Consumer & Retail Group aving worked on many of the landmark transactions that have redefi ned Hthe consumer and retail industry over the past several decades, the Sullivan & Cromwell Consumer & Retail Group offers clients comprehensive legal expertise paired with a practical understanding of today’s commercial realities.
With a multidisciplinary and integrated global practice, we provide our consumer and retail clients with relevant transactional advice and litigation expertise that is crucial to the successful execution and consummation of deals and the resolution of disputes.
As the following pages demonstrate, Sullivan & Cromwell’s Consumer & Retail Group has had the privilege of working on a number of the most signifi cant transactions and litigation matters in the consumer and retail industry.
We are grateful that our clients have trusted us with their groundbreaking transactions.
We look forward to working with existing and new clients and bringing to bear our industry expertise and experience in what promises to be another exciting year as companies continue to re-position themselves strategically in an ever-evolving industry.
Audra Cohen Co-head of the Consumer & Retail Group
1 Selected Capabilities of S&C’s Consumer & Retail Group
Creative Transaction Structuring Thoughtful Approaches to Employee Arrangements Joint ventures, collaboration agreements and strategic alliances Executive change in control arrangements Earn-outs, contingent value rights, 409A and 280G issues hold-backs and escrow arrangements Implementing retention arrangements Balance-sheet-based and earnings-based WARN purchase price adjustments Works council notifi cations Intellectual property licensing Estate planning with transaction proceeds Strategic Approach to Antitrust and Competition Law Issues Sophisticated Tax Planning Proactive analysis of potential issues Spin-offs, split-offs and reverse Morris trusts Unwavering focus on timing and Structuring to use off-shore cash for certainty implications U.S. acquisitions Creative, economically-rational solutions Corporate inversion transactions NOL preservation strategies Critical Compliance and Investigation Matters Implementation of global transfer FCPA pricing policies AML REIT planning
Strong Cross-Border Capabilities Corporate Governance, Takeover Defense and Responses to Activists Reconciling U.S. and non-U.S. securities law requirements for M&A and capital markets Takeover and activism preparedness transactions Poison pills Multi-jurisdictional contract enforcement Proxy contests and dispute resolution arrangements Negotiation/resolution of activist campaigns Addressing political risks
State-of-the-Art Leveraged Finance Practice Cost Effective and Effi cient Transaction Management Structuring high yield debt fi nancing Unerring client focus Addressing fi nancing risks Budgeting and expense management Lean staffi ng and rigorous team management Leveraging low cost due diligence providers
3 Timeline of S&C’s Headline Transactions (2012-2015)
Joe’s Jeans S&C client Peter Kim, a holder ecently, S&C has advised on several major consumer and retail M&A transactions. of Joe’s Jeans’ outstanding R Alibaba Group Holding convertible notes and the CEO S&C client Suning of its wholly owned subsidiary Commerce Group (China) Hudson Clothing, in connection Green Acres Mall Anheuser-Busch InBev Apollo Tyres Anheuser-Busch InBev Express C&S Wholesale Grocers Kraft Foods Group announces Alibaba Group with Joe’s Jeans’ sale of the S&C client Vornado S&C client Anheuser- S&C client Apollo Tyres S&C client Anheuser- S&C client Express S&C client C&S S&C client Kraft Holding’s (China) $4.63 Joe’s® brand and operating Realty Trust (U.S.) Busch InBev (Belgium) (India) announces its Busch InBev (Belgium) (U.S.) and the Wholesale Grocers Foods Group (U.S.) billion investment for a assets for $80 million to completes its $500 announces its proposed $2.5 billion announces its $5.8 Special Committee (U.S.) announces its completes its 19.99% stake in Suning Sequential Brands and Global million sale of the Green $20.1 billion acquisition acquisition of Cooper Tire billion re-acquisition of its board, acquisition of the $55 billion merger and Suning’s concurrent Brands and Joe’s Jeans’ Acres Mall in Valley of the remaining stake & Rubber Company (U.S.) of Oriental Brewery announce Sycamore wholesale distribution with H.J. Heinz investment of up to $2.28 subsequent merger of the Stream, Long Island to it didn’t already own (later terminated) (South Korea) from KKR Partners’ (U.S.) and supply business Company (U.S.) to billion to subscribe for up remaining Hudson business The Macerich Company in Grupo Modelo (Mexico) (U.S.) and Affi nity Equity interest in acquiring of The Grocers Supply create The Kraft to 27.8 million newly issued with the parent company of (U.S.) Partners (South Korea) Express Company (U.S.) Heinz Company ordinary shares of Alibaba Robert Graham (U.S.)
