2016 Western M&A/Private Equity Forum
The preeminent conference devoted to addressing the most pertinent and timely topics and issues impacting M&A and Private Equity professionals today
This Forum will closely examine deal activity in one of the nation’s hottest regions. Hear from law firm leaders, general counsel and the top executives in the financial industry.
Attendees walk away with proven, best practices and solutions on such topics as: Avoiding and Managing M&A Disputes; Private Equity Acquisitions; Biotech M&A; Public/Public Deal Developments and a Current Outlook in Tech M&A and more.
About our Chairs
David W. Healy
Partner, Fenwick & West LLP
Mr. Healy is Co-Chair of the Mergers & Acquisitions Group of the law firm of Fenwick & West. In addition to advising technology companies in mergers and acquisitions, joint ventures, strategic partnering transactions and spin-offs, Mr. Healy’s practice also includes startup and public company issues, venture capital financings, public offerings and licensing matters. From December 2011 to April 2012, Mr. Healy served as Interim General Counsel of Hewlett-Packard Company.
Mr. Healy has represented a wide range of public high-technology companies, including HP, Cadence, Synaptics, Spansion, Silver Spring Networks, McKesson, Dell, VERITAS, Opsware and Sun Microsystems. His clients have also included startups backed by numerous prominent VC firms, including Andreessen Horowitz, Kleiner Perkins, Sequoia, Benchmark and NEA. Mr. Healy has negotiated sales of his clients to major companies, such as HP, Oracle, Intel, Cadence, ATI, EMC and Maxtor. He has also represented a number of VC firms, including Andreessen Horowitz, Norwest Venture Partners, Kleiner Perkins and TA Associates.
Gregory E. Wolski, CPA
Partner, Ernst & Young LLP
Greg is a partner and Certified Public Accountant in Ernst & Young’s Fraud Investigation & Dispute Services (FIDS) practice with over 36 years’ experience in due diligence, litigation, accounting and auditing and other advisory services. Greg is the firm’s global practice leader for the Transaction Forensics practice (including purchase price disputes, Foreign Corrupt Practices Act and anti-bribery/anti-corruption due diligence, private equity anti-corrupt compliance, transaction fraud and forensic due diligence). Greg has been a frequent speaker on mergers and acquisitions topics and has authored numerous articles on mitigating M&A disputes, forensic due diligence and FCPA and anti-corruption due diligence. Greg received a BS in Accounting from the University of Illinois at Chicago in 1980. Greg is a Chartered Global Management Accountant and is also Certified in Financial Forensics.
About our Speakers
Julie A. Brooks
Executive Vice President, General Counsel & Chief Compliance Officer and Secretary, Veracyte, Inc.
Julie A. Brooks joined Veracyte as Executive Vice President, General Counsel and Secretary in March 2014. She brings over 25 years of experience as a general counsel and executive team member, primarily for NASDAQ-listed and venture-backed multi-national medical device, biotechnology and healthcare IT companies. Most recently, she served as Vice President, General Counsel for Bayer HealthCare LLC, which acquired Conceptus, Inc., a NASDAQ-listed medical device company where she served as Executive Vice President, General Counsel and Secretary. At Conceptus, Ms. Brooks oversaw all legal affairs, corporate governance, compliance, litigation and IP management. She was integral in the sale of Conceptus to Bayer, and helped enhance Conceptus’ market cap by winning a key patent dispute that resulted in Conceptus’ only competitor withdrawing from the market
Partner, King & Spalding
Jack Capers is a Partner with King & Spalding in Silicon Valley, California. His experience includes mergers, acquisitions, tender offers, exchange offers, spin-offs and divestitures, joint ventures, strategic alliances, strategic investments and leveraged buy-outs, corporate governance issues, and takeover defenses. Jack works on M&A transactions in a variety of industry groups, including technology, consumer products, retail, manufacturing, pharmaceutical/biotech, real estate, restaurants, telecommunications, textiles and transportation. Jack is regularly recognized by Best Lawyers and Chambers USA as a leading lawyer.
