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Making Use of Tender Offers


Level: Advanced
Runtime: 92 minutes
Recorded Date: February 13, 2020
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Agenda


  • Introduction
  • Tender Offer Mechanics
  • Additional SEC Regulation
  • Merger v. Tender Offer
  • Financing and PE Issues
  • Exchange Offer Issues
Runtime: 1 hour, 32 minutes
Recorded: February 12, 2020

Description

Panelists will review legal and practical issues in using tender offers to acquire public companies, focusing on advantages/disadvantages relative to the use of mergers and on special securities rules and other ways in which tender offers differ from mergers. The panel will make reference to the ABA's newly published Model Tender Offer Agreement.

This program was recorded on February 13th, 2020.

Provided By

American Bar Association

Panelists

Josh Shainess

Special Counsel, Office of Mergers and Acquisitions
SEC

Josh worked at the US Securities and Exchange Commission as Special Counsel for the Office of Mergers & Acquisitions, Division of Corporation Finance. He received his JD, cum laude from the Suffolk University Law School in 2015.

Nick Panos

Senior Special Counsel, Office of Mergers and Acquisitions
SEC

Mr. Panos serves the U.S. Securities and Exchange Commission ’s Division of Corporation Finance as a Senior Special Counsel in the Office of Mergers and Acquisitions. Mr. Panos is a two-time recipient of the SEC’s Law and Policy Award. He routinely contributes M&A expertise to the SEC’s Enforcement Division, and has been publicly credited with reinforcing several recent enforcement actions. Mr. Panos is also an Adjunct Professor of Law at Georgetown University.

Mr. Panos graduated from Colgate University with a B.A. in Economics. He obtained his law degree from the University of Denver where he was a member of the Law Review and earned a research credit in a West Publishing textbook on the law governing administrative agencies. He also holds an MBA degree from the Columbia University Graduate School of Business.

Jenny Hochenberg

Partner
Cravath, Swaine & Moore LLP

Jenny Hochenberg is a partner in Cravath’s Corporate Department. Her practice primarily encompasses mergers and acquisitions and general corporate matters.

Ms. Hochenberg is a frequent speaker on mergers and acquisitions law. In 2020, she spoke at the American Bar Association’s Mergers and Acquisitions Committee Meeting, where she participated in the “Acquisitions of Public Companies Subcommittee Meeting.” Ms. Hochenberg also spoke at the Practising Law Institute’s (PLI) “Doing Deals 2020: The Art of M&A Transactional Practice” program, participating in a panel entitled “It’s a Hostile World: Takeover Defense and Hostile Deals.”

Ms. Hochenberg is involved in several initiatives dedicated to the advancement of women in the legal profession, and she supports DirectWomen, a national non-profit which works to increase the representation of women lawyers on corporate boards.

Ms. Hochenberg was born in Sofia, Bulgaria. She received an A.B. in Economics summa cum laude from Dartmouth College in 2006, where she was elected to Phi Beta Kappa, and a J.D. with distinction from Stanford University in 2009. Ms. Hochenberg is a member of the New York Stanford Law School Chapter Committee, which serves to strengthen the connections among alumni in New York and between alumni and the school. She joined Cravath in 2009 and became a partner in 2018.

Eric Klinger-Wilensky

Partner
Morris Nichols Arsht & Tunnell LLP

Eric counsels corporations and special committees in the context of potential transactions; aids corporations and investors in structuring capital investments; and advises generally on corporate governance issues. He also provides corporate-related advice in the context of transaction and governance litigation.

Eric has been involved in a number of precedent-setting M&A and other corporate cases decided by the Delaware courts over the past fifteen years, including: Akorn, Inc. v. Fresenius Kabi AG (litigation regarding the existence of a material adverse effect and other contractual provisions dealing with deal conditionality); Third Point LLC v. Ruprecht (addressing use of poison pill in response to activist proxy contest); C&J Energy Services, Inc. v. City of Miami General Employees’ and Sanitation Employees’ Retirement Trust (opinion on directors' so-called “Revlon” duties in a sale of the company); Air Products & Chemicals, Inc. v. Airgas, Inc. (addressing use of poison pill to thwart hostile bid); and eBay Domestic Holdings, Inc. v. Newmark (ordering the invalidation of a poison pill and dilutive issuance of stock).

Eric is actively involved in both the national corporate legal community and the local Delaware legal community. At the national level, he is the former chair of the American Bar Association (“ABA”) Section of Business Law Private Equity and Venture Capital Committee, and the co-chair of the ABA Section of Business Law Mergers and Acquisitions Committee Task Force on Two-Step Transactions. In his role as Two-Step Task Force co-chair, he co-edited the ABA’s Model Tender Offer Agreement treatise published in 2020. He often speaks to state and local bar associations on developments in Delaware law, including the Georgia Bar Association, the Minnesota State Bar Association, the New York City Bar Association Corporation Law Committee and the Boston Bar Association.

Within Delaware, at the request of two successive Chief Justices of the Delaware Supreme Court, Eric served as a member of the Permanent Advisory Committee on Supreme Court Rules and a committee of the Delaware Access to Justice Commission. In addition, he has repeatedly served on drafting committees of the Council of the Corporation Law Section of the Delaware State Bar Association, including serving as a lead drafter of legislation that ultimately became Section 251(h) of the Delaware General Corporation Law, which facilitated and led to an increase in the use of two-step mergers.

Eric is a Lecturer in Law at the University of Pennsylvania Law School, where he teaches classes on M&A contract drafting and venture capital, and serves on the Board of Trustees of the university’s Institute for Law and Economics. He also serves on the academic advisory board for Bloomberg Law’s Corporate Transactions product. He frequently speaks and writes on emerging issues in Delaware corporate law and serves as an editor of the Delaware Corporation Law and Practice annual publication

Michael O'Bryan

Partner
Morrison & Foerster LLP

Michael O’Bryan is a partner in the firm’s Corporate Department. His practice focuses on U.S. and international mergers, acquisitions, divestitures, and other strategic transactions, including “going private” and other related party transactions. He has been involved in more than 350 M&A transactions, advising companies, boards, and special committees, as well as investment banks, in both negotiated and contested transactions. Mr. O’Bryan has worked extensively with clients across a variety of industries, including in technology, software, telecommunications, Internet, consumer, and health care/life sciences sectors. Mr. O’Bryan is recognized in Who’s Who Legal – The International Who’s Who of Mergers & Acquisitions Lawyers. He is also recommended as a leading lawyer by Chambers USA 2012, 2013, and 2014; Legal 500 US 2012, 2013 and 2014; Best Lawyers In America 2013 and 2014; and Super Lawyers since 2009.


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