cca sample

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a j o u r n a l o f l e g a l a n d f i n a n c i a l t r e n d s i n d e a l m a k i n g

inside

9 The lineupDeals om Se t. 16 to Oct. 31 involvin ta ets wo th at least $100 million

13 2005 rankings chartAdvise s in deals announced between Jan. 1, 2005 and June 30, 2005

5 A new streamlined bab or the FTC and DOJ? Antitrust With E nest Hollin s eti ed, the DOJ and FTC may fnally be ee tost eamline the me e eview ocess

4 A titanic problem in the making?Securities law Lawye s wo y that a ecent SEC e o t o tends a hi he level o sc utiny o statements made in me e a eements

3 Kravitz ri s on Connecticut law Recapitalizations A te a sin a state statute on votin i hts in me e s, a ed-e al jud e a oved Kaman Co .s o osed eca italization

11 Poison pill chartA list o ills im lemented between Au . 11 and Jan. 31

8 A matter o orm in the European UnionCorporate governance The new an-Eu o ean stock co o ation may a eal toissue s ima ily as a way o easin c oss-bo de deals

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6 The top 10 deals: June 16Aug. 15The sales o MBNA and Unocal to the summe months

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Novembe 2005

A recent federal court ruling will allow Kaman Corp. to proceed with itsplanned recapitalization despite a chal-lenge rom New York investment undMason Capital. Mark Kravitz, a U.S.District judge in New Haven, Conn.,held in an Oct. 31 ruling that Kamansproposed transaction did not triggera Connecticut law that might haverequired two-thirds o disinterestedshareholders to approve the deal.

Founded by Charles Kaman in 1945and incorporated in Connecticut, theBloomfeld, Conn.-based distributor o industrial products has two classes o common stock: 22.4 million shares o non-voting Class A, which is traded on

Nasdaq, and 668,800 shares o votingClass B, which is not traded on an ex-change. Charles Kaman and his amilyown 82.6% o the Class B and about5% o the Class A. Mason owns 8.3%o the Class B, more than hal o whichit has acquired since May.

A ter considering a recapitalizationor several years, Kamans board and a

special committee o independent di-rectors approved a deal in which hold-ers o Class B stock would receive 1.95shares o Class A or a share o Class Aand $14.76 in cash or each Class Bshare. The Kaman amily had to electthe cash and stock option or as manyo its Class B shares as needed to pre-vent their holdings o Class A stock

rom increasing by more than 5%, anevent that would constitute a businesscombination under Connecticut stat-ute and thus require a two-thirds vote

o disinterested shareholders o thecompanys voting stock. That outcomewould have given Mason the chance toblock the transaction, since he ownedmore than 40% o the Class B stocknot held by the amily. Class A holderswould receive voting rights as part o the restructuring.

Mason tried to take control o thecompany by teaming with MK Invest-ments to make a $55 a share bid or theClass B shares on June 28. Team Ka-man countered July 28 with a $55.65 ashare bid in which each Class B sharewould be converted into 3.58 shareso voting common or 1.84 shares o voting common and $27.10 a share, a

scheme that stands to leave the Kamanamily with more than $13 million aswell as 9.7% o the companys stock. Asa recapitalization under Connecticutlaw, the proposal required the approvalo a simple majority o both classes o stock. But Mason claimed that the dealwas a business combination, whichwould have given him a veto over thedeal and stripped the Class A holderso their vote. He sued Sept. 19 in U.S.District Court in New Haven to stopthe transactions.

In a heavily expedited proceeding,Kravitz held a trial Oct. 7 in whicheach side presented one act witnessand one expert. (John Coates, a pro-

essor at Harvard Law School, was thecompanys expert, and Alan Schwartzo Yale Law School testifed or Ma-son.) In his Oct. 31 ruling, Kravitzexpressed reluctance at interpreting a

1984 state statute that is not a modelo clarity but nonetheless took up thetask in a 37-page opinion. The law atissue was one o the air-price statutesthat many states passed in the 1980s in

order to counteract the coercive e ectso two-tier tender o ers. By requiringthat two-thirds o the disinterestedholders o the voting stock o a com-pany approve a business combination,the act protects minority holders o voting stock rom abusive transactions

avoring shareholders holding morethan 10% o any class o a corporationsequity securities, Kravitz wrote.

Masons claim would seem to havebeen an ingenious way around thestatutes purpose. The company pro-posed to give holders o both classeso stock a vote on the deal, ensuringthat the Class A holders had some sayin the outcome. Masons reading o thestatute would have stripped the ClassA holders o their vote while givinghim a veto over the deal, a step that headmitted he hoped would allow him totake control o the company.

Instead o employing such reason-ing, Kravitz closely parsed section33-840(4) o Connecticuts BusinessCorporation Act. He rejected Masonsclaim that Kamans recapitalization

proposal is a share exchange under themeaning o the law and also nixed theplainti s reading o another portion o the statute that or want o a commawould have required the court to drivea wedge between transactions that allhave the same practical value.

At an Oct. 11 shareholder meeting,82% o the Class A holders and 91% o the Class B holders voted or the recap-italization, but Kaman didnt close thetransaction pending the courts ruling.Kravitz extended the stay until Dec. 1pending the outcome o a possible ap-peal by Mason.

Mason tapped Yose Riemer at Kirk-land & Ellis LLP in New York. Kamanused Matthew Matule o the Boston o -fce o Skadden, Arps, Slate, Meagher& Flom LLP. n

by davi mar us

A te a sin a state statute on votin i htsin me e s, a ede al jud e a oved KamanCo .s o osed eca italization

Kravitz ri s onConnecticut law

r e c a p i t a l i z a t o n s

Recapitalizations article as seen in the November 2005 issue o Corporate Control Alert

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Co o ate Cont ol Ale t

Titan Corp. has had more than itsshare o regulatory misadventures inrecent years. The San Diego de ensecontractor saw its merger agreementwith Lockheed Martin Corp. collapselast June because the target was unableto resolve a government bribery probeby the deals drop-dead date, but thatwasnt the end o its troubles.

