ICLG The International Comparative Legal Guide to: Mergers & Acquisitions 2012 A practical cross-border insight into mergers and acquisitions

Published by Global Legal Group, with contributions from:

Albuquerque & Associados Lenz & Staehelin Ali Budiardjo, Nugroho, Reksodiputro Lorenz Andreas Neocleous & Co LLC Mannheimer Swartling Advokatbyrå AB Arzinger Nishimura & Asahi Bech-Bruun Pachiu & Associates Cárdenas & Cárdenas Abogados Santa Maria Studio Legale Associato Covington & Burling LLP Schoenherr Cravath, Swaine & Moore LLP Skadden, Arps, Slate, Meagher & Flom LLP Dittmar & Indrenius Elvinger, Hoss & Prussen SNR Denton & Co Gide Loyrette Nouel Steenstrup Stordrange Goltsblat BLP Stikeman Elliott LLP Hengeler Mueller Tonucci & Partners LLP Wachtell, Lipton, Rosen & Katz J & A Garrigues, SLP Webber Wentzel Karanovic & Nikolic Yigal Arnon & Co. Koep & Partners Zhong Lun Lee and Li, Attorneys-at-Law Žurić i Partneri d.o.o., law firm Chapter 5

Conflict Transactions: Upping the Ante at a Adam O. Emmerich Time of Anxiety

Wachtell, Lipton, Rosen & Katz Trevor S. Norwitz

Overview conflict transaction’s fairness. That is why almost all conflict transactions feature one or both of these procedural devices. No task facing the independent directors of a public corporation Although the basic rules have not changed, recent court decisions demands greater focus and care than a change of control or other show the Delaware Court of Chancery to be taking a more active major transaction in which a controlling shareholder or senior stance in policing conflict transactions. This increased judicial management stands on the opposite side. Whether the conflicted suspicion is not aimed solely at traditional fiduciary targets such as party has absolute control and insists that it is only willing to special committees, inside management or controlling shareholders, entertain a specified proposed transaction, or whether the directors but has focused also on advisors and other transaction participants have greater power and influence – or even full legal power – over whose own motivations have been suspected of being in conflict a potentially conflicted transaction, these are among the thorniest with the best interests of a company’s shareholders. Recent situations that can face directors and their advisors, and recent decisions serve as a cautionary reminder that even where a Delaware cases have raised the stakes and heightened the anxiety. company’s board of directors is independent or uses one or more of As always, however, paying close attention to the process by which the conflict cleansing mechanisms described above, great care such transactions are pursued and ensuring that independent should be exercised by the board to ensure that it remains actively directors are actively engaged, properly informed, and empowered engaged in the process and that any potential conflicts of interest to exercise their good faith judgment – together with a healthy dose are proactively identified and properly addressed. of common sense – can alleviate the risks and help navigate a path through the briar patch. In recent years, conflict transactions have garnered substantial The Basics: The Lynch Doctrine and the attention and have been subjected to more than a little judicial Importance of an Active Board skepticism. Whether a classic case in which a fiduciary stands on Since the Delaware Supreme Court’s 1994 ruling in Kahn v. Lynch both sides of a deal, or a transaction which merely raises a risk that Communication Systems, Inc.,2 it has been clear that when managerial self-interest could steer the process away from the best considering a shareholder challenge to a true conflict transaction – interests of public shareholders, courts in the U.S., and especially in that is, one in which a controlling shareholder stands on both sides Delaware, tend to view such transactions with suspicion and accord of the transaction – the court will apply the “entire fairness” test, them intense scrutiny. Specifically, when a conflict transaction notwithstanding the use of either an independent special committee between a corporation and a controlling party is challenged in court, or a majority-of-the-minority shareholder vote condition. The use the interested fiduciary ordinarily bears the burden of of either procedural mechanism will, at most, shift the burden of demonstrating that the transaction was “entirely fair” to the proving the transaction was unfair to the challenging shareholder- corporation and its shareholders. In considering whether this plaintiff.3 Under Lynch and its progeny, in order to shift the burden, burden is met, a Delaware court will consider, in a holistic manner, a special committee generally should be properly constituted (that both the process by which the transaction was negotiated – whether is, be composed of genuinely independent directors), have an there was “fair dealing” – and whether the consideration provided appropriately broad mandate, and be properly advised. Recent represented a “fair price”. decisions have further suggested that in order to effect a shift in the Where the conflict transaction was negotiated and approved by a burden, the special committee also must have actually negotiated in properly functioning special committee composed of independent an effective manner.4 directors, the “entire fairness” standard continues to apply, but the Although Lynch involved a paradigmatic case in which a burden of proving that the transaction was not fair shifts to the controlling shareholder stood on both sides of a transaction, shareholder-plaintiff, on the sensible theory that such a mechanism Delaware courts approach with similar suspicion transactions in approximates the negotiating dynamics of an arm’s length bargain which management insiders have a special role, such as a leveraged between the company and a third party. Similarly, the burden is buyout where members of management will “roll” their equity into, shifted where a conflict transaction is approved or ratified by a fully and stay on as executives of, the surviving entity. So, for example, informed majority of the unaffiliated shareholders because such a if a company is exploring strategic alternatives or conducting a sale condition disables the self-interested fiduciary from both process in which private equity alternatives may be proposed, has unilaterally initiating and approving the deal.1 Indeed, the courts received a buyout proposal, or has agreed to be sold to a private in Delaware have observed that either or both of an independent equity buyer, the board should (as the court likely will) take note of bargaining structure and a majority-of-the-minority vote condition, the risk that management and their level of enthusiasm and although not conclusive, will serve as powerful evidence of a

