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a journal of legal and financial trends in dealmaking

inside
3 Kravitz riffs on Connecticut law
Recapitalizations After parsing a state statute on voting rights in mergers, a fed-
eral judge approved Kaman Corp.’s proposed recapitalization
4 A titanic problem in the making?
Securities law Lawyers worry that a recent SEC report portends a higher level of
scrutiny for statements made in merger agreements
5 A new streamlined baby for the FTC and DOJ?
Antitrust With Ernest Hollings retired, the DOJ and FTC may finally be free to
streamline the merger review process
6 The top 10 deals: June 16–Aug. 15
The sales of MBNA and Unocal top the summer months

8 A matter of form in the European Union

Corporate governance The new pan-European stock corporation may appeal to
issuers primarily as a way of easing cross-border deals
9 The lineup
Deals from Sept. 16 to Oct. 31 involving targets worth at least $100 million

11 Poison pill chart

A list of pills implemented between Aug. 11 and Jan. 31

13 2005 rankings chart

Advisers in deals announced between Jan. 1, 2005 and June 30, 2005
www.dealfocus.com

After parsing a state statute on voting rights
in mergers, a federal judge approved Kaman
Corp.’s proposed recapitalization
Kravitz riffs on
Connecticut law
A recent federal court ruling will
allow Kaman Corp. to proceed with its
planned recapitalization despite a chal-
lenge from New York investment fund
Mason Capital. Mark Kravitz, a U.S.
District judge in New Haven, Conn.,
held in an Oct. 31 ruling that Kaman’s
proposed transaction did not trigger
a Connecticut law that might have
required two-thirds of disinterested
shareholders to approve the deal.
Founded by Charles Kaman in 1945
and incorporated in Connecticut, the
Bloomfield, Conn.-based distributor of
industrial products has two classes of
common stock: 22.4 million shares of
non-voting Class A, which is traded on
Nasdaq, and 668,800 shares of voting
Class B, which is not traded on an ex-
change. Charles Kaman and his family
own 82.6% of the Class B and about
5% of the Class A. Mason owns 8.3%
of the Class B, more than half of which
it has acquired since May.
After considering a recapitalization
for several years, Kaman’s board and a
special committee of independent di-
rectors approved a deal in which hold-
ers of Class B stock would receive 1.95
shares of Class A or a share of Class A
and $14.76 in cash for each Class B
share. The Kaman family had to elect
the cash and stock option for as many
of its Class B shares as needed to pre-
vent their holdings of Class A stock
from increasing by more than 5%, an
event that would constitute a “business
combination” under Connecticut stat-
ute and thus require a two-thirds vote
Recapitalizations article as seen in the November 2005 issue of Corporate Control Alert
of disinterested shareholders of the
company’s voting stock. That outcome
would have given Mason the chance to
block the transaction, since he owned
more than 40% of the Class B stock
not held by the family. Class A holders
would receive voting rights as part of
the restructuring.
Mason tried to take control of the
company by teaming with MK Invest-
ments to make a $55 a share bid for the
Class B shares on June 28. Team Ka-
man countered July 28 with a $55.65 a
share bid in which each Class B share
would be converted into 3.58 shares
of voting common or 1.84 shares of
voting common and $27.10 a share, a
scheme that stands to leave the Kaman
family with more than $13 million as
well as 9.7% of the company’s stock. As
a recapitalization under Connecticut
law, the proposal required the approval
of a simple majority of both classes of
stock. But Mason claimed that the deal
was a business combination, which
would have given him a veto over the
deal and stripped the Class A holders
