Contests for Corporate Control 2010: Current Offensive & Defensive Strategies in M & A Transactions

Overview

Why You Should Attend

This advanced-level program is presented by a distinguished and knowledgeable faculty and is designed to give practical, up-to-date information for inside and outside corporate counsel, directors, officers, investment bankers and other advisers in dealing with specific corporate control issues relating to mergers and acquisitions.

What You Will Learn

• Recent trends in the M&A market, including the tight credit market and its impact on leveraged buy-outs and private equity deals
• Expectations for increased market activity
• Rescue financings and sales
• M&A opportunities in bankruptcy and troubled company acquisitions, including value plays by strategic buyers with strong balance sheets and access to liquidity
• Effective use of the hostile offer for strategic purposes, including interloper bids
• How to negotiate merger agreements in today's challenging environment, including closing conditions, material adverse change provisions, reverse break-up fees, buyer best effort convents, and fiduciary outs
• Overview of the 2009 proxy season and shareholder activism, including the latest techniques and developments in conducting and defending against a surging number of proxy contests
• Current developments in M&A and corporate governance case law
• Cross-border M&A trends and predictions for future growth

Who Should Attend

Attorneys who counsel corporations, and their board members, investment bankers and lawyers in the M&A area.

Special Features

Live Webcast - Simultaneous live webcast of the New York is available for individual viewing. Webcast participants will receive streaming audio and/or video of the program, view and print the Course Handbook, and have the ability to submit questions electronically.

For more information click on the Live Webcast link in the Related Items box.

Special Bonus to all Registrants

All attendees receive a complimentary copy of PLI's comprehensive Course Handbook. This softcover, bound volume was written to augment this program and to stand alone as a permanent reference. PLI's Course Handbooks represent the definitive thinking of the nation's finest legal minds, and are often the standard reference in the field.

Please Note: Webcast attendees will receive a downloadable version of the Handbook one business day prior to the program.

PLI Group Discounts

Groups of 4-14 from the same organization, all registering at the same time, for a PLI program scheduled for presentation at the same site, are entitled to receive a group discount. For further discount information, please contact membership@pli.edu or call (800) 260-4PLI.

PLI Can Arrange Group Viewing to Your Firm

Contact the Groupcasts Department via email at groupcasts@pli.edu for more details.

Cancellations

All cancellations received 3 business days prior to the program will be refunded 100%. If you do not cancel within the allotted time period, payment is due in full. You may substitute another individual to attend the program at any time.

Schedule

Morning Session: 9:00 a.m. - 12:30 p.m.

9:00  Opening Remarks and Introduction

D. Block

9:15  The State of Today's Distressed M&A Market

• Types of transactions, which industries are active, and the impact of restructuring activities
• The tight credit market and its impact on leveraged buy-outs and private equity deals, including expectations for increased market activity
• M&A opportunities in bankruptcy, troubled company acquisitions, and Section 363 auctions, including value plays by strategic buyers with strong balance sheets and access to liquidity
• Creative deal strategies both in and outside of bankruptcy
• Emerging Buyers Market:
  -The impact of the credit crisis on the bargaining power of buyers and sellers as financial buyers fade and strategic buyers looking for favorable deals take their place
  -Impact of vulture funds
• Increase in hostile transactions and proxy fights
• Rescue financings and sales
• The state of leveraged buy-outs and private equity transactions: Past, present and future
• Buyers push to expand the scope of traditional material adverse effect (MAE) outs to cover matters that go beyond seller-specific changes to include more general industry disruptions. Buyers continue to craft special termination provisions to augment traditional MAE provisions.
• Shareholder activism and activist hedge funds