Jorge del Calvo
Partner, Pillsbury Winthrop Shaw Pittman LLP
Jorge del Calvo continues to be one of Silicon Valley’s preeminent M&A lawyers. During his career, he has handled over one hundred M&A transactions, including the representation of Atheros in its $3.6 billion acquisition by Qualcomm, WebEx in its $3.2 billion acquisition by Cisco and Nicira in its $1.26 billion acquisition by VMware. He is routinely honored as a top lawyer by publications such as the Daily Journal, Chambers, Best Lawyers in America amongst others.
Partner, Shearman & Sterling LLP
Michael Dorf is a partner in the firm’s M&A Group based in San Francisco. Michael has extensive experience in U.S. domestic and cross-border transactions, carve-outs, venture capital financings, strategic investments and joint ventures. He has represented public and private companies, private equity funds and venture capital investors in TMT, healthcare, renewable energy and other industries. Michael also represents portfolio companies of private equity clients, handling day-to-day legal activities, add-on acquisitions, and general corporate work.
Todd R. Gregorian
Associate, Fenwick & West LLP
Todd Gregorian focuses his practice on patent and other intellectual property. He has represented clients in various technology fields such as networking and telecommunications, e-commerce and Internet-related technologies, computer architecture, and medical devices, in diverse jurisdictions nationwide.
Recently, Todd and his trial team colleagues obtained a $10 million jury verdict in a Lanham Act false advertising case in the Western District of Washington. Todd was also part of a trial team that successfully defended an operator of social networking websites from a non-practicing entity’s infringement claims in the Eastern District of Texas.
Prior to joining Fenwick & West, Todd served as a law clerk to the Honorable W. James Ware of the Northern District of California. Todd received his J.D., cum laude, from the University of Michigan School of Law in 2004 and he received his B.A. in government from Cornell University in 2001. Todd is a member of the State Bar of California.
Partner, Ernst & Young LLP
Andrew is a partner in Ernst & Young’s Transaction Advisory Services practice. He has over 20 years of experience between the firm’s San Francisco and New York offices managing complex domestic and cross-border leveraged buyouts, carve-outs, and distress for a diverse portfolio of private equity and corporates across and broad range of sectors including technology, energy, industrials, and retail & consumer sectors. Andrew also spent two years working in Europe as a partner advising private equity investees and other multinationals on US GAAP and SEC reporting matters for securities registrations and other filings involving US GAAP and IFRS financial statements. Andrew received a B.S. from the Citadel, Military College of South Carolina in 1993. He is a certified public accountant in New York and California.
Managing Director, Life Sciences, Parthenon-EY
Balraj is a Partner in EY’s Life Sciences practice who brings with him 20+ years of experience in life sciences, health care and policy. Prior to joining EY, Balraj was a Managing Director with Navigant Consulting, a management consulting firm, where he supported global bio-pharmaceutical companies in developing portfolio and franchise strategies, organization re-design, M&A and licensing to enable the transition from a mass-market primary care business to a largely specialty business. He led teams that supported the successful launch of 10+ specialty products and helped clients expand their presence across multiple geographies (US, EU, Asia & Middle East). Most recently he worked on commercial model options and GTM strategies to prepare Life Sciences companies for changes in their product portfolio and the evolving healthcare ecosystem in the US.
Katherine H. Ku
Partner, Munger Tolles & Olson LLP
Katherine H. Ku is a partner at Munger, Tolles & Olson. She serves as transactional counsel in a variety of contexts, with an emphasis on mergers and acquisitions and corporate finance. Ms. Ku represents both publicly traded and privately held companies and private equity funds. She counsels on a range of corporate matters, including mergers and acquisitions, joint ventures, equity and debt financing, and corporate governance and securities compliance matters.
Partner, Ernst & Young LLP
Bjorn Malmlund is a Partner and the West Region Leader of Ernst & Young LLP’s Fraud Investigation & Dispute Services practice. He has more than 29 years of experience assisting companies and their counsel with complex accounting, economic, financial, and dispute-related issues. Bjorn is a member of EY’s Transaction Forensics practice and has extensive experience with purchase price disputes, FCPA and anti-corruption due diligence, anti-corruption compliance, transaction fraud and forensic due diligence. He has served as an arbitrator, consultant and expert witness in post-acquisition disputes and is frequently asked to review and comment on acquisition agreements prior to their finalization.
