October 31, 2009
Oracle withdraws Russian Antitrust Filing re Sun
That's according to eWeek and the English translation of a notice from the Russian Antritrust authority. I have no idea why Oracle would pull its pre-merger approval application. The "reasonable best efforts" language in the merger agreement would suggest that they don't pull it. I'm open to ideas.
The Russian antitrust hitch is largely due to "procedural" issues, people familiar with the matter said. In Russia, once the antitrust body has been notified of a deal the companies involved have a maximum of 90 working days to get the deal done. The system is rigid, and Oracle was told it either had to withdraw its notification or face a blocking decision from the Russians, one person said.
The Russian authorities basically want to see how Europe is going to deal
October 30, 2009
Pfizer gives shareholders "say-on-pay"
Pfizer is kind of forward-looking when it comes to these kinds of governance issues. By that I mean - they get pushed, they resist, then they rethink their position. Last time around they adopted a majority-voting policy very early on. Now, it's say-on-pay. Here's the release:
“The Board’s action continues Pfizer’s long tradition of seeking and responding to shareholder input on compensation and other corporate governance topics,” said Matthew Lepore, Pfizer’s vice president and chief counsel for Corporate Governance. “The advisory vote is an additional means of obtaining feedback from our shareholders about executive compensation, which is set by the Compensation Committee of the Board and is designed to link pay with performance. This feedback will supplement our ongoing investor outreach activities on a broad range of corporate governance topics, which will not diminish with the adoption of this advisory vote.”
Timothy Smith, Senior Vice President Environment, Social and Governance Group for Walden Asset Management, and Stephen Viederman of The Christopher Reynolds Foundation said, “We commend Pfizer for taking this step. Once again, Pfizer has exhibited leadership in responding to investor concerns, a proactive approach to investor communications, and strong corporate governance.” The Christopher Reynolds Foundation sponsored a shareholder proposal regarding advisory votes on executive compensation at Pfizer’s 2009 Annual Meeting of Shareholders.
Dealmaker of the Week
Congratulations to my partner, Monica Shilling for being named Dealmaker of the Week by AmLaw Daily.
As the story notes, in a complex M&A transaction involving "a multitude of players," including lawyers from Proskauer, Latham, S&C, Sutherland, Venable, and Wilkie Farr, Monica was the "one attorney . . . charged with sorting out the complicated deal." The story goes on to quote our client, who says "This deal wouldn't have happened without her--She quarterbacked the whole thing."
The whole story can be found here.
October 29, 2009
Keep It Simple
So you graduated with a fancy law degree and picked up some Latin phrases that you can use to impress dates and pass the Bar (congratulations, by the way). But guess what, the SEC wants none of it in your filings and it's best left out of your merger agreements, too. Your clients will thank you. Young lawyers should download and bind a copy of the SEC's plain language guide and keep it on their shelves.
Wachtell's 2009 Proxy Season Review and Look Ahead
...is available on the NY Law Journal's site, here.
October 28, 2009
Assessing the Chrysler Bankruptcy
This is worth watching if you missed it when it ran earlier this week.
Forstmann on Future of Wall St.
Umm...I don't care if it's on the front page of today's NY Times, this is one academic trend that I am not interested in following:
Although now that I think about it, there might be some value in having law students take the business negotiations class sometime after midnight...
BOSTON — Winston Chin hustles on Tuesdays from his eight-hour shift as a lab technician to his writing class at Bunker Hill Community College, a requirement for the associate’s degree he is seeking in hopes of a better job.
He is a typical part-time student, with one exception. His class runs from 11:45 p.m. to 2:30 a.m., the consequence of an unprecedented enrollment spike that has Bunker Hill scrambling to accommodate hundreds of newcomers. In the dead of night, he and his classmates dissect Walt Whitman poems and learn the finer points of essay writing, fueled by unlimited coffee, cookies and an instructor who does push-ups beforehand to stay lively.