of their vote. He sued Sept. 19 in U.S.
District Court in New Haven to stop
the transactions.
In a heavily expedited proceeding,
Kravitz held a trial Oct. 7 in which
each side presented one fact witness
and one expert. (John Coates, a pro-
fessor at Harvard Law School, was the
company’s expert, and Alan Schwartz
of Yale Law School testified for Ma-
son.) In his Oct. 31 ruling, Kravitz
expressed reluctance at interpreting a
r e c a p i ta l i z at o n s
1984 state statute that “is not a model
of clarity” but nonetheless took up the
task in a 37-page opinion. The law at
issue was one of the “fair-price” statutes
that many states passed in the 1980s in
order to counteract the coercive effects
of two-tier tender offers. By requiring
that two-thirds of the disinterested
holders of the voting stock of a com-
pany approve a business combination,
“the act protects minority holders of
voting stock from abusive transactions
favoring shareholders holding more
than 10% of any class of a corporation’s
equity securities,” Kravitz wrote.
Mason’s claim would seem to have
been an ingenious way around the
statute’s purpose. The company pro-
posed to give holders of both classes
of stock a vote on the deal, ensuring
that the Class A holders had some say
in the outcome. Mason’s reading of the
statute would have stripped the Class
A holders of their vote while giving
him a veto over the deal, a step that he
admitted he hoped would allow him to
take control of the company.
Instead of employing such reason-
ing, Kravitz closely parsed section
33-840(4) of Connecticut’s Business
Corporation Act. He rejected Mason’s
claim that Kaman’s recapitalization
proposal is a share exchange under the
meaning of the law and also nixed the
plaintiff’s reading of another portion of
the statute that “for want of a comma”
would have required the court “to drive
a wedge between transactions that all
have the same practical value.”
At an Oct. 11 shareholder meeting,
82% of the Class A holders and 91% of
the Class B holders voted for the recap-
italization, but Kaman didn’t close the
transaction pending the court’s ruling.
Kravitz extended the stay until Dec. 1
pending the outcome of a possible ap-
peal by Mason.
Mason tapped Yosef Riemer at Kirk-
land & Ellis LLP in New York. Kaman
used Matthew Matule of the Boston of-
fice of Skadden, Arps, Slate, Meagher
& Flom LLP. n
by David Marcus
November 2005 
s e c u r i t i e s l aw
Lawyers worry that a recent SEC report
portends a higher level of scrutiny
for statements made in merger agreements
A titanic problem
in the making?
Titan Corp. has had more than its
share of regulatory misadventures in
recent years. The San Diego defense
contractor saw its merger agreement
with Lockheed Martin Corp. collapse
last June because the target was unable
to resolve a government bribery probe
by the deal’s drop-dead date, but that
wasn’t the end of its troubles.
The U.S. Securities and Exchange
Commission issued a 21(a) report
March 1 about Titan in which the SEC
alleged that Titan broke the law by pay-
ing more than $3.5 million to its agent
in Benin from 1999 to 2001. The Titan
operative funneled the money to the
re-election campaign of the country’s
then-president; some of the cash was
“used to reimburse Titan’s agent for the
purchase of T-shirts adorned with the
President’s picture and instructions to
vote for him in the upcoming election,”
the report alleged. Titan was hit with
a $28 million fine for violations of the
Foreign Corrupt Practices Act.
That wasn’t what had some lawyers
howling about the agency’s report. As
is typical, Titan filed with the SEC the
merger agreement it entered into with
Lockheed Martin on Sept. 15, 2003,
as part of the companies’ disclosure of
the news. In the agreement, Titan rep-
resented that neither it nor its people
