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Acquiring or Selling the Privately Held Company 2012


Speaker(s): Alyssa A. Grikscheit, Audra D. Cohen, Catherine J. Dargan, David W. Pollak, J. Mark Poerio, James T Chudy, Kevin M. Schmidt, Marshall Heinberg, Patrick F. Rice, Paul J. Shim, Ron E. Deutsch, Sharon B. McCullen, Sue Friedberg
Recorded on: Jun. 7, 2012
PLI Program #: 34830

James T. Chudy advises on the federal income tax aspects of mergers and acquisitions, restructurings, spin-offs, joint ventures and securities offerings for domestic and international clients across a broad spectrum of industries. He also has significant experience in private equity and cross-border investments, partnership formations and transactions, bankruptcy reorganizations and work-outs, lending and other corporate finance transactions and general tax issues confronted by businesses, tax-exempt organizations and individuals.

Mr. Chudy has lectured and written on the federal income tax aspects of mergers and acquisitions for professional groups including the American Bar Association and the Practising Law Institute and has authored articles on that topic for publications including the Journal of Corporate Taxation, Practising Law Institute and the NYU Institute on Federal Taxation. He is co-author of a treatise, "Stock Purchases Treated as Asset Acquisitions - Section 338," in the BNA Tax Management Portfolio series.

Education
J.D., Harvard Law School, 1984
B.S., University of Wisconsin, Madison (Mathematics & Physics, with honors; Phi Beta Kappa), 1981

Admitted to Practice: 
State of New York

Member Of:
American Bar Association (Tax Section); New York State Bar Association (Tax Section); BNA Tax Management Advisory Board (U.S. Income Series)


Sharon B. McCullen is a partner in Morgan Lewis's Intellectual Property Practice.  Dr. McCullen's practice focuses on intellectual property matters in connection with transactions, strategy, and litigation for specialty chemical companies, pharmaceutical companies, medical device companies and venture capital funds. Dr. McCullen has counseled a diverse group of clients, both domestic and international, in the areas of patent prosecution, patent due diligence, patent validity and freedom to operate opinions, patent strategy and patent portfolio management.

Selected transaction representations include:

  • LEO Pharma in its reacquisition of Warner Chilcotts' exclusive products in LEO Pharma's development pipeline.
  • Sekisui Chemical Company Ltd. (a subsidiary of Sekisui America Corporation) in the $173 million purchase of Celanese Corporation's polyvinyl alcohol (PVOH) business.
  • Pearson plc in its acquisition of Connections Education for $400 million. 


Prior to beginning her patent practice, Dr. McCullen worked as a research chemist with the Strategic Research Center of Mobil Oil Corporation, now ExxonMobil Corporation. In connection with this work, the American Chemical Society has recognized Dr. McCullen with its 2007 Heroes of Chemistry Award as a co-inventor of the PxMaxSM process of ExxonMobil Research and Engineering Company. The PxMaxSM process is a selective catalytic process for producing para-xylene and is used throughout the world in petrochemical plants.

Bar Admissions
 Pennsylvania

Court Admissions
 U.S. Patent and Trademark Office

Education
 Temple University, Beasley School of Law, 2002, J.D. (Law)
 University of Illinois, 1982, Ph.D. (Inorganic Chemistry)
 University of Kansas, 1977, B.S. (Chemistry)


Alyssa A. Grikscheit has a diverse corporate practice that currently emphasizes complex transactions and alternative investment funds. Her experience also includes private equity and hedge funds, mergers and acquisitions, strategic alliances and restructurings. Alyssa is fluent in Spanish and French and has extensive experience in international transactions, particularly those involving Latin America and other emerging markets such as China and India. Alyssa represents domestic and foreign clients making cross-border investments. She also represents buyers and sellers, including private equity funds and their portfolio companies, in acquisitions, dispositions, strategic alliances, restructurings and financings, including transactions in regulated industries such as the healthcare, pharmaceutical, energy, telecommunications and defense industries. In addition, Alyssa represents sponsors of alternative investment funds in fund formation and other aspects of their operations. Such funds have included distressed debt, energy, infrastructure, real estate opportunity, agribusiness, fintech, microfinance and emerging market funds.

