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Drafting and Negotiating Corporate Agreements 2014


Speaker(s): Alyssa A. Grikscheit, Audra D. Cohen, Catherine J. Dargan, Jacqueline P. Rubin, Michael S. Sackheim, Nadia Burgard, Sarkis Jebejian
Recorded on: Jan. 10, 2014
PLI Program #: 48393

Nadia Burgard has a broad array of experience in financing and restructuring transactions, including leveraged acquisitions, asset-based  and unitranche financings, second-lien financings, real estate finance and repurchase facilities, workouts, and debtor-in-possession and exit financings. Ms. Burgard’s clients include numerous financial institutions, as well as private equity sponsors and their portfolio companies in leveraged credit and structured finance transactions.

Relevant Experience

  • Advised acquirer in connection with repurchase facilities financing the acquisition of a portfolio of $2 billion of distressed commercial mortgage loans.
  • Advised agent and arranger in connection with a $60 million cross-border, asset-based unitranche facility for an airplane parts manufacturer.
  • Advised acquirer in connection with repurchase facilities financing the acquisition of a portfolio of $450 million of distressed commercial mortgage loans.
  • Advised financial institutions in connection with disposition, restructuring of, and the risk management for a portfolio of ABS, RMBS, CMBS, and CDO assets totaling in excess of $25 billion.
  • Advised acquirer in connection with the financing of the acquisition from the original lender of a portfolio of $480 million of distressed commercial mortgage loans.
  • Advised mortgage finance company in connection with out-of-court restructuring of over $4 billion of ABS, RMBS, repurchase and other debt facilities.
  • Advised arranger and managing underwriter in first, second, bridge and high yield facilities totaling $5 billion in connection with a planned cross border leveraged buyout of an international airline.
  • Advised agent bank in connection with $800 million of senior secured revolving credit facilities for specialty finance company.
  • Advised agent bank in connection with $315 million of DIP and exit credit facilities for a national trucking company.
  • Advised agent bank in connection with $115 million of acquisition financing facilities for a regional fiber optic telecoms operator.
  • Advised agent bank, in connection with the restructuring of $700 million of senior secured credit facilities for a national CLEC with networks in 37 cities within the United States.
  • Advised agent bank in connection with restructuring of $65 million of first and second lien credit facilities for specialty home builder.

Events

  • Speaker, Drafting and Negotiating Credit/Indenture Agreements, Practising Law Institute, January 2012 and January 2013.
  • Speaker, Risks of Entrusting Financial Asset Collateral with Securities Intermediaries, Association of Commercial Finance Attorneys, February 4, 2009

Education

JD, Fordham University, Articles Editor, Fordham Urban Law Journal, 1991
BA, Wesleyan University, Wesleyan Program, Paris, France, 1982

Bar Admissions

New York


Sarkis Jebejian is a corporate partner in Kirkland’s New York office and focuses his practice primarily on mergers and acquisitions, both domestic and cross-border. He also provides governance and other general corporate counseling to clients, boards of directors and investment banks, including in response to shareholder activism.

Sarkis has been repeatedly recognized as one of the country’s leading practitioners in mergers and acquisitions. From 2013 to 2016, Chambers USA recognized him as among the best lawyers in the country for Corporate/M&A, and in 2013, Law360 selected him as an MVP of the Year for M&A. He was also in The International Who’s Who of Merger & Acquisition Lawyers in 2012, and selected as one of the 2012 BTI Client Service All-Stars by Corporate Counsel. BTI lauded him for his exceptional understanding of his clients’ legal and business objectives, including recognizing client goals and providing innovative solutions tailored to meet each client’s specific needs. The Lawyer selected Sarkis as a “Star Partner” in its “Transatlantic Elite 2011” feature for his work in the energy industry. He was also recognized in the 2009-2010 and 2013-2016 editions of The Legal 500 U.S.