The U.S. Securities and ExchangeCommission issued a 21(a) reportMarch 1 about Titan in which the SECalleged that Titan broke the law by pay-ing more than $3.5 million to its agentin Benin rom 1999 to 2001. The Titanoperative unneled the money to there-election campaign o the countrysthen-president; some o the cash wasused to reimburse Titans agent or the

purchase o T-shirts adorned with thePresidents picture and instructions tovote or him in the upcoming election,the report alleged. Titan was hit witha $28 million fne or violations o theForeign Corrupt Practices Act.

That wasnt what had some lawyershowling about the agencys report. Asis typical, Titan fled with the SEC themerger agreement it entered into withLockheed Martin on Sept. 15, 2003,as part o the companies disclosure o the news. In the agreement, Titan rep-resented that neither it nor its peoplehad violated the Foreign Corrupt Prac-tices Act. Some lawyers ear that theSECs 21(a) report marks a change inthe treatment o merger agreementsand related disclosure schedules. Thoseschedules condition statements madein agreements and are o ten re erred toby the agreements but usually are not

themselves disclosed to investors inSEC flings.

No one disagrees that i companieshave problems with compliance and thelaw, then they have a duty to disclose,said Robert Spatt, a partner at Simp-son Thacher & Bartlett LLP, speakingat the Tulane Corporate Law Instituteon March 11. But people are upsetthat i a disclosure schedule is attachedthat every statement in that documentis a quasi-public fling. A Wachtell,Lipton, Rosen & Katz memorandumto clients respect ully disagreed withthe SECs ruling on the issue, a viewshared by many deal lawyers.

Their ear is that the SEC will sub-ject exhibits to SEC flings to the samelevel o scrutiny as disclosure in the reg-

istration statement itsel . In the latter,a company makes actual statementsupon whose truth investors may legallyrely. A merger agreement is a contractbetween two companies rather thana set o statements made to investors.Companies may quali y representa-tions or example, The companyrepresents that its fnancial statements

or the last 40 years are accurateindisclosure schedules that are so calledbecause one company discloses various

acts to the other, not because the com-pany intends to disclose those sched-ules to investors.

Parties to a merger agreement o -ten design the representations in theirdocuments to assign risk rather than tomake actual statements. I a companywarrants, or example, that its fnan-cial statements are materially accurate,then it assumes the risk o their inac-

curacy. This practice is justifed, law-yers say, because it allows companiesconsidering a deal to conduct thoroughdue diligence on one another withoutworrying that even negligible issues

will be made public. As Spatt noted atTulane, an issuer must publicly disclosematerial issues anyway.

Some lawyers argue that in responseto the SECs report on Titan, com-panies should include disclaimers intheir flings o merger agreements. Wa-chtells memo and a Cleary GottliebSteen & Hamilton LLP missive avorthis approach.

The 21(a) report includes languagethat suggests such a response may bean overreaction. The SEC said its re-port is not intended to change theway issuers engage in merger, or othercontractual, negotiations or to alterexisting diligence obligations or tosuggest, absent special circumstances(such as provisions intended to createthird party benefciaries), that provi-sions such as representations and cov-enants in such agreements are bind-ing on or intended to beneft personsother than parties thereto.

That disclaimer and other aspects o the SEC report lead some lawyers tobelieve that the Wachtell and Cleary

memos misinterpret the SECs inten-tion and would be counterproductive.The SEC does not normally issue21(a) reports at all, let alone 21(a) re-ports that do not lead to an en orce-ment action, says Richard Hall, a part-ner at Cravath, Swaine & Moore LLP,re erring to the orm in which the SECcommented on the Titan situation.

And, he adds, This is not the waythe SEC normally comments on anevolving disclosure practice withwhich it is uncom ortable. At least orthe moment, there is no reason to be-lieve that the Division o CorporationFinance thinks there is a disclosureproblem. Including disclaimers suchas the ones Wachtell and Cleary advo-cate might escalate the issue unneces-sarily, Hall says. n

s e c u r i t i e s l a w

A titanic problemin the making?

Lawye s wo y that a ecent SEC e o to tends a hi he level o sc utinyo statements made in me e a eements

by davi mar us

Securities law article as seen in the April 2005 issue o Corporate Control Alert

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Timothy Muris and Charles Jameslearned a harsh lesson in the wayso Washington in 2002 when a U.S.senator killed what many antitrustlawyers saw as a sensible plan orstreamlining ederal merger reviews.Only two months a ter Muris, thenchairman o the Federal Trade Com-mission, and James, the Departmento Justices assistant attorney general

or antitrust, worked out a deal ordividing responsibility or merger re-views along industry lines, they were

orced to scuttle it under intensepressure rom Sen. Ernest Hollingso South Carolina, then the rankingDemocrat on the Commerce Com-mittee, the primary congressional

overseer o the FTC.The allout rom the debacle con-vinced them and their successors thatantitrust re orm was radioactive. Partlyin reaction to the uproar, Rep. JamesSensenbrenner, R-Wis., that same yearpushed Congress to create the Anti-trust Modernization Commission toclean up longstanding shortcomingsin merger review practice, as well as toadapt DOJ and FTC competition en-

orcement or the Internet age. Manydoubted the new commission wouldeven get o the ground, much less re-vamp antitrust policy.

But more than a year into a serieso public hearings on how to improvethe merger review process, the moodis changing. Even Joe Sims, a veteranantitrust lawyer and ormer JusticeDepartment deputy assistant attorneygeneral, told AMC members in No-

vember that they stand a good chanceo at least prodding the agencies toreduce the time and cost o mergerreviews.