had violated the Foreign Corrupt Prac-
tices Act. Some lawyers fear that the
SEC’s 21(a) report marks a change in
the treatment of merger agreements
and related disclosure schedules. Those
schedules condition statements made
in agreements and are often referred to
by the agreements but usually are not
 Corporate Control Alert
Securities law article as seen in the April 2005 issue of Corporate Control Alert
themselves disclosed to investors in
SEC filings.
“No one disagrees that if companies
have problems with compliance and the
law, then they have a duty to disclose,”
said Robert Spatt, a partner at Simp-
son Thacher & Bartlett LLP, speaking
at the Tulane Corporate Law Institute
on March 11. “But people are upset
that if a disclosure schedule is attached
that every statement in that document
is a quasi-public filing.” A Wachtell,
Lipton, Rosen & Katz memorandum
to clients “respectfully disagreed” with
the SEC’s ruling on the issue, a view
shared by many deal lawyers.
Their fear is that the SEC will sub-
ject exhibits to SEC filings to the same
level of scrutiny as disclosure in the reg-
istration statement itself. In the latter,
a company makes factual statements
upon whose truth investors may legally
rely. A merger agreement is a contract
between two companies rather than
a set of statements made to investors.
Companies may qualify representa-
tions—for example, “The company
represents that its financial statements
for the last 40 years are accurate”—in
disclosure schedules that are so called
because one company discloses various
facts to the other, not because the com-
pany intends to disclose those sched-
ules to investors.
Parties to a merger agreement of-
ten design the representations in their
documents to assign risk rather than to
make factual statements. If a company
warrants, for example, that its finan-
cial statements are materially accurate,
then it assumes the risk of their inac-
curacy. This practice is justified, law-
yers say, because it allows companies
considering a deal to conduct thorough
due diligence on one another without
worrying that even negligible issues
will be made public. As Spatt noted at
Tulane, an issuer must publicly disclose
material issues anyway.
Some lawyers argue that in response
to the SEC’s report on Titan, com-
panies should include disclaimers in
their filings of merger agreements. Wa-
chtell’s memo and a Cleary Gottlieb
Steen & Hamilton LLP missive favor
this approach.
The 21(a) report includes language
that suggests such a response may be
an overreaction. The SEC said its re-
port “is not intended to change the
way issuers engage in merger, or other
contractual, negotiations or to alter
existing diligence obligations or to
suggest, absent special circumstances
(such as provisions intended to create
third party beneficiaries), that provi-
sions such as representations and cov-
enants in such agreements are bind-
ing on or intended to benefit persons
other than parties thereto.”
That disclaimer and other aspects of
the SEC report lead some lawyers to
believe that the Wachtell and Cleary
memos misinterpret the SEC’s inten-
tion and would be counterproductive.
“The SEC does not normally issue
21(a) reports at all, let alone 21(a) re-
ports that do not lead to an enforce-
ment action,” says Richard Hall, a part-
ner at Cravath, Swaine & Moore LLP,
referring to the form in which the SEC
commented on the Titan situation.
And, he adds, “This is not the way
the SEC normally comments on an
evolving disclosure practice with
which it is uncomfortable. At least for
the moment, there is no reason to be-
lieve that the Division of Corporation
Finance thinks there is a disclosure
problem.” Including disclaimers such
as the ones Wachtell and Cleary advo-
cate might escalate the issue unneces-
sarily, Hall says. n
by David Marcus