Bjorn is a Certified Public Accountant, Certified in Financial Forensics and Accredited in Business Valuation by the American Institute of Certified Public Accountants, and a Certified Fraud Examiner.
Partner, Blake, Cassells & Graydon LLP
Andrew has been involved in financings, restructurings, and mergers and acquisitions of both public and private companies in the local, national and international context. He provides assistance to companies in all aspects of corporate and commercial activity, and has extensive experience working with British Columbia’s technology and natural resources industries. Andrew represents a number of publicly traded companies as well as acting for private equity and venture capital investors and companies receiving such investments.
Partner and General Counsel, TPG Growth
David Mossé is a Partner and General Counsel of TPG Growth based in San Francisco, where he is responsible for all legal matters, including deal execution, portfolio company management, and platform-level business development. Prior to joining TPG in 2015, David served as EVP–General Counsel and CAO of Cnova N.V., and prior to that, as SVP–General Counsel and Chief Strategy Officer of Dick’s Sporting Goods. David received his BA from Duke University and his JD from New York University. He is a member of the Boards of Greenfield Cities Holdings and Matador, and he serves on the Board of Visitors for the Duke Innovation and Entrepreneurship initiative.
Partner, Morrison & Foerster LLP
Michael O’Bryan is a partner in Morrison & Foerster’s Corporate Department. His practice focuses on U.S. and international mergers, acquisitions, divestitures, and other strategic transactions. He has been involved in more than 350 M&A transactions, advising companies, boards, and special committees, as well as investment banks, in both negotiated and contested transactions. Mr. O’Bryan works with clients across a variety of industries, including technology, software, telecommunications, Internet, consumer, and health care/life sciences.
Chief Financial Officer, Oncomed Pharmaceuticals
Mr. Patel is currently Chief Financial Officer at OncoMed Pharmaceuticals. He has 20 years of biotech experience. He has held positions at BiPar, Allos, Connetics, Abgenix, Gilead, and McKinsey. Earlier in his career, he was a researcher at ZymoGenetics and ProCyte. Mr. Patel received his B.S. in Chemistry from UC Berkeley, and his M.S.in Molecular Bioengineering/Biotechnology from the University of Washington. Mr. Patel is a member of the board of directors of Ligand Pharmaceuticals.
Managing Director, U.S. Technology Investment Banking
Ernst & Young Capital Advisors, LLC
Jim Reinhart is a managing director in Ernst & Young’s U.S. Technology Investment Banking practice. He has over 16 years of M&A advisory and corporate finance experience, having previously worked at Harris Williams, Goldman Sachs, Deutsche Bank, and J.P. Morgan. Additionally, he spent six years in the technology industry at firms including EDS, Business Objects, and Powersoft/Sybase. Jim has completed more than $3 billion of technology M&A advisory deals and more than $1.5 billion in technology financing deals. Jim received a B.A. from the University of Virginia and holds an MBA with honors from the Tuck School of Business at Dartmouth College
A.J. joined Thoma Bravo as a vice president with previous experience as a private equity associate with Saban Capital Group, Inc. in Los Angeles, an investor in media, telecom and technology businesses. He previously was an investment banking associate with Jefferies & Company in Los Angeles, where he participated in a variety of sell‐side, buy‐side and capital markets transactions, and a manager with Ford Motor Company. He was promoted to principal at Thoma Bravo in 2014 and to partner at Thoma Bravo in 2016. A.J. has a BA degree from Villanova University and an MBA degree from the University of Chicago Booth School of Business.
In addition, AJ runs Thoma Bravo’s $1.1 billion middle-market Discover Fund and has ten board affiliations.
Managing Director, Technology Investment Banking, Goldman Sachs & Co.
