Counsel at Cleary Gottlieb Steen & Hamilton LLP.

Alan currently serves in leadership oversight roles for organizations dedicated to long-term quality and stability of capital markets and the best interests of investors and issuers.

Alan is a member of the Board of Directors and the Audit and Risk Committees of The Travelers Companies, Inc., a Dow Jones company.

He is also a:

—Trustee of the IFRS Foundation, which is responsible for governance and oversight of the International Accounting Standards Board and International Financial Reporting Standards, the global system of accounting standards used in more than 130 countries.

—Member of the Sustainability Accounting Standards Board, which is developing industry-specific sustainability accounting standards that enable public companies to communicate financial material and decision-useful information to investors.

Alan was the Director of the Division of Corporation Finance of the U.S. Securities and Exchange Commission and a Senior Counselor to the Commission from January 2002 until February 2006. During his four-year tenure, he led the Division in producing the most far- reaching corporate governance, financial disclosure and securities offering reforms in SEC history. Among his accomplishments were the implementation of the corporate provisions of the Sarbanes-Oxley Act of 2002, the adoption of the first general corporate governance standards for listed companies and the successful completion of comprehensive securities offering reforms.

During his more than 30 years of experience in private practice with Cleary Gottlieb, Alan has represented market-leading US and non-US companies, independent directors and audit committees in complex transactions, including privatizations, demutualizations and other initial public offerings, and corporate governance, securities, corporate, and accounting and auditing matters. He has lectured and written extensively on these and other topics.


Brian S. Korn is a partner and co-chair of the financial services group at Manatt, Phelps & Phillips, LLP. He is also a member of the firm's capital markets practice group and chair of the digital finance and marketplace lending practice. His practice focuses on corporate finance transactions, including initial public offerings (IPOs), early-stage and start-up venture financings, and mature corporate and high-yield debt finance. He also advises clients on SEC compliance, broker-dealer compliance, corporate swap transactions, blockchain technology and initial coin offerings. Under his leadership, the firm was nominated as “Professional Services Firm of the Year” at the 2018 LendIt Industry Awards and “Law Firm of the Year” at the 2017 LendIt Industry Awards. Brian chairs the prestigious Practising Law Institute’s Marketplace Lending and Crowdfunding conference, the leading legal conference of its kind serving the digital finance industry.

Prior to joining Manatt, Brian co-led the crowdfunding and peer-to-peer lending practice at a major international law firm. Brian has also previously served as head of Equity Capital Markets and Syndicate Compliance at Barclays Capital and as senior vice president and assistant general counsel at Citigroup Global Markets, Inc. He has extensive experience representing issuers and underwriters in investment banking and capital markets transactions, including transactions involving equity, debt, hybrid/convertible and preferred securities, derivatives and foreign exchange. He has executed several IPOs and other equity value monetization transactions, such as spin-offs, split-offs and carveout transactions. He also has extensive experience in sponsor-leveraged buyouts and bank/bond acquisition financing.

Brian has made multiple appearances on Fox Business Television, Bloomberg, CCTV America and National Public Radio commenting on the JOBS Act, including its impact on crowdfunding, peer-to-peer lending, IPOs and market trading dynamics. Brian was recently selected to serve on the advisory board of the Lexis Practice Advisor (LPA), an online product providing legal and market insights and practical guidance for attorneys. He is a graduate of the University of California at Berkeley and the Northwestern University Pritzker School of Law.


David K. Boston is a partner in the Corporate and Financial Services Department of Willkie Farr & Gallagher LLP in New York and co-chair of the firm’s Mergers & Acquisitions Group.  He specializes in merger and acquisition transactions involving public and private companies and in public and private offerings of equity and debt securities.  Dave regularly advises boards of directors and senior management regarding strategic and governance matters.


David M. Lynn is a partner in the Washington, D.C. Office of Morrison & Foerster LLP and is co-chair of the firm’s Corporate Finance | Capital Markets practice. He served as Chief Counsel of the Division of Corporation Finance at the U.S. Securities and Exchange Commission.

Mr. Lynn who provides guidance to companies, underwriters, boards of directors and other market participants on corporate finance matters, corporate governance and best practices for disclosure and compliance. In addition to being a leading authority on securities and governance issues, Mr. Lynn is particularly well known in the area of executive compensation disclosure, having co-authored “The Executive Compensation Disclosure Treatise and Reporting Guide.”

