Download US Securities Law Issues in Tender Offers for Foreign Companies

WINTER.2006
Shearman & Sterling F O C U S
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Representing Boston Scientific Corporation in its
proposed acquisition of Guidant Corporation.
Representing Gerling-Konzern VersicherungsBeteiligungs AG in its sale of 100% interest in
Gerling-Beteiligungs-GmbH, the holding company of
the Gerling primary insurance group, to Talanx AG.
Representing Deutsche Bahn AG in its acquisition of
BAX Global, Inc. from The Brink’s Company.
US Securities Law Issues in Tender Offers
for Foreign Companies That Are Not
“Foreign Private Issuers”
by george a. casey |
PAGE 2
An investment by US private equity investors in a non-US company
may lead to a loss of the foreign private issuer status. Such loss
may result in unavailability of established exemptions from tender
o=er rules.
Representing PetroChina Company Limited in
connection with its landmark proposed privatization
of Jilin Chemical Industrial Company Limited.
The Societas Europaea: Now Almost Available in France
by cyrille niedzielski |
PAGE 5
Represented Deutscher Beamtenwirtschaftsbund
GmbH in its joint sale with BGAG
Beteiligungsgesellschaft der Gewerkschaften AG of
their 76.4% interest in BHW Holding AG, the leading
More than one year after Germany, the European Company, or
Societas Europaea, is >nally introduced into the French company
law framework.
German building society, to Deutsche Postbank AG.
Represented Groupe Danone in its sale of interest in
Pre-conditional Offers for UK Targets
DS Waters Enterprises, LP to Kelso & Company and
by peter king |
PAGE 8
in its later acquisition of the partnership interest of
DS Waters, LP from Suntory International Corp.
Represented DaimlerChrysler AG and its subsidiary,
DaimlerChrysler Off-Highway Holding GmbH, in their
acquisition of the remaining 11.65% interest in MTU
The Takeover Panel has recently reviewed its rules on pre-conditional
o=ers, which are a useful tool for structuring takeovers of UK targets
when a lengthy regulatory or antitrust review is expected. Similar structures could also be used in some complex cross-border transactions.
Friedrichshafen GmbH i.L. from the family of shareholders they do not already own.
HIGHLIGHTS
4
Shearman & Sterling R A N K E D 2 N D
Representing Viacom Inc. and its subsidiary,
Paramount Pictures Corporation, in Paramount’s
US Announced Deals by Volume
Global Announced Deals in the
Communication Industry by Volume
22.3%
22.6%
acquisition of DreamWorks LLC.
8
Representing Allianz AG in its cross-border
merger with its subsidiary Riunione Adriatica di
Sicurta SpA and the conversion of Allianz AG into
a European Company (SE).
market share
market share
source: Bloomberg (January 1, 2005 – December 31, 2005)
11 Represented Georgia-Pacific Corporation in its
acquisition by Koch Industries, Inc.
For a complete list of rankings, refer to www.shearman.com.
US Securities Law Issues in
Tender Offers for Foreign
Companies That Are Not
“Foreign Private Issuers”
george a. casey |
NEW YORK
The expansion of US private equity investors outside of the United
States has presented one particular US legal issue with respect to
o=ers for non-US public companies in which US private equity
investors have a signi>cant interest. As a result of an investment or
acquisition by a US private equity investor, the non-US company
could have lost its status as a foreign private issuer. Accordingly, the
established cross-border SEC exemptions for the tender o=er might
not be available.
If the target company is not
a foreign private issuer,
the Tier I and Tier II
exemptions and the
Rule 802 exemption would
not be available even if
the US shareholders
hold a de minimis
number of shares.
“Foreign private issuer” is de>ned in Rule 3b-4 under the Securities
Exchange Act of 1934, as amended (the “Exchange Act”), as any foreign
issuer, other than a foreign government, except an issuer meeting the following conditions: (1) more than 50% of the issuer’s outstanding voting
securities are directly or indirectly held of record by residents of the
United States; and (2) any of the following: (i) the majority of the executive of>cers or directors are United States citizens or residents, (ii) more
than 50% of the assets of the issuer are located in the United States, or
(iii) the business of the issuer is administered principally in the United
States. In determining the percentage of outstanding voting securities
held by US residents, the rule requires a “look through” analysis to determine bene>cial ownership of such securities. Accordingly, when US
private equity investors acquire control of a non-US company and hold,
albeit indirectly, a majority of voting securities and, as often is the case,
appoint its nominees to the board of directors that results in a majority of
directors being US residents, the foreign company may lose its foreign
private issuer status.
