The SEC and the Failure of Federal, Takeover Regulation
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Adopting a Poison Pill in Response to Shareholder Activism
IN THE BOARDROOM CAPITAL MARKETS & CORPORATE GOVERNANCE Ismagilov/Shutterstock.com Adopting a Poison Pill in Response to Shareholder Activism In his regular column, Frank Aquila drafts a memo to a board explaining the considerations it should evaluate when deciding whether to adopt a poison pill. FRANCIS J. AQUILA PARTNER SULLIVAN & CROMWELL LLP Frank has a broad multidisciplinary practice that includes extensive experience in negotiated and unsolicited mergers and acquisitions, activist and takeover defense, complex cross-border transactions, global joint ventures, and private equity transactions. He regularly counsels boards of directors and board committees on corporate governance matters and crisis management. MEMORANDUM TO: The Board of Directors FROM: Frank Aquila RE: Considerations When Adopting a Poison Pill in Response to Shareholder Activism As we have discussed, the Investor has just filed a Schedule 13D with the Securities and Exchange Commission disclosing equity holdings in the Company equal to 8.8% of the Company’s common stock. The Investor has also disclosed its intentions to increase its stake to approximately 15%, seek representation on the Company’s Board, and then advocate for either a spin-off of certain business units or a sale of the Company. 22 April 2016 | Practical Law © 2016 Thomson Reuters. All rights reserved. To strengthen the Board’s negotiating leverage and provide adequate time to evaluate what alternatives would be in the best interests of the Company and its shareholders, the Board is considering adopting a shareholder rights plan, commonly known as a poison pill, with a 10% threshold. Correctly implemented, the triggering of this poison pill would massively dilute the Investor’s voting and equity stake as soon as the Investor acquires 10% of the Company’s outstanding common stock by allowing all other shareholders to purchase additional shares at a steep discount. -
1 IRREVOCABLE SUBSCRIPTION UNDERTAKING TO: Tryg A/S
EXECUTION VERSION IRREVOCABLE SUBSCRIPTION UNDERTAKING TO: Tryg A/S Klausdalsbrovej 601 2670 Ballerup Denmark ("Tryg") and Morgan Stanley & Co. International plc 25 Cabot Square Canary Wharf London E14 4QA United Kingdom ("Morgan Stanley") and Danske Bank A/S Holmens Kanal 2 - 12 DK-1092 Copenhagen Denmark ("Danske Bank" and together with Morgan Stanley, the "Underwriters") FROM: TryghedsGruppen SMBA Hummeltoftevej 49 2830 Virum Denmark (the "Foundation", "us", "we") Date: 18 November 2020 1 RECOMMENDED CASH OFFER TO ACQUIRE RSA INSURANCE GROUP PLC AND RIGHTS ISSUE IN TRYG A/S 1.1 We understand that Tryg together with Regent Bidco Limited (“Bidco”) and Intact Financial Corporation ("Intact") contemplate an acquisition by Bidco of the entire issued and to be issued share capital of RSA Insurance Group plc ("RSA") (the "Acquisition") by way of court-sanctioned scheme of arrangement under Part 26 of the UK Companies Act 2006 (including any new, increased, renewed or revised scheme of arrangement) (the ''Scheme''). In connection with the Acquisition, 1 Intact and Tryg have entered into a Separation Agreement with respect to the Scandinavia Sepa- ration, on the terms and conditions as summarised in the draft announcement attached to this irrevocable undertaking as Appendix 1.1 (the ''Rule 2.7 Announcement''), together with such additional terms and conditions as may be required by the Applicable Requirements (as defined in Clause 1.3 below) or as may be agreed in writing between Tryg, Intact, Bidco and RSA provided that such additional terms shall not increase Foundation's payment obligations under this irrevoca- ble undertaking or change the consideration contributed by Tryg to the Acquisition as indicated in the Rule 2.7 Announcement without the Foundation's prior consent. -
1 CO-OPERATION AGREEMENT Dated As of 27 September 2010