While serving as Chief Counsel of the Securities and Exchange Commission’s Division of Corporation Finance, Mr. Lynn led the rulemaking team that drafted significant revisions to the SEC's executive compensation and related party disclosure rules. Mr. Lynn re-joined the SEC as Chief Counsel shortly after adoption of the Sarbanes-Oxley Act of 2002, and served in that position until 2007. Mr. Lynn initially served on the SEC staff from 1995-2000 as an Attorney-Advisor and subsequently a Special Counsel in the Division of Corporation Finance. While in private practice from 2000-2003, he advised clients on SEC investigations, securities transactions, mergers and acquisitions and corporate governance.

Mr. Lynn is co-editor of TheCorporateCounsel.net, The Corporate Counsel, CompensationStandards.com and The Corporate Executive, which are widely read sources on securities, governance, executive compensation and corporate law matters. Mr. Lynn also has served as chair of the American Bar Association Business Law Section’s Federal Regulation of Securities Committee, co-chair of the Practising Law Institute’s Annual Institute on Securities Regulation and chairman of the Board of Trustees of the Securities and Exchange Commission Historical Society.

Mr. Lynn received his law degree from the University of Maryland Francis King Carey School of Law, where he serves as a member of the Board of Visitors, and his undergraduate and graduate degrees in economics and finance from Loyola University Maryland.


Joe Kaufman is a Partner at Simpson Thacher & Bartlett LLP, where he is a member of the Firm's Corporate Department. Joe advises clients on public and private offerings of debt and equity securities, corporate governance, business combinations and general corporate and securities law matters.  Joe joined Simpson Thacher in 1994 and was elected a member of the Firm in November 2002.

Joe was recently recognized by Chambers USA: America's Leading Lawyers for Business 2019. He was also named a 2015 “MVP” in Capital Markets by Law360. In 2011, he was named by The National Law Journal as one of the three “Most Influential Lawyers” in the Finance and Capital Markets category. In 2005, he was named one of 17 “Up-and-Comers of the Deal Economy” by The Deal magazine.

He is a member of the Board of Directors of Start Small, Think Big!, an organization that helps under-resourced entrepreneurs create thriving businesses in underserved areas.  In his spare time, Joe is an avid swimmer and annually swims across Long Island Sound to raise money for cancer research, prevention and treatment on behalf of Swim Across America.

He received his A.B., magna cum laude, from Harvard College in 1989, and his B.A. (Hons.) in Economics from the University of Canterbury (New Zealand) in 1990. He received his J.D. with honors from University of Chicago Law School in 1994, where he was managing editor of the University of Chicago Legal Forum.

 


Lona is a partner in Shearman & Sterling’s Capital Markets and Corporate Governance practices. He has extensive experience representing companies, financial institutions and their boards on corporate governance, disclosure, and securities law compliance matters and on the financial regulatory process. He also advises companies and financial institutions on all aspects of public and private offerings of equity, equity-linked, high yield debt and investment grade debt securities.

Prior to returning to the firm in 2017, Lona served in senior positions at the Securities and Exchange Commission for over four years. From 2013 to 2015, he served as Chief of Staff to SEC Chair Mary Jo White, where he was the top advisor to the Chair on all issues, including policy development, rulemaking, strategy and management. During this time, he led the rulemaking and implementation efforts related to all mandates under the Dodd-Frank and JOBS Acts and directed the SEC's asset management, market structure, public company disclosure effectiveness and private offering reform programs. He also served as the SEC deputy to the Financial Stability Oversight Council and was the primary SEC liaison with other financial regulators. Lona joined the SEC in 2011 as Deputy Director of the Division of Corporation Finance and later became its Acting Director. Following his SEC tenure, Lona joined Bridgewater Associates, LP, where he was the Chief Governance Officer and a senior advisor to founder Ray Dalio.

Prior to joining the SEC in 2011, Lona was a partner in Shearman & Sterling’s Capital Markets group. He first joined the firm in 1998.


Meredith Cross is a partner in the Securities and Transactional Departments in the New York and Washington D.C. offices of Wilmer Cutler Pickering Hale and Dorr LLP.  Ms. Cross advises public companies and their boards on disclosure and other corporate finance securities law and corporate governance matters, including SEC enforcement matters involving corporate finance issues.  Ms. Cross rejoined the firm in 2013, after having served as Director of the Division of Corporation Finance of the SEC since 2009.