Over the years, the SEC recognized that o=ers for non-US companies are
often subject to con?icting rules in their home jurisdiction and in the
United States, and it accommodated parties to such o=ers by issuing no
action and exemptive relief letters. More recently, the SEC has adopted a
set of exemptions from the US tender o=er rules and US securities registration requirements (see Release “Cross-Border Tender and Exchange
Offers, Business Combinations and Rights Offerings,” Release Nos. 33-7759,
34-42054, 39-2378, International Series Release No. 1208). These exemptions, known as the Tier I and Tier II exemptions from the tender o=er
rules (see Rules 14d-1(c) and 14d-1(d) under the Exchange Act) and the
Rule 802 exemption from the securities registration requirements (see
Rule 802 under the Securities Act of 1933, as amended), were designed to
further facilitate cross-border transactions and allow parties to structure
transactions without necessarily requesting speci>c exemptive or noaction relief or excluding US shareholders from the o=er. The main
requirement for the availability of these exemptions, however, is that the
target company must be a foreign private issuer. If the target company is
not a foreign private issuer, the Tier I and Tier II exemptions and the
Rule 802 exemption would not be available even if the US shareholders
hold a de minimis number of shares. Similarly, until recently, there was no
SHEARMAN & STERLING | M&A FOCUS | 2
In Germany, pre-conditional
offers are not permitted
by the statute, and there
is no ability to extend
the offer beyond the
maximum offer period.
precedent for the SEC issuing an exemptive or no-action relief letter when
the target company was not a foreign private issuer.
In a recent letter, the SEC has granted cross-border type relief with
respect to a cash tender o=er for securities of a non-US company that was
not a foreign private issuer (see Axel Springer Aktiengesellschaft Offer for
ProSiebenSat.1 Media AG (September 12, 2005)). In this transaction, one
German company was making a tender o=er for another German
company. Neither Axel Springer nor ProSiebenSat had securities registered in the United States and the US ownership of ProSiebenSat’s
non-voting preference shares appeared to be signi>cantly below the 40%
level required for the Tier II exemption. All of the ordinary voting shares
were held by two holding companies controlled by a small group of
private equity investors. This means that in the United States a cash
tender o=er for ProSiebenSat was subject to Regulation 14E, but not
Regulation 14D. If ProSiebenSat were a foreign private issuer, it would
have been relatively easy to structure the tender o=er. For example, the
Tier II exemption would have allowed for payment to be made in accordance with German law and practice and would have made available
certain other limited technical relief from Rule 14e-1. However, given that
the majority of ProSiebenSat’s voting stock was bene>cially owned by US
private equity investors, the Tier II exemption was not available and the
o=er had to comply with all of the SEC rules under Regulation 14E.
Rule 14e-1(c) under the Exchange Act requires that the bidder pay for the
tendered shares “promptly” after the expiration of the o=er period.
“Promptly” has been interpreted by the SEC to mean that payment is
required to be made within three business days. The SEC has recognized
that in certain jurisdictions payment is often delayed beyond the period of
three business days and has issued no-action letters to permit the bidder
to make payment in accordance with home country law or practice (see,
e.g., Offer by Alcan, Inc. for Common Shares, ADSs, Bonus Allocation Rights
and OCEANEs of Pechiney (October 7, 2003); Proposed Exchange Offer by
Technip, S.A. for all of the outstanding ordinary shares and American
Depositary Shares of Coflexip S.A. (August 20, 2001); Vodafone Airtouch Plc
Offer for Mannesmann Aktiengesellschaft (December 22, 1999); Proposed
Exchange Offer by Crown Cork & Seal Company, Inc. for CarnaudMetalbox
(December 20, 1995); and Re Pechiney Privatisation (December 6, 1995).
Typically, the relief is required because the bidder cannot make
payment within three business days as the o=er settlement process in
certain jurisdictions takes longer. The o=er by Axel Springer for
ProSiebenSat presented a di=erent type of issue with respect to the prompt
payment requirement.