JAN FEB MAR APR MAY JUNE JULY AUG SEPT OCT NOV DEC JAN FEB MAR APR MAY JUNE JULY AUG SEPT OCT NOV DEC JAN FEB MAR APR MAY JUNE JULY AUG SEPT OCT 2013 2014 2015
American Greetings Dole Food Empire Company Bayer The Priceline Group Diageo Bumble Bee Foods Lion Capital On Assignment Moncler Anheuser-Busch S&C client, the Special S&C client, the Special S&C client Empire S&C client Bayer S&C client The S&C client Diageo S&C clients Lion S&C client S&C client On S&C client Eurazeo InBev Committee of the Board Committee of the Company (U.S.) AG (Germany) Priceline Group (U.K.) announces its Capital (U.K.) and Lion Capital Assignment (U.S.) (France) announces S&C client of Directors of American Board of Directors completes its $5.6 billion announces its (U.S.) announces agreement with Casa Bumble Bee Foods (U.K.) completes announces its the $395 million sale Anheuser-Busch Greetings (U.S.), announces of Dole Food (U.S.), acquisition by its $14.2 billion its $2.6 billion Cuervo (Mexico) to (U.S.) announce its acquisition of $570 million by its subsidiary InBev (Belgium) its $900 million acquisition announces the subsidiary, Sobeys acquisition of the acquisition acquire full global Bumble Bee’s $1.51 Spence Diamonds acquisition of ECIP M (France) of in its proposal by members of the Weiss going-private (U.S.), of substantially all consumer care of OpenTable (U.S.) ownership and control billion acquisition (Canada) Creative Circle 19.5 million Moncler to the Board of family and certain related transaction led by its the assets of Safeway’s business of Merck of Tequila Don Julio by Thai Union (U.S.) (Italy) shares, SABMiller plc parties (U.S.) largest shareholder, (U.S.) Canadian (U.S.) and Diageo’s sale of Frozen Products representing 7.8% (U.K.) to combine David Murdock subsidiary Bushmills to Jose (Thailand) of the share capital the two companies Cuervo Overseas in a of Moncler (2015) (2015) transaction resulting in a net payment of $408 “This leading global M&A practice is one of New York’s heavyweights. The team regularly handles million to Diageo billions of dollars in transactions, including some of the most complex and technical deals in the world. The group is composed of experts in domestic, cross-border and international work and represents clients in both a transactional capacity and fi nancial advisory role.”
CHAMBERS USA, 2012
The Wall Street Journal recognized AB InBev’s $20.1 billion acquisition of Grupo Modelo as “…a deal Winner, Dealmaker of the Year: Sullivan & Cromwell’s Matthew Hurd: that amounts to the second-largest beer deal on record,” and a deal “…that will augment the world’s Bayer acquisition of the consumer care business of Merck biggest brewer’s position in the fast-growing Mexican market…” THE AMERICAN LAWYER, MARCH 2015 THE WALL STREET JOURNAL, JUNE 2012
“Sullivan & Cromwell’s prowess in domestic and cross-border M&A is widely acknowledged, and it #1 Ranked Law Firm Advising on Consumer M&A Deals Globally has been involved in some of the most dazzlingly complex deals handled in the country.” MERGERMARKET, Q1-Q3 2015
CHAMBERS USA, 2013
4 5 Consumer & Retail M&A Other Consumer & Retail Highlights Top 10 Deals in the Last 10 Years n addition, S&C was involved in the following transactions, which showcase our experience S&C has advised on the six largest of top ten largest consumer and retail transactions in Iworking with diverse consumer and retail clients. Multinational consumer and retail the last ten years. companies frequently call upon S&C to handle matters related to mergers and acquisitions, corporate fi nance, litigation, investigations and FCPA issues, as well as intellectual property and executive compensation and benefi ts.