The panel was initially viewed as lit-tle more than a pet project o Sensen-brenner, the House Judiciary Commit-tee chairman. The initial legislationcreating the commission ailed evento include unds to get it started. Themoney fnally arrived in time or thecommission to begin hearings in 2004,but early cynicism has persisted.

Given the environment were in,Im not at all convinced that utureheads o the two agencies will en-gage in overall clearance re orm, saidMuris, now a law pro essor at George

Mason University in Fair ax, Va., at a Nov. 3 AMC hearing.AMC chairwoman Deborah Gar-

za, a partner in Fried, Frank, Harris,Shriver & Jacobson LLPs Washing-ton o fce, says the mood in Congresshas shi ted. (It helps that Hollingshas retired.) In my discussions withCapitol Hill sta , weve been assuredtheres no need to obsess over whathappened last time. My sense is weshouldnt be de eatist about it. Shesays the commission will continuehearings through January with a fnalreport expected in early spring 2007,although the commission may weighin with Congress on specifc topicsbe ore then.

Leading the list o desired changes isstreamlining the so-called clearanceprocess or deciding whether the DOJor the FTC reviews a particular deal.

Other topics under consideration arethe need to address a perception thatthe FTC has more judicial leeway toblock mergers than the Justice Depart-ment, updating patent en orcement

and speeding nonmerger criminal an-titrust investigations.Its uncertain whether Congress can

pass antitrust legislation amid battlesover Supreme Court nominees, thewar in Iraq and budget battles, but re-gardless o the attention the issue gets

rom lawmakers, the agencies will havediscretion to implement some AMCrecommendations on their own.

Sims, now a partner with Jones Day,suggested the AMC call or establishingcommon databases o economic and in-dustry statistics that the agencies canuse when analyzing the e ect o a merg-er, which would enable an en orcer tobase decisions on identical assumptionsabout a particular industry.

He also urged the AMC to establisha joint o fce o clearance special-ists with no clear allegiance to eitheragency that would be charged withdeciding quickly which agency wouldreview a merger. It doesnt make awhole lot o di erence who does adeal, Sims told the AMC gathering.But it does make a lot o di erence

that they get started.The most recent clearance fghterupted when Maytag Corp. accepteda buyout o er rom Whirlpool Corp.The Justice Department won claimto the deal with only a week to go inthe 30-day waiting period the Hart-Scott-Rodino Act requires. The tardydecision assured the companies wouldhave to comply with a second request

or in ormation rather than gettingthe go-ahead to merge a ter the initialHSR waiting period.

Lamenting the 2002 agreements de-mise, Arnold & Porter LLP antitrustpartner Michael Sohn says that in theshort time the Muris-James truce was inplace, the time to clear a merger reviewto an agency dropped rom an averageo 15 days to 1.5 days.n

by Bill m connell

a n t i t r u s t

With E nest Hollin s eti ed, the DOJ and FTCmay fnally be ee to st eamline the me e

eview ocess

A new streamlined bab or the FTC and DOJ?

Decembe 2005Antitrust article as seen in the December 2005 issue o Corporate Control Alert

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Rank Target Legal advisers Investment advisers Investment adviserscounsel

1 MBNA Corp. w h , l , r & K(Edward Herlihy)uBs i v m B k(Michael Martin, Olivier Sarkozy)J h p

D y B(Denise Cerasani)

2 Unocal Corp. w h , l , r & K(Daniel Ne ) M g s y(Stephen Munger, Thomas Lang ord) sh m & s g(Peter Lyons)

3 PacifCareHealth S stems Inc.sk dd , a , s , M gh & F mllp (Paul Schnell, Neil Stronski)

Mts H h pM g s y

l h m & w k(Charles Ruck)s h r h & z b llp

4 Cablevision S stemsCorp. w k F & G gh llp(Mario Cuomo,Joseph Baio, Michael Schwartz, Daniel Rubino)

5 Ivax Corp. G b g t g llp(Gary Epstein, Robert Grossman, Ivan Presant)sh m & s g(Chris Bright)

uBs i v m B k(Rick Leaman, David Gately, SumeetKanwar)

sk dd , a , s ,M gh & F m llp(Paul Schnell, Richard Grossman)

6 IMS Health Inc. s v & c m llp(Alan Sinsheimer,Keith Pagnani, Max Schwartz, Steven Holley)c y G b s & H m llp(Nicholas Levy)

uBs i v m B k(Robert DiGia, Lee LeBrun, Je rey Sine)G h p(Eric Gleacher, Richard Burke)

G b D & c h llp(Barbara Becker, Eduardo Gallardo)D y B llp(Denise Cerasani)

7 Terasen Inc. s k m e llp(Jonathan Drance)p , w , r k d, wh &G llp(Andrew Foley, Edwin Maynard)D k sh M o h ky llp

rBc c M k(Gary Shendlin)

8 Reebok InternationalLtd.r & G y llpl h m & w k llp(antitrust, Dan Wall, Tom Rosch, Andreas Weitbrecht)

c d s F B D y B llp(Morton Pierce, M. Adel Aslani-Far)

9 Citigroup (asset man-agement business)sk dd , a , s , M gh & F mllp (Ralph Arditi, Russell DOench III, Eric Friedman)

c g G b M k(Gary Shendlin)

10 Kerr-McGee Corp. (Brit-ish oil and North Seaassets)

F hf d B kh D g(Peter Streat eild, Jonathan Rees, Michael Wachtel,Katrine Orr)

J.p. M g ch & c .(Jeremy Wilson, Jimmy Elliot)l hm B h i .(Carlos Fierro)s , w l d.

1Includes announced values o deals or bids ann ounced between June 16, 2005, and August 15, 2005. Because o space limitations, ancillar counsel on a deal ma not be listed.