Under the German Securities Acquisition and Takeover Act
(Wertpapiererwerbs-und Übernahmegesetz), a bidder has a statutorily prescribed maximum o=er period. After such maximum o=er period expires,
the bidder is required to close the o=er. If the parties require regulatory
(e.g., competition) clearances to be able to close the o=er, however, the bid-
| 3 |
A careful analysis of all
other implications has to be
made at the time when US
private equity investors
acquire a stake in a non-US
company or take a foreign
company public.
der cannot pay for the tendered shares until the clearances are obtained. In
the United States, if regulatory clearances are required in connection with a
tender o=er, the o=er period can be extended. In the UK, to address this
issue, bidders typically make a pre-conditional o=er, where an o=er is
announced, but not commenced until clearances are obtained. In Germany,
pre-conditional o=ers are not permitted by the statute, and there is no ability to extend the o=er beyond the maximum o=er period. To address this
issue, the tendered shares in German o=ers are assigned a separate securities identi>cation number and trade on an “as tendered” market in
Germany. The period between the termination of the o=er and payment,
however, may last for several months, which creates an obvious con?ict
with the US prompt payment requirement.
In the no-action letter, the SEC has permitted the bidder to make payment
in accordance with German law and practice. The SEC has taken into
account the fact that, although ProSiebenSat was not a foreign private
issuer, it had no material assets or operations in the United States and
that the shareholders who tendered into the o=er were given withdrawal
rights during the o=er and after the expiration of the o=er period until the
regulatory condition is satis>ed. Notwithstanding the SEC’s ?exibility in
this transaction, it is not clear whether similar relief would be available
under di=erent facts (e.g., if the non-US target company has signi>cant
operations in the United States).
FOCUSHIGHLIGHTS
The unavailability of the cross-border tender o=er exemptions is only one
aspect of the consequences of a loss of the foreign private issuer status. A
careful analysis of all other implications (e.g., unavailability of the
Rule 12g3-2(b) exemption and the ensuing need to determine whether
registration requirements under the Exchange Act are triggered) has to be
made at the time when US private equity investors acquire a stake in a
non-US company or take a foreign company public.
In New York and Menlo Park, Shearman is representing Viacom Inc.
and its subsidiary, Paramount Pictures Corporation, in Paramount’s
US$1.6 billion acquisition of DreamWorks LLC. The transaction includes
distribution agreements with DreamWorks Animation SKG, the publicly
traded animation company run by Je=rey Katzenberg. DreamWorks executives Steven Spielberg and David Ge=en will remain with DreamWorks
as producer-director and chairman, respectively.
SHEARMAN & STERLING | M&A FOCUS | 4
The Societas Europaea: Now
Almost Available in France
An article published in the September 2004 issue of M&A Focus analyzed the implementation of the European Company into German
law. More than one year later, the European Company – also referred
cyrille niedzielski | paris
to by its Latin name of “Societas Europaea” (SE) – was >nally transposed into French law, through a law dated July 27, 2005 that
amended both the French Commercial Code and the French Labor
An administrative decree
should soon be adopted so
as to allow some of the
provisions of the
transposing law, in
particular those provisions
covering applicable
publicity guidelines.
Code. Among the numerous advantages that the adoption of this
long-awaited law will entail is the possibility o=ered to an SE with
registered of>ces outside France to transfer such registered of>ces to
France without being wound-up in the vice versa.
The rules governing SEs were >rst established on a European level on
October 8, 2001 with the adoption of Regulation n°2157/2001 de>ning corporate law rules (Regulation) and Directive 2001/86/EC pertaining
to the involvement of employees (Directive). To date, 20 of the 28
European Union (EU) and European Economic Area members have transposed the Directive.
Although France has now joined the club of those that have transposed
the Directive, some work is still required of the French government;
accordingly, an administrative decree should soon be adopted so as to
allow some of the provisions of the transposing law, in particular those
provisions covering applicable publicity guidelines. Pending such adoption, no SE can be set up in France.
Leaving aside the fact that publicity guidelines still need to be speci>ed,
the methods available to establish an SE, the company law framework and
the rules for the involvement of employees are now clearly de>ned.