Colin is a Partner in the firm’s San Francisco office where he focuses on providing M&A and strategic advice to technology and media companies. Over the course of his career, Colin has served companies across the globe with significant transaction experience in the US, Europe and Asia. Recent transactions include advising HP on its spin-off of Hewlett-Packard Enterprise, Qualcomm on its structural review, Expedia on its $4bn acquisition of Homeaway and FEI on its $4bn sale to Thermo Fisher Scientific.
Colin has advised on over $100 billion of transaction volume including Disney’s $8bn acquisition of Pixar, Qualcomm’s $4bn acquisition of Atheros, Western Digital’s $1bn acquisition of Komag, AOL’s acquisition of Millennial Media, $4bn sale of Hitachi Global Storage to Western Digital, $3bn sale of Webex to Cisco, $3bn sale of 3Com to HP, $2bn sale of Palm to HP, $3bn sale of Solectron to Flextronics, merger of Live Nation and Ticketmaster.
Colin received a BCL from University College Dublin.
Partner, Davis Polk & Wardwell LLP
Stephen Salmon is a partner in Davis Polk’s Corporate Department, practicing in the Menlo Park office. He has extensive experience in mergers and acquisitions transactions and a variety of capital markets offerings across many industries. His notable recent public company M&A representations include advising Ingram Micro on its pending $6 billion all-cash acquisition by Tianjin Tianhai and Dialog Semiconductor on its attempted acquisition of Atmel. Mr. Salmon was recently named to the Daily Journal’s 2016 “Top 40 Under 40” list.
General Counsel, Counsyl, Inc.
Peter Soparkar joins Counsyl from Jazz Pharmaceuticals, where he led the legal team’s operations support and delivered on numerous debt and equity financings and four landmark transactions, including the launched tender-offer of Celator, the acquisitions of Italy-based Gentium, UK based EUSA Pharma, and the acquisition of and inversion into Ireland based Azur Pharma. Prior to Jazz, Peter worked at Latham & Watkins in London and San Francisco, with a practice spanning international and domestic markets, as well as private and public transactions. His deep life-sciences legal experience includes support for development activities, corporate governance, legal and regulatory compliance, public companies and compliant commercial activities. He received a J.D. from New York University and a B.A. from Oberlin College.
President and CEO, XOJET
Bradley Stewart joined XOJET as a senior advisor in 2010 and subsequently became its President and Chief Executive Officer. In this role, Mr. Stewart is responsible for the overall strategic direction and management of XOJET and its subsidiaries.
Prior to XOJET, Mr. Stewart was an investing professional at Parthenon Capital Partners, a leading mid-market private equity firm. At Parthenon, Mr. Stewart was responsible for both investing and portfolio improvement activities. He held interim executive positions and/or board of director seats at several Parthenon Capital portfolio companies.
Prior to Parthenon Capital, Mr. Stewart was an engagement manager at McKinsey & Company. At McKinsey, he served a variety of clients in the airline, railroad and hotel industries. Prior to business school, Mr. Stewart was employed by Deloitte Consulting LLP, where he was a strategy and operations consultant to several leading industrial, media and financial services companies.
Mr. Stewart also currently serves as a Senior Advisor to TPG, one of the leading global private investment firms and XOJET’s control shareholder. In 2015, Mr. Stewart was recognized by The San Francisco Business Times as a “40 under 40” business leader. He is a passionate aviation enthusiast, holding a private pilot’s license and contributing to industry safety as a member of the ARG/US advisory board.
Mr. Stewart holds a Bachelor of Science in Business degree from the University of Minnesota’s Carlson School of Management. He also received an MBA degree with distinction from Columbia Business School. Mr. Stewart lives in San Francisco with his wife and two children.
Partner, King & Spalding
Matt Stewart is a partner with King & Spalding in Silicon Valley, California. He focuses his practice on the technology, media, telecommunications, and healthcare sectors. Matt advises private equity firms, growth equity and venture capital investors, and private and publicly-traded companies on mergers and acquisitions, leveraged buyouts, growth equity investments, and financing transactions. Matt was recognized as a Law360 “Rising Star” for Private Equity in 2015 and in Northern California Super Lawyers since 2013.
