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Drafting and Negotiating Corporate Agreements 2015


Speaker(s): Alyssa A. Grikscheit, Andrew W. Ment, Brian E. Hamilton, David J. Fisher, Jacqueline P. Rubin, Michael S. Sackheim, Sarkis Jebejian
Recorded on: Jan. 9, 2015
PLI Program #: 58761

Andrew Ment’s practice focuses on mergers and acquisitions and private equity transactions.  Mr. Ment’s M&A experience includes public and private acquisitions and divestitures, leveraged buy-outs, “going private” transactions and joint ventures.  Mr. Ment also practices in the area of corporate finance, where his experience includes syndicated lending, royalty sales & financings, registered offerings, and private placements.

Representative Matters

  • Forest Laboratories, Inc. in its up to $1.4 billion acquisition of Furiex Pharmaceuticals, Inc., its $1.2 billion acquisition of Clinical Data, Inc. and its $357 million acquisition of the U.S. patents and other US and Canadian intellectual property related to Bystolic®.
  • eScreen, Inc. in its sale to Alere, Inc. for $270 million upfront and up to $70 million in contingent payments.
  • Bristol-Myers Squibb Company in its acquisition of Amira Pharmaceuticals for $325 million upfront and up to $150 million in contingent payments.
  • Procter & Gamble in the $3.1 billion sale of its pharmaceuticals business to Warner-Chilcott.
  • Snow Phipps Group in its acquisition of Service Champ, Inc. and in its acquisition of Acentia (formerly ITSolutions) and multiple follow-on acquisitions by the Acentia portfolio company.
  • Oregon Steel Mills, Inc. in its $2.3 billion merger into Evraz Group S.A.
  • Abbott Laboratories in its $3.7 billion acquisition of Kos Pharmaceuticals, Inc.
  • Kerr-McGee Corporation in its $18 billion merger into Anadarko Petroleum Corporation.

Previous Experience
Economic Consulting Services Inc., Staff Economist (1993-1995)

Honors and Rankings
Legal 500 US, Mergers, Acquisitions & Buyouts: M&A (2013-2014)


David J. Fisher has a broad practice in all aspects of secured and unsecured commercial finance, including private placements and capital markets transactions, as well as restructurings and reorganizations.

Mr. Fisher represents companies and individuals as borrowers and issuers, as well as commercial banks, funds and other nonbank entities as lenders, in a variety of domestic and international financing transactions. His practice also focuses on a wide variety of debt restructurings, representing lending institutions, distressed companies, creditors’ committees and private equity funds.

Mr. Fisher has extensive experience with syndicated financing transactions and private placements, including asset based financing, first and second lien debt transactions, debtor-in-possession financings, high-yield debt issuances, acquisition finance, leveraged buyouts, loan assignments and participations and project finance, and has served as counsel to companies in a variety of industries, among them manufacturing, telecommunications, energy, paper producers and consumer goods.

Education

  • J.D., cum laude, Georgetown University Law Center, 1984
    Lead Articles Editor, Law and Policy in International Business
  • B.A., magna cum laude, Phi Beta Kappa, State University of New York at Albany, 1981

Bar Admissions

  • New York, 1985


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


Brian Hamilton is a partner in the Firm’s Mergers and Acquisitions and Private Equity Groups and was recently recognized as a “Rising Star” by IFLR1000. Mr. Hamilton advises on public and private mergers and acquisitions and private equity transactions, both in and outside the United States, and in a variety of industries.

Mr. Hamilton was resident in the Firm’s London office from 2007 through 2010, where he was deputy head of the European Mergers and Acquisitions Group.

Selected Recent Transactions

  • AirTran Holdings, Inc. in its $3.4 billion acquisition by Southwest Airlines Co.
  • Banco Bilbao Vizcaya Argentaria S.A. (BBVA) in the $630 million definitive agreement to sell its approximately 98.92 percent interest in Panamanian bank Banco Bilbao Vizcaya Argentaria (Panamá) S.A. to Leasing Bogotá S.A., Panamá, a subsidiary of Grupo Aval Acciones y Valores S.A, and in the $541 million sale of its Colombian pension fund administrator, BBVA Horizonte Sociedad Administradora de Fondos de Pensiones y Cesantías, S.A., to Sociedad Administradora de Fondos de Pensiones y Cesantías, Porvenir, S.A., as Purchaser, and Grupo Aval Acciones y Valores S.A., as Guarantor
  • Barclays Bank plc in its $15.2 billion sale of Barclays Global Investors to BlackRock Inc., and in its acquisition of EquiFirst Corporation from Regions Financial Corporation
  • Bright House Networks, LLC in its pending three-way combination with Charter Communications, Inc. and Time Warner Cable Inc., to createan$80 billion cable company
  • CVS Caremark in its 50/50 joint venture with Cardinal Health, to form the largest generic pharmaceutical sourcing entity in the U.S.
  • CVS Health Corporation in its $12.7 billion acquisition of Omnicare, Inc.
  • Digital Sky Technologies Limited in the restructuring of its Mail.ru Group Limited internet joint venture with MIH and Tiger Global Private Investment Partners
  • Gildan Activewear Inc. in its $100 million acquisition of Comfort Colors, its $350 million acquisition of Gold Toe Moretz Holding Corp. and in its $88 million acquisition of Anvil Holdings, Inc.
  • Goldman Sachs Bank USA in the acquisition of GE Capital Bank’s online deposit platform and assumption of its online deposits
  • The Goldman Sachs Group, Inc. in its sale of Metro International Trade Services to Reuben Brothers, its $550 million sale of Goldman Sachs Administration Services (GSAS) to State Street Corporation and the sale of its NYSE designated market maker business to IMC Financial Markets
  • Hess Corporation in its sale of its interest in Hess Energy Trading Company to an affiliate of funds managed by Oaktree Capital Management
  • ING Groep N.V. in the $3.1 billion sale of ING Bank of Canada to The Bank of Nova Scotia and in the $9 billion sale of its ING Direct USA online banking operation to Capital One Financial Corp.
  • The Priceline Group Inc. in its expanded commercial agreement with and $750 million two-stage investment in Ctrip.com, its $2.6 billion acquisition of OpenTable, Inc. and its $1.8 billion acquisition of KAYAK Software Corporation

Rankings and Recognitions

  • Recognized as a leading lawyerin Mergers & Acquisitions by New York Super Lawyers.(New York Super Lawyers 2013-2015)
  • Recognized as a “Rising Star” in the United States by IFLR1000 (2014, 2015)

Education

1998, New York University School of Law, J.D

1994, State University of New York at Albany, M.A.

1993, State University of New York at Albany, B.A.


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