With Ernest Hollings retired, the DOJ and FTC
may finally be free to streamline the merger
review process
A new streamlined baby
for the FTC and DOJ?
Timothy Muris and Charles James
learned a harsh lesson in the ways
of Washington in 2002 when a U.S.
senator killed what many antitrust
lawyers saw as a sensible plan for
streamlining federal merger reviews.
Only two months after Muris, then
chairman of the Federal Trade Com-
mission, and James, the Department
of Justice’s assistant attorney general
for antitrust, worked out a deal for
dividing responsibility for merger re-
views along industry lines, they were
forced to scuttle it under intense
pressure from Sen. Ernest Hollings
of South Carolina, then the ranking
Democrat on the Commerce Com-
mittee, the primary congressional
overseer of the FTC.
The fallout from the debacle con-
vinced them and their successors that
antitrust reform was radioactive. Partly
in reaction to the uproar, Rep. James
Sensenbrenner, R-Wis., that same year
pushed Congress to create the Anti-
trust Modernization Commission to
clean up longstanding shortcomings
in merger review practice, as well as to
adapt DOJ and FTC competition en-
forcement for the Internet age. Many
doubted the new commission would
even get off the ground, much less re-
vamp antitrust policy.
But more than a year into a series
of public hearings on how to improve
the merger review process, the mood
is changing. Even Joe Sims, a veteran
antitrust lawyer and former Justice
Department deputy assistant attorney
general, told AMC members in No-
Antitrust article as seen in the December 2005 issue of Corporate Control Alert
vember that they stand a good chance
of at least prodding the agencies to
reduce the time and cost of merger
reviews.
The panel was initially viewed as lit-
tle more than a pet project of Sensen-
brenner, the House Judiciary Commit-
tee chairman. The initial legislation
creating the commission failed even
to include funds to get it started. The
money finally arrived in time for the
commission to begin hearings in 2004,
but early cynicism has persisted.
“Given the environment we’re in,
I’m not at all convinced that future
heads of the two agencies will en-
gage in overall clearance reform,” said
Muris, now a law professor at George
Mason University in Fairfax, Va., at a
Nov. 3 AMC hearing.
AMC chairwoman Deborah Gar-
za, a partner in Fried, Frank, Harris,
Shriver & Jacobson LLP’s Washing-
ton office, says the mood in Congress
has shifted. (It helps that Hollings
has retired.) “In my discussions with
Capitol Hill staff, we’ve been assured
there’s no need to obsess over what
happened last time. My sense is we
shouldn’t be defeatist about it.” She
says the commission will continue
hearings through January with a final
report expected in early spring 2007,
although the commission may weigh
in with Congress on specific topics
before then.
Leading the list of desired changes is
streamlining the so-called “clearance
process” for deciding whether the DOJ
or the FTC reviews a particular deal.
antitrust
Other topics under consideration are
the need to address a perception that
the FTC has more judicial leeway to
block mergers than the Justice Depart-
ment, updating patent enforcement
and speeding nonmerger criminal an-
titrust investigations.
It’s uncertain whether Congress can
pass antitrust legislation amid battles
over Supreme Court nominees, the
war in Iraq and budget battles, but re-
gardless of the attention the issue gets
from lawmakers, the agencies will have
discretion to implement some AMC
recommendations on their own.
Sims, now a partner with Jones Day,
suggested the AMC call for establishing
common databases of economic and in-
dustry statistics that the agencies can
use when analyzing the effect of a merg-
er, which would enable an enforcer to
base decisions on identical assumptions
about a particular industry.
He also urged the AMC to establish
a joint office of “clearance special-
ists” with no clear allegiance to either
agency that would be charged with
deciding quickly which agency would
review a merger. “It doesn’t make a
whole lot of difference who does a
deal,” Sims told the AMC gathering.
“But it does make a lot of difference
that they get started.”
The most recent clearance fight
erupted when Maytag Corp. accepted
a buyout offer from Whirlpool Corp.
The Justice Department won claim
to the deal with only a week to go in
the 30-day waiting period the Hart-
Scott-Rodino Act requires. The tardy
decision assured the companies would
have to comply with a second request
for information rather than getting
the go-ahead to merge after the initial
HSR waiting period.
Lamenting the 2002 agreement’s de-
mise, Arnold & Porter LLP antitrust
partner Michael Sohn says that in the
short time the Muris-James truce was in
place, the time to clear a merger review
to an agency dropped from an average
of 15 days to 1.5 days. n
by Bill McConnell
December 2005 
the top 10 deals Investment advisers’
Rank Target Legal advisers Investment advisers counsel