Alyssa is ranked in Chambers Global, Chambers USA and Chambers Latin America where “she is noted for her work in the M&A and private equity space and has longstanding experience dealing with cross-border transactions in Latin America.” Additionally, she has been recognized in IFLR1000 as a “Rising Star” for Investment Funds in the U.S. Alyssa was also recommended in Private Equity Funds in The Legal 500 US and in Capital Markets and Corporate M&A in The Legal 500 Latin America. Alyssa has also been recognized by Latinvex in “Latin America’s Top 100 Lawyers” and is featured as one of “Latin America’s Top 50 Female Lawyers: Corporate/M&A.”

Alyssa actively represents a nonprofit in establishing and capitalizing microfinance institutions in emerging markets on a pro bono basis. She served as co-chair of the Inter-American Committee of the New York State Bar Association’s International Section and is a Life Fellow of the American Bar Foundation.

Alyssa graduated cum laude from The University of Michigan Law School in 1994.  She received a Diploma in European Studies from the College of Europe in Bruges, Belgium in 1991 and an A.B. magna cum laude from Harvard College in 1990.


Audra Cohen is co-Managing Partner of the Firm’s General Practice Group globally and serves as a co-head of the Firm’s Consumer & Retail and Power and Utility Groups. She has extensive experience representing clients on a broad range of merger and acquisition transactions, including public company mergers, private company transactions and spinoffs, and advising boards of directors on corporate governance and activism matters. As an active member of the Firm’s management and administration, Ms. Cohen also serves on the Firm’s Diversity Committee.

Selected clients include: Andeavor, AT&T, Avon Products, C&S Wholesale Grocers, Collective Brands, Connecticut Water Service, Diageo, Dynegy, Intercontinental Exchange, Kraft Foods Group, LSC Communications, NBTY, Panera Bread, Pepco, Quality Care Properties, Ron Shaich, RR Donnelley & Sons, Wachovia Corporation and ZF Friedrichshafen. 

Selected Recognitions

  • New York Super Lawyers – “Top Woman Attorney in New York” (2016-2018) and a leading lawyer for M&A (2006-2018)
  • The American Lawyer – co-leader of S&C team advising on 2016 “Deal of the Year” – Kraft merger with Heinz (2016)
  • Euromoney Legal Media Group Expert Guides, Women in Business Law – Leading Practitioner, Mergers & Acquisitions (2014)

Selected Publications and Speaking Engagements

  • “Public Company M&A Deals,” 37th Annual Federal Securities Institute, Miami, FL, February 2019 (Panelist)
  • “Deal Activism: How Dealmakers Can Prepare for and Respond to Activist Campaigns Against M&A Transactions,” PLI’s Preparing for Shareholder Activism: What You Need to be Doing Now 2018, New York, NY, November 2018 (Panelist)
  • “M&A Roundup: Today’s Deal Landscape,” PLI’s 49th Annual Institute on Securities Regulation, New York, NY, November 2017 (Panelist)
  • “Top Ten Regulatory Considerations for Executing Consumer and Retail Deals,” Bloomberg BNA (co-author) (October 2016)

Education

George Washington Law School, J.D. 1992
University of Washington, B.A. 1989


David W. Pollak has more than 30 years of experience as a corporate lawyer. He represents clients in public and private offerings of securities, including initial public offerings, and merger and acquisition transactions. David works closely with life sciences, financial services, technology, information services, and investment banking clients, and represents private equity firms. David serves as the firm’s Managing Partner of Operations, responsible for the firm’s financial performance, and is a member of the firm's Management Committee.

David served as leader of the firm’s business and finance practice for seven years, an elected member of the firm’s Compensation Committee for eight years, and an Advisory Board member for six years. He teaches a third-year course in negotiating skills in the context of M&A and securities transactions as an adjunct professor at New York University School of Law.

 

SELECTED REPRESENTATIONS

Represented Cambridge Global Payments in its sale, for approximately C$900 million, to Fleetcor.

Represented Mercury Payment Systems in its sale, for approximately $750 million, to Silver Lake Partners.

Represented Health Net, Inc. in its $6.8 billion cash and stock merger with Centene Corporation.

Represented Nash Finch Company in its $1.3 billion merger with Spartan Stores Inc.

Represented Electra Ltd. in its acquisition of Gilston Electrical and Hellman Electric.

Represented Anterios, Inc. in its sale to Allergan.

Represented Portware in its sale for $265 million to FactSet.

Represented BlackBerry in its acquisition of AtHoc, Inc.

Represented BlackBerry in its acquisition of WatchDox, Inc.

Represented BlackBerry in its acquisition of Movirtu Limited.

Represented Conifer Securities in its sale to The Carlyle Group.

Represented SpartanNash in its acquisition of Caito.