While serving as the Director of the Division of Corporation Finance of the SEC, Ms. Cross led the Division's efforts to implement both the Dodd-Frank Act and the Jumpstart Our Business Startups (JOBS) Act. Under her leadership, the Division recommended close to 60 rulemaking releases to the Commission.   Ms. Cross testified before Congress numerous times on a broad range of issues including corporate governance, capital formation, risk retention in asset-backed securities offerings, executive compensation oversight, and agency management and budget.
 
Before first joining WilmerHale in 1998, Ms. Cross served in a variety of positions in the Division of Corporation Finance at the SEC from 1990 to 1998, including Deputy Director, Associate Director (International and Small Business) and Chief Counsel.  Prior to first joining the SEC staff, she was an associate and counsel at King & Spalding in Atlanta from 1983-1990.  She clerked for Judge Albert J. Henderson of the US Court of Appeals for the Eleventh Circuit (1982-1983). 

Ms. Cross currently serves as Co-Chair of the Practicing Law Institute’s Annual Institute on Securities Regulation.  She is a frequent speaker at securities and corporate governance law conferences.  She is a member of the Steering Committee of the Securities Regulation Institute, a member of the Securities Institute Advisory Committee, a Fellow in the American College of Governance Counsel, and previously served as a member of the ABA Corporate Laws Committee.  She is a member of the Board of Trustees of the SEC Historical Society and the Board of Governors of the Wilmer Eye Institute at Johns Hopkins. 

Education

  • JD, Vanderbilt University School of Law, 1982, Order of the Coif, Vanderbilt Law Review
  • BA, cum laude, Duke University, 1979

Honors & Awards

  • Recognized for her exceptional securities practice in the 2006-2009 and 2014-2020 editions of Chambers USA: America's Leading Lawyers for Business
  • Selected by peers for inclusion in the 2005-2021 editions of Best Lawyers in America for securities and capital markets law. Named by Best Lawyers as Washington DC Securities/Capital Markets "Lawyer of the Year" in 2017. 
  • Recipient of the 2014 Linda Quinn Lifetime Achievement Award by TheCorporateCounsel.net
  • Named to the NACD Directorship 100, A Who's Who of the American Corporate Governance Community, in 2010
  • Recognized as a Dealmaker of the Year by The American Lawyer in 2003


Pam Long is an Assistant Director in the Division of Corporation Finance at the Securities and Exchange Commission.  Pam joined the Division staff in 1996 and has also served as an attorney-examiner and a special counsel in the Division.  Before joining the staff, Pam worked as an associate in the Baltimore office of Piper & Marbury and in the Chicago office of Vedder, Price, Kaufmann & Kammholz.


John W. White is a partner in Cravath, Swaine & Moore LLP's Corporate Department and serves as Chair of its Corporate Governance and Board Advisory practice. From 2006 through 2008, he served as Director of the Division of Corporation Finance at the U.S. Securities and Exchange Commission, which oversees disclosure and reporting by public companies in the United States. During his over 25 years as a partner at Cravath, John has focused his practice on representing public companies on a wide variety of matters including, more recently, public reporting and disclosure obligations, corporate governance matters and restatements, revisions and other financial crises.

John is a member of the Financial Accounting Standards Advisory Council (FASAC), which advises the Financial Accounting Standards Board (FASB). From 2010 to 2018, he served as a member of the Standing Advisory Group (SAG), which advises the Public Company Accounting Oversight Board (PCAOB). John is a member of the Board of Directors of Financial Executives International (FEI) and a member of the Board of Trustees and Chair of the Audit Committee of the Practising Law Institute (PLI). He served three years on the New York Stock Exchange’s Legal Advisory Committee, four years as Chairman of the Securities Regulation Institute, five years as Co-chair of PLI’s Annual Institute on Securities Regulation and six years on the Board of Trustees and Audit Committee of the SEC Historical Society. John was twice selected by the National Association of Corporate Directors (NACD) as one of the 100 “most influential people in the boardroom and corporate governance community.”

 


Shelley E. Parratt is Deputy Director of the SEC’s Division of Corporation Finance.  In this capacity, Ms. Parratt oversees the Division’s disclosure review program, which is responsible for assisting over 7,000 reporting companies in meeting their disclosure obligations under the federal securities laws.  Ms. Parratt also assists the Director in strategic planning for the Division and in developing Division policy and operational procedures.

Ms. Parratt served as Acting Director of the Division during the first half of 2017 and the first half of 2009, overseeing all disclosure review, rulemaking and other Division operations.  She received a MBA from Syracuse University and a BA from St. Lawrence University.


