Mergers and Acquisitions

Orrick has extensive experience representing lenders, buyers, sellers, directors and management in leveraged buyout transactions. We routinely represent special committees of directors of public companies considering leveraged buyout proposals. We also regularly represent financing sources. In addition, we frequently are retained by investors who participate with management in leveraged acquisitions of private companies and subsidiaries and divisions of public companies and by senior management that wishes to initiate a management buyout.

Orrick draws on an assortment of skills from other practices within the firm to create opportunities and solve problems. Having served as counsel in numerous leveraged buyouts, our lawyers have a broad range of experience in structuring, documenting, negotiating and closing leveraged buyouts. Our leveraged buyout practice is national in scope and includes the representation of foreign investors in the United States. As a result of our lawyers’ history of assisting investment banks in creating new financial instruments and representing lending institutions in investment financings, we can help structure as well as document the many layers of debt and equity employed in leveraged transactions.

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Orrick has substantial experience in representing both management and insurgents engaged in proxy contests and consent solicitations and planning for such campaigns. We are able to provide clients with assistance at all stages of a campaign, from the initial period, when strategies must be developed, tactics evaluated and solicitation materials prepared, through completion of the solicitation process, the holding of the shareholders’ meeting and the subsequent proxy tabulation and challenge process. As with takeover defense matters generally, our litigation lawyers experienced in proxy contest litigation are available to become involved in a proxy or consent solicitation at any time.

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Over the years, Orrick has represented numerous publicly held companies in connection with mergers, acquisition and sale transactions, and tender offers. We are highly experienced in all aspects of complex public company acquisitions. Our services in these transactions include advice as to appropriate acquisition strategies and transaction structuring, particularly to increase the likelihood of completing a successful acquisition or merger, minimize liability risks, avoid premature public disclosure and reduce the risk that a competing offer may jeopardize the deal. We also counsel directors as to their fiduciary duties, particularly the difficult duties directors must discharge when deciding to sell or auction the company or when considering competing bids.

We guide clients through the myriad of issues raised by using consideration other than cash, such as stock or debt, including tax considerations, valuation issues, price protection mechanisms, Securities Act of 1933 registration and registration rights. Further, we assist clients with respect to the multitude of other matters which routinely arise in public company acquisitions, such as securities law compliance (including federal tender offer requirements, disclosure obligations and insider trading restrictions), corporate law compliance (including the California fairness hearing process and the Delaware takeover law), antitrust and Hart-Scott-Rodino Antitrust Improvements Act compliance, employee and employee benefit plan matters, environmental issues, and tax issues and planning.

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The M&A transactions that our firm handles include contested matters such as hostile bids, unsolicited tender offers, proxy contests and other transactions involving changes in corporate control.

• Takeover Defenses

  Orrick has assisted numerous companies in considering, developing and implementing defensive devices and strategies against unsolicited or hostile takeovers. Our knowledge and experience, combined with our resources, enables the Firm to provide clients with the high quality and timely advice, counseling and assistance required to respond to an unsolicited takeover bid, devise and establish defensive measures, participate in a proxy contest, or carry out a defensive recapitalization or "white knight" acquisition of the corporation. In addition, our litigation lawyers experienced in takeover defense matters work closely with our mergers and acquisitions group lawyers on all takeover defense assignments.

  The defensive measures considered by our clients with our assistance have included the adoption of charter and bylaw provisions requiring supermajority votes and the payment of a "fair price" for shares, limiting the removal of directors and the calling of shareholder meetings, restricting actions by shareholders and staggering the election of directors. They also have included the adoption of shareholder rights plans or "poison pills," implementation of dual classes of common stock, reincorporation in Delaware, spin-offs, recapitalizations and other corporate restructurings.

• Hostile Transactions

  Our global takeover work brings to bear experts in many critical areas, such as corporate and securities law, litigation, antitrust/competition law, tax law, employment law and real property law. Before launching a hostile takeover bid, we work closely with the takeover proponent to engage appropriate members of its working group (e.g., investment bankers, proxy solicitors, public relations firms, etc.), implement communications and confidentiality processes, thoroughly research the target and consider various takeover strategies and tactics and related public disclosure obligations.

  We work extensively with the takeover proponent to identify the takeover strategies and tactics that are best-suited to the facts and circumstances of a given target and afford the takeover proponent the best opportunity for success. These strategies may include informal contact with the target management to assess interest in a negotiated transaction, "bear hug" notifications to the target as a precursor to launching a hostile tender offer, launching a hostile tender offer directly to the target’s shareholders, negotiated purchases from the target’s major shareholders, open market purchases or a proxy fight coupled with a tender offer.

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Orrick regularly represents clients in connection with acquisitions or divestitures of divisions and subsidiaries. Transactions of this kind raise difficult legal issues, such as identification of the assets to be sold, treatment of shared assets, allocation of responsibility for liabilities between buyer and seller, the extent of each party’s indemnification obligations, escrow arrangements, the scope of post-closing supply and service arrangements, treatment of employees and employee benefits, and tax matters. We have substantial experience in addressing these and other complex issues which typically surface in divestiture transactions. We also have considerable expertise in representing our clients in connection with the sale or auction processes which have become common and accepted methods of disposing of divisions and subsidiaries.

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We are experienced in structuring and negotiating sophisticated and complex strategic alliances, including joint ventures, licensing, manufacturing and distribution arrangements, and technology sharing agreements. Orrick lawyers counsel clients on the complex structuring alternatives available in these transactions.

We have advised on the establishment of joint ventures around the world, including recent transactions in the United States, China, France, Germany, Italy, Japan, Russia, the Ukraine, and the United Kingdom.

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