CO-OPERATION AGREEMENT dated as of 27 September 2010 among IMPERIAL TOBACCO LIMITED AND THE EUROPEAN UNION REPRESENTED BY THE EUROPEAN COMMISSION AND EACH MEMBER STATE LISTED ON THE SIGNATURE PAGES HERETO 1 ARTICLE 1 DEFINITIONS Section 1.1. Definitions........................................................................................... 7 ARTICLE 2 ITL’S SALES AND DISTRIBUTION COMPLIANCE PRACTICES Section 2.1. ITL Policies and Code of Conduct.................................................... 12 Section 2.2. Certification of Compliance.............................................................. 12 Section 2.3 Acquisition of Other Tobacco Companies and New Manufacturing Facilities. .......................................................................................... 14 Section 2.4 Subsequent changes to Affiliates of ITL............................................ 14 ARTICLE 3 ANTI-CONTRABAND AND ANTI-COUNTERFEIT INITIATIVES Section 3.1. Anti-Contraband and Anti-Counterfeit Initiatives............................ 14 Section 3.2. Support for Anti-Contraband and Anti-Counterfeit Initiatives......... 14 ARTICLE 4 PAYMENTS TO SUPPORT THE ANTI-CONTRABAND AND ANTI-COUNTERFEIT COOPERATION ARTICLE 5 NOTIFICATION AND INSPECTION OF CONTRABAND AND COUNTERFEIT SEIZURES Section 5.1. Notice of Seizure. .............................................................................. 15 Section 5.2. Inspection of Seizures. ...................................................................... 16 Section 5.3. Determination of Seizures................................................................ -
Rethinking the Federal Securities Laws
Florida International University College of Law eCollections Faculty Publications Faculty Scholarship 2003 Accountants Make Miserable Policemen: Rethinking the Federal Securities Laws Jerry W. Markham Florida International University College of Law Follow this and additional works at: https://ecollections.law.fiu.edu/faculty_publications Part of the Banking and Finance Law Commons Recommended Citation Jerry W. Markham, Accountants Make Miserable Policemen: Rethinking the Federal Securities Laws, 28 N.C.J. Int'l L. & Com. Reg. 725, 812 (2003). This Article is brought to you for free and open access by the Faculty Scholarship at eCollections. It has been accepted for inclusion in Faculty Publications by an authorized administrator of eCollections. For more information, please contact [email protected]. +(,121/,1( Citation: Jerry W. Markham, Accountants Make Miserable Policemen: Rethinking the Federal Securities Laws, 28 N.C.J. Int'l L. & Com. Reg. 725 (2003) Provided by: FIU College of Law Content downloaded/printed from HeinOnline Tue May 1 11:26:02 2018 -- Your use of this HeinOnline PDF indicates your acceptance of HeinOnline's Terms and Conditions of the license agreement available at https://heinonline.org/HOL/License -- The search text of this PDF is generated from uncorrected OCR text. -- To obtain permission to use this article beyond the scope of your HeinOnline license, please use: Copyright Information Use QR Code reader to send PDF to your smartphone or tablet device Accountants Make Miserable Policemen: Rethinking the Federal -
Alemany, Ricard
1 As I finished my first year of the MBA, one of my mentor’s advice was to read. Used to reading case studies, the question really was “what books should I read?”. After two years at IESE, and experiencing first hand the breadth and depth of knowledge shared from IESE Faculty, I thought the most valuable advice on what to read was right in front of me. How could I continue to learn from professors beyond the classroom, once the MBA path comes to an end. I thought a reading list from IESE Faculty could serve not just me, but my whole class and perhaps future IESE graduates, as a guide to continue learning. Therefore, I asked professors for book recommendations that would inspire and guide us in our future endeavors. The document that follows is the result of it. I hope you find this document insightful and useful. I would like to thank all the participating professors for their recommendations and participation in the project and for sharing their knowledge not only in class, but also beyond it. Additionally, I am grateful for the help and patience of Eduardo Pérez (IESE MBA 2019), the creative genius, who has given shape of the document that I here present to you. Antonio Recio Sanromán. " Our brain is like our body: it needs exercise. If you don’t read at least one good book every month, you will lose most of the good intellectual and analytical shape you got during the MBA reading every day case after case… So, don’t stop reading. -