Since joining Kirkland in 2013, Sarkis handled transactions including:

  • Talen Energy in its $5.2 billion sale to Riverstone Holdings
  • Nexstar Broadcasting Group in connection with its $4.6 billion acquisition of Media General, ending a six-month public takeover battle during which Nexstar jumped Media General’s previously announced transaction with Meredith Corp.
  • Corning in connection with the unwinding of its 73-year-old Dow Corning joint venture with Dow Chemical in exchange for 100% of a newly formed corporation that will hold a 40% stake in Hemlock Semiconductor Group and approximately $4.8 billion in cash
  • SunEdison Inc. in connection with its negotiation and agreement with activist investor Greenlight Capital regarding various corporate governance initiatives
  • iGate Corp. in its $4 billion sale to Capgemini
  • Infineon Technologies AG in its $3 billion acquisition of International Rectifier
  • Beechcraft in its $1.4 billion sale to Textron
  • Bain Capital and Golden Gate in their $6.9 billion acquisition of BMC Software
  • Golden Gate and Eddie Bauer in the proposed $825 million sale of Eddie Bauer to Jos A. Bank during the hostile bid by Men’s Wearhouse
  • Vista Equity in its $4.3 billion acquisition of TIBCO Software, $1.1 billion acquisition of The Active Network and $1.8 billion acquisition of Marketo
  • Accenture in various transactions, including its $830 million carve-out sale of Navitaire to Amadeus S.A., $375 million acquisition of Procurian, $317 million acquisition of Acquity Group, acquisition of Cloud Sherpas and joint venture with Apax Partners relating to the carve out of Accenture’s Duck Creek Technologies

Sarkis is a graduate of Columbia College and Columbia Law School, where he was a Harlan Fiske Stone Scholar.


A partner in the Litigation Department, Jacqui handles a broad variety of complex commercial litigation matters, including antitrust disputes, direct and indirect class actions, insurance and securities arbitrations, regulatory investigations and complex contract matters.

EXPERIENCE

Significant representations include:

  • Litigating several antitrust cases for Becton Dickinson, including competitor cases and purchaser class actions alleging monopolization, exclusive dealing and bundled discounts;
  • Litigating to victory before an international arbitration panel a dispute arising out of damages suffered at an off-shore oil platform in the North Sea. The panel rejected the reinsurer's defenses, finding that our clients, a large independent crude oil and natural gas producer and its insurer, were entitled to complete coverage under the policy;
  • On behalf of IBM, litigating to prevent former company executives from violating their non-compete agreements;
  • Defending Giorgi Mushroom Co. and Giorgio Foods against allegations of violations of the Capper-Volstead Act in a multi-defendant class action;
  • Litigating to a de minimis resolution False Claims Act litigations involving alleged violations of the Anti-Kickback Act on behalf of a medical device manufacturer;
  • Litigating to victory before an AAA arbitration panel on behalf of Salomon Smith Barney claims brought by a former client;
  • Defending in a grand jury investigation the CEO of a large pharmaceutical company;
  • Defending law firms and lawyers against allegations of legal malpractice and negligence in regulatory proceedings and civil litigations;
  • Conducting a worldwide internal investigation of accounting fraud on behalf of the Audit and Finance Committee of Adecco, the world's largest provider of temporary employees;
  • Representing ASCAP in rate-making proceedings to set fees for the reproduction, distribution and performance of musical compositions; and
  • Defeating the injunction action brought by Lord Conrad Black and Hollinger Inc. to block the sale of the London Daily Telegraph by Hollinger International, the media company formerly controlled by Lord Black and Hollinger Inc.

 In addition to her busy practice, Jacqui also maintains an active pro bono practice. Her pro bono representations include:

  • Challenging the conviction for depraved indifference murder of Omar Gutierrez.   Mr. Gutierrez's habeas petition was argued by Jacqui to the Second Circuit earlier this year. The Second Circuit recently reversed the District Court's denial of the petition, and has certified two questions of New York state law to the New York Court of Appeals;
  • Representing the Oneida of the Thames in its land claims litigation against the state of New York, a litigation Jacqui pursued through the Second Circuit and to the Supreme Court; and
  • Litigating to a successful resolution the employment claims of a Nigerian woman brought to the United States under false pretenses and then forced to work without wages for several years.