T H E F O R M AT I O N O F T H E S E
An SE is not a vehicle that a company can use to establish itself in Europe
for the >rst time; only pre-existing companies can set up an SE. There are
four ways of forming an SE in France: by way of a merger, the creation of
a holding company, or the transformation or creation of a subsidiary.
Formation by Merger
Two or more public limited-liability companies (sociétés anonymes in
France) or existing SEs may merge to form an SE, provided (i) at least two
of them are governed by the laws of di=erent Member States and (ii) they
have their registered of>ces and head of>ces in the EU. For all matters
not expressly provided for by the Regulation, French laws shall apply to
the surviving company, including the protection of the interests of the
merging companies’ creditors and bondholders.
| 5 |
“Waiting periods” have
also been implemented to
ensure that the French
government and, when
concerned, the French
insurance and banking
regulators can have input.
In this process, formalities are cumbersome. Court clerks must issue a
certi>cate con>rming that all pre-merger acts and formalities have been
completed while notaries are responsible for scrutinizing the legality of
the merger and, if satis>ed, approving the merger by issuing a certi>cate.
“Waiting periods” have also been implemented to ensure that the French
government and, when concerned, the French insurance and banking regulators have input. The public prosecutor of the court where the company
is registered has the right to oppose the merger in the name of public
interest. If insurance and banking companies are involved, the corresponding prudential regulators also have the right to oppose a contemplated
merger outside France.
Formation of a Holding SE
A holding SE can be formed by two or more public limited-liability companies. For that purpose, the involved entities must >le draft terms of the
operation with the court. They must all have their registered of>ces and
head of>ces in the EU and at least two of them must be governed by the
laws of di=erent Member States, or else they must have had either a subsidiary company governed by the laws of another Member State for two
years or a branch in another Member State. The companies promoting
the formation must become majority-owned by the SE.
Formation by Transformation
A société anonyme registered in France may transform into an SE registered in France, provided (i) it has its registered of>ces and head of>ces
within the EU, and (ii) for two years it has had a subsidiary governed by
the laws of another Member State. The process does not entail either the
winding up of the société anonyme or the creation of a new legal person in
the form of an SE.
Formation of a Subsidiary SE
Two or more companies or other legal bodies formed under the law of a
Member State may create an SE subsidiary in France if (i) they have their
registered of>ces and head of>ces in the EU, and (ii) at least two of the
companies or legal bodies are governed by the laws of a di=erent Member
State, or for two years have had a subsidiary company governed by
the laws of another Member State or have had a branch in another
Member State.
A P P L I C A B L E C O R P O R AT E R U L E S
The newly enacted law has set the corporate law rules that will govern the
life of French SEs. Pursuant to these rules, all SEs registered in France are
to be treated as sociétés anonymes.
In particular, French rules applicable to management (board of directors or
supervisory board) and to the shareholders’ meetings of sociétés anonymes
will apply as they do to SEs incorporated in France.
SHEARMAN & STERLING | M&A FOCUS | 6
French rules applicable to
management (board of
directors or supervisory
board) and to the
shareholders’ meetings of
sociétés anonymes will
apply as they do to SEs
incorporated in France.
However, regarding shareholders’ relationships in unlisted SEs, French
law has deviated from the rigidity of sociétés anonymes to allow
for a greater ?exibility in the bylaws, similarly to the rules applicable to
French sociétés par actions simplifiées. SE’s bylaws will accordingly be
able to include notably the following dispositions: lockup clauses, preemptive rights/rights of >rst refusal, change of control clauses and
exclusion clauses.
A French SE must have a minimum capital of €120,000 divided into
shares, can be listed, and must use the acronym “SE” in its company
name. Furthermore, while the Regulation left an option to national legislators regarding the possibility of dissociating the location of an SE’s
registered of>ce and head of>ce, the French legislator chose to impose on
SEs to have both at the same location.
W O R K E R I N V O LV E M E N T I N T H E S E
The Directive does not establish a uniform European model of employee
involvement applicable to SEs, as there is still a great diversity of national
rules regarding the manner in which employees’ representatives are
involved in decision-making within companies. Apart from employees’
involvement, other social and labor legislation questions, in particular
employment contracts or pensions, will continue to be governed by
the national provisions applicable, under the same conditions, to public
limited-liability companies.