Represented SpotOn Transact in its acquisition of EmaginePOS Inc.

Represented FastPay in its acquisition of AnchorOps.

Represented Nash Finch Company in its asset acquisition of Bag 'N Save.

Represented BlackBerry in its sale of its subsidiary, Newbay Software Limited.

 

EDUCATION

University of Chicago Law School, J.D.

Princeton University, A.B., summa cum laude


Kevin Schmidt is a corporate partner in the Mergers & Acquisitions Group and is Co-Head of the firm's Private Equity Group. He has worked extensively on acquisitions, divestitures and joint ventures, including cross-border transactions for both private equity and corporate clients. Mr. Schmidt is recognized as a leading lawyer for mergers and acquisitions in the private equity sector by Chambers USA (2013), where sources say that he is “smart, efficient and thoughtful.” He is recommended by Chambers Global (2013) for private equity buyouts and The Legal 500 US (2013) for M&A mega-deals and private equity buyouts. He is also recognized as a leading M&A lawyer by IFLR1000 (2014) and was named a 2014 M&A client service “all-star” in a nationwide in house counsel survey published by BTI Consulting.

Mr. Schmidt has spoken at a variety of seminars regarding recurring M&A issues.  He is a contributing author of The Private Equity Primer: The Best of the Debevoise & Plimpton Private Equity Report and the Debevoise & Plimpton Private Equity Report.  He is also the author of “Defining the Terms," The Deal, "Big Game Hunting,” The Deal and “Navigating Conflicts on Boards of Portfolio Companies,” The Corporate Governance Advisor.  Mr. Schmidt is a regular contributor to programs at the Practicing Law Institute.

Mr. Schmidt joined Debevoise in 1994 and became a partner in 2002.  He received his J.D. with high honors from Rutgers School of Law in 1994, where he was Order of the Coif, and his B.A. summa cum laude from Jersey City State College in 1989.


Mark Poerio is senior counsel in the DC office of the Wagner Law Group. Throughout his 30+ years of private practice (most with Wall Street law firms), Mark has  worked almost exclusively with business executives, with his focus being on executive compensation and ERISA fiduciary matters, especially from a business, governance, tax, labor, finance, securities, and litigation perspective.  Mark is Chambers-ranked, recognized by SuperLawyers, and for over 10 years has taught executive compensation classes at Georgetown Law.  Mark recently completed his terms as President of the American College of Employee Benefits Counsel (ACEBC), and as an executive board member of the American Benefits Council. 

In addition to representing companies, executives (individually) and compensation committees, Mark also has extensive experience with changes in corporate control, employee stock ownership plans (aka ESOPs), and tax exempt organizations. For the latter, his practice ranges from general governance to executive compensation -- e.g. Code section 457(f) and 4958 tax planning and correction.

 

EDUCATION

Cornell Law School, J.D., 1984 (cum laude)

University of Virginia, B.A., 1980 (cum laude)

Mark's Teaching and Publications

Since 2007, Mark has taught courses at Georgetown Law – with one course being focused on executive compensation, business, and governance, another on ESOPs, and another on the intersection of benefit plans and employment-related agreements with restrictive covenants such as non-competes. Associated with these, he maintains www.executiveloyalty.org.

 

NOTABLE PUBLICATIONS  

"Too Much Employer Stock? Don't Ignore Diversification" (Law360, 7/12/2018).

"New Year, New Stock Plan" (Bloomberg BNA, 2/21/2018, Poerio)

"Hitting Workplace Harassers Where It Hurts" (National Law Journal, 12/29/2017, Poerio et al).

"Spin-off Transaction Playbook" (NYU Law Review, with Towers Watson, 2013).  

U.S. Executive Compensation Litigation: Cannons to the Right . . . and to the Left” (International Pension Lawyer,, April 2013)  

“What Private Equity Managers Need to Know to Limit Their ERISA Obligations for Portfolio Company Pension Plans” (Bloomberg BNA, Nov. 2012).  

Candor for Compensation Committees” (Corporate Board Member, 11/2011). 

Crossing the Pond in Search of Better Executive Compensation Practices” (Corporate Governance Advisor, 3/10/2011).  

Executive Pay and Loyalty: From Velvet Fist to Iron Glove” (Corporate Governance Advisor, 1/2010).  

"Long-term Incentives and Golden Handcuffs in China" (Poerio et al, ChinaFocus, 2008).  

"Say Hello to Smart Goodbyes" re ERISA-fying Severance Practices (National Law Journal, 2008, Poerio et al).  