Jacqui was recently recognized by Law360 as one of four "Rising Stars" in the health industry for her work for pharmaceutical and medical device manufacturing companies. She was also recognized by Legal 500 as a leading lawyer in Antitrust.

Practices

Litigation
Antitrust
IP Litigation: Copyright & Trademark
Product Liability
Professional Liability

Education

J.D., Columbia Law School, 2000

B.A., Wesleyan University, 1995
Phi Beta Kappa

Bar Admissions

New York


Catherine Dargan is co-chair of Covington’s Mergers & Acquisitions practice and a member of the firm's Management Committee.  She has broad experience in mergers and acquisitions, both public and private, and strategic partnering arrangements.  In addition to structuring and negotiating transactions, she assists clients with corporate governance, compliance and other matters.  Ms. Dargan also regularly advises clients on a variety of commercial agreements relating to manufacturing, supply, and distribution of core products.  She represents clients in a variety of industries including life sciences, consumer products, technology, defense and government contracting, media, sports, and equipment and manufacturing.  Ms. Dargan has been recognized as a leading M&A lawyer by Chambers USA, Legal 500 US, National Law Journal, and LMG Life Sciences, and was recently named as "Best in Mergers & Acquisitions" by Euromoney Legal Media Group, Americas Women in Business Law Awards (2014).  Ms. Dargan earned her J.D., cum laude, from Harvard Law School in 1994 and A.B., with honors, from Stanford University in 1991.

REPRESENTATIVE MATTERS

  • AstraZeneca in its:
    • acquisition of Ardea Biosciences (NASDAQ: RDEA) for $1.26 billion;
    • its acquisition of Bristol-Myers Squibb's interests in the companies’ diabetes alliance for an initial consideration of $2.7 billion on completion and up to $1.4 billion in regulatory, launch and sales-related payments; and
    • approximately $3.5 billion strategic diabetes alliance with Bristol-Myers Squibb in connection with BMS’s acquisition of Amylin Pharmaceuticals, including assistance in structuring agreements for the acquisition and operation of Amylin’s diabetes business by AZ and BMS.
  • MedImmune, AstraZeneca's biologic arm, in its acquisition of AlphaCore Pharma.
  • Salix Pharmaceuticals in its:
    • $2.6 billion acquisition of Santarus, Inc. (NASDAQ: SNTS); and
    • $300 million acquisition of Oceana Therapeutics, Inc.
  • Boehringer Ingelheim in its acquisition of certain animal health products divested in connection with the Pfizer-Wyeth merger.
  • Takeda in its acquisition of Intellikine, Inc. for $190 million upfront and up to $120 million in additional potential clinical development milestone payments.
  • Abbott Laboratories in its:
    • acquisition of Evalve, Inc., a medical device developer, by Abbott Vascular for up to $410 million; and
    • $3.7 billion acquisition of Kos Pharmaceuticals, Inc. (NASDAQ: KOSP).
  • Eli Lilly in its: 
    • acquisition of SGX Pharmaceuticals, Inc. (NASDAQ: SGXP), a San Diego-based biotechnology company; and
    • divestiture of its Tippecanoe manufacturing facility to Evonik Industries.


Co-leader of the S&C team advising on The American Lawyer’s 2016 “Deal of the Year” – the Kraft merger with Heinz – and recognized in 2011 as one of the “45 Under 45” – the best young women lawyers in the Am Law 200 by The American Lawyer, Audra Cohen represents buyers, sellers, boards of directors and financial advisers in a broad range of merger and acquisition transactions. Her experience includes advising on public company mergers, negotiated sales of private companies and spin-offs, and boards of directors on corporate governance matters, including with respect to activists and cybersecurity issues.

Ms. Cohen also is actively involved in the Firm’s management and administration, including as co-head of the Firm’s Consumer & Retail Group and as a member of the Firm’s Diversity Committee.

Selected Clients and Transactions

  • AT&T in the $2 billion sale of its incumbent local exchange operations in Connecticut to Frontier Communications
  • Avon Products in its $650 million purchase of jewelry company Silpada Designs and in the $90 million sale of its Avon Japan business to TPG Capital
  • C&S Wholesale Grocers in its acquisition of the wholesale distribution and supply business of Grocers Supply Company
  • Collective Brands in its $2 billion sale to a consortium including Wolverine Worldwide, Blum Capital Partners and Golden Gate Capital
  • Deloitte Consulting in its proposed separation (subsequently abandoned) from Deloitte & Touche
  • Diageo in its agreement with Casa Cuervo to acquire full global ownership and control of Tequila Don Julio and in Diageo’s sale of Bushmills to Jose Cuervo Overseasand Diageo (and its predecessor Grand Metropolitan) and Pillsbury in numerous transactions including the $10.5 billion sale of Pillsbury to General Mills
  • Dynegy in its proposed $4.7 billion acquisition by The Blackstone Group
  • General Growth Properties in its $12.6 billion acquisition of The Rouse Company
  • Hershey Foods Corporation in numerous transactions including the proposed sale of Hershey by the Hershey Trust (subsequently abandoned) and Hershey’s acquisition of the gum and mints business of Nabisco
  • Intercontinental Exchange in its acquisition of Standard & Poor’s Securities Evaluations and Credit Market Analysis from McGraw Hill Financial; $5.2 billion acquisition of Interactive Data Corporation; and $8.2 billion acquisition of NYSE Euronext
  • Kraft Foods Group in its $55 billion merger with H.J. Heinz Company to create The Kraft Heinz Company
  • NBTY in its $3.8 billion acquisition by The Carlyle Group
  • Ohio Casualty Corporation in its $2.7 billion acquisition by Liberty Mutual Group
  • Pepco Holdings in its $6.8 billion acquisition by Exelon Corporation to create the biggest electric and gas utility in the U.S. Mid-Atlantic region
  • Reed Elsevier in its $4.1 billion acquisition of ChoicePoint
  • RR Donnelley & Sons in numerous transactions, including its announced intent to spin-off its financial print and PRS businesses to create three independent, publicly traded companies; acquisitions of Consolidated Graphics, Bowne & Co., Von Hoffmann Corporation, Perry Judd’s Holdings and Banta Corporation; and proposed $1.5 billion acquisition of Quebecor World, now World Color Press. Ms. Cohen has been advising RR Donnelley since working across the table from them representing Moore Wallace Incorporated in the $6 billion combination of the two companies.
  • Wachovia Corporation in its $15.1 billion merger with Wells Fargo & Company
  • ZF Friedrichshafen in its $12.4 billion acquisition of TRW Automotive Holdings


Mr. Sackheim concentrates on derivatives regulatory, transactional and enforcement matters. 

Memberships and Affiliations

Past Chair, New York City Bar Derivatives Regulation Committee. 

Managing Editor, Futures & Derivatives Law Report (Thomson Reuters, publ.). 

Member, Thomson Reuters:  Governance, Risk and Compliance, Business Law Partner Advisory Board.

Member, Futures Industry Association, Law & Compliance Division.