The Special Negotiating Body
Upon creation of an SE, a Special Negotiating Body (SNB) representing the
employees of the participating companies must be established. This body
and the competent organs of the participating companies will determine,
by written agreement, arrangements for the involvement of employees
within the SE. Negotiations commence as soon as the SNB is established
and may continue for six months thereafter. The period of six months can
be extended, by joint agreement, up to a total of one year from the establishment of the SNB.
Members of the SNB
Seats in the SNB are allocated in proportion to the number of employees
employed in each Member State by the participating companies. The
basic rule is that Member States have one seat for every 10%, or fraction
thereof, of the total EU workforce of the participating companies
employed there.
French members of the SNB are appointed by elected representatives
from work councils or establishment councils within employee trade
union organizations, or by union representatives, on the basis of the last
trade union election results. If the SE with its registered of>ce in France
has no trade union organization, employee representatives at the SNB are
elected according to the existing procedure for domestic works councils.
| 7 |
FOCUSHIGHLIGHTS
Failure of the Negotiations
In the event no agreement is reached, the Directive provides for a set of
standard rules on employee involvement in an SE. Essentially these rules
oblige SE managers to provide reports because there must be regular consultation with and information provided to a body representing employees.
Such reports should contain a company’s current and future business
plans, production and sales levels, management changes, mergers, divestments, potential closures and layo=s.
In Düsseldorf, Frankfurt, Munich and Rome, Shearman is representing
Allianz AG in its €5.7 (US$7.1) billion tender o=er to acquire all of the
shares of its subsidiary Riunione Adriatica di Sicurta SpA (RAS) that it
does not already own and in its subsequent merger by incorporation of
RAS in Allianz, with Allianz converting into a European Company
(Societas Europaea).
Pre-conditional Offers
for UK Targets
peter king | london
BACKGROUND
The process of obtaining corporate control of UK public companies is highly regulated. Anyone who has to grapple with the
intricacies of the City Code on Takeovers and Mergers, which
applies to any takeover or merger transaction involving a UK public company and is the principal source of regulation in this area,
SHEARMAN & STERLING | M&A FOCUS | 8
The target will be looking
for a structure which
commits the offeror to
terms over the whole of
the regulatory or antitrust
review period.
will be aware that it mandates strict timing requirements. In particular, a takeover or merger transaction must normally become
wholly unconditional within a maximum of approximately 110
days after the initial announcement of the transaction.
1
PROBLEMS WITH THE CITY CODE TIMETABLE
The European Commission and the UK antitrust authorities are familiar
with the City Code timing requirements, and will normally complete a
Phase I initial review within the speci>ed timetable. However, a takeover
which requires an in depth investigation by an antitrust authority (for
example a Phase II investigation by the European Commission) will lapse
as required by the City Code,2 and must then be restarted from the beginning once a positive decision is obtained. There is then no obligation on
the o=eror to maintain the terms it originally o=ered.
Things become much more complicated when other regulators are
involved. In practice, particular di;culties arise where a business is subject to a regulatory regime in the United States which operates at the State,
as opposed to federal, level. One example is the regulation of insurance,
which is separately regulated at the State level, as are electricity supply
businesses. If a UK target owns such businesses, compliance with the
standard City Code timetable becomes almost impossible.
From the target’s point of view the situation is also problematic. In cases
where a lengthy regulatory or antitrust process is expected, the target’s
Board will feel uncomfortable about the possibility that, after a lengthy
regulatory process, the o=eror could make a new o=er on di=erent terms
to those originally o=ered. The target will be looking for a structure which
commits the o=eror to terms over the whole of the regulatory or antitrust
review period, and will rely on a combination of the rules in the City Code
and some sort of merger agreement to achieve this.
DEVELOPMENT OF THE USE OF PRE-CONDITIONAL STRUCTURES
For these reasons a practice has developed of making “pre-conditional”
o=ers. In a pre-conditional o=er, the o=eror states the terms on which it is
prepared to make an o=er provided that certain pre-conditions are >rst
satis>ed. Originally, these would typically relate to antitrust and regulatory
issues. Once the pre-conditions are satis>ed, the o=eror is obliged, under
the City Code, to make an o=er on the terms originally agreed. An example
of this type of structure was the o=er made by e.on AG to acquire
PowerGen PLC in 2001/2002, where a lengthy US regulatory review was
expected and did in fact take place because of PowerGen’s US utility interests, and e.on remained bound by price and other parameters agreed at the
outset over a period of over a year.
As practice has developed, o=erors have started to use pre-conditions in a
much broader context. For example, in the recent Marks & Spencer case,
the o=eror (a company controlled by Mr. Philip Green) indicated that it
was considering making an o=er subject to a number of pre-conditions,
1 See, in particular, Rule 31 of the City Code.
2 Rule 12 of the City Code.
| 9 |
The use of pre-conditions
as part of a hostile
approach is tactically quite
different from their use in a
recommended transaction.
including the receipt of certain due diligence materials and the recommendation of the Marks & Spencer Board. The use of pre-conditions as
part of a hostile approach is tactically quite di=erent from their use in a
recommended transaction.
THE NEW RULES
The Takeover Panel has recently taken the opportunity to codify and
amend its rules relating to pre-conditions to make them much clearer and
to include certain unwritten practices in the City Code for the >rst time.
The rules now envisage two di=erent types of pre-conditional strategy.
The >rst is a “pre-conditional possible o=er”.3 In this approach, the
o=eror states publicly that it is considering making an o=er, perhaps on
speci>ed terms, subject to the ful>lment of certain pre-conditions. In this
case, the o=eror can include any pre-conditions it wishes to include, and
those pre-conditions may be subjective in nature (such as “the completion
of a satisfactory due diligence process”). Even if all the pre-conditions are
satis>ed, the o=eror is not bound to proceed with the o=er, but if it has
announced a price at which it is prepared to make an o=er, that price will
operate as a minimum price unless it has expressly reserved the right to
use a lower price. The rules limit the extent to which such reservations
may be made. Any announcement must warn the public of the e=ect of
these rules.4
Importantly, if the o=eror makes a pre-conditional possible o=er
announcement of this type, the target can employ the tactic of asking the
Takeover Panel to respond to such a possible o=er with a “put up or shut
up” ruling.5 This is a ruling by the Takeover Panel intended to avoid a prolonged period of uncertainty for the target company, to the e=ect that
within a speci>ed time (usually around 4–6 weeks) the o=eror must either
make a >rm o=er or withdraw from the process. Withdrawal means that,
in the absence of a third party o=er, the o=eror is prohibited from making
another o=er (or taking any public step towards doing so) for 6 months.6
The second permitted approach is a public announcement of a pre-conditional >rm intention to make an o=er. In this case the o=eror states
publicly that it will make an o=er on speci>ed terms subject to the
ful>lment of pre-conditions. The announcement must include the price
and other key terms of the o=er. Importantly, such an announcement can
only include a pre-condition relating to antitrust and other regulatory
matters. Other pre-conditions can only be included with the consent of
the Panel.7 The Panel has stated in the consultation paper that preceded
3 See Rule 2.4 of the City Code, and in particular Note 1 to that Rule.
4 See Note 1 to Rule 2.4 of the City Code, and, with regard to price, Rule 2.4(c) and Note 5.
5 Rule 2.4(b) of the City Code.
6 Rule 2.8 of the City Code.
7 Rule 13.3 of the City Code.
SHEARMAN & STERLING | M&A FOCUS | 10
It seems unlikely that
the “pre-conditional firm
intention” approach
will be used much in a
hostile context.
the new rules that it will only allow pre-conditions that are objective and
factual in nature. Once the pre-conditions are satis>ed, the o=eror is
obliged to proceed with the o=er on the speci>ed terms.
USE OF THESE DIFFERENT APPROACHES
The “pre-conditional >rm intention” approach is likely in practice to be
used in agreed transactions where the o=eror and the target are prepared
to “lock in” the terms of the transaction throughout a lengthy regulatory
or antitrust review period. It may also have other applications, for example
in a cross-border context where it is necessary to make the timing of a UK
takeover >t with corporate processes in other parts of the world, such as
an inter-dependent US takeover.