THE TOp 10 DEALS

Co o ate Cont ol Ale t2005 rankings chart as seen in the August/September 2005 issue o Corporate Control Alert

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Acquirer Legal advisers Investment advisers Investment adviserscounsel Value

(millions)

Bank o American Corp. c y G b s & H mllp(John Murphy, Christopher Austin)

K , B y & w d i .(Peter Wirth, John Du y)B k am s

$35,000

Chevron Corp.

CNOOC Ltd.

For CNOOC committeeo independent directors

p b y w h sh p m llp(Terry Kee)c v h, s & M llp(Scott Barshay, Allen Finkelson)D v p k & w d(Christopher Mayer, John Amorosi)p a d & c(Michael Goldman, John Grossbauer)sk dd , a , s , M gh & F m(Peter Atkins, or committee o board)

l hm B h i .(Carlos Fierro, Gary Posternak, Grant Porter)

G dm , s h & c .(Michael Carr, Bill Wicker, Steven Daniel)J.p. M g ch & c .(Charles Li, Todd Marin, Leon Ming)r h h d G (Andrew Rickards,Neeve Bills, Roger Kimmel)

B k B

s m th h &B (Robert Spatt)

18,900

UnitedHealth Group Inc. w , G h & M g(Raymond Gietz, Thomas Roberts)D y & wh y(Jonathan Abram)

G dm , s h & c .J.p. M g ch & c .B k am s

c y G b8,110

Dolan amil (20% shareholder) D b v & p m llp(Rick Bohn, David Brittenham)p a d & c(Donald J. Wol e Jr., Michael Tumas)

B k am s(Stephen Ketchum, Thomas Whayne)M ly h & c .

D y B llp(Morton Pierce, Jack Bodner)sh m & s g(Christa DAlimonte)

7,900

Teva PharmaceuticalsIndustries Ltd.

w k F & G gh llp(Peter Jakes, Je rey Hochman)t h ky-s & c .(Menachem Tulchinsky, Yaacov Michlin)s h n h & r h llp(Ira Schreger, T. Redd Stephens. Marci Levine)

l hm B h i .(Harvey Kruger, David Brand, Len Rosen)c d s F B(Francois Maisonrouge, Charlie Attlan)

s m th h &B (William Curbow)D y B llp(Morton Pierrce, Jack Bodner)

7,400

VNU NV s m th h & B llp(John Finley, Peter Malloy, Kenneth Edgar)D B B k w b k nV(Arne Grimme, Jaap Winter)

c d s F B(John Trousdale, David Weil, Je Lipkin)ev p (Roger Altman)aBn am (Jan de Ruiter)D h B k(Geo rey Austin)

sh m & s gllp (John Madden)

D v p k &w d

6,700

Kinder Morgan Inc. B & G(Gregory Bopp, W. Cleland Dade, Gary Orlo )B k c & G yd llp(Mungo Hardwicke-Brown, Brock Gibson)

uBs(Michael Jamieson)

5,600

Adidas-Salomon AG s m th h & B llp(Casey Cogut, William Dougherty)B B kh dev h d llpw m c p k g H dD llp

M ly h & c . sk dd , a ,s , M gh &F m llp(Howard Ellin)

3,800

Legg Mason Inc.(Brokerage unit)

sh m & s g llp(John Marzulli, Barry Barbash)M g l & B k llp(Steven Stone, Robert Robison, Stephen Cohen)

G dm , s h & c .(Donald Truesdale, Christopher Spo ord)

s m th h &B (Lee Meyerson)

3,700

A.P. Mller-Maersk,Centrica plc

a & ov y llp(Tim Shilling)

c g(Peter Kjaer, Jim Peterkin)

3,500

Source: Corporate Control Alert

JUNE 16 - AUgUST 15 2005

Au ust/Se tembe 2005

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Legislation creating pan-Europeanstock corporations made its way intothe spotlight in September when Al-lianz AG became the largest Conti-nental group to become a SocietasEuropeae. But local tax regulations and

ears over co-determinationallowingworker representatives to sit on man-agement boardsmay scare many Eu-ropean companies rom adopting thenew Latin moniker.

Munich-based Allianz announcedthe move as part o a 5.7 billion ($7billion) plan to buy the 45% o its Ital-ian Riunione Adriatica di Sicurt SpAunit that it doesnt already own andtouted the trans ormation as a way to

streamline its European management.Now that theres a common marketin Europe, its important to acknowl-edge this market with a type o com-pany that operates across all memberstates as a single entity, says RogerKiem, a partner with Shearman &Sterling LLP who worked on the deal.

Lawmakers have discussed the con-cept o an SE, as it is now known, orabout 30 years as part o the dream o a united Europe, and it fnally passedlegislation in Brussels last October.The law creates a single set o manage-ment requirements or SEs operatingthroughout the European Union, but itdoesnt address widely varying tax lawsin each member state or entirely excusecompanies rom corporate law at home,leading some to decry it as an unwieldyand impractical option.

During the trans ormation, em-

ployee representatives also have a sayin the companys strategy, althoughthey ultimately cant demand morerepresentation than prior to the con-version. Companies may choose be-tween a German-styled two-tier man-agement structure with a managementand supervisory board or an Anglo-Saxon approach with a single execu-tive panel.

More importantly, observers say, dur-ing a merger, an SE will allow a com-pany to appear European, helping tocool the nationalism o cross-borderdeals. Psychologically, its easier. Youcant discount the psychological ac-tor, Kiem says. For Allianz, the move

will simpli y the absorption o RAS,since it allows the group to buy outminority shareholdersas long as anauditor agrees the price is rightandavoid a legal squeeze-out spat, accord-ing to Hans Diekmann, another Shear-man partner involved in the transac-tion. (See Whos dominating whomin Germany?)