"Executive Insecurity" (Bloomberg BNA, 2008, Poerio et al).

 

PROFESSIONAL AND COMMUNITY INVOLVEMENT

American Benefits Council – Executive Board Member (2015-2018)

American College of Employee Benefit Counsel – Board Member and Immediate Past President (formerly ACEBC's President, Vice-President and Treasurer).  

Georgetown Law School -- Adjunct Professor (2007-present)  

Maryland Association of Social Service Boards -- Past Vice-Chair and Head of Legislative Committee; Pro bono Counsel for federal tax matters since 2004.  

MASSB Foundation -- Founder and Trustee (raising over $1 million for social services involving child protection and family preservation).

 


Marshall Heinberg served until July 2012 as Head of Investment Banking at Oppenheimer & Co., Inc. and as a Senior Managing Director of the firm.  Mr. Heinberg began his investment banking career in the Corporate Finance Division of Oppenheimer, which was later acquired by the Canadian Imperial Bank of Commerce (CIBC) in 1997.  Over the course of his career, Mr. Heinberg has been responsible for various industry sectors including environmental, industrial growth, technology and telecommunications.  Mr. Heinberg has also been responsible for managing CIBC’s mergers and acquisitions, leveraged finance, financial sponsor and merchant banking activity in the United States.  His transaction experience includes a significant number of equity and debt financings as well as numerous merger and acquisition assignments. Mr. Heinberg has extensive experience working with both leading growth companies as well as financial sponsors.

 Mr. Heinberg was named Head of CIBC’s U.S. Investment Banking Department in 2001 and upon the acquisition of CIBC’s U.S. capital markets business by Oppenheimer in 2008, Mr. Heinberg was named head of the Investment Banking Department.  Mr. Heinberg has served as a member of CIBC’s and Oppenheimer’s US Management Committee, Deals Committee, Equity Transaction Committee, Financial Advisory Transaction Committee and Investment Committee.  Mr. Heinberg has been responsible for setting the strategic direction of the investment banking departments that he managed including all aspects of recruiting, retaining and determining compensation for personnel.

 Mr. Heinberg served as a member of the Board of Directors and the Audit Committee of National Financial Partners (NYSE: NFP), a leading provider of benefits, insurance and wealth management services.  He was selected to Chair NFP’s Special Committee of the Board to determine how to respond to acquisition interest expressed by certain private equity firms. The Special Committee engaged in a process resulting in NFP entering into a definitive agreement to be acquired by Madison Dearborn Partners for approximately $1.3 billion in July 2013.

Mr. Heinberg also serves on the Board of Directors of Universal Biosensors Ltd., an Australian public company specializing in the medical diagnostic field. He is a member of their Compensation Committee. In addition, Mr. Heinberg served on the Board of and the Audit Committee for, Image Entertainment, Inc., a public independent licensee and distributor of entertainment programming in North America until it’s acquisition by RLJ Entertainment in October 2012.

Mr. Heinberg has been a member of the NACD (National Association of Corporate Directors) and a frequent lecturer on a wide range of issues relating to mergers and acquisitions and trends in investment banking. .  He is a graduate of the Wharton School of the University of Pennsylvania where he earned a Bachelor of Science degree with Honors and holds a J.D. from Fordham Law School.  Prior to joining Oppenheimer, Mr. Heinberg practiced corporate law for approximately four years.


Paul Shim is a partner in the New York, NY office of Cleary Gottlieb Steen &  Hamilton LLP.  His practice focuses on public and private merger and acquisition transactions.

He also provides advice regarding governance matters and the fiduciary duties of officers and directors to corporations and their boards.

He repeatedly has been recognized by the business and legal press for his work on behalf of clients, including twice being named a “Dealmaker of the Year” by The American Lawyer.


Catherine Dargan is co-chair of Covington’s Mergers & Acquisitions practice and a member of the firm's Management Committee.  She has broad experience in mergers and acquisitions, both public and private, and strategic partnering arrangements.  In addition to structuring and negotiating transactions, she assists clients with corporate governance, compliance and other matters.  Ms. Dargan also regularly advises clients on a variety of commercial agreements relating to manufacturing, supply, and distribution of core products.  She represents clients in a variety of industries including life sciences, consumer products, technology, defense and government contracting, media, sports, and equipment and manufacturing.  Ms. Dargan has been recognized as a leading M&A lawyer by Chambers USA, Legal 500 US, National Law Journal, and LMG Life Sciences, and was recently named as "Best in Mergers & Acquisitions" by Euromoney Legal Media Group, Americas Women in Business Law Awards (2014).  Ms. Dargan earned her J.D., cum laude, from Harvard Law School in 1994 and A.B., with honors, from Stanford University in 1991.