Partner, Litigation Department, Paul Hastings LLP
Pete Stone, a partner in the Litigation practice of Paul Hastings, is co-chair of the firm’s Global Securities Litigation practice. He is the immediate past chair of the Palo Alto office’s Litigation department. Mr. Stone has 25 years of experience in complex business litigation, in both federal and state court, and in government and internal investigations. He has a primary emphasis on securities, shareholder, professional negligence, and other class action and “big ticket” commercial matters.
Head of Global Technology M&A, Morgan Stanley
Mike Wyatt is a Managing Director and Head of Global Technology M&A based in Menlo Park. Mike joined Morgan Stanley in 1994 and has been a strategic advisor to clients in the areas of technology, media, and telecommunications since joining the firm, focusing specifically on technology clients since moving to California in 1998.
Mike’s recent transactions include the $26.2bn acquisition of LinkedIn by Microsoft, $2.0bn sale of Polycom to Siris Capital, $1.8bn sale of Marketo to Vista, $1.5bn sale of Ruckus to Brocade, $4.0bn merger of Spansion and Cypress, $2.3bn sale of Conversant (formerly ValueClick) to Alliance Data Systems, the $1.0bn acquisition of Mandiant by FireEye, the $800m sale of Braintree to eBay, the $1.0bn sale of Eloqua to Oracle, the $2.5bn sale of Quest Software to Dell and the $4.5bn sale of Ariba to SAP. Previous transactions include the $7.7bn sale of McAfee to Intel, the $3.3bn sale of Hyperion to Oracle, the $6.6bn sale of aQuantive to Microsoft, and HP’s $3.3bn acquisition of 3com.
Mike received a BS from Stanford in Industrial Engineering, and an MBA from the Stanford Graduate School of Business, where he was an Arjay Miller scholar.
Partner, K&L Gates
Linda Zhou is a partner in the firm’s Palo Alto office and focuses her practice on the representation of start-up, emerging growth and public companies, venture capital investors, with specialization in corporate and securities law, private and public financings, mergers and acquisitions, and corporate partnering transactions. Ms. Zhou represents a wide variety of technology companies from consumer internet, software, telecommunications, and entertainment technology industries, as well as a number of leading venture capital firms.
Partner, Sidley Austin LLP
Sam Zucker concentrates on corporate transactions for life sciences, healthcare and technology companies in the U.S. and Asia, including representations of investors and portfolio companies in biotechnology, medical devices, and digital health. His practice covers mergers and acquisitions, financings, including venture financing and IPO’s, and general corporate counseling. Sam advises management and boards of directors on corporate governance and critical strategic matters – including acquisitions, corporate development, capital market strategies, public company reporting, and SEC and NASDAQ regulatory issues.
333 Battery Street
San Francisco, CA 94111
Registration & Breakfast
8:00 am - 8:55 am
8:55 am - 9:00 am
Current Tech M&A Trends and Outlook
9:00 am - 10:00 am
This panel will address the factors that are driving the M&A market and the impact of economic trends on the outlook of M&A going forward. Panelists will also cover the current status and trends of technology mergers and acquisitions and, the evolving equity and debt markets landscape, EU and U.S. political and economic uncertainties, the impact of stockholder activism on M&A strategy, and the effect of China M&A “mandates”.
Other topics to be covered include:
- Push for top line growth via M&A
- Continuing strategic re-positioning
- Drive to synch M&A to solutions strategy
- Market receptivity to synergistic deals
- Impact of cash stockpiles
- Industry consolidation
- Divestiture trends
- Cross border trends
- Impact of IPO drought
- CFIUS Issues for foreign buyers
- Reverse break-up fee response
- “Brexit” impact
- Outlook for “unicorn” M&A
David W. Healy, Partner & Co-Chair, Mergers & Acquisitions Group, Fenwick & West LLP
Jorge del Calvo, Partner, Pillsbury Winthrop Shaw Pittman LLP
Jim Reinhart, Managing Director, U.S. Technology Investment Banking, Ernst & Young Capital Advisors, LLC
Colin Ryan, Managing Director, Technology Investment Banking, Goldman Sachs & Co.