During the trans ormation, Allianzplans to reduce its supervisory board to12 members, rom 20which Germanlaw would prohibitand allow oreignemployee representatives. The groupis also adding an Italian and a Frenchexecutive to its board.

Although only a hand ul o smallercompanies have adopted the policysince it was ounded, Paris-based SuezSA said in August it hired BNP ParibasSA to research the possibility o orm-ing an SE. The French utility would

make the move ollowing its 11.2 bil-lion buy o the 49.9% o Belgian divi-sion Electrabel SA it doesnt own.

Swedens Nordea Bank AB in Juneannounced a transition to an SE a ter

operating as a holding company or ourbanking groups in Scandinavia. Austri-an construction group Strabag AG alsoadopted the tag as it picked throughthe ashes o bankrupt German builderWalter Bau AG earlier this year.

Diekmann says he has had inquiriesrom every size company in recent days

about the pan-European structure andexpects more than just a ew transitionsin the coming months. Colleague Kiemsaid he has expected it to appear moreo ten than it already has. I wondered i it wouldnt be use ul in the UniCreditSpA/HVB Group AG deal, he says,re erring to Milan-based UniCredits 15.4 billion o er or German rival.

Despite optimism in Germany, someare skeptical the new law will a ect cor-porate governanceespecially in Lon-don. Its a simple regulation. It doesntgive you detailed provisions, says

Nigel Boardman, a partner at Slaugh-ter and May. The biggest drawbackis that it doesnt a ect tax. Anotherdrawback, he adds, is the introductiono employee participation to a British

corporate culture not accustomed toco-determination. Boardman thinks aBritish company would adopt the SEregulations only i it was to acquire aGerman company and suddenly elt aneed or employee representatives onits board.

I you did, in England, want a two-tier board, the only way you coulddo that is through a simple Europeancompany, he says. Its taken over 25years to come to ruition. It started along time ago, when people had di er-ent perspectives on labor involvement.I would expect take-up to be low.

Another London attorney, who asksnot to be named, wasnt so kind. Itsa political pipe dream, he says, sco -ing at the psychological e ect o anSE: The accent on the other end o the phone tells you where the buyer iscoming rom.n

c o r p o r a t e G o Ve r n a n c e

The new an-Eu o ean stock co o ation maya eal to issue s ima ily as a way o easinc oss-bo de deals

A matter o orm inthe European Union

Corporate governance article as seen in the October 2005 issue o Corporate Control Alert

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T H E L I N E U p

Accellent Inc.$1.27 b ( v q )

DEAL DESCRIPTION:New York private equity rm Kohlberg Kravis Roberts & Co. announcedplans to buy medical device manu acturer Accellent Inc. or $1.27 billion.

Target: Accellent Inc.Investment adviser: Credit Suisse First Boston

Outside counsel: Hogan & Hartson LLPWalsh, Christopher

Mintz, Robert Ne , WilliamHarrington, Michele SasseLondon, DavidReisch, Scott Rosenstock, HowardShapiro, Je rey

Shareholder target: KRG Capital Partners LLC

Shareholder target: DLJ Merchant Banking PartnersOutside counsel: Weil, Gotshal & Manges LLP

Warner, DouglasSilberberg, Marc

Acquirer: Kohlberg Kravis Roberts & Co.Investment adviser : J.P. Morgan Chase & Co.

Outside counsel: Simpson Thacher & Bartlett LLPCogut, CharlesRodgers, SeanTodrys, StevenBrown, Alvin

In ormation agent: MacKenzie Partners Inc.PR frm: Kekst and Co.

Announcement date: 10/11/05

*Accellent is owned by KRG Capital Partners LLC, DLJ Merchant Banking Partners, andmanagement.*As part o the transaction, members o Accellent management will partner with KKR byretaining a signi cant equity stake in the company.

ACR Logistics

$592 m ( v q )DEAL DESCRIPTION:Kuehne + Nagel International AG said that it has agreed to buy ACR Logis-tics rom buyout rm Platinum Equity LLC.

Target: ACR Logistics

Shareholder target: Platinum Equity LLCInvestment adviser: Lehman Brothers Inc.

Leckert, Ste en

Outside counsel: Dechert LLPLevin, Adam

PR frm: Abernathy MacGregor Group Inc.PR frm: Maitland Consultancy

Acquirer: Kuehne & Nagel International AGInvestment adviser: Deutsche Bank AG

Wiseman, MartinElmendor , Klaus


Advanced Neuromodulation Systems Inc.$1.3 b ( d - h)

DEAL DESCRIPTION:St. Jude Medical Inc. agreed to buy Advanced Neuromodulation Sys-tems Inc. or $1.3 billion in cash to diversi y into spinal cord stimulationmechanisms.

Target: Advanced Neuromodulation Systems Inc.Investment adviser: Piper Ja ray & Co.

Outside counsel: Baker Botts LLPCialone II, JosephMcDermett Jr., DonMonk, DavidBerry, J. PatrickKennerly, Christopher Marcus, StephenRaborn, James

Acquirer: St. Jude Medical Inc.Investment adviser: Banc o America Securities LLC

Outside counsel: Gibson, Dunn & Crutcher LLPBarbeau, Joseph


Agilent Technologiesstorage semiconductor division$425 m ( h/ k q )

DEAL DESCRIPTION:PMC-Sierra Inc. has agreed to purchase the storage semiconductor divisiono Agilent Technologies Inc.s semiconductor product group or $425 millionin cash. The PMC-Sierra $425 million deal hinges on the larger transactionbetween Kohlberg Kravis Roberts & Co. and Silver Lake Partners to buy theAgilent semiconductor product business or $2.66 billion.

Target: Agilent Technologiesstorage semiconductor division

Shareholder target: Agilent Technologies Inc.

Shareholder target: Kohlberg Kravis Roberts & Co.