1 MBNA Corp. Wachtell, Lipton, Rosen & Katz

(Edward Herlihy)
UBS Investment Bank
(Michael Martin, Olivier Sarkozy)
Dewey Ballantine
(Denise Cerasani)
Joseph Perella

2 Unocal Corp. Wachtell, Lipton, Rosen & Katz

(Daniel Neff)
Morgan Stanley
(Stephen Munger, Thomas Langford)
Shearman & Sterling
(Peter Lyons)

3 PacifiCare
Health Systems Inc.
Skadden, Arps, Slate, Meagher & Flom
LLP (Paul Schnell, Neil Stronski)
MTS Health Partners
Morgan Stanley
Latham & Watkins
(Charles Ruck)
Schulte Roth & Zabel LLP

4 Cablevision Systems
Corp.
Willkie Farr & Gallagher LLP (Mario Cuomo,
Joseph Baio, Michael Schwartz, Daniel Rubino)

5 Ivax Corp. Greenberg Traurig LLP

(Gary Epstein, Robert Grossman, Ivan Presant)
UBS Investment Bank
(Rick Leaman, David Gately, Sumeet
Skadden, Arps, Slate,
Meagher & Flom LLP
Shearman & Sterling Kanwar) (Paul Schnell, Richard Grossman)
(Chris Bright)

6 IMS Health Inc. Sullivan & Cromwell LLP (Alan Sinsheimer,

Keith Pagnani, Max Schwartz, Steven Holley)
UBS Investment Bank
(Robert DiGia, Lee LeBrun, Jeffrey Sine)
Gibson Dunn & Crutchter LLP
(Barbara Becker, Eduardo Gallardo)
Cleary Gottlieb Steen & Hamilton LLP Gleacher Partners Dewey Ballantine LLP
(Nicholas Levy) (Eric Gleacher, Richard Burke) (Denise Cerasani)

7 Terasen Inc. Stikeman Elliott LLP (Jonathan Drance)

Paul, Weiss, Rifkind, Wharton &
RBC Capital Markets
(Gary Shendlin)
Garrison LLP (Andrew Foley, Edwin Maynard)
Dickstein Shapiro Morin Oshinsky LLP

8 Reebok International
Ltd.
Ropes & Gray LLP
Latham & Watkins LLP
Credit Suisse First Boston Dewey Ballantine LLP
(Morton Pierce, M. Adel Aslani-Far)
(antitrust, Dan Wall, Tom Rosch, Andreas Weitbrecht)

9 Citigroup (asset man-

agement business)
Skadden, Arps, Slate, Meagher & Flom
LLP (Ralph Arditi, Russell D’Oench III, Eric Friedman)
Citigroup Global Markets
(Gary Shendlin)

10 Kerr-McGee Corp. (Brit- Freshfields Bruckhaus Deringer

ish oil and North Sea (Peter Streatfeild, Jonathan Rees, Michael Wachtel,
J.P. Morgan Chase & Co.
(Jeremy Wilson, Jimmy Elliot)
assets) Katrine Orr) Lehman Brothers Inc.
(Carlos Fierro)
Scotia, Waterous Ltd.
1
Includes announced values of deals or bids announced between June 16, 2005, and August 15, 2005. Because of space limitations, ancillary counsel on a deal may not be listed.

 Corporate Control Alert

2005 rankings chart as seen in the August/September 2005 issue of Corporate Control Alert
 June 16 - AUgust 15 2005
Investment advisers’ Value
Acquirer Legal advisers Investment advisers counsel (millions)
Bank of American Corp. Cleary Gottlieb Steen & Hamilton Keefe, Bruyette & Woods Inc. $35,000
LLP (Peter Wirth, John Duffy)
(John Murphy, Christopher Austin) Bank of America Securities
Chevron Corp. Pillsbury Winthrop Shaw Pittman LLP Lehman Brothers Inc. Baker Botts 18,900
(Terry Kee) (Carlos Fierro, Gary Posternak, Grant Porter)
Cravath, Swaine & Moore LLP
(Scott Barshay, Allen Finkelson)
CNOOC Ltd. Davis Polk & Wardwell Goldman, Sachs & Co. Simpson Thacher &
(Christopher Mayer, John Amorosi) (Michael Carr, Bill Wicker, Steven Daniel) Bartlett (Robert Spatt)
Potter Anderson & Corroon J.P. Morgan Chase & Co.
(Michael Goldman, John Grossbauer) (Charles Li, Todd Marin, Leon Ming)
For CNOOC committee Skadden, Arps, Slate, Meagher & Flom Rothschild Group (Andrew Rickards,
of independent directors (Peter Atkins, for committee of board) Neeve Bills, Roger Kimmel)