ICLG TO: MERGERS & ACQUISITIONS 2012 WWW.ICLG.CO.UK 17 © Published and reproduced with kind permission by Global Legal Group Ltd, Wachtell, Lipton, Rosen & Katz Conflict Transactions

cooperation (including as to participation in any sale or go-shop not utilise both protections. While ostensibly decided within the process, in providing information to strategic competitors or other traditional rubric delineated by Lynch, these decisions exhibit a potential transaction partners) may be influenced by self-interest. heightened skepticism towards conflict transactions and an There are a variety of techniques that an actively engaged board can increased willingness to impose severe sanctions where the court use to address such risks and protect the integrity of the sale process deems it appropriate (even based on a preliminary factual record), in which an LBO is being considered as an alternative. and to question the motives and integrity of transaction participants Management should be instructed to be even-handed among and financial advisors. potential bidders in providing information and cooperation. In In re Southern Peru Copper Corp. Shareholder Derivative Representatives of the board’s advisors can act as “chaperones” at Litigation, public shareholders challenged the sale by Grupo meetings between management and bidders to ensure that the México, S.A.B. de C.V. of its 99.15% interest in Minera México, process is not “tainted” by inappropriate communications between S.A.B. de C.V., an unlisted private Mexican corporation, to bidders and management. In this connection, it is important that the Southern Peru Copper Corporation,9 a publicly traded company board not only receives appropriate advice but that this advice and also controlled by Grupo México. the board’s deliberations are properly reflected in the record of the Recognising from the outset the self-interested nature of Grupo transaction. México’s merger proposal, the Southern Peru board established an As a general rule, the more serious the conflict, the greater the need independent special committee whose “duty and sole purpose”, for board involvement and oversight. In a true conflict situation, according to the board resolution forming it, was “to evaluate the even the approval by an independent special committee (or board [merger] in such manner as the Special Committee deems to be comprised of independent, non-management directors) will not desirable and in the best interests of the stockholders of [Southern protect the transaction in an entire fairness review where the Peru]”. The special committee hired independent legal and committee or board is found to have taken a passive role in the financial advisors to assist it in considering Grupo México’s negotiation process and/or allowed self-interested management to proposal that Southern Peru acquire Minera in exchange for lead the process in an inappropriate manner. Even before Lynch, the Southern Peru stock having a value of $3.1 billion. After eight Delaware Supreme Court’s 1989 decision in Mills Acquisition Co. months of negotiations and a fairness opinion rendered by its v. Macmillan, Inc. declined to give any protective weight to an financial advisor, the special committee approved the merger independent board’s approval of a management-sponsored largely on the terms originally proposed by Grupo México, leveraged buyout where the board’s passivity and complete lack of including the issuance to Grupo México of Southern Peru stock oversight was found to have allowed the CEO to unfairly worth $3.1 billion at a fixed collarless exchange ratio. When the manipulate an auction for the company in favor of a certain private deal closed five months later, Southern Peru’s stock price had risen equity bidder.5 More recently, the Court of Chancery preliminarily such that the 67.2 million shares to be issued under the merger enjoined a shareholder vote on a going-private transaction where agreement were worth $3.75 billion. the court found that the company’s long-time Chairman and CEO’s In conducting