S. Baronoff, D. Block, D. Braunstein, M. Carr, L. Friedman, S. Selig

10:30  Networking Break

10:45  Director Fiduciary Duties in M&A Transactions

• Basic fiduciary duties of directors: Duty of Care, Loyalty, and Good Faith
• Different standards of judicial review applied to director decisions: The Business Judgment Rule, Entire Fairness, Blasius, and Revlon
• Is there less or more judicial deference to director decisions? Disney, Crawford, Netsmart, Topps, and In re Citigroup Inc. Shareholder Derivative Litigation
• Is there a sliding scale for deal protection measures (shopping, lock-ups and termination fees)? Omnicare, Toys 'R' Us, In re MONY Group, Netsmart, United Rentals, Inc., and Hexion Specialty Chemicals, Inc.
• What is required to satisfy a board of directors' Revlon duties?
  -Pre-signing and post-signing market checks
  -When should a 'go-shop' be utilized?
• Just saying "no" or "later" to an interloper
• A board's duties where a controlling shareholder is involved
• Oversight role of corporate boards of directors and the impact of the economic crisis on board governance, including the impact of In re Citigroup Inc. Shareholder Derivative Litigation on oversight liability and the doctrine of corporate waste
• Director's personal liability in M&A transactions: D&O insurance claims in the economic downturn, types of claims related to the financial crisis, insurance coverage issues implicated in economic crisis-related claims.
• Protecting directors: Special committees and outside advisors; exculpatory clauses in the articles of incorporation; fairness opinions; separate indemnification provisions; and advance notice bylaws
• Duties of boards of companies in distress: Ryan v. Lyondell
• Directors' fiduciary duties when a company is facing insolvency: Significance of a corporation's insolvency status in determining directors' fiduciary duties owed to shareholders and creditors.  In Re Bear Stearns Litigation and Bridgeport Holdings Inc. Liquidating Trust v. Boyer
• Negotiating M&A solvency provisions: The importance of solvency opinions in today's turbulent economic market

A. Abbey, D. Block, T. Kennedy, I. Presant, F. Saeed, A. Sparks, M. Wolinsky

12:30  Lunch Break

Afternoon Session:  1:50 p.m. - 5:00 p.m.

1:50  Current Strategies in M&A Transactions and Proxy Contests

• How to negotiate merger agreements in today's challenging environment, including closing conditions, material adverse change provisions, reverse break-up fees, buyer best effort convents, and fiduciary outs
• Structuring M&A financing, including new strategies for the current market.  Responding to the shortage of traditional financing for M&A deals with creative solutions, such as earnouts and joint ventures
• Why mergers fail?: Strategies for closing deals in a fluctuating market
• Protecting a deal in the current economy with material adverse change clauses and reverse termination fees: United Rentals and Genesco
• Effective use of the hostile offer for strategic purposes and tactics; and techniques and developments in defending against hostile bids and proxy contests
• Dismantling takeover defenses:  Prudence or folly?
• Communicating with shareholders in M&A transactions - disclosures and spin; lessons learned from recent transactions
• 2009 Amendments to the Delaware General Corporation Law: Shareholder access to proxy solicitation materials, reimbursement of stockholder expenses for proxy materials, indemnification or advancement of expenses, empty voting, and removal of directors
• Cross-border M&A trends and predictions for future growth

A. Abbey, C. Condon, A. Hogan, T. Kennedy, I. Presant, F. Saeed, A. Sparks, M. Wolinsky

2:50  Corporate Governance and Its Effect on the Board of Directors in M&A Transactions

• 2009 Amendments to the Delaware General Corporation Law and their impact on corporate governance practices
• Meaning of "independence" for special committees
• Why "process" really counts
• Conducting corporate internal investigations: Government and shareholder pressure on corporations to conduct internal compliance investigations and the role of the board in conducting internal investigations
• Social issues: Executive compensation and retention issues; preserving long-established corporate policies - how should a board, consistent with its fiduciary duties, deal with these and other "social issues" in the context of a merger transaction?
• Corporate governance and successor liability issues