M&A ACQUIRER TARGET DATE VALUE The Firm is a perennial leader in global M&A, handling several of the industry’s most complex ($ millions) transactions. S&C takes an interdisciplinary approach to this practice area where lawyers InBev* (Belgium) Anheuser-Busch (U.S.) 2008 60,408 from many areas of the Firm work together with clients and also with investment bankers,
Procter & Gamble*** (U.S.) Gillette (U.S.) 2005 57,227 accountants, proxy solicitors and other advisers. Sample representations include:
H.J. Heinz (U.S.) Kraft Foods Group* (U.S.) 2015 54,717 Ahold Counsel to Goldman Sachs as fi nancial adviser to Ahold in its pending merger with Delhaize Group American Greetings Counsel to Special Committee in its acquisition by members of the Weiss family and certain Express Scripts (U.S.) Medco Health Solutions* (U.S.) 2011 34,306 related parties Anheuser-Busch InBev in its proposal to the Board of SABMiller plc to combine the two companies Reynolds American (U.S.) Lorillard** (U.S.) 2014 27,737 Anheuser-Busch InBev in its re-acquisition of Oriental Brewery from KKR and Affi nity Equity Partners Investor Group (U.S.) HJ Heinz** (U.S.) 2013 27,362 Anheuser-Busch InBev in its acquisition of the stake it didn’t already own in Grupo Modelo Anheuser-Busch InBev in its sale of Metal Container to Ball CVS (U.S.) Caremark Rx (U.S.) 2006 25,092 Anheuser-Busch InBev in its sale of Compañía Cervecera de Coahuila to Constellation Brands ANN Counsel to J.P. Morgan as fi nancial adviser to ANN in its $2.2 billion acquisition by ascena retail group Walgreen (U.S.) Alliance Boots (Switzerland) 2012 23,761 AOT Bedding Super Holdings Counsel to Ares Management, Ontario Teachers’ Pension Plan and AOT Bedding Mars (U.S.) William Wrigley Jr (U.S.) 2008 23,194 Super Holdings in connection with Advent International’s majority interest acquisition in AOT Bedding (the parent company of National Bedding, the majority owner and licensee of Serta and Simmons Bedding) Imperial Tobacco Overseas Altadis (Spain) 2007 21,489 Apollo Tyres in its proposed acquisition of Cooper Tire & Rubber Company (later terminated) Holdings (U.K.) Apple American Counsel to Goldman Sachs Capital Partners in its investment in Apple American Avon Products in its sale of Avon Japan to TPG Capital Avon Products in its acquisition of Silpada Designs Bayer in its acquisition of the consumer care business of Merck Source: Thomson Reuters, April 7, 2015 Billabong in the sale of its 51.5% interest in Nixon * Representing the company identifi ed Bumble Bee Foods Counsel to Lion Capital and Bumble Bee Foods, in connection with Bumble Bee’s acquisition ** Representing the fi nancial adviser to the company identifi ed by Thai Union Frozen Products *** Representing the compensation committee of the company identifi ed Burger King Worldwide Holdings Counsel to Justice Holdings Limited and Pershing Square Capital Management in connection with Justice’s business combination with Burger King Worldwide Holdings C&S Wholesale Grocers in its acquisition of the wholesale distribution and supply business of The Grocers Supply Company China Mengniu Dairy in its acquisition of Yashili Coca-Cola Bottling Counsel to Rothschild as fi nancial adviser to Coca-Cola Bottling in its purchase of manufacturing facilities from The Coca-Cola Company Coca-Cola Enterprises Counsel to Lazard as fi nancial adviser to Coca-Cola Enterprises in the pending merger of Coca-Cola Iberian Partners and Coca-Cola Erfrischungsgetränke to form Coca-Cola European Partners Coca-Cola HBC in its acquisition of Coca-Cola Hellenic Bottling Coca-Cola HBC in its redomicile to Switzerland and relisting on the London Stock Exchange Collective Brands in its sale to a consortium including Wolverine Worldwide, Blum Capital Partners and Golden Gate Capital Combe in the sale of its Foot Care business and Cough / Cold and Skin Care businesses to Blistex Coty Counsel to Rhône Capital in its acquisition of 7.5% of the common stock of Coty CSM Counsel to Rhône Capital in its acquisition of CSM’s bakery supplies business Diageo in its sale of Barton & Guestier to Castel Frères Diageo in its acquisition of a 50% stake in Zacapa Empire