an analysis under the entire fairness standard of strong influence was found to have effectively prevented review consistent with Lynch, Chancellor Strine found that the meaningful board negotiations with an interloping strategic bidder special committee did not function effectively, declined to impose a that, unlike the private equity buyer who ultimately won the bidding burden shift based on those shortcomings, and ultimately concluded 6 war, did not have a need to retain the management team. that the deal was “manifestly unfair” to Southern Peru’s minority shareholders.10 Recent Developments Many practitioners were surprised by the record size of the $1.3 billion award (and $300 million fee to plaintiff’s counsel)11, Given the fact-specific nature of the “entire fairness” assessment, especially since the transaction was approved and negotiated by a and the zealous and entrepreneurial plaintiffs bar, it has become a special committee composed of entirely independent directors and virtual certainty that any transaction presenting a conflict of interest advised by highly respected independent financial advisors that the will attract at least one and frequently many lawsuits. In an effort transaction it negotiated and approved over the course of several to enable practitioners to design transactions that are not subject to months was fair to Southern Peru’s minority shareholders. expensive and disruptive litigation risks, some members of the Although the special committee negotiated for eight months with Delaware Court of Chancery have in recent years begun to agitate Grupo México, the Chancellor lamented that the special against the Lynch doctrine, in some instances ignoring Lynch committee’s mandate was from the start a narrow one that expressly altogether and applying the highly deferential business judgment authorised the committee only to evaluate the deal proposed by rule to conflict transactions where the transaction is both approved Grupo México. The Chancellor found that that narrow mandate by an independent special committee and conditioned on the was indicative of the special committee’s broader “controlled 7 approval of a majority of the minority shareholders. Although mindset”. The court found that the special committee and its doctrinally appealing, not too many transactions have taken financial advisor seemingly believed that the only option to advantage of this suggestion, in large part because of the activist consider was the one proposed by the controlling shareholder, and shareholder “hold up” risk that a “majority-of-the-minority” vote therefore did not offer up alternative transactions or vigorously presents. In any event, although the basic “entire fairness” regime challenge the proposed terms, most significantly the price the announced in Lynch remains “binding” Delaware Supreme Court controlling shareholder proposed. precedent, it remains to be seen whether the Supreme Court will reaffirm Lynch if the issue reaches it.8 And, although the court in Southern Peru stopped short of imputing self-interested motives to the committee’s financial advisor because At the same time, however, that the Court of Chancery has been it had worked for a non-contingent flat fee, it nonetheless criticised seeking to create a new paradigm for conflict transactions utilising the advisor’s services. In particular, Chancellor Strine found two the two protective mechanisms that replicate the negotiating facets of the financial advisor’s analysis extremely troubling. First, dynamics of a third party arm’s length transaction, thus obviating instead of relying on Southern Peru’s stock market-tested value, the the need for close judicial scrutiny, it has also issued a series of financial advisor looked to Southern Peru’s “intrinsic value” and decisions that are notably tougher on true conflict situations that do

18 WWW.ICLG.CO.UK ICLG TO: MERGERS & ACQUISITIONS 2012 © Published and reproduced with kind permission by Global Legal Group Ltd, London Wachtell, Lipton, Rosen & Katz Conflict Transactions

determined that its intrinsic value was in fact lower than its stock- bidders in contravention of the “no-teaming” provision in each of trading value. Second, having proceeded on this basis, the financial the bidder’s confidentiality agreements and intentionally advisor employed a “relative valuation” method that it deemed concealing from the board the second bidder’s existence until late appropriate because both Southern Peru and Minera were engaged in the process; and pursuing a secret plan to provide buy-side in copper mining. This approach was deemed even more suspect in financing. the court’s view because the financial advisor resorted to it only Other actions of the advisor and the board which were criticised after traditional discounted cash flow analyses led to valuations of may have been less obviously problematic at the time, but offer Minera that were roughly 50% of Grupo México’s asking price. valuable lessons for directors and advisors going forward, including Although the seemingly large valuation discrepancy, as found by particularly the salient reminder that all such transactions will be the court, raises some serious questions, if such a situation presents viewed in hindsight and not always sympathetically. The Vice itself independent directors who are called upon to represent the Chancellor criticised the board for acquiescing to the financial shareholders may nevertheless be well advised to accept and advisor’s desire to provide buy-side financing without attempting to approve such a transaction after satisfying themselves that no extract further concessions for shareholders. There is no per-se rule alternatives are in fact available (and recognising of course that any against a seller’s financial advisor providing financing to a buyer such transaction will be subject to judicial review). Independent and stapled financing offered to all bidders may provide certain directors should certainly avoid the situation where what they and benefits to a seller. However, because of the conflicts, these their advisors end up doing, consciously or not, is attempt to situations need to be handled delicately and appropriately, and “rationalise” the deal put on the table by the controlling should be properly documented to ensure process integrity. shareholder. However, it is entirely possible for a controlling The court also faulted the board for charging the same financial shareholder to insist on a particular transaction which is the best advisor with running the merger agreement’s “go-shop” process. available alternative for the company, even if a disproportional Of course, a “go-shop” process does not always have to be run by a share of the transaction’s benefits goes to that controller. In a case new financial advisor (and it would often be highly inefficient to do where the controller refuses to sweeten the transaction to the so), but where, as in this case, the original advisor has an economic satisfaction of the independent directors, the directors have a choice stake in the pending transaction greater than in a potentially higher to make: they can either negotiate the best deal they can for the bid (because of its financing role) a board should be cautious in minority shareholders, or they can refuse to countenance it at all, making such decisions because the potential for conflicts is forcing the controller to either drop the transaction or force it increased. through (perhaps by removing them from the board) and face a It is worth noting that, although the Vice Chancellor had to find a difficult “entire fairness” judicial review. These are extremely fiduciary breach to enjoin the transaction, he did not primarily difficult cases, but with good faith, due care and diligence, proper blame the directors because the financial advisor’s self-interested advice and a close attention to the process, an appropriate solution conduct was completely unknown to the board until discovery can ordinarily be found. relating to the litigation commenced. Nevertheless, Vice A second important case in 2011 further illustrates the Court of Chancellor Laster concluded that “the buck stops with the Board” Chancery’s current willingness to look beyond the board or the because “Delaware law requires that a board take an active and special committee charged with negotiating and approving a direct role in the sales process”.13 Analogising to the Delaware transaction and scrutinise the motivations of their advisors, even in Supreme Court’s decision in Mills,14 Vice Chancellor Laster situations where it is difficult to imagine how the most scrupulous observed that the Del Monte board was actively deceived by its and attentive independent board or committee could have protected self-interested financial advisor and there was therefore a against the problems those motivations were found to have caused. reasonable probability that the plaintiffs, at trial, could show as a The story in In re Del Monte Foods Co. Shareholders Litigation result of this “taint of self-interest” that the Del Monte board had picks up in early 2010 just after the Del Monte board had breached its fiduciary duties in conducting the sales process.15 terminated an exploratory sales process that resulted in a handful of unsatisfactory bids.12 The court found (based on a preliminary record) that against the board’s instructions and without the board’s Conclusion: Use Caution Ahead knowledge, the board’s financial advisor continued discussions Together, the Southern Peru and Del Monte decisions serve as a with several of the same bidders – discussions that ultimately cautionary reminder that the Delaware Court of Chancery has yielded a new joint bid from two buyout firms in late 2010. Then, trended towards closer scrutiny of a class of transactions that were the court found, after being re-engaged by the Del Monte board, and already the target of searching judicial review. The Court of before a price term could be ironed out with the buyout firms, the Chancery will not limit its skepticism to more traditional targets financial advisor sought and received permission from the board to such as boards, special committees, or controlling shareholders, but provide the buyout firms with buy-side financing (which of course will look closely at the role and independence of advisors in the provided substantial additional consideration to the advisor from context of conflict transactions. Whether these decisions are a the buyer, hence the conflict). Del Monte then inked a high- transient reaction to the fall-out from the recent financial crisis or a premium deal with a “go-shop” provision (which yielded no harbinger of significant doctrinal evolution remains to be seen. additional bids). What is fairly certain, and has been so for several years, is that the In deciding to preliminarily enjoin the shareholder vote on the body of law surrounding conflict transactions (whether involving a buyout, Vice Chancellor Laster found that the financial advisor’s true conflict such as in Southern Peru or a buyout proposed by or in self-interest tainted the process of a board composed entirely of which management will have a significant role) is, if not independent directors. In so finding, he pointed to several aspects inconsistent, one that challenges the ability of advisors to provide of the financial advisor’s behavior which he found to be straightforward and easy answers. Instead of looking for bright problematic on the preliminary record. Some of the advisor’s lines in cases like Del Monte or Southern Peru, advisors and behavior found by the court to be inappropriate and worthy of independent directors alike must appreciate these cases for what censure included: ignoring the board’s instructions to terminate the they are – factually rich assessments made by a court known for its sales process and drumming up a bid for the company; teaming up