Deals reported in the December 2005 lineup were announced between Sept. 16 and October 31, 2005. Only deals involving a change o control o target company with a market value o $100 million or more are included, and only when a key partyinvolved is a U.S. company. Unless the target is a recognized standalone operating business, the lineup will not include asset sales, unit sales, or sales o subsidiaries. The lineup includes the names o lead lawyers at law rms that represented theprincipals and lead individuals or the investment advisers.

Decembe 2005 The lineup as seen in the December 2005 issue o Corporate Control Alert

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Shareholder target: Silver Lake Partners LPPR frm: Citigate Sard Verbinnen

Acquirer: PMC-Sierra Inc.Outside counsel: Wilson Sonsini Goodrich & Rosati

Wol , NeilIshii, Robert


Alias Systems Corp.$182 m ( v q )

DEAL DESCRIPTION:So tware company Autodesk Inc. said it is acquiring Alias Systems Corp.,a Toronto-based movie graphics technology company, rom Accel-KKR and

Teachers Private Capital.

Target: Alias Systems Corp.

Shareholder target: Accel-KKROutside counsel: Kirkland & Ellis LLP

PR frm: Kekst and Co.

Shareholder target: Teachers Private Capital

Acquirer: Autodesk Inc.Outside counsel: Wilson Sonsini Goodrich & Rosati

Bertelsen, Mark


Alpharma Inc.human generics unit$810 m ( h/ k q )

DEAL DESCRIPTION:Icelandic generic drug company Actavis Group h agreed to pay $810 mil-lion or the human generics unit o Alpharma Inc.

Target: Alpharma Inc.human generics unitInvestment adviser: Banc o America Securities LLC

Dono rio, PaulMiller, Matt

Outside counsel: Kirkland & Ellis LLPFraidin, StephenNagel, AndrewGallagher, Patrick

Shareholder target: Alpharma Inc.Outside counsel: Richards, Layton & Finger

Haubert, William

Acquirer: Actavis Group hf Investment adviser: UBS AG

Gutzwiller, PhilipBorten, GilesHourihan, Marc-Anthony

Outside counsel: Dewey Ballantine LLPAiello, Michael


AMLI Residential Properties Trust$2.1 b ( h/ k q )

DEAL DESCRIPTION:Investment bank Morgan Stanley said it agreed to buy Chicago-based REIT AMLI Residential Properties Trust in an all cash deal valued at about $2.1billion.

Target: AMLI Residential Properties TrustInvestment adviser: J.P. Morgan Securities Inc.

Kindler, Robert Ventresca, ChrisBaccile, Peter Grier, Thomas

Outside counsel: Mayer, Brown, Rowe & MawSchneidman, Edward

Acquirer: Prime Property FundInvestment adviser: Morgan Stanley

Outside counsel: Davis Polk & WardwellGoldberg, LouisMollerus, Michael

Outside counsel: King & Spalding LLPFryer, WilliamGenz, Peter Goodwin, Timothy


Anderson-Tully Co.$465 m ( h/ k q )

DEAL DESCRIPTION:Anderson-Tully Co. and Heartwood Forestland Fund V LP, an a liate o Forestland Group LLC, announced that they have entered into a de nitivemerger agreement. Under the terms o this agreement, which was unani-mously approved by ATCOs board o directors, TFG will acquire all o theoutstanding shares o ATCO or approximately $500,000 per commonshare in cash, implying an enterprise value or the company o approxi-mately $465 million.

Target: Anderson-Tully Co.Investment adviser: Goldman, Sachs & Co.Counsel to I-bank: Fried, Frank, Harris, Shriver & Jacobson LLP

Katz, Stuart Richter, Philip

Outside counsel: Skadden, Arps, Slate, Meagher & Flom LLPKrupp, Peter

Acquirer: Forestland Group LLCOutside counsel: Sutherland, Asbill & Brennan LLP


Antares Capital Corp.$800 m ( h/ k q )

DEAL DESCRIPTION:General Electric Co. said it has acquired Antares Capital Corp., a specialtylender or middle-market deals.

Target: Antares Capital Corp.Investment adviser: Lehman Brothers Inc.

Einbinder, LeeOutside counsel: Winston & Strawn LLP

Gavin, Steven

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The Poison Pill Chart includes the name o the adopting company, its headquarters, itsstate o incorporation (INC), the date theplan was adopted and/or amended, theexercise price o a right, the fip-in percent-age threshold and the banking and law

rms that advised the company. To the extent possible, we have iden-

ti ed notable provisions o plans. Theterms used in the ootnotes are de nedas ollows:

Adverse person provisionBoardauthority to lower the fip-in trigger in the

ace o an acquirer deemed adverse tothe interests o the company. All adverse

person provisions permit reduction to10% unless otherwise noted.Continuing directors or indepen-

dent directors redemption require-

ment Redemption o the pill in certaincircumstances requires the concurrenceo the continuing or independent direc-tors. Continuing directors typically in-clude board members elected be ore theadoption o the pill or elected a ter theadoption o the pill and approved by thecontinuing directors but expressly do not include the acquirer or its a liates.

Exchange option The board hasthe power, a ter the fip-in is triggered,but be ore the acquirer obtains 50% o the stock, to issue one share o commonstock or each right.

Qualifed o er provisionUnder

this provision, which varies substantiallyin strictness rom plan to plan, the pillwill lie dormant in the ace o certaino ers speci ed in the plan. Typical re-

quirements include that the o er must be or all cash, all shares, ully nanced,accompanied by a airness opinion roma nationally recognized investment bank,and le t open or a speci ed period, typi-cally 45 days.