October 27, 2009
AOL Spin-off Update
Time Warner recently filed an amendment to its Form-10 which includes and Information Statement describing the overall transaction. To accomplish the spin-off, Time Warner will, following the reorganization, distribute all of its equity interest AOL to Time Warner shareholders on a pro rata basis. After the spin-off, Time Warner will not own any equity interest in AOL and AOL, will be independent from Time Warner even though the population of shareholders will be the same. The spin-off transaction does not require a vote of Time Warner's shareholders.
The centerpiece of the spin-off transaction is the Separation and Distribution Agreement with AOL (exhibit 2.1). The effect of the Separation and Distribution Agreement (along with the ancillary agreements) will be to finally undo this "Deal from Hell". The Separation Agreement itself reads like an amicable divorce. Who gets what and who is responsible for what, when. Schedule II to the Agreement includes a list of assets that assigns them to either AOL or Time Warner. For example, Time Warner gets 11 AOL-related patents and AOL's Gulfstream jets.
Time Warner also gets to keep something like 500+ web addresses, all of which include some version of the AOL and Time Warner name, for example: america-online-time-warner.net, aolandtimewarner.com, and aolcnn.com. My favorite? I suppose it has to be aolfucktimewarner.com or maybe boycottaoltimewarner.com or even not-aol-time-warner.com. Time Warner also gets a list of Harry Potter-related websites.
The filing includes all of the ancillary agreements and provides a pretty good example of how, if you happen to be interested, one goes about structuring a spin-off. In addition to the Separation Agreement there is a Transition Services Agreement (tax audit, and general contracting/construction management), an IP Cross Licensing Agreement (you license all my IP, I license all your IP), a tax opinion (no taxable event pursuant to Sec.332 and 337), an Employee Matters Agreement (they're yours, deal with them), and a Search Services Agreement (you'll still do that for me, right?), among many others. The list of agreements is really pretty lengthy. Working one's way through these documents, particularly the employment contracts, feels a bit voyeuristic.
This deal looks set to close on or about November 12 of this year.
PE in Vietnam
Yesterday, the FT carried a piece announcing that TPG would be investing $35 mln in a private Vietnamese company, Masan Group. I'm noting this for a couple of reasons. First, I have a long-standing personal/professional interest in things that happen in Vietnam. Second, this investment comes against the backdrop of reports earlier in the month that PE investors had turned off the spigot to new Vietnam country funds. To be honest, that's not altogether surprising. It's still a relatively small (85 million people!) place and investments there are hands-on projects that require more spade work than you can probably imagine. At the same time the past few years have seen an explosion in the growth of PE interest in the country resulting in much more money chasing deals. That said, the Masan Group is a real company that's enjoyed quite a bit of success with a strong management team.
October 26, 2009
Say on Pay - Great White North Edition
According to the Canadian Globe and Mail, say-on-pay is voluntarily sweeping Canada's financial services industry:
October 25, 2009
Dodgers Cat-Fight in the Works
I like sales of sports teams. It's one of the few times I can read the sports pages and still pretend to be working. That said, the pending divorce of Dodgers owner Frank McCourt from his wife, Jamie, is shaping up to be a drag-out battle over who will own the team. The LA Times is reporting that she is already lining up investors after having been fired from her position as the team's CEO.
BAC-ML: More E-Mail
OK, so now that BAC has started turning over internal e-mails to the House Committee on Oversight, it's not looking so good ... especially for the lawyers. Law.com/Corporate Counsel has had access to the e-mail and it's quite a tangled web.
The e-mails show that early on the morning of Dec. 19 [Eric] Roth [, a litigation partner at Wachtell] advised the bank's chief executive, Ken Lewis, and its interim general counsel, Brian Moynihan, on how difficult and financially risky it would be to try to invoke a so-called MAC -- or material adverse change -- clause, which would allow the bank to get out of the merger with Merrill.
But another e-mail from associate general counsel Teresa Brenner to Moynihan, sent several hours later and on the same day as Roth's e-mail, says, "Eric made a very strong case as to why there was a MAC" during a conference call with some officials from the Federal Reserve.
Later, Roth writes another e-mail to the legal/business team: