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
About our Keynote
Partner and General Counsel, Ribbit Capital
Cindy McAdam is a Partner and General Counsel for Ribbit Capital. She was previously a partner at Goodwin Procter, and has held senior leadership and legal roles for start-ups in fintech, including digital currency (Xapo), and mobile payments and mobile wallets (Bling Nation/Lemon Wallet), and in SaaS data security (Postini). McAdam received her J.D. from the University Of Virginia School Of Law and her B.S. in finance from the University of California at Berkeley.
About our Chairs
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 had primary responsibility for business transactions ranging from $20 million to over $3 billion. He has handled many M&A, divestiture and strategic investment deals for Hewlett Packard Enterprise and many strategic investments for Siemen’s next47 venture fund. He has also represented a wide range of public high-technology companies, including: HP, Spansion, Silver Spring Networks, McKesson, Dell, VERITAS, Opsware and Ebay.
Jeffrey Selman is a corporate partner in Crowell & Moring’s San Francisco office with extensive experience facilitating transformative growth of small to mid-cap public and private technology companies through corporate finance and securities work, middle-market M&A and other strategic transactions. He has assisted public companies raise capital through public offerings and PIPE transactions, and handled an IPO in December 2017 for a special purpose acquisition company. Jeff has been recognized as a top lawyer in Northern California in Chambers USA in 2016 and 2017 for Corporate/Mergers & Acquisitions.
Gregory E. Wolski, CPA
Partner, Ernst & Young LLP
Greg is a partner and Certified Public Accountant in Ernst & Young’s Forensic & Integrity Services practice with over 38 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-corruption 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 Panelists
Craig W. Adas
Managing Partner Silicon Valley office, Weil Gotshal & Manges LLP
Craig Adas is Managing Partner of Weil’s Silicon Valley office. His practice focuses on mergers and acquisitions, private equity and securities, with particular emphasis on private and public acquisitions, leveraged buyouts, dispositions and joint ventures. He regularly advises boards of directors on governance, fiduciary duty, corporate opportunity and other strategic matters. He also represents investment banks in connection with M&A transactions. Mr. Adas is recognized as a leading lawyer in both private equity and M&A by Chambers USA, and in M&A by Legal 500. He received his BA from Southern Methodist University and his JD from Northwestern University Pritzker School of Law.
Laura D. Berger
Former Senior Attorney, Division of Privacy and Identity Protection, Federal Trade Commission
Laura D. Berger is a 23-year veteran of the Federal Trade Commission, where she enforced federal laws to protect consumers’ privacy. Her law enforcement work included cases alleging privacy and data security violations by leading technology companies, retailers, Internet of Things manufacturers, and other consumer-facing entities.
Laura also played a key role in data security policy and business education while at the FTC; among other things, she authored a rule setting forth data security standards for financial institutions and a business education brochure for mobile app developers. Laura was a key organizer of numerous privacy and security conferences, including the FTC’s Start With Security events in San Francisco and Austin, Texas.
Laura graduated from the University of Michigan Law School. She is based in San Francisco.
Partner, Blake, Cassels & Graydon LLP
John-Paul (JP) has a practice focused on mergers and acquisitions, private equity transactions, infrastructure and projects work, and general corporate law. JP acts for a broad range of clients, ranging from startups and venture-financed businesses to large, publicly traded corporations. He is Co-Leader of the Firm’s Private Equity Group, which has been recognized as one of Canada’s leading private equity practices by, among others, Chambers Canada and Lexpert
Associate General Counsel, M&A and Ventures, Hewlett Packard Enterprise
Saswat Bohidar serves as Associate General Counsel for M&A and Ventures at Hewlett Packard Enterprise. He advises HPE on its mergers, acquisitions, divestitures, spin-offs, joint ventures, investments and corporate reorganizations. Since joining in 2015, he has helped HPE execute some of its most complex matters, including its split with HP Inc., the spin-offs of its Enterprise Services and Software divisions, each worth over $8 billion, and its $2.3 billion joint venture in China with Tsinghua University, as well as key acquisitions, including Nimble Storage, SGI and SimpliVity. Prior to joining HPE, Saswat practiced corporate law at Davis Polk and Freshfields Bruckhaus Deringer, where he advised on a range of domestic, cross-border and multi-jurisdictional corporate matters, with a focus on M&A
Associate General Counsel, Intel Corporation
Patrick Bombach is an Associate General Counsel in the Corporate Legal Group at Intel Corporation. Patrick manages the legal teams that support M&A, corporate strategy, equity and emerging growth investments, corporate governance and securities. Since joining Intel in 2014, he has advised on Intel’s largest and most visible transactions, including its $16.7 billion acquisition of Altera, its $4.2 billion spin-out of McAfee and its $15.3 billion acquisition of Mobileye. Patrick graduated from Columbia Law School and has been practicing corporate law for over 20 years in the San Francisco Bay Area and Texas
Todd Cleary is a partner at Wilson Sonsini Goodrich & Rosati. Todd’s practice primarily focuses on buyout and investment transactions, including mergers and acquisitions; leveraged buyouts; spin-offs and carve-outs; restructurings and recapitalizations; and growth and later-stage financings. He has represented many prominent enterprises in technology and other markets and is a leading partner in the firm’s private equity practice. Todd also serves as counsel to leading investment banks in connection with M&A advisory engagements. In addition, he serves as lead counsel for general corporate and securities matters for a select group of public and private companies. Todd previously served as a vice president in technology mergers and acquisitions at Goldman Sachs from 1999 to 2001.Todd is currently a co-chair of the firm’s Career Development Committee.
Senior Manager, Forensic & Integrity Services, Ernst & Young LLP
Sarah Dalton is a Senior Manager in EY’s Forensic & Integrity Services practice in the U.S. Pacific Northwest. Sarah has a decade of experience assisting clients throughout the transaction lifecycle including drafting accounting language in M&A contracts, providing guidance on working capital and earn-out matters, determining the strength of disputed accounting positions between parties, and performing expert and neutral arbitration support and dispute resolution. She has been involved in a number of large and complex dispute matters whereby EY acted as either the expert or independent accountant and is well-versed in dispute protocol for both arbitration and trial environments.
She also has extensive experience with a wide range of anti-bribery and corruption matters including transaction due diligence, risk assessments, compliance audits, and third party risk management. Ms. Dalton is a Certified Public Accountant in Oregon and a member of the American Institute of CPAs. She holds a Bachelors of Accounting and M.B.A. with a focus in forensic accounting from Loyola University, New Orleans. She is a frequent speaker on forensic and litigation topics including M&A disputes, forensic interviewing, accounting for litigators and investigation procedures and pitfalls.
Partner, Pillsbury Winthrop Shaw Pittman LLP
Jorge del Calvo represents public and private technology companies in mergers and acquisitions, public offerings, private placements, and numerous other transactions. During his career, Mr. del Calvo has handled over 100 merger and acquisition transactions, including the representation of Atheros in its $3.6 billion acquisition by Qualcomm, Nicira in its $1.26 billion acquisition by VMware2, and Financial Engines, Inc. in its $560 Million acquisition of The Mutual Fund Store. He has also been involved in over 100 public offerings and been consistently ranked as one of the top IPO attorneys in the country. He was listed in Best Lawyers in America for Corporate Law, Leveraged Buyouts and Private Equity Law, Mergers & Acquisitions Law, and Securities/Capital Markets Law from 2006-2018. Mr. del Calvo was chosen out of 186,000 California lawyers as one of the “Top 100 Lawyers” in the state in 2014, 2015 and 2016 by the Daily Journal (California’s leading legal newspaper).
Michael S. Dorf
Partner, Shearman & Sterling LLP
Michael Dorf is a partner in the Mergers & Acquisitions practice at Shearman & Sterling LLP. He has extensive experience in U.S. domestic and cross-border M&A transactions, carve-outs, venture capital financings, strategic investments, joint ventures and corporate partnering transactions. He has represented public and private companies, private equity funds, venture capital investors and sovereign wealth funds in the technology, media, telecommunications, biotechnology, health care, renewable energy, consumer products and other industries. In addition, Michael represents portfolio companies of private equity clients, handling day-to-day legal activities, add-on acquisitions and other
Ambassador Robert Holleyman
President and CEO, C&M International and Partner, Crowell & Moring LLP
Ambassador Robert Holleyman is the president and CEO of C&M International and a partner in Crowell & Moring’s International Trade Group, based in Washington DC. He has significant trade, international business, economic policy, and legal experience from his service as Deputy U.S. Trade Representative, as CEO of a highly successful information technology advocacy association, and work as counsel in the U.S. Senate. He served as Deputy United States Trade Representative from 2014-2017, with the rank of Ambassador. In his most recent position, Ambassador Holleyman was responsible for U.S. trade and investment relations with Asia and with regional institutions, including the Asia-Pacific Cooperation (APEC) forum, and was responsible for global trade policy in the areas of services, investment, intellectual property, and innovation.
General Counsel and Secretary, Amyris
Nicole Kelsey joined Amyris, a leading biotech company, as its General Counsel and Secretary, in August 2017. In her second public company General Counsel role, Ms. Kelsey’s career is characterized by a unique international reach in both legal practice and management experience. In addition to expertise in U.S. securities laws and multi-jurisdictional corporate governance standards, Ms. Kelsey specializes in international M&A transactions.
As a leader, Ms. Kelsey brings over 20 years of experience in both Fortune 500 companies and top-tier law firms to bear in the entrepreneurial environment of international technology companies. Ms. Kelsey actively mentors both women and men, both lawyers and tech industry professionals, and passionately sponsors diversity both within her Team and as a strategic partner across the company.
A Fulbright scholar, Ms. Kelsey has a J.D. from Northwestern University and a B.A. from Ohio State University, and is admitted to practice law in New York and Minnesota. Ms. Kelsey speaks four languages and studies Japanese, and is rearing her daughter as a bi-lingual international citizen. They are excited about their recent relocation from Paris to San Francisco, where it’ll be much easier to improve their surfing! After managing an art gallery out of her home in NYC from 2001 – 2005 and serving on the boards of several non-profit arts organizations in NYC and Minneapolis from 2004 – 2014, Ms. Kelsey is looking forward to putting her passion for the arts in service of the Bay Area’s exciting arts community.
Michael J. Kennedy
Partner, Paul Hastings LLP
Michael Kennedy is a partner in the Private Equity and Mergers & Acquisitions practices at Paul Hastings, based in the firm’s San Francisco office. Since 1984, he has concentrated on the corporate areas of mergers, acquisitions, divestitures, corporate partnering, joint ventures, and corporate governance, with an emphasis in the technology, emerging growth, healthcare, biotechnology, and media industries.
He has extensive experience in the private equity and leveraged buyout industries as well as decades of experience on transactions in a number of other industries, including automotive, defense, financial services, media, technology, healthcare, and building products. He represents many major investment banks in their advisory roles on M&A deals.
In addition, Mr. Kennedy has significant experience in the debt (bank and high-yield areas) and restructuring areas.
Katherine H. Ku
Partner, Wilson Sonsini Goodrich & Rosati
Katherine H. Ku is a corporate and securities partner in the Los Angeles office of Wilson Sonsini Goodrich & Rosati. She represents both public and private companies and private equity funds in a variety of corporate transactions, including mergers and acquisitions, equity and debt financings, and joint ventures. Kathy also advises clients on corporate governance and securities compliance matters. In addition, she has experience representing special committees of boards of directors in connection with buy-out matters.
Prior to joining the firm, Kathy was a corporate partner in the Los Angeles office of Munger, Tolles & Olson LLP.
Following her graduation from law school, Kathy served as a law clerk on the U.S. Court of Appeals for the Ninth Circuit (2003-2004) and for Associate Justice Ruth Bader Ginsburg of the U.S. Supreme Court (2004-2005).
Managing Director, Sumeru Equity Partners
Sanjeet Mitra is a Managing Director focused on the firm’s software, cloud and hardware company investments and sits on the investment committee. Prior to co-founding Sumeru Equity Partners he was a Principal at Silver Lake Sumeru, the middle market investment strategy of Silver Lake and predecessor fund to Sumeru Equity Partners. Sanjeet has more than ten years of investing and investment banking experience. Prior to joining Silver Lake Sumeru, Sanjeet worked in the Investment Banking Division at Goldman, Sachs & Co. in San Francisco, where he worked with clients in the industrial, TMT and healthcare sectors.