Investor Bulletin: Reverse Mergers
e Investor Bulletin: Reverse Mergers Introduction merger surviving public company are primarily, if not solely, those of the former private operating company. Many private companies, including some whose operations are located in foreign countries, seek to ac- cess the U.S. capital markets by merging with existing Why Pursue a Reverse Merger? public companies. These transactions are commonly referred to as “reverse mergers” or “reverse takeovers A private operating company may pursue a reverse (RTOs).” merger in order to facilitate its access to the capi- tal markets, including the liquidity that comes with having its stock quoted on a market or listed on an What is a Reverse Merger? exchange. Private operating companies generally have access only to private forms of equity, while public In a reverse merger transaction, an existing public companies potentially have access to funding from a “shell company,” which is a public reporting company broader pool of public investors. A reverse merger with few or no operations,1 acquires a private oper- often is perceived to be a quicker and cheaper method ating company—usually one that is seeking access of “going public” than an initial public offering (IPO). to funding in the U.S. capital markets. Typically, the The legal and accounting fees associated with a reverse shareholders of the private operating company ex- merger tend to be lower than for an IPO. And while change their shares for a large majority of the shares the public shell company is required to report the of the public company. Although the public shell reverse merger in a Form 8-K filing with the SEC, company survives the merger, the private operating there are no registration requirements under the company’s shareholders gain a controlling interest in Securities Act of 1933 as there would be for an IPO. -
The New Investor Tom C.W
The New Investor Tom C.W. Lin EVIEW R ABSTRACT A sea change is happening in finance. Machines appear to be on the rise and humans on LA LAW LA LAW the decline. Human endeavors have become unmanned endeavors. Human thought and UC human deliberation have been replaced by computerized analysis and mathematical models. Technological advances have made finance faster, larger, more global, more interconnected, and less human. Modern finance is becoming an industry in which the main players are no longer entirely human. Instead, the key players are now cyborgs: part machine, part human. Modern finance is transforming into what this Article calls cyborg finance. This Article offers one of the first broad, descriptive, and normative examinations of this sea change and its wide-ranging effects on law, society, and finance. The Article begins by placing the rise of artificial intelligence and computerization in finance within a larger social context. Next, it explores the evolution and birth of a new investor paradigm in law precipitated by that rise. This Article then identifies and addresses regulatory dangers, challenges, and consequences tied to the increasing reliance on artificial intelligence and computers. Specifically, it warns of emerging financial threats in cyberspace, examines new systemic risks linked to speed and connectivity, studies law’s capacity to govern this evolving financial landscape, and explores the growing resource asymmetries in finance. Finally, drawing on themes from the legal discourse about the choice between rules and standards, this Article closes with a defense of humans in an uncertain financial world in which machines continue to rise, and it asserts that smarter humans working with smart machines possess the key to better returns and better futures. -
A Theory of Merger-Driven Ipos