Rob Evans joined the SEC last July and is the Chief of the Office of International Corporate Finance. Before joining the SEC,

Mr. Evans worked at Shearman & Sterling LLP as a partner in the firm’s capital markets practice. Mr. Evans has extensive advising capacity having spent his professional career as a corporate and securities lawyer. “For over 20 years, Rob has been a leading voice on a wide range of issues relating to how investors and companies interact in the public and private markets, and we are excited to have him join the team here at the SEC,” said SEC Chairman Jay Clayton.

In addition, Mr. Evans has been a frequent speaker and writer on securities law, compliance and legal ethics. Mr. Evans was a member of the TriBar Opinion Committee, the Working Group on Legal Opinions, the American Law Institute, and Co-Chair of Shearman & Sterling’s Opinion Committee.

Mr. Evans attended Harvard University for his undergraduate degree and earned his law degree from Boston University School of Law.


WILLIAM C. FREDERICKS is a partner in the New York office of Scott + Scott LLP. He began his legal career as a law clerk for the Hon. Robert S. Gawthrop III of the U.S. District Court for the Eastern District of Pennsylvania, and then spent seven years practicing securities and complex commercial litigation as an associate at Simpson Thacher & Bartlett and Willkie Farr & Gallagher before moving to the plaintiffs’ side of the bar in 1997 where he was a partner at Milberg LLP and then at Bernstein Litowitz Berger & Grossmann LLP. Mr. Fredericks has represented investors as a lead or co-lead counsel in dozens of securities class actions, including In re Wachovia Preferred Securities and Bond/Notes Litig. (S.D.N.Y.) (total settlements of $627 million, reflecting the largest recovery ever in a pure Securities Act case that did not involve any parallel government fraud claims); In re Rite Aid Securities Litig. (E.D. Pa.) (total settlements of $323 million, including the then-second largest securities fraud settlement ever against a Big Four accounting firm); In re Sears Roebuck & Co. Securities Litig. (N.D. Ill.) ($215 million settlement, reflecting the largest section 10(b) recovery in history in an action not involving either a financial restatement or parallel government fraud claims ); In re State Street ERISA Litig. ($89 million settlement, one of the largest ERISA class action settlements to date) and Irvine v. Imclone Systems, Inc. (S.D.N.Y.) ($75 million settlement). He has also obtained significant recoveries on behalf of creditor interests, including recoveries against News Corp. on behalf of the receiver in bankruptcy of Australis Holdings Pty. Limited, and recoveries on behalf of the Friedman’s Creditor’s Trust against certain former outside attorneys, auditors and financial advisers of Friedman’s, Inc. Mr. Fredericks also played a lead role on the appellate team that obtained a rare 9-0 decision for plaintiffs (and remand to the district court) in a securities fraud case from the United States Supreme Court in Merck & Co., Inc. v. Reynolds, 130 S.Ct. 1784 (2010). Mr. Fredericks also has extensive experience litigating various MBS-related actions against MBS issuers, sponsors, underwriters and trustees, including the ongoing litigation in Retirement Board v. Bank of New York Mellon, No. 1:11-cv-05459 (S.D.N.Y.) against the trustee of various Countrywide-sponsored MBS trusts based on the trustee’s alleged failure to take timely and appropriate actions to enforce the trusts’ repurchase rights).

Mr. Fredericks graduated from Columbia University School of Law in 1988, where he was awarded the Toppan Prize in Advanced Constitutional Law, the Beck Prize in Property Law, the Greenbaum Prize for Legal Writing, and the Gov. Thomas E. Dewey Prize for best oral argument in the final round of Columbia’s 1988 Harlan Fiske Stone Moot Court Honor Competition. He earned his B.S., with High Honors, from Swarthmore College, and also holds an M. Litt. degree in international relations from Oxford University.

Mr. Fredericks has been a panelist on numerous programs sponsored by various organizations, including the Practising Law Institute (PLI) and the American Law Institute/American Bar Association (ALI/ABA). He is a member of the Association of the Bar of the City of New York (former chairman, Committee on Military Affairs and Justice), The American Bar Association, and The Federal Bar Council. He is admitted to the bar of the State of New York and to the bars of the United States Supreme Court, the U.S. Courts of Appeal for the Second, Third, Sixth and Tenth Circuits, and the U.S. District Courts for the Southern and Eastern Districts of New York.