6 7 Other Consumer & Retail Highlights, continued
M&A continued
Diageo in its agreement with Casa Cuervo to acquire full global ownership and control of Tequila Don Julio and in CORPORATE FINANCE Diageo’s sale of Bushmills to Jose Cuervo Overseas ullivan & Cromwell represents issuers and borrowers from all over the world in corporate Dole Food Counsel to the Special Committee of the Board of Directors of Dole Food in the going-private transaction led by its largest shareholder, David Murdock Sfi nance transactions, including a number of companies involved in the retail and consumer Doosan in its transfer and sale of certain assets of its Polo fashion franchise in Korea to Polo Ralph Lauren industry. We also advise underwriters, placement agents, arrangers, selling and controlling Empire in connection with its acquisition of substantially all assets of Safeway’s Canadian subsidiary shareholders and other market participants. The Firm has long had a leading practice in Express and the Special Committee of its board in Sycamore Partners’ interest in acquiring Express securities law matters, including the disclosure, registration and offering requirements for Family Dollar Counsel to Morgan Stanley as fi nancial adviser to Family Dollar in its $9 billion acquisition by capital markets transactions, public company compliance, corporate governance, new product Dollar Tree technologies (e.g., derivative instruments and structured products) and trading-market practices. Gildan Activewear in its acquisition of Anvil Holdings Gildan Activewear in its acquisition of Comfort Colors We bring a wealth of experience, industry knowledge and know-how to each representation. GSI Commerce, Rue La La and ShopRunner Counsel to NRG Commerce in its acquisition of GSI Commerce’s Selected transactions include the following: licensed sports business and a majority of the equity interests of Rue La La and ShopRunner from eBay Heckmann Counsel to Goldman Sachs in Heckmann’s merger with China Water and Drinks ADT Security Services Multiple offerings, including $2.5 billion Rule 144A/Reg S guaranteed bonds offering, counsel to the underwriters Iceland Foods Counsel to Lord Graham Kirkham and Brait Capital as lead investors in the buyout of Iceland Foods InBev in its acquisition of Anheuser-Busch Alibaba Group SEC-registered IPO and U.S. listing of American Depositary Shares and subsequent debt offerings, counsel to the underwriters Jo-Ann Stores Counsel to The Strategic Transactions Committee / Board of Directors of Jo-Ann Stores in its acquisition by Leonard Green & Partners Anheuser-Busch InBev Multiple debt and equity offerings with aggregate proceeds in excess of $40 billion since Joe’s Jeans Counsel to Peter Kim, a holder of Joe’s Jeans’ outstanding convertible notes and the CEO of its wholly 2008, counsel to the issuer owned subsidiary Hudson Clothing, in connection with Joe’s Jeans’ sale of the Joe’s® brand and operating assets for Autohome $361 million debt SEC-registered ADS offering, counsel to the selling shareholder $80 million to Sequential Brands and Global Brands and Joe’s Jeans’ subsequent merger of the remaining Hudson business with the parent company of Robert Graham Blackhawk Network Holdings $230 million SEC-registered IPO and Nasdaq listing, counsel to the underwriters Kings Plaza Mall Counsel to Alexander’s, an affi liate of Vornado Realty Trust, in its sale of Kings Plaza Mall in Coca-Cola Company $2 billion Rule 144A/Reg S notes offering, counsel to the underwriters Brooklyn’s Mill Basin to The Macerich Company Coca Cola HBC Finance $1.06 billion SEC-registered guaranteed medium-term notes offering, counsel to the Kraft Foods in its merger with H.J. Heinz to create The Kraft Heinz Company issuer Landry’s Restaurants Counsel to Pershing Square Capital Management in connection with its investment in and Diageo Multiple SEC-registered guaranteed global notes offerings with aggregate proceeds in excess of $7.0 billion, agreement to vote its shares in favor of the “going private” acquisition of Landry’s Restaurants counsel to the issuer Lion Capital in its acquisition of Spence Diamonds Five Below $187 million SEC-registered common shares IPO and Nasdaq listing, counsel