UnitedHealth Group Inc. Weil, Gotshal & Manges Goldman, Sachs & Co. 8,110
(Raymond Gietz, Thomas Roberts) J.P. Morgan Chase & Co. Cleary Gottlieb
Dorsey & Whitney (Jonathan Abram) Bank of America Securities
Dolan family Debevoise & Plimpton LLP Bank of America Securities Dewey Ballantine LLP 7,900
(20% shareholder) (Rick Bohn, David Brittenham) (Stephen Ketchum, Thomas Whayne) (Morton Pierce, Jack Bodner)
Potter Anderson & Corroon Merrill Lynch & Co. Shearman & Sterling
(Donald J. Wolfe Jr., Michael Tumas) (Christa D’Alimonte)
Teva Pharmaceuticals Willkie Farr & Gallagher LLP Lehman Brothers Inc. Simpson Thacher & 7,400
Industries Ltd. (Peter Jakes, Jeffrey Hochman) (Harvey Kruger, David Brand, Len Rosen) Bartlett (William Curbow)
Tulchinsky-Stern & Co. Credit Suisse First Boston Dewey Ballantine LLP
(Menachem Tulchinsky, Yaacov Michlin) (Francois Maisonrouge, Charlie Attlan) (Morton Pierrce, Jack Bodner)
Sonnenschein Nath & Rosenthal LLP
(Ira Schreger, T. Redd Stephens. Marci Levine)
VNU NV Simpson Thacher & Bartlett LLP Credit Suisse First Boston Shearman & Sterling 6,700
(John Finley, Peter Malloy, Kenneth Edgar) (John Trousdale, David Weil, Jeff Lipkin) LLP (John Madden)
De Brauw Blackstone Westbroek NV Evercore Partners (Roger Altman)
(Arne Grimme, Jaap Winter) ABN Amro (Jan de Ruiter) Davis Polk &
Deutsche Bank (Geoffrey Austin) Wardwell
Kinder Morgan Inc. Bracewell & Giuliani UBS 5,600
(Gregory Bopp, W. Cleland Dade, Gary Orloff) (Michael Jamieson)
Blake Cassels & Graydon LLP
(Mungo Hardwicke-Brown, Brock Gibson)
Adidas-Salomon AG Simpson Thacher & Bartlett LLP Merrill Lynch & Co. Skadden, Arps, 3,800
(Casey Cogut, William Dougherty) Slate, Meagher &
Beiten Burkhardt Flom LLP
Eversheds LLP (Howard Ellin)
Wilmer Cutler Pickering Hale and
Dorr LLP
Legg Mason Inc. Shearman & Sterling LLP Goldman, Sachs & Co. Simpson Thacher & 3,700
(Brokerage unit) (John Marzulli, Barry Barbash) (Donald Truesdale, Christopher Spofford) Bartlett (Lee Meyerson)
Morgan Lewis & Bockius LLP
(Steven Stone, Robert Robison, Stephen Cohen)
A.P. Møller-Maersk, Allen & Overy LLP Citigroup 3,500
Centrica plc (Tim Shilling) (Peter Kjaer, Jim Peterkin)