JOURNAL OF FINANCIAL AND QUANTITATIVE ANALYSIS Vol. 46, No. 5, Oct. 2011, pp. 1367–1405 COPYRIGHT 2011, MICHAEL G. FOSTER SCHOOL OF BUSINESS, UNIVERSITY OF WASHINGTON, SEATTLE, WA 98195 doi:10.1017/S0022109011000421 A Theory of Merger-Driven IPOs Jim Hsieh, Evgeny Lyandres, and Alexei Zhdanov∗ Abstract We propose a model that links a firm’s decision to go public with its subsequent takeover strategy. A private bidder does not know a firm’s true valuation, which affects its gain from a potential takeover. Consequently, a private bidder pursues a suboptimal restructur- ing policy. An alternative route is to complete an initial public offering (IPO) first. An IPO reduces valuation uncertainty, leading to a more efficient acquisition strategy, therefore enhancing firm value. We calibrate the model using data on IPOs and mergers and acqui- sitions (M&As). The resulting comparative statics generate several novel qualitative and quantitative predictions, which complement the predictions of other theories linking IPOs and M&As. For example, the time it takes a newly public firm to attempt an acquisition of another firm is expected to increase in the degree of valuation uncertainty prior to the firm’s IPO and in the cost of going public, and it is expected to decrease in the valuation surprise realized at the time of the IPO. We find strong empirical support for the model’s predictions. I. Introduction Recent empirical studies suggest that firms’ initial public offerings (IPOs) and mergers and acquisitions (M&As) are not unrelated. According to a survey of ∗Hsieh, [email protected], School of Management, George Mason University, 4400 University Dr., Fairfax, VA 22030; Lyandres, [email protected], School of Management, Boston University, 595 Commonwealth Ave., Boston, MA 02445; and Zhdanov, [email protected], University of Lausanne, Extranef 237, Lausanne 1007, Switzerland and Swiss Finance Institute. -
Sales -- Implied Warranty -- Cigarette Manufacturer's Liability for Lung Cancer Henry S
NORTH CAROLINA LAW REVIEW Volume 42 | Number 2 Article 18 2-1-1964 Sales -- Implied Warranty -- Cigarette Manufacturer's Liability for Lung Cancer Henry S. Manning Jr. Follow this and additional works at: http://scholarship.law.unc.edu/nclr Part of the Law Commons Recommended Citation Henry S. Manning Jr., Sales -- Implied Warranty -- Cigarette Manufacturer's Liability for Lung Cancer, 42 N.C. L. Rev. 468 (1964). Available at: http://scholarship.law.unc.edu/nclr/vol42/iss2/18 This Note is brought to you for free and open access by Carolina Law Scholarship Repository. It has been accepted for inclusion in North Carolina Law Review by an authorized editor of Carolina Law Scholarship Repository. For more information, please contact [email protected]. NORTH CAROLINA LAW REVIEW [Vol. 42 lingering, ominous cloud of illegality under the Robinson-Patman Act. JAMES M. TALLEY, JR. Sales-Implied Warranty-Cigarette Manufacturer's Liability for Lung Cancer Plaintiff's decedent initiated suit in the United States District Court for the Southern District of Florida to recover damages for personal injuries resulting from lung cancer allegedly incurred by smoking Lucky Strike cigarettes. Shortly thereafter, he died from this condition and this claim1 was consolidated with another brought under the Florida wrongful death statute.' The district court sub- mitted the case to the jury on theories of negligence and breach of implied warranty.' In addition to rendering a general verdict for defendant, the jury answered specific interrogatories4 to the effect that the fatal lung cancer was proximately caused by the smoking of Lucky Strikes and that, as of the time of the discovery of the cancer, defendant could not by the reasonable application of human skill and foresight have known of the danger to users of his product. -
Chesterfield a T Naaiau St