to the underwriters NBTY in its acquisition by The Carlyle Group On Assignment in its $570 million acquisition of Creative Circle The GAP $1.3 billion SEC-registered offering of global notes, counsel to the underwriters Ontex Counsel to Goldman Sachs Capital Partners VI Funds in their acquisition, with TPG of Ontex H.J. Heinz Multiple SEC-registered and Rule 144A unsecured notes offerings with aggregate proceeds in excess of Outerstuff in connection with an investment by private equity funds affi liated with The Blackstone Group $1.4 billion, counsel to the underwriters PepsiAmericas Counsel to the Transactions Committee of the Board of Directors of PepsiAmericas in its sale to Mattel Multiple SEC-registered unsecured notes offerings with aggregate proceeds in excess of $2.5 billion, PepsiCo counsel to the issuer Priceline in its expanded commercial agreement with and investment in Ctrip.com priceline.com Multiple Rule 144A convertible notes offerings with aggregate principal amount of $2.4 billion, Priceline in its acquisition of OpenTable counsel to the issuer Priceline in its acquisition of KAYAK Software Rakuten $1.5 billion follow-on global offering of common stock, counsel to the issuer Savers Counsel to Savers chairman Thomas Ellison and CEO Kenneth Alterman in connection with the acquisition Sara Lee $3.6 billion delayed draw term loan credit agreement, counsel to the arranger by Leonard Green & Partners and TPG Capital of the interests in Savers held by Freeman Spogli & Co. Skylark $688 million IPO and Frankfurt listing, counsel to the underwriters Suning Commerce Group in connection with Alibaba Group Holding’s $4.63 billion investment for a 19.99% stake in Suning and Suning’s concurrent investment of up to $2.28 billion to subscribe for up to 27.8 million newly issued Suntory Beverage & Food $3.9 billion IPO and Tokyo listing of common stock, counsel to the underwriters ordinary shares of Alibaba Tilly’s $143 million IPO and NYSE listing of class A stock, counsel to the underwriters SunTx Capital Partners in its acquisition of a majority stake in Carolina Beer & Beverage Woolworths Multiple Rule 144A/Reg S senior unsecured notes offerings with over $2.1 billion aggregate principal TNT Express Counsel to Goldman Sachs International as fi nancial adviser to TNT Express in its $4.8 billion amount, counsel to the issuer acquisition by FedEx Unicharm in its acquisition of Unicharm PetCare XXL $470 million IPO and Oslo listing, counsel to the underwriters UST Counsel to the independent directors and Strategic Transaction Committee of UST in its acquisition by Altria Zalando $667 million IPO and Frankfurt listing, counsel to the underwriters Versa Capital Management Counsel to Versa Capital Management in connection with the acquisition of Sport Chalet by Vestis Retail Group, which is owned by funds advised by Versa zulily Counsel to Goldman Sachs as fi nancial adviser to zulily in connection with Liberty Interactive Corporation’s pending acquisition of zulily SunTx Capital Partners in its acquisition of a majority stake in Carolina Beer & Beverage
8 9 Other Consumer & Retail Highlights, continued Integrated Legal Services Worldwide
LITIGATION hrough an international network of 12 offi ces located in leading fi nancial centers in n the consumer and retail sector, our lawyers have experience representing clients in TAsia, Australia, Europe and the United States, S&C’s global practice provides highly Iconnection with litigation matters involving tax issues, insurance coverage disputes, integrated legal services to many of the world’s leading companies on their most challenging intellectual property issues, securities actions, antitrust issues, internal investigations, domestic and cross-border transactional, competition law, litigation and tax matters. DOJ and SEC inquiries, labor and employment issues, M&A transactions, and product liability and contract claims. Our team of litigators – which includes some of the most skilled U.S. trial and regulatory lawyers – is distinguished by this diversity of experience, their exceptional professional judgment and a proven track record of innovation. Selected cases are included below.