ICLG TO: MERGERS & ACQUISITIONS 2012 WWW.ICLG.CO.UK 19 © Published and reproduced with kind permission by Global Legal Group Ltd, London Wachtell, Lipton, Rosen & Katz Conflict Transactions

doctrinal flexibility when the court believes that particular A.3d 60, 89-93 (Del. Ch. 2011) (citing Kahn v. Tremont circumstances warrant it. Stated differently, these cases can and Corp., 694 A.2d 422 (Del. 1997)) (observing that, although should be understood as threads in the tapestry of the common law not free from doubt, Delaware Supreme Court precedent tradition that has evolved and continues to evolve since the “suggests that the [burden shift] inquiry must focus on how Delaware Supreme Court decided Lynch. the special committee actually negotiated . . . rather than just how the committee was set up”). The decisions do, however, reaffirm the bedrock principle that 5 Mills Acquisition Co. v. Macmillan, Inc., 559 A.2d 1261 boards and special committees must, when considering a conflict (Del. 1989); see also In re Netsmart Techs., Inc. S’holders transaction, take their crucial role in the process with the utmost Litig., 924 A.2d 171, 193 n.70 (Del. Ch. 2007) (citing In re seriousness. A board or special committee must ensure that the SS & C Techs., Inc. S’holders Litig., 911 A.2d 816, 820 (Del. advisors it retains are both free of any disabling conflicts of interest, Ch. 2006) for the proposition that special committees and appropriately directed at the beginning of the process and independent directors need to “be active when addressing supervised throughout, so that potential conflicts of interest that LBO transactions involving powerful economic incentives may arise during any process are appropriately addressed. for management that might conflict with the interests of Similarly, the board or special committee must be mindful that in public stockholders”). certain transactions management may have incentives that are 6 In re Topps Co. S’holders Litig., 926 A.2d 58 (Del. Ch. different than those of the company and its shareholders. The board 2007); see also Netsmart, 924 A.2d at 194 (criticising a or special committee should consider how it can best ensure that special committee’s decision to let the company’s CEO drive management’s role in the negotiation process, in most instances the due diligence process because “[i]f management had an incentive to favor a particular bidder (or type of bidder), it critical to the transaction’s success, does not impair the board’s could use the due diligence process to its advantage, by using ability to protect the best interests of all shareholders. different body language and verbal emphasis with different While the results and financial consequences of, as well as the bidders.”). critical judicial tone exhibited in, both the Southern Peru and Del 7 See, e.g., In re CNX Gas Corp. S’holders Litig., 4 A.3d 397 Monte decisions have been viewed by members of both the legal (Del. Ch. 2010) (applying the “unified” standard to a freeze- and fi-nancial advisory communities as significantly heightening out tender offer commenced by a controlling shareholder but the difficulty of properly handling a category of transactions that declining to apply the business judgment rule because the were already the subject of intense popular and judicial scrutiny, it special committee did not recommend the transaction); Reis v. is worth emphasising that each decision involved unique factual Hazelett Strip-Casting Corp., 28 A.3d 442 (Del. Ch. 2011) circumstances addressed by a court known for its great sensitivity (citing CNX Gas for proposition that entire fairness review can be avoided where the conflict transaction utilises both to factual nuance and doctrinal flexibility. Furthermore, both procedural cleansing mechanisms but applying entire fairness decisions were made against a backdrop of American – indeed