Shareholder re erendum I an o -erer makes an all-cash, all-shares o er,

has written nancing commitments inplace, and holds a written airness opin-ion rom a nationally recognized invest-ment bank, such a bidder is entitled todemand a special meeting o stockhold-ers to vote on its o er. This right is onlygranted to o erers who at the time o the

demand own less than a certain percent-age o target company stock, typically1% to 5% o the outstanding shares.

Aug. 11, 2004 to Jan. 31, 2005

Compan Name Headquarters INC Adopt. Date Amend. Date Price/Thresh Law Firm Bank

U.S. incorpora ted compan ies

Aclara Biosciences Inc. Mountain View, Cali . Del. 3/16/2001 10/18/2004 $40.50/20% Amendment exempts Perry Corp. up to 25%.

Alexion Pharmaceuticals Inc. Cheshire, Conn. Del. 2/14/1997 11/16/2004 $725/20% Amendment removes continuing director quali cation to amend or redeem (dead hand).

American Medical Green Bay, Wis. Wis. 8/9/2001 9/15/2004 $30/16% Skadden Arps SlateSecurity Group Inc. Meagher & Flom LLP;

Quarles & Brady LLP Amendment exempts Paci Care Health Systems Inc. in connection with its agreement to acquire the company.

Aphton Corp. Miami Del. 8/17/2004 $29.80/15% Akerman SenterfttIncludes exchange option.

Archstone-Smith Trust Englewood, Colo. Md. 8/31/2001 9/20/2004 $75/15% Mayer Brown Rowe & Maw Amendment accelerates expiration date to 10.1.04 rom 8.31.11.

Artisan Components Inc. Sunnyvale, Cali . Del. 12/12/2001 8/22/2004 $115/15% Amendment exempts ARM Holdings plc in connection with its agreement to acquire the company.

Aspect Medical Systems Inc. Newton, Mass. Del. 11/29/2004 $150 /17.50% Wilmer Cutler Pickering Hale and Dorr LLP

Includes exchange option, quali ed o er provision, and three-year independent director evaluation, or TIDE, provision.

Assisted Living Concepts Inc. Dallas Nev. 10/1/2004 11/4/2004 $60/20% Andrews Kurth LLP Amendment exempts Extendicare Health Services Inc. in connection with its agreement to acquire the company.

Source: www.SharkRepellent.net, 2004/2005 TrueCourse Inc., all rights reserved; Corporate Control Alert

p O I S O N p I L L S

11Ma ch 2005Poison Pill chart as seen in the March 2005 issue o Corporate Control Alert

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Assisted Living Concepts Inc. Dallas Nev. 10/1/2004 $60/20% Andrews Kurth LLPIncludes exchange option.

Avant Immunotherapeutics Inc. Needham, Mass. Del. 11/5/2004 $35/15% Goodwin Procter LLP Adams Harkness Inc

Original plan adopted in 1994; new plan includes exchange option.

Banknorth Group Inc. Portland, Maine Maine 9/12/1989 8/25/2004 $80/15% Amendment exempts Toronto-Dominion Bank in connection with the agreement under which the company will merge with a TDB subsidiary which will result in TDB acquiring 51% o

Bentley Pharmaceuticals Inc. Exeter, N.H. Del. 12/15/2004 $72.55/15%Original plan adopted in 1999; new plan includes exchange option and quali ed o er provision.

Beverly Enterprises Inc. Fort Smith, Ark. Del. 1/25/2005 $50/10%Original plan adopted in 1994; new plan includes exchange option and quali ed o er provision.

Bill Barrett Corp. Denver Del. 10/8/2004 $150/15% Akin Gump StraussHauer & Feld LLP

Includes exchange option.

Bioenvision Inc. New York Del. 11/17/2004 $70/15% Paul Hastings Jano sky J.P. Morgan& Walker LLP

Includes exchange option.

Bioject Medical Technologies Inc. Bedminster, N.J. Ore. 6/13/2002 11/15/2004 $50/15% Amendment exempts LOF Partners, LLC up to 19.99%.

BNS Holding Inc. Middletown, R.I. Del. 2/13/1998 12/14/2004 $60/4.99% Amendment to provide that newly created BNS Holding Inc. will assume the rights plan rom BNS Co. as part o reorganization into a holding company structure.

Calgon Carbon Corp. Pittsburgh Del. 1/27/2005 $35/10% Skadden Arps SlateMeagher & Flom LLP

Original plan adopted in 1995; new plan includes exchange option.

Callidus Software Inc. San Jose, Cali . Del. 8/31/2004 $23/15% Davis Polk & WardwellIncludes exchange option.

Calpine Corp. San Jose, Cali . Del. 6/5/1997 9/28/2004 $140/15% Amendment adds new section to Rights Agreement to exempt Deutsche Bank AG London and Deutsche Bank Securities Inc. or common shares the company will issue to DB to holdo the 10-year term o the Share Lending Agreement dated 9.28.04.

CancerVax Corp. Carlsbad, Cali . Del. 11/3/2004 $95/15% Latham & WatkinsIncludes exchange option.

CardioGenesis Corp. Foothill Ranch, Cali . Cali . 6/15/2001 10/26/2004 $15/15% Amendment exempts Laurus Master Funds, Ltd. or voting shares acquired pursuant to Securities Purchase Agreement dated 10.26.04.

Catalytica Energy Systems Inc. Gilbert , Ariz. Del. 1/24/2002 11/22/2004 $45/20% Wilson SonsiniGoodrich & Rosati

Amendment increases fip-in to 20% rom 15%.

Cheniere Energy Inc. Houston Del. 10/13/2004 1/24/2005 $700/15% Amendment increases exercise price to $700 rom $200.

Cheniere Energy Inc. Houston Del. 10/13/2004 $200/15%Includes exchange option.