It seems unlikely that the “pre-conditional >rm intention” approach will
be used much in a hostile context – it seems more designed for a consensual transaction which happens to involve a long timetable. A target
determined to defend itself would presumably object to any pre-condition
other than the permitted regulatory and antitrust conditions, and the
o=eror would be unwilling to announce a hostile pre-conditional o=er
without being sure that the Panel would accept all its pre-conditions. A
“pre-conditional possible o=er” may, however, become a standard step in a
bear-hug or other more aggressive approach to a UK target.
| 11 |
FOCUSHIGHLIGHTS
In New York, Shearman represented Georgia-Paci>c Corporation in its
US$13.2 acquisition by family-owned Koch Industries, Inc. The resulting
company will have more than 80,000 employees around the world and will
become the largest privately held company in the United States. The total
enterprise value of the transaction is $21 billion, including debt.
Shearman & Sterling F O C U S
In New York and San Francisco, Shearman is representing Boston
Scienti >c Corporation in its proposed US$25 billion acquisition of
Guidant Corporation. The bid is approximately US$3 billion higher than
Johnson & Johnson’s competing bid for Guidant and if successful, will
create the world’s leading cardiovascular device company.
CONTACTS
Peter D. Lyons | New York
+1.212.848.7666
John J. Madden | New York
+1.212.848.7055
Michael J. Coleman | Menlo Park
+1.650.838.3711
Hans Rolf Koerfer | Düsseldorf
+49.211.17.888.911
Georg F. Thoma | Düsseldorf
+49.211.17.8880
Bonnie Greaves | London
+44.20.7655.5550
Peter King | London
+44.20.7655.5108
Cyrille Niedzielski | Paris
+33.1.53.89.89.30
Lee Edwards | Beijing
+86.10.6505.7206
Kenneth J. Lebrun | Tokyo
+81.3.5251.0203
Editor: Alberto Luzárraga | New York
+1.212.848.7647
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In Düsseldorf, Shearman is representing Gerling-Konzern VersicherungsBeteiligungs AG in its sale of 100% interest in Gerling-BeteiligungsGmbH, the holding company of the Gerling primary insurance group, to
Talanx AG.
In New York, Brussels and Beijing, Shearman is representing
Deutsche Bahn AG in its US$1.12 billion acquisition of BAX Global Inc.
from The Brink’s Company. The acquisition will increase Deutsche
Bahn’s position in air and sea freight, as well as build its presence in
North America and Asia.
In Beijing, Hong Kong, London and Menlo Park, Shearman is represent ing PetroChina Company Limited in connection with its landmark
proposed privatization of Jilin Chemical Industrial Company Limited. The
transaction, which was announced on October 28, 2005, is structured as a
pre-conditioned o=er and represents the >rst ever voluntary o=er for a
company with domestic invested shares and foreign invested shares.
In Frankfurt, Shearman represented Deutscher Beamtenwirtschaftsbund
GmbH along with BGAG Beteiligungsgesellschaft der Gewerkschaften AG
in their joint €1.79 (US$2.15) billion sale of 76.4% interest in BHW
Holding AG to Deutsche Postbank AG. Following the acquisition,
Postbank will control 90% of BHW Holding, the building society, which
along with its subsidiaries, o=ers a comprehensive range of >nancial planning services for private clients.
In New York and Paris, Shearman represented Groupe Danone in its sale
of DS Waters Enterprises, LP to Kelso & Company. Shearman also represented Groupe Danone in a subsequent acquisition of the partnership
interest of DS Waters, LP from a subsidiary of Suntory International Corp.
DS Waters was formed in 2003 by combining the US home and of>ce
delivery business of Groupe Danone with the bottled water unit of Suntory.
In Frankfurt and Mannheim, Shearman represented DaimlerChrysler AG
and its subsidiary, DaimlerChrysler O =-Highway Holding GmbH, in their
acquisition of the remaining 11.65% interest in MTU Friedrichshafen
GmbH i.L. from the Maybach and Brandenstein-Zeppelin families they did
not already own. As a result of the transaction DaimlerChrysler O=Highway became the sole shareholder in MTU, ending a period of uncertainty for the company and its employees.
Copyright © 2006 Shearman & Sterling LLP. As used herein, “Shearman & Sterling“ refers to Shearman & Sterling LLP, a limited liability partnership
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