Partner, White & Case LLP
Jason Rabbitt-Tomita is a M&A partner based in White & Case’s Silicon Valley office. He represents clients in public and private mergers and acquisitions, strategic sales, and joint ventures. Jason has represented clients in the technology, finance, retail and energy industries in both U.S. and cross-border deals. In particular, he has been lead adviser on many notable public and private M&A transactions for some of the world’s most well-known tech companies
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 Amazon on its acquisition of Whole Foods (pending), Qualcomm on its acquisition of NXP (pending), HP Inc. on its spin-off of Hewlett-Packard Enterprise and FEI on its sale to Thermo Fisher Scientific.
Colin has advised on over $150 billion of transactions for some of the most important companies in the technology and media industries including HP, Qualcomm, Amazon, Applied Materials, IBM, Palo Alto Networks, The Walt Disney Company, Expedia, AOL, Live Nation, Western Digital, Hitachi, 3Com, Palm and Webex,
Colin received a Bachelor of Civil Law from University College Dublin
Partner, Davis Polk & Wardwell LLP
Mr. Salmon is a partner in Davis Polk’s Corporate Department, practicing in Northern California. He has extensive experience in a wide range of public and private M&A transactions and venture capital investments and a variety of capital markets transactions, including initial public offerings and other debt and equity offerings, for companies across many industries. He also represents clients in public reporting, securities law, and corporate governance matters. Mr. Salmon has been recognized as a Super Lawyer Rising Star and was named to the Daily Journal’s “Top 40 Under 40” in 2016.
Ryan Slunaker supports clients in the high technology and life sciences industries on a broad variety of corporate matters. In recent years, his transactional experience has been focused primarily on mergers and acquisitions where he has supported both sell- side and buy-side deals.
Ryan received his J.D. degree from Stanford Law School in 2010. While in law school, he was associate editor of the Stanford Journal of Law, Business & Finance and he served as an extern to Justices Brian Morris and John Warner of the Montana Supreme Court. In 2005, Ryan earned his B.S. degree, summa cum laude, in economics and political science from the University of Oregon.
Partner, Weil Gotshal & Manges LLP
Matt Stewart is a partner in Weil’s Corporate Department based in Silicon Valley. Mr. Stewart advises private equity funds, growth equity investors and strategic investors on private equity and structured capital investments, mergers and acquisitions and financing transactions with a focus in the technology, media, telecommunications and healthcare sectors. Mr. Stewart has advised on numerous acquisitions, divestitures, and minority investments. He has represented several leading private equity or venture capital firms, such as TPG, Trive Capital, The Carlyle Group, and Kleiner Perkins.
Managing Director, 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.
Omni San Francisco
500 California Street
San Francisco, CA 94104
Registration & Breakfast
8:00 am - 8:45 am
8:45 am - 9:00 am
Current Tech M&A Trends and Outlook
9:00 am - 10:00 am
Panelists will discuss the reasons for another strong year for M&A.
Per Thomson Reuters, worldwide M&A activity during 1H ’18 increased 61% compared to the first half of 2017. Local tech M&A is on pace to exceed last year’s torrid levels.
-Hot deal segments include technology (including chips/software, cloud/SAAS, gaming, FinTech (including blockchain, virtual currency and online payments), security/cybersecurity, AI, machine learning, autonomous vehicles) and life sciences/digital health/healthcar
-Deal drivers include attractive debt/equity markets, sector consolidation, cross-sector and cross- border activity, the need to transform business models to remain competitive despite technology disruption, stockholder receptivity to transformative M&A, continuing divestiture activity, tax reform and stockholder activism, all driving substantial serial acquirer activity. We are now seeing “Unicorns” as both sellers (GitHub) and buyers (Katerra).