Mike Wyatt, Managing Director & Head of Global Technology Mergers & Acquisitions, Morgan Stanley
Linda Zhou, Partner, K & L Gates LLP
Networking Coffee Break
10:00 am - 10:15 am
Avoiding and Managing M&A Disputes
10:15 am - 11:15 am
This panel will address common sources of M&A disputes and how to minimize and manage those disputes, with emphasis on:
- M&A Arbitration
- Managing/settling M&A “strike suit” litigation
- D&O Insurance strategy/pricing
- Other M&A disputes
- Related best practices, tactics and strategies
- Impact of implied covenant of good faith
- Minimizing earnout risks such as: drafting ambiguities, limitations on operational flexibility and morale impact
- True up strategies and disputes
- Term sheets-risks of obligations to negotiate in good faith
- Managing special indemnities
Gregory Wolski, Partner, Ernst & Young LLP
Michael Dorf, Partner, Shearman & Sterling LLP
Todd Gregorian, Litigation Associate, Fenwick & West LLP
Bjorn L. Malmlund, Partner, Ernst & Young LLP
Peter Stone, Partner, Litigation Department, Paul Hastings LLP
11:15 am - 11:30 am
Private Equity Acquisitions
11:30 am - 12:30 pm
This panel will address current trends in private equity acquisitions, with emphasis on:
- Rep & warranty insurance
- No indemnity transactions
- Price precision, price adjustments, etc.
- Partnering with PE portfolio company management team
- Life cycle of PE investment (sourcing, closing, operating, selling) from an investor and executive perspective
- Related best practices, tactics and strategies
Matt Stewart, Partner, King & Spalding
Andrew Hoybach, Partner, Ernst & Young LLP
Andrew McLeod, Partner, Blake, Cassells & Graydon LLP
David Mosse, Partner and General Counsel, TPG Growth
A.J. Rohde, Partner, Thoma Bravo
Bradley Stewart, President and CEO, XOJET, Inc.
12:30 pm - 1:30 pm
Public/Public Deal Developments
1:30 pm - 2:30 pm
Public/public deal process and terms are driven and constrained by the target’s need to maximize price, the buyer’s need to avoid non-accretive deals, the target’s insistence on deal certainty, the increased risk of regulatory intervention and the near certainty of a M&A strike suit. In addition, public companies continue to look to spin-offs and divestitures to stay focused on core competencies. Topics to include:
- Deal tactics, Issues and Strategies
- Managing Wall Street, Board and stockholders
- Activist impact
- ISS and other institutional proxy advisors
- Reverse termination fees (RTF) and antitrust efforts provisions
- RTF: “8% is the new 4%”
- Combo spin, divestiture, sale strategies to maximize value
- Managing financing certainty issues
- Update on deal protections
- Recent case law developments
- Trends in PE deals
- Disclosure of equity compensation expense as a deal driver?
- Trends in hostile and contested bids
Jack Capers, Partner, King & Spalding
Katherine Ku, Partner, Munger Tolles & Olson LLP
Michael O’Bryan, Partner, Morrison & Foerster LLP
Stephen Salmon, Partner, Davis Polk & Wardwell LLP
2:30 pm - 2:45 pm
2:45 pm - 3:45 pm
M&A in the pharma, biotech, digital health and medical device fields each has its own drivers, diligence, business model, regulatory risk analysis and other deal issues. Topics to include:
- Consolidation pressures
- Reverse merger trend
- Patent expiration risks
Sam Zucker, Partner, Sidley Austin LLP
Julie Brooks, EVP, General Counsel, Veracyte, Inc.
Balraj Kakkar, Managing Director, Life Sciences, Parthenon-EY
Sunil Patel, CFO, SVP, Corporate Development and Finance, Oncomed
Peter Soparkar, General Counsel, Counsyl, Inc.
4:15 pm - 5:15 pm