LITIGATION, CRIMINAL DEFENSE AND INVESTIGATION LONDON Albertsons in investigation of a shareholder demand letter FRANKFURT PARIS BEIJING PALO ALTO NEW YORK Anheuser-Busch in an Ad hoc/UNCITRAL arbitration with Grupo Modelo that threatened Anheuser-Busch’s WASHINGTON, D.C. LOS ANGELES TOKYO $60+ billion acquisition by InBev HONG KONG Collective Brands (formerly Payless ShoeSource) and several of its present and former directors in a securities fraud class action. S&C has also represented Collective Brands in merger-related class action litigations, insurance coverage, and trademark infringement disputes
Diageo in a number of matters, including class action litigations, investigations by various government agencies relating to the Foreign Corrupt Practices Act and disputes involving issues related to trademark licensing agreements
SYDNEY Dole Food represented four members in connection with class action litigation in Delaware arising out of the MELBOURNE privatization of Dole by David Murdock, who was formerly Dole’s 40% stockholder. S&C negotiated a voluntary dismissal of its clients at no monetary cost prior to the case going to trial.
Dyson in a series of signifi cant IP litigation matters, primarily involving patent infringement claims, Gildan Activewear in U.S. federal securities fraud claims in multi-jurisdictional securities law proceedings in the United States and Canada UNITED STATES EUROPE ASIA/PACIFIC eBay GSI Commerce, Kynetic and Michael G. Rubin in litigation brought by former stockholders of Rue La La asserting claims for, among other things, breach of the implied covenant of good faith and fair dealing and 600+ LAWYERS 100+ LAWYERS 45+ LAWYERS tortious interference New York Frankfurt Tokyo Gildan Activewear in U.S. federal securities fraud claims in multi-jurisdictional securities law proceedings in the United States and Canada and in antitrust matters in Gildan’s acquisition of Gold Toe Moretz Holdings Corp. Established 1879 Established 1995 Established 1987
Philips in several class actions, including one involving Philip’s next-generation Sonicare toothbrush that was Washington, D.C. London Hong Kong dismissed in its entirety. S&C also represented Philips in an FCPA investigation involving the healthcare market Established 1977 Established 1972 Established 1992 in a European country. Los Angeles Paris Beijing Spiegel in connection with a regulatory investigation of Spiegelby the SEC concerning alleged misstatements in Established 1984 Established 1927 Established 1999 the company’s public fi lings and press releases Palo Alto Brussels Melbourne Established 2000 (Conference Center) Established 1983 Established 2002 Sydney Established 2001
10 11 Francis J. Aquila Eric Krautheimer New York Los Angeles +1-212-558-4048 +1-310-712-6678 [email protected] [email protected]
Garrard Beeney S. Neal McKnight New York New York +1-212-558-3737 +1-212-558-3316 [email protected] [email protected]
Audra D. Cohen Richard C. Morrissey New York London +1-212-558-3275 +44 20 7959 8520 [email protected] [email protected] Practice Contacts Practice Ronald E. Creamer Jr. Nader A. Mousavi New York Palo Alto +1-212-558-4665 +1-650-461-5660 [email protected] [email protected]
Michael G. DeSombre Sarah P. Payne Hong Kong Palo Alto +852 2826 8696 +1-650 461 5669 [email protected] [email protected]
Theodore Edelman Yvonne S. Quinn New York New York +1-212-558-3436 +1-212-558-3736 [email protected] [email protected]
John E. Estes Alison S. Ressler New York Los Angeles +1-212-558-4349 +1-310-712-6630 [email protected] [email protected]
Sergio J. Galvis George J. Sampas New York New York +1-212-558-4740 +1-212-558-4945 [email protected] [email protected]
David B. Harms Melissa Sawyer New York New York +1-212-558-3882 +1-212-558-4243 [email protected] [email protected]
Steven L. Holley Marc Trevino New York New York +1-212-558-4737 +1-212-558-4239 [email protected] [email protected]
Matthew G. Hurd Davis J. Wang New York New York +1-212-558-3122 +1-212-558-3113 [email protected] [email protected]
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