Source: Corporate Control Alert

August/September 2005 
c o r p o r at e g o v e r n a n c e
The new pan-European stock corporation may
appeal to issuers primarily as a way of easing
cross-border deals
A matter of form in
the European Union
Legislation creating pan-European
stock corporations made its way into
the spotlight in September when Al-
lianz AG became the largest Conti-
nental group to become a Societas
Europeae. But local tax regulations and
fears over co-determination—allowing
worker representatives to sit on man-
agement boards—may scare many Eu-
ropean companies from adopting the
new Latin moniker.
Munich-based Allianz announced
the move as part of a ¤5.7 billion ($7
billion) plan to buy the 45% of its Ital-
ian Riunione Adriatica di Sicurtà SpA
unit that it doesn’t already own and
touted the transformation as a way to
streamline its European management.
“Now that there’s a common market
in Europe, it’s important to acknowl-
edge this market with a type of com-
pany that operates across all member
states as a single entity,” says Roger
Kiem, a partner with Shearman &
Sterling LLP who worked on the deal.
Lawmakers have discussed the con-
cept of an SE, as it is now known, for
about 30 years as part of the dream of
a united Europe, and it finally passed
legislation in Brussels last October.
The law creates a single set of manage-
ment requirements for SEs operating
throughout the European Union, but it
doesn’t address widely varying tax laws
in each member state or entirely excuse
companies from corporate law at home,
leading some to decry it as an unwieldy
and impractical option.
During the transformation, em-
 Corporate Control Alert
Corporate governance article as seen in the October 2005 issue of Corporate Control Alert
ployee representatives also have a say
in the company’s strategy, although
they ultimately can’t demand more
representation than prior to the con-
version. Companies may choose be-
tween a German-styled two-tier man-
agement structure with a management
and 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 to
cool the nationalism of cross-border
deals. “Psychologically, it’s easier. You
can’t discount the psychological fac-
tor,” Kiem says. For Allianz, the move
will simplify the absorption of RAS,
since it allows the group to buy out
minority shareholders—as long as an
auditor agrees the price is right—and
avoid a legal squeeze-out spat, accord-
ing to Hans Diekmann, another Shear-
man partner involved in the transac-
tion. (See “Who’s dominating whom
in Germany?”)
During the transformation, Allianz
plans to reduce its supervisory board to
12 members, from 20—which German
law would prohibit—and allow foreign
employee representatives. The group
is also adding an Italian and a French
executive to its board.
Although only a handful of smaller
companies have adopted the policy
since it was founded, Paris-based Suez
SA said in August it hired BNP Paribas
SA to research the possibility of form-
ing an SE. The French utility would
make the move following its ¤11.2 bil-
lion buy of the 49.9% of Belgian divi-
sion Electrabel SA it doesn’t own.
Sweden’s Nordea Bank AB in June
announced a transition to an SE after
operating as a holding company for four
banking groups in Scandinavia. Austri-
an construction group Strabag AG also
adopted the tag as it picked through
the ashes of bankrupt German builder
Walter Bau AG earlier this year.
Diekmann says he has had inquiries
from every size company in recent days
about the pan-European structure and
expects more than just a few transitions
in the coming months. Colleague Kiem
said he has expected it to appear more
often than it already has. “I wondered if
it wouldn’t be useful in the UniCredit
SpA/HVB Group AG deal,” he says,
referring to Milan-based UniCredit’s
¤15.4 billion offer for German rival.
Despite optimism in Germany, some
are skeptical the new law will affect cor-
porate governance—especially in Lon-
don. “It’s a simple regulation. It doesn’t
give you detailed provisions,” says
Nigel Boardman, a partner at Slaugh-
ter and May. “The biggest drawback
is that it doesn’t affect tax.” Another
drawback, he adds, is the introduction
of employee participation to a British
corporate culture not accustomed to
co-determination. Boardman thinks a
British company would adopt the SE
regulations only if it was to acquire a
German company and suddenly felt a
need for employee representatives on
its board.
“If you did, in England, want a two-
tier board, the only way you could
do that is through a simple European
company,” he says. “It’s taken over 25
years to come to fruition. It started a
long time ago, when people had differ-
ent perspectives on labor involvement.
I would expect take-up to be low.”
Another London attorney, who asks
not to be named, wasn’t so kind. “It’s
a political pipe dream,” he says, scoff-
ing at the psychological effect of an
SE: “The accent on the other end of
the phone tells you where the buyer is
coming from.” n
T H E L I N E U P
Deals reported in the December 2005 lineup were announced between Sept. 16 and October 31, 2005. Only deals involving
a change of control of target company with a market value of $100 million or more are included, and only when a key party
involved 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 of subsidiaries. The lineup includes the names of lead lawyers at law firms that represented the
principals and lead individuals for the investment advisers.