because neither mechanism was used); see also Transcript of global – economic anxiety and social unrest in the wake of a Oral Argument at 61, Krieger v. Wesco Fin. Corp., C.A. No. historic economic crisis in large part blamed on corporate greed and 6176-VCL (Del. Ch. May 10, 2011) (denying motion to callousness. As a practical matter, conflict transactions continue to preliminarily enjoin Berkshire Hathaway’s proposed be regularly proposed and consummated, and in most instances do acquisition of the remaining 19.9% of Wesco Financial’s not result in any damages verdicts. The decisions still should, stock that it did not already own where the deal satisfied both however, be thought of as important reminders of what is at stake prongs of the standard employed in CNX Gas); In re Cox when pursuing conflict transactions. Commc’ns, Inc. S’holders Litig., 879 A.2d 604 (Del. Ch. 2005) (suggesting, in dicta, that Lynch should be modified to allow the court to invoke the business judgment rule when a Endnotes going private merger with a controlling shareholder was effected using both procedural cleansing mechanisms); cf. In 1 In practice, because a merger must be recommended by the re John Q. Hammons Hotels Inc. S’holder Litig., 2009 WL board, the independent shareholder ratification alternative 3165613 (Del. Ch. Oct. 2, 2009) (holding in a case not has been used predominantly in squeeze-outs effected by governed by Lynch because the controlling shareholder did tender offer. See e.g., In re Siliconix Inc. S’holders Litig., not stand on both sides of the transaction, entire fairness 2001 WL 716787 (Del. Ch. June 21, 2001) (holding that review need not be applied where the transaction was (i) where a controlling shareholder makes a tender offer for the recommended by a disinterested and independent special minority shares, it is under no obligation to offer a fair price committee, and (ii) approved by a non-waivable vote of the so long as the minority shareholders are fully informed and majority of all the minority shareholders). the offer is not coercive); In re Pure Res., Inc., S’holders 8 The Delaware Supreme Court declined one opportunity to do Litig., 808 A.2d 421 (Del. Ch. 2002) (expanding on Siliconix so in the CNX Gas litigation when it decided not to consider and holding that a tender offer is coercive unless it includes: an interlocutory appeal certified by Vice Chancellor Laster (i) a non-waivable majority of the minority tender condition; on this issue. (ii) a promise of an immediate short-form merger at the same 9 Now known as Southern Copper Corporation (NYSE: price offered in the tender offer if the controlling shareholder SCCO). achieves 90% ownership; and (iii) no threats of retribution if the tender offer fails). 10 Southern Peru, 30 A.2d at 64. 2 Kahn v. Lynch Commc’n Sys., Inc., 638 A.2d 1110 (Del. 11 The court’s opinion contemplates that the $1.3 billion 1994). judgment will be satisfied by Grupo México’s return of an amount of Southern Peru stock having that value, and the 3 However, where a controlling shareholder makes a tender attorneys fee award will be paid by Southern Peru. Both offer for the remaining minority shares (as opposed to doing Grupo México and Southern Peru (for its part insofar as it a merger) and conditions the offer on a majority of the relates to the fee award) have appealed the trial court’s minority shareholders tendering, the transaction may not be decision. subjected to enhanced judicial scrutiny. See, e.g., Siliconix Inc. S’holders Litig., 2001 WL 716787. 12 In re Del Monte Foods Co. S’holders Litig., 25 A.3d 813 (Del. Ch. 2011). 4 See, e,g., In re Southern Peru S’holder Derivative Litig., 30

20 WWW.ICLG.CO.UK ICLG TO: MERGERS & ACQUISITIONS 2012 © Published and reproduced with kind permission by Global Legal Group Ltd, London Wachtell, Lipton, Rosen & Katz Conflict Transactions