David W. Healy, Partner & Co-Chair, Mergers & Acquisitions Group, Fenwick & West LLP
Saswat Bohidar, Associate General Counsel, M&A and Ventures, Hewlett Packard Enterprise
Patrick Bombach, Associate General Counsel, Managing Director, Intel Capital & M&A Legal, Intel Corporation
Jorge A. del Calvo, Partner, Pillsbury Winthrop Shaw Pittman LLP
Colin Ryan, Managing Director, Goldman Sachs
Michael Wyatt, Managing Director, Morgan Stanley
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 and litigation strategies and lessons learned
- Managing/settling M&A “strike suit” litigation
- Related best practices, tactics and strategies
- Price Adjustment Mechanisms
- impact of implied covenant of good faith
- minimizing earnout risks such as: drafting ambiguities, limitations on operational flexibility and morale impact
- Term sheets: risks of obligations to negotiate in good faith
- Managing special indemnities
Gregory Wolski, Partner, Ernst & Young LLP
Sarah Dalton, Senior Manager, Forensic & Integrity Services, Ernst & Young LLP
Nicole Kelsey, General Counsel & Corporate Secretary, Amyris
Katherine H. Ku, Partner, Wilson Sonsini Goodrich & Rosati
11:15 am - 11:30 am
Regulatory Impacts on M&A—HSR and CFIUS under the Trump Administration
Both the Trump Administration and foreign entities have brought about regulatory change that is impacting M&A. Panelists will discuss a number of current topics, including the evolving role of CFIUS, which has resulted in the blocking of Lattice Semiconductor/Canyon Bridge and Broadcom’s attempted takeover of Qualcomm, and which may be reformed if proposed legislation is enacted; sanctions, export controls, Chinese investment restrictions and related international trade issues; , high-profile antitrust reviews and litigation (AT&T/Time Warner approved by the court; Disney/Fox approved by DOJ); concerns about the impact of enhanced privacy regulation and other political and regulatory concerns.
Jeffrey C. Selman, Partner, Crowell & Moring LLP
Laura D. Berger, Former Senior Attorney, Division of Privacy and Identity Protection, Federal Trade Commission
Ambassador Robert Holleyman, President and CEO, C&M International and Partner, Crowell & Moring LLP
Mark S. Ostrau, Partner, Fenwick & West LLP
Luncheon Keynote – M&A from the In-House Counsel Side of the Table
12:30 pm - 1:30 pm
Cindy McAdam, Partner and General Counsel, Ribbit Capital
Private Equity Acquisitions
1:30 pm - 2:30 pm
Panelists will discuss the current Private Equity M&A environment, including ability to compete with strategic acquirers, sovereign wealth funds, family funds and even SPACs, PE-to-PE portfolio sales, PE-specific deal terms, debt financing issues and Rep & Warranty insurance strategies.
Craig W. Adas, Managing Partner, Silicon Valley Office, Weil Gotshal & Manges LLP
John-Paul Bogden, Partner, Blake, Cassels & Graydon LLP
Todd Cleary, Partner, Wilson Sonsini Goodrich & Rosati
Mike J. Kennedy, Partner, Paul Hastings LLP
Sanjeet Mitra, Managing Director, Sumeru Equity Partners
2:30 pm - 2:45 pm
M&A Tips and Tactics for Private Target Deals
2:45 pm - 3:45 pm
Serial acquirers, with set play-books and an aversion to setting adverse deal precedent, typically serve up one-sided deal documents, which forces counsel for private companies (that don’t otherwise have leverage) to “pick their battles” and fight mainly on the issues that matter most. Panelists will discuss such issues and related negotiating strategies, including:
–Purchase Price Adjustments:
-Traps for the unwary in definitions of net working capital, closing debt and transaction expenses
-who should indemnify?
– IP indemnity–exposure beyond the escrow
– Liability for non-meritorious claims
-Narrowing the fraud definition and limiting fraud remedies
-Losses definition-multipliers, lost profits, reductions in value
-10b5 rep; disclaimer of other reps
-Picking battles on qualifiers and date stamping
-Risks of not qualifying reps (infringement, compliance, IT systems; financial controls, absence of developments, collectability of A/R)
-Imputed knowledge definition
-Carve out of retention funds from deal value.
-Ensuring that target employees receive comparable pay/severance and obtain vesting credit and waivers of preexisting conditions
-Limiting excessive non-competes
Ryan R. Slunaker, Fenwick & West LLP
Michael S. Dorf, Partner, Shearman & Sterling LLP
Jason Rabbitt-Tomita, Partner, White & Case LLP
Stephen Salmon, Partner, Davis Polk & Wardwell LLP
Matt Stewart, Partner, Weil, Gotshal & Manges LLP
3:45 pm - 5:00 pm
- The 2018 CFIUS Amendments_ 10 Questions Venture Capital Fund Managers and Investors Need to Answer (Regulatory Impacts on M&A—HSR and CFIUS under the Trump Administration)