Recent Publications

  • CFTC Issues Cybersecurity Rules on System Safeguards Testing Requirements (Futures and Derivatives Law Report, October 2016)
  • Regulators Adopt Margin Rules for Non-Cleared Swaps (Futures and Derivatives Law Report, May 2016)
  • What Corporate Treasurers Need to Know About Swap Dealer Registration (Treasury & Risk, January 2016)
  • Enforcement Risk:  The Long Length of the CFTC’s Reach (NY Business Law Journal, Winter 2015)
  • CFTC Asserts Jurisdiction Over Bitcoin Derivatives (FinTech Law Report, November/ December 2015)
  • Derivatives Lawyers:  Red Flags – See Something, Do Something (BNA Securities Regulation Law Report, November 16, 2015)
  • Master Securities Forward Transaction Agreement:  Key Buy-Side Issues (Futures & Derivatives Law Report, August 2015)
  • The Duck That Broke the Camel’s Back:  What SIFMA v. CFTC Means for U.S. Swaps Regulation (Futures Industry Magazine, November 2014)
  • US Swaps Compliance for Multinationals (IFLR.com, August 26, 2014)
  • End User Exception from Dodd-Frank Clearing Mandate and Trade Execution Requirement (Harvard Law School Forum on Corporate Governance and Financial Regulation Online, August 2014)
  • Structuring In Good Faith – Transactions that Will and Won’t Run Afoul of U.S. Swap Anti-Evasion Rules (International Financial Law Review, February 2014)
  • Professional Responsibility Issues for Swaps Lawyers Under Dodd-Frank (Review of Securities & Commodities Regulation, November 2012)
  • Four Critical Issues Affecting Commodity Pools and Derivative Transactions Under Proposed Regulations Implementing the Volcker Rule (Futures & Derivatives Law Report, June 2012)
  • In the Aftermath of MF Global (Law360, December 21, 2011)
  • Ethical Issues for Lawyers Under the Dodd Frank Wall Street Reform and Consumer Protection Act:  Lawyer Representations Under the End-User Swap Exemption (BNA Securities Regulation & Law Report 43.23 (2011):  1176)
  • Dodd-Frank Act Has Its First Birthday, But Derivatives End Users Have Little Cause to Celebrate (Harvard Business Law Review Online, July 2011)
  • Position Limits for Commodity Derivatives Under Dodd-Frank (Thomson Reuters Accelus™  - Business Law Currents, June 21, 2011)
  • Ethical Issues for Lawyers Under the Dodd-Frank Wall Street Reform and Consumer Protection Act:  Lawyer Representations Under the End-User Swap Exemption (Securities Regulation & Law Report, June 6, 2011)
  • Commodities Regulation and Derivatives (Chapters 3 and 16, Derivatives:  Legal Practice and Strategies, Aspen Publishers, 2010)
  • Deconstructing Dodd-Frank:  Regulation of Over-the-Counter Derivatives (Practical Law, November 2010)
  • Knocking on the Clearinghouse Door (Futures & Derivatives Law Report, August 2010)
  • Energy Prosecutions:  Is the CFTC Out of Gas? (Futures & Derivatives Law Report, December 2009)
  • DB Commodity Index Tracking Fund:  An Innovative Exchange-Traded Fund (Futures Industry Magazine, May/June 2006)
  • Derivatives, Issuers & Counsel:  Reporting of Material Violations (Derivatives Week, December 22, 2004)
  • False Reporting of OTC Energy Transactions (Review of Securities & Commodities Regulation, August 2004)
  • Ethical Standards for New York Brokerage House Attorneys (Review of Securities & Commodities Regulation, October 2000)


PRACTICES

  • Investment Funds, Advisers and Derivatives
  • M&A
  • Private Equity

AREAS OF FOCUS

  • Private Equity Fund Formation
  • Private Equity and Joint Ventures

GLOBAL REACH

Jurisdictions in which this lawyer is licensed to practice are listed under Admissions & Certifications.