13 Id. at 835 (citing Citron v. Fairchild Camera & Instrument for the hefty sum of $89.4 million – $65.7 million payable by Corp., 569 A.2d 53, 66 (Del. 1989)). Del Monte and $23.7 million payable by the financial 14 Id. at 836 (citing and quoting Mills, 559 A.2d at 1272, 1280- advisor. 81, 1284 n.32). 15 Id. It should be noted that on account of the standard Acknowledgment exculpatory provision found in Del Monte’s certificate of incorporation, the individual directors’ threat of personal The authors gratefully acknowledge the assistance of David J. liability was found to be “vanishingly small.” Id. at 818. In Cohen in the preparation of this article. any event, the parties settled the litigation in October 2011

Adam O. Emmerich Trevor S. Norwitz

Wachtell, Lipton, Rosen & Katz Wachtell, Lipton, Rosen & Katz 51 West 52nd Street 51 West 52nd Street New York, NY 10019 New York, NY 10019 USA USA

Tel: +1 212 403 1234 Tel: +1 212 403 1333 Fax: +1 212 403 2234 Fax: +1 212 403 2333 Email: [email protected] Email: [email protected] URL: www.wlrk.com URL: www.wlrk.com

Adam Emmerich focuses primarily on mergers and acquisitions, Trevor Norwitz focuses primarily on mergers and acquisitions, corporate governance and securities law matters. His practice corporate governance and securities law matters. He has has included a broad and varied representation of public and advised a range of public and private entities in a variety of private enterprises in a variety of industries throughout the United industries in connection with mergers, acquisitions, divestitures, States and globally, in connection with mergers and acquisitions, hostile takeover bids and defences, proxy contests, joint divestitures, spin-offs, joint ventures, and financing transactions. ventures, financing transactions and corporate governance He also has extensive experience in takeover defence and matters. corporate governance issues. Adam is recognised as one of the In addition to his professional practice, Trevor teaches a course world’s leading lawyers in the field of Mergers and Acquisitions in in M&A at Columbia Law School, is active on several bar the Chambers Global guide to the world’s leading lawyers; as an committees and was a member of an international advisory group expert in M&A, Corporate Governance and M&A in the real estate to the South African government on company law reform. He is a field by Who’s Who Legal?; as an expert in both M&A and regular speaker and contributor to professional publications on Corporate Governance by Euromoney Institutional Investor’s topics relating to M&A and corporate governance, areas in which Guides, respectively, to the World’s Leading Mergers and his expertise is recognised by Chambers and Who’s Who Legal. Acquisitions and Corporate Governance Lawyers; and is one of He holds law degrees from Oxford University and Columbia Law LawDragon’s 500 Leading Lawyers in America. School.

Wachtell, Lipton, Rosen & Katz is one of the most prominent business law firms in the United States. The firm’s pre-eminence in the fields of mergers and acquisitions, takeovers and takeover defence, strategic investments, corporate and securities law, and corporate governance means that it regularly handles some of the largest, most complex and demanding transactions in the United States and around the world. It features consistently in the top rank of legal advisors. The firm also focuses on sensitive investigation and litigation matters and corporate restructurings, and in counseling boards of directors and senior management in the most sensitive situations. The firm’s attorneys are recognised thought leaders, frequently teaching, speaking and writing in their areas of expertise.

ICLG TO: MERGERS & ACQUISITIONS 2012 WWW.ICLG.CO.UK 21 © Published and reproduced with kind permission by Global Legal Group Ltd, London Other titles in the ICLG series include:

Business Crime International Arbitration Cartels & Leniency Litigation & Dispute Resolution Class & Group Actions Merger Control Commodities and Trade Law Patents Competition Litigation PFI / PPP Projects Corporate Governance Pharmaceutical Advertising Corporate Recovery & Insolvency Private Client Corporate Tax Product Liability Dominance Project Finance Employment & Labour Law Public Procurement Enforcement of Competition Law Real Estate Environment & Climate Change Law Securitisation Gas Regulation Telecommunication Laws and Regulations Insurance & Reinsurance Trade Marks

59 Tanner Street, London SE1 3PL, Tel: +44 20 7367 0720 / Fax: +44 20 7407 5255 Email: [email protected]

www.iclg.co.uk