Compan Name Headquarters INC Adopt. Date Amend. Date Price/Thresh Law Firm Bank

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2 0 0 5 S I x - M O N T H r A N K I N g S C H A r TAdvisers in deals announced between Jan. 1, 2005 and June 30, 2005 with a value o $100 million or more

PARTy REPRESENTED

TOTALDEALS

TARGET ACQUIRER/BIDDER

MERGERPARTNER

OTHER SPECIAL

LAW FIRMS

1 Skadden, Arps, Slate, Meagher & Flom LLP 36 14 20 0 2 0

2 Weil, Gotshal & Manges LLP 33 13 16 0 0 5

Wachtell, Lipton, Rosen & Katz 29 18 11 0 0 0

Latham & Watkins LLP 26 11 13 0 0 2

Simpson Thacher & Bartlett LLP 23 8 14 0 1 0

Jones Da 22 4 11 0 0 7

Gibson, Dunn & Crutcher LLP 19 7 10 0 2 0

Wilson Sonsini Goodrich & Rosati PC 18 9 9 0 0 0

Kirkland & Ellis LLP 17 7 11 0 0 0

Davis Polk & Wardwell 17 6 10 0 1 0

11 Sullivan & Cromwell LLP 16 3 13 0 0 0

12 Willkie Farr & Gallagher LLP 15 7 7 0 2 0

12 Shearman & Sterling LLP 15 6 8 0 0 1

1 OMelven & M ers LLP 14 7 6 0 1 0

1 Ropes & Gra 14 5 9 0 0 0

1 Clear Gottlieb Steen & Hamilton LLP 14 0 9 0 0 5

1 Ma er, Brown, Rowe & Maw 13 6 5 0 1 1

1 Vinson & Elkins LLP 13 6 7 0 0 0

1 Paul, Weiss, Ri kind, Wharton & Garrison LLP 13 7 6 0 0 01 Cravath, Swaine & Moore LLP 13 5 7 0 1 0

21 Fried, Frank, Harris, Shriver & Jacobson LLP 12 4 8 0 0 0

22 Dechert LLP 11 5 6 0 0 0

2 Wilmer Cutler Pickering Hale and Dorr LLP 10 4 5 0 0 1

2 Fenwick & West LLP 9 6 3 0 0 0

2 Freshfelds Bruckhaus Deringer 9 5 4 0 0 0

2 Alston & Bird LLP 8 5 3 0 0 0

2 Goodwin Procter LLP 8 2 6 0 0 0

2 Coole Godward LLP 8 4 4 0 0 0

2 Cli ord Chance LLP 8 2 6 0 0 0

2 Linklaters 8 5 3 0 0 0

DELAWARE LAW FIRMS

1 Richards, La ton & Finger 40 20 19 0 0 1

2 Morris, Nichols, Arsht & Tunnell 20 11 8 0 1 0

Potter Anderson & Corroon 12 7 4 0 1 0

Au ust/Se tembe 20052005 rankings chart as seen in the August/September 2005 issue o Corporate Control Alert

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FOOTNOTES*Special counsel includes such roles on a deal as antitrust, FCC, tax and other noncorporate counseling.

PARTy REPRESENTED

TOTALDEALS

TARGET ACQUIRER/BIDDER

MERGERPARTNER

OTHER SPECIAL

INVESTMENT ADVISERS1 Goldman, Sachs & Co. 76 38 39 0 02 Morgan Stanle 52 25 24 0 3

UBS Investment Bank 50 25 23 0 2Credit Suisse First Boston 49 28 21 0 0Lehman Brothers Inc. 42 21 18 0 3Merrill L nch & Co. 41 20 19 0 2Citigroup Global Markets Inc. 40 15 17 0 1

J.P. Morgan Chase & Co. 36 16 20 0 0Banc o America Securities LLC 29 8 21 0 0

10 Deutsche Bank AG 27 7 20 0 011 Lazard 25 15 9 0 112 Bear, Stearns & Co. 21 11 10 0 01 CIBC World Markets 10 5 5 0 01 Wachovia Securities Corp. 10 4 6 0 01 Houlihan Loke Howard & Zukin 9 5 4 0 01 Piper Ja ra & Co. 8 5 3 0 0

1 Rothschild 8 3 4 0 11 William Blair & Co. LLC 7 5 2 0 01 SG Cowen Securities Corp. 6 5 1 0 01 Allen & Co. Inc. 6 6 0 0 021 Sandler ONeill & Partners LP 5 4 1 0 021 ABN Amro Bank NV 5 3 2 0 021 Blackstone Group 5 2 3 0 021 Thomas Weisel Partners LLC 5 2 3 0 02 Greenhill & Co. 4 3 1 0 02 Evercore Partners 4 2 1 0 12 Kee e, Bru ette & Woods Inc. 4 0 4 0 02 N.M. Rothschild & Sons Ltd. 4 1 3 0 02 Stephens Inc. 4 1 3 0 0

PR FIRMS1 Kekst and Co. 42 18 24 0 02 Citigate Sard Verbinnen 25 9 16 0 0

Abernath MacGregor Group Inc. 20 7 13 0 0 Joele Frank, Wilkinson Brimmer Katcher 18 11 7 0 0Brunswick Group 12 2 10 0 0Owen Blicksilver Public Relations Inc. 7 2 5 0 0Edelman 6 4 2 0 0Financial D namics 5 3 2 0 0Sloane & Co. 4 2 2 0 0

10 Fleishman-Hillard Inc. 2 0 2 0 0

PROXY SOLICITORS/INFORMATION AGENTS1 Georgeson Shareholder Communications Inc. 41 32 9 0 02 D.F. King & Co. Inc. 19 13 3 0 3

Innis ree M&A Inc. 18 12 6 0 0Mellon Investor Services 9 4 5 0 0

Altman Group Inc. 9 7 2 0 0Morrow & Co. Inc. 9 6 3 0 0MacKenzie Partners Inc. 8 4 4 0 0

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