  • Latin America

INDUSTRIES

  • Agribusiness
  • Investment Funds Industry

ADMISSIONS & CERTIFICATIONS

  • New York, 1995

EDUCATION

  • The University of Michigan Law School (J.D., 1994, cum laude)
  • College of Europe, Bruges (M.A., 1991)
  • Harvard University (A.B., 1990, magna cum laude)

 

ALYSSA A. GRIKSCHEIT, a partner in the New York office, has a diverse corporate practice that currently emphasizes complex transactions and alternative investment funds. Her experience also includes private equity and hedge funds, mergers and acquisitions, strategic alliances and restructurings. Ms. Grikscheit is fluent in Spanish and French and has extensive experience in international transactions, particularly those involving Latin America and other emerging markets such as China and India.

Ms. Grikscheit represents domestic and foreign clients making cross-border investments. She also represents buyers and sellers, including private equity funds and their portfolio companies, in acquisitions, dispositions, strategic alliances, restructurings and financings, including transactions in regulated industries such as the health care, pharmaceutical, energy, telecommunications and defense industries. In addition, Ms. Grikscheit represents sponsors of alternative investment funds in fund formation and other aspects of their operations. Such funds have included distressed debt, energy, real estate opportunity, agribusiness, microfinance and emerging market funds.

Ms. Grikscheit is ranked in Chambers Global, Chambers USA and Chambers Latin America. Additionally, Ms. Grikscheit has been recognized in the 2014 edition of IFLR1000 as a “Rising Star” for Investment Funds in the United States. Ms. Grikscheit was also recommended in Private Equity Funds in the Legal 500 US 2014 and in Capital Markets and Corporate M&A in the Legal 500 Latin America 2013-2014.

Ms. Grikscheit actively represents a nonprofit organization in establishing and capitalizing microfinance institutions in underserved emerging markets on a pro bono basis.

Recent Speaking Engagements

  • Co-Chair and Speaker, Drafting and Negotiating Corporate Agreements, Practising Law Institute, New York, New York, January 10, 2014.
  • Panelist, Private Funds 2013: Developments and Opportunities - Sidley Austin LLP Program, Private Equity Funds/Compliance, New York, New York, September 17, 2013.
  • Co-Chair, Private Equity: Legal and Financial Instruments for Structuring Private Equity and Venture Capital Investments, International Bar Association Session, São Paulo, Brazil, June 6, 2013.
  • Chair, Private Equity Latin America Forum and Speaker, Funds & Deals – Structuring Private Equity Investment in Latin America, Latin Markets, New York, New York, May 9-10, 2013.
  • Speaker, “International Aspects,” Acquiring or Selling the Privately Held Company, Practising Law Institute, New York, New York June 8, 2012.
  • Co-Chair, 2011 Seasonal Meeting of the New York State Bar Association and Speaker, Private Equity in Latin America, Panama City, Panama, September 20-24, 2011.
  • Speaker, La práctica transfronteriza y la colaboración con abogados locales, Barra Mexicana XII Congreso Nacional de Abogados, Veracruz, Mexico, March 20, 2010.
  • Co-Chair and Speaker, Private Equity in Latin America, New York State Bar Association Panel, New York, New York, September 17, 2009.

Publications

  • “Brazilian Asset Managers Have Their Day in the Sun,” Latin American Law & Business Report, June 2012.
  • “Top Ten Trends for Latin Investment Funds,” Latin American Law & Business Report, May 2011.
  • “Private Equity in Latin America: Five Key Strategies for Success,” Venture Equity Latin America, June 30, 2009, also reprinted in Latin American Law & Business Report, August 2009.
  • “Dealing (and Dealmaking) with Mexican Grupos: A Primer for the Private Equity Investor,” Latin American Law & Business Report, September 30, 2006, also reprinted in North American Free Trade and Investment Report and International Corporate Counsel, December 2007.
  • “Private Equity Investors Rediscovering Latin America,” Dow Jones, September 2006.

Memberships & Activities

  • Co-Chair of the Inter-American Committee of the New York State Bar Association’s International Section
  • Life Fellow of the American Bar Foundation
  • American Bar Association’s Section of Business Law, Negotiated Acquisitions Committee and Section of International Law
  • International Bar Association