S. Baskin, M. Foran, A. Hogan, T. Kennedy, A. Miller, A. Sparks, J. Thoyer

3:50  Networking Break

4:00  Overview of 2009 Proxy Season and Shareholder Activism

• Responding to increased shareholder activism following 2009 Amendments to the Delaware General Corporation Law and the SEC's plan to adopt amendments to enable greater shareholder access to proxy materials
• Special issue agenda items sponsored by shareholder activists and institutional investors
• Activities of hedge funds, union pension funds, & "noisemaker" investors
• Rule 14a-8 Shareholder Proposals and the difference between procedural and substantive bylaw proposals
• Increasing shareholder activism and shareholder proposals regarding:
  -an advisory vote on compensation, also called "say on pay";
  -majority voting for directors;
  -requiring an independent board chairman;
  -right of shareholders to call a special meeting; and
  - repeal of classified boards
• "Vote- No" campaigns and exempt solicitations
• Company responses to threatened proxy fights and limited board representation

M. Foran, P. Lyons, A. Miller, A. Hogan, R. Pachman, D. Sternberg

5:00  Adjourn

Faculty

Chairperson(s)

Dennis J. Block, Cadwalader, Wickersham & Taft LLP

Speaker(s)

Arthur N. Abbey, Abbey, Spanier, Rodd & Abrams, LLP
Steven A. Baronoff, Chairman of Global Mergers & Acquisitions, Merrill Lynch, Pierce, Fenner & Smith Incorporated
Stuart J Baskin, Shearman & Sterling LLP
Douglas L. Braunstein, Head of Investment Banking, JP Morgan
Michael Carr, Managing Director, Goldman, Sachs & Co.
Creighton O'M. Condon, Shearman & Sterling LLP
Margaret M. Foran, Chief Governance Officer, VP and Corporate Secretary, Prudential
Louis P. Friedman, Managing Partner, Flexis Capital LLC
N. Adele Hogan, Special Counsel, Cadwalader, Wickersham & Taft LLP
Thomas H. Kennedy, Skadden, Arps, Slate, Meagher & Flom LLP
Peter Lyons, Shearman & Sterling LLP
Alan Miller, Co-Chairman, Managing Director, Innisfree M&A Incorporated
Ruth Pachman, Kest and Company
Ivan J. Presant, Dewey & LeBoeuf LLP
Faiza J. Saeed, Cravath, Swaine & Moore LLP
Stefan M. Selig, Executive Vice Chairman Global Corporate Investment Banking, Bank of America Merrill Lynch
A. Gilchrist Sparks, III, Morris, Nichols, Arsht & Tunnell LLP
Daniel Sternberg, Cleary Gottlieb Steen & Hamilton
Judith Reinhardt Thoyer, Paul, Weiss, Rifkind, Wharton & Garrison LLP
Marc Wolinsky, Wachtell Lipton Rosen & Katz

Program Attorney(s)

Lauren Esposito, Practising Law Institute

CLE Credit

Travel Information

New York City Seminar Location

PLI New York Center, 810 Seventh Avenue at 53rd Street (21st floor), New York, New York 10019. Message Center, program days only: (212) 824-5733.

New York City Hotel Accommodations

Due to high demand and limited inventory in NYC, we recommend reserving hotel rooms as early as possible.
 
The New York Hilton & Towers, 1335 Avenue of the Americas, New York, NY 10019. 1 block from PLI Center. Reservations 1-800-HILTONS or, 1-877-NYC-HILT. Please mention that you are booking a room under the Practising Law Institute Corporate rate and the Client File # is N495741. Reservations on line at www.hilton.com and enter the same Client File # in the Corporate ID # field to access Practising Law Institute rates.

The Warwick New York Hotel, 65 West 54th Street New York, NY 10019. 1 block from PLI Center. Reservations 800-223-4099 or, hotel direct 212-247-2700. Please mention that you are booking a room under the Practising Law Institute Corporate rate. Reservations on line at www.warwickhotelny.com Click reservations in menu bar on left. Select desired dates. In 'Special Rates' drop down window select Corporate Rate. In 'Rate Code' enter PLIN. Click search and select desired room type and rate plan. Or, you may email reservation requests to: res.ny@warwickhotels.com