HE EVENING WORLD, MONDAY, NOVEMBER 14, 1921. 10 EVENDAY RACING MEETING OPENS AT BOWIE TO-MORRO- W AL NORTON KNOCKS OUT Maryland Races Clinch THE FUSSY FOURSOME Hooking 'Em PAPKE IN SECOND ROUND, i Copyright. 1911. by the Press Publishing Co. (The .New York livening World. ' t t Norton. Yonker's undefeated wel- - Championship TTai, lei n . iKltt. who won twenty-ntn- o Titles for IF t madn't has , lookatuat! sttalght victories, added another victim -- .TllOl ax RIGHT HAND INTO THAT to Ida list last Saturday night at tha 1 Morvich and Exterminator so stronc? i'b op beem right on CoijiinontwalUi aporting Club when li'' kiHieked out Itanum liiliy l'apko In twi J -- I GREEN ! p bOM'T (JliRtL ) "That's what You feLUU THE. i rounds. It was n furious battle whilo !i lusted .mil I'.ipku col-ot- s ci since wciit down with Latter Displays His Remark- edit ho left Sun Urlar Court ME HOT. T' bo - AM' Look flying. I lu wan dropp.-- In tb nrsi last spring. Boveral trips to Kentucky gonna cjuit th'gamg. ! round for the count of nine nnd In tlm able Stamina in Winning ttom Maryland and Now York, and AT ME RIGHT ,jp To it ncoiid wild sent to the ennvns for the OH MV OiON CAM T --1 full count. Is looming up us many more to Canada. Alwny - HOOK EM -- FAUUT - I MEM , AM YOU HAb A Goob Norton fist a at Pimlico going and always willing, ho haH Tti PIN , YbU POCR SAP Jsek Hrltton's most dangerous contend- Saturday. -
A Business Lawyer's Bibliography: Books Every Dealmaker Should Read
585 A Business Lawyer’s Bibliography: Books Every Dealmaker Should Read Robert C. Illig Introduction There exists today in America’s libraries and bookstores a superb if underappreciated resource for those interested in teaching or learning about business law. Academic historians and contemporary financial journalists have amassed a huge and varied collection of books that tell the story of how, why and for whom our modern business world operates. For those not currently on the front line of legal practice, these books offer a quick and meaningful way in. They help the reader obtain something not included in the typical three-year tour of the law school classroom—a sense of the context of our practice. Although the typical law school curriculum places an appropriately heavy emphasis on theory and doctrine, the importance of a solid grounding in context should not be underestimated. The best business lawyers provide not only legal analysis and deal execution. We offer wisdom and counsel. When we cast ourselves in the role of technocrats, as Ronald Gilson would have us do, we allow our advice to be defined downward and ultimately commoditized.1 Yet the best of us strive to be much more than legal engineers, and our advice much more than a mere commodity. When we master context, we rise to the level of counselors—purveyors of judgment, caution and insight. The question, then, for young attorneys or those who lack experience in a particular field is how best to attain the prudence and judgment that are the promise of our profession. For some, insight is gained through youthful immersion in a family business or other enterprise or experience. -
Insider Trading
Brooklyn Law School BrooklynWorks Faculty Scholarship 9-1998 Outsider Trading on Confidential Information: A Breech in Search of a Duty Roberta S. Karmel Brooklyn Law School, [email protected] Follow this and additional works at: https://brooklynworks.brooklaw.edu/faculty Part of the Other Law Commons, and the Securities Law Commons Recommended Citation 20 Cardozo L. Rev. 83 (1998-1999) This Article is brought to you for free and open access by BrooklynWorks. It has been accepted for inclusion in Faculty Scholarship by an authorized administrator of BrooklynWorks. OUTSIDER TRADING ON CONFIDENTIAL INFORMATION-A BREACH IN-SEARCH OF A DUTY Roberta S. Karmel* INTRODUCTION Insider trading cases are a key part of the enforcement pro- gram of the Securities and Exchange Commission ("SEC").1 Many prosecutions of insider trading, however, do not involve true in- sider trading. Rather, they involve trading by outsiders, that is, persons who are not employed by the issuer whose securities are traded, and who trade on nonpublic market information. A fre- quent type of outsider trading is trading in anticipation of a tender offer not yet announced. Because of the egregious facts underly- ing these cases, the SEC has been able to prosecute hundreds of cases without formulating a reasoned analysis of the legal and policy issues involved. Also, despite the large number of articles discussing insider trading, a general consensus among commenta- tors has not developed as to why insider trading is unlawful.2 * Professor and Co-Director of the Center for the Study of International Business Law at Brooklyn Law School. The author is also of counsel to Kelley Drye & Warren LLP.