REPRESENTATIVE MATTERS

  • AstraZeneca in its:
    • acquisition of Ardea Biosciences (NASDAQ: RDEA) for $1.26 billion;
    • its acquisition of Bristol-Myers Squibb's interests in the companies’ diabetes alliance for an initial consideration of $2.7 billion on completion and up to $1.4 billion in regulatory, launch and sales-related payments; and
    • approximately $3.5 billion strategic diabetes alliance with Bristol-Myers Squibb in connection with BMS’s acquisition of Amylin Pharmaceuticals, including assistance in structuring agreements for the acquisition and operation of Amylin’s diabetes business by AZ and BMS.
  • MedImmune, AstraZeneca's biologic arm, in its acquisition of AlphaCore Pharma.
  • Salix Pharmaceuticals in its:
    • $2.6 billion acquisition of Santarus, Inc. (NASDAQ: SNTS); and
    • $300 million acquisition of Oceana Therapeutics, Inc.
  • Boehringer Ingelheim in its acquisition of certain animal health products divested in connection with the Pfizer-Wyeth merger.
  • Takeda in its acquisition of Intellikine, Inc. for $190 million upfront and up to $120 million in additional potential clinical development milestone payments.
  • Abbott Laboratories in its:
    • acquisition of Evalve, Inc., a medical device developer, by Abbott Vascular for up to $410 million; and
    • $3.7 billion acquisition of Kos Pharmaceuticals, Inc. (NASDAQ: KOSP).
  • Eli Lilly in its: 
    • acquisition of SGX Pharmaceuticals, Inc. (NASDAQ: SGXP), a San Diego-based biotechnology company; and
    • divestiture of its Tippecanoe manufacturing facility to Evonik Industries.


Co-chair of the Cybersecurity and Data Privacy Group at Buchanan Ingersoll & Rooney, Sue Friedberg advises clients about the rapidly evolving standards of care for safeguarding confidential information and responding effectively to security incidents that threaten to compromise valuable information.  Her cybersecurity practice evolved from her work for many years as Buchanan’s Associate General Counsel and her continuing practice counsel to lawyers, legal departments, law firms and other professionals about conflicts of interest, complex client engagements, and meeting the standards for professional practice in the digital age. In her work with clients and for the Firm, Sue has experienced the complexities and challenges of implementing information security best practices in the everyday working environment, without sacrificing effective and efficient operations.

Sue regularly participates in continuing legal education and other programs presented by the ABA, Practicing Law Institute, Professional Education Network, Pennsylvania Bar Institute, the AON Large Law Firm Symposium and other legal education events. 


Patrick Rice is a partner and member of the Corporate & Securities Group in Reed Smith's New York office and serves as Deputy Chair of the Private Equity Practice Group. His practice focuses on corporate and securities law, with an emphasis on the representation of clients in mergers and acquisitions, divestitures, corporate finance, and general corporate and securities law matters. Patrick has extensive experience representing buyers, sellers, private equity sponsors and financial advisers in a wide variety of transactions, including private acquisitions and divestitures, restructurings, spin-offs, and joint ventures and other strategic alliances. Patrick has also counseled issuers and investment banks in public securities offerings, and has advised clients in general corporate and securities matters, including securities law compliance, corporate governance issues, disclosure issues, stock repurchase programs, shareholder agreements, proxy contests, shareholder rights plans, and other corporate control matters.

Prior to joining Reed Smith, Patrick was a Vice President and Assistant General Counsel of Goldman Sachs & Co. and served as the General Counsel of the Goldman Sachs Infrastructure Fund and The Whitehall Real Estate Funds as well as a number of other private equity funds in the Goldman Sachs Merchant Bank. Prior to joining Goldman Sachs, Patrick was a senior attorney with Skadden, Arps in the Mergers & Acquisitions Department.

Experience
2008 Reed Smith
2006 Goldman Sachs
1997 Skadden, Arps, Slate, Meagher & Flom LLP

Legal Education
1997 J.D., Fordham University School of Law

Graduate Education
1992 M.B.A., Finance, George Mason University

Undergraduate Education
1987 B.S., United States Merchant Marine Academy, Marine Engineering

Professional Admissions / Qualifications

New York