Accellent Inc. Outside counsel: Dechert LLP

$1.27 billion (private acquisition) Levin, Adam
PR firm: Abernathy MacGregor Group Inc.
deal description: PR firm: Maitland Consultancy
New York private equity firm Kohlberg Kravis Roberts & Co. announced
plans to buy medical device manufacturer Accellent Inc. for $1.27 billion. Acquirer: Kuehne & Nagel International AG
Investment adviser: Deutsche Bank AG
Target: Accellent Inc. Wiseman, Martin
Investment adviser: Credit Suisse First Boston Elmendorff, Klaus
Outside counsel: Hogan & Hartson LLP
Walsh, Christopher Announcement date: 10/17/05
Mintz, Robert
Neff, William
Harrington, Michele Sasse Advanced Neuromodulation Systems Inc.
London, David $1.3 billion (tender offer-cash)
Reisch, Scott
Rosenstock, Howard deal description:
Shapiro, Jeffrey St. Jude Medical Inc. agreed to buy Advanced Neuromodulation Sys-
tems Inc. for $1.3 billion in cash to diversify into spinal cord stimulation
Shareholder target: KRG Capital Partners LLC mechanisms.

Shareholder target: DLJ Merchant Banking Partners Target: Advanced Neuromodulation Systems Inc.
Outside counsel: Weil, Gotshal & Manges LLP Investment adviser: Piper Jaffray & Co.
Warner, Douglas Outside counsel: Baker Botts LLP
Silberberg, Marc Cialone II, Joseph
McDermett Jr., Don
Acquirer: Kohlberg Kravis Roberts & Co. Monk, David
Investment adviser: J.P. Morgan Chase & Co. Berry, J. Patrick
Outside counsel: Simpson Thacher & Bartlett LLP Kennerly, Christopher
Cogut, Charles Marcus, Stephen
Rodgers, Sean Raborn, James
Todrys, Steven
Acquirer: St. Jude Medical Inc.
Brown, Alvin
Investment adviser: Banc of America Securities LLC
Information agent: MacKenzie Partners Inc. Outside counsel: Gibson, Dunn & Crutcher LLP
PR firm: Kekst and Co. Barbeau, Joseph
Announcement date: 10/11/05 Announcement date: 10/16/05
*Accellent is owned by KRG Capital Partners LLC, DLJ Merchant Banking Partners, and
management.
*As part of the transaction, members of Accellent management will partner with KKR by Agilent Technologies
retaining a significant equity stake in the company. —storage semiconductor division
$425 million (cash/stock acquisition)
deal description:
ACR Logistics PMC-Sierra Inc. has agreed to purchase the storage semiconductor division
$592 million (private acquisition) of Agilent Technologies Inc.’s semiconductor product group for $425 million
in cash. The PMC-Sierra $425 million deal hinges on the larger transaction
deal description: between Kohlberg Kravis Roberts & Co. and Silver Lake Partners to buy the
Kuehne + Nagel International AG said that it has agreed to buy ACR Logis- Agilent semiconductor product business for $2.66 billion.
tics from buyout firm Platinum Equity LLC.
Target: Agilent Technologies
Target: ACR Logistics —storage semiconductor division

Shareholder target: Platinum Equity LLC Shareholder target: Agilent Technologies Inc.
Investment adviser: Lehman Brothers Inc.
Leckert, Steffen Shareholder target: Kohlberg Kravis Roberts & Co.

December 2005 
The lineup as seen in the December 2005 issue of Corporate Control Alert
 Shareholder target: Silver Lake Partners LP AMLI Residential Properties Trust
PR firm: Citigate Sard Verbinnen $2.1 billion (cash/stock acquisition)
Acquirer: PMC-Sierra Inc. deal description:
Outside counsel: Wilson Sonsini Goodrich & Rosati Investment bank Morgan Stanley said it agreed to buy Chicago-based REIT
Wolff, Neil AMLI Residential Properties Trust in an all cash deal valued at about $2.1
Ishii, Robert billion.

Announcement date: 10/30/05 Target: AMLI Residential Properties Trust

Investment adviser: J.P. Morgan Securities Inc.
Kindler, Robert
Ventresca, Chris
Alias Systems Corp. Baccile, Peter
$182 million (private acquisition) Grier, Thomas
deal description: Outside counsel: Mayer, Brown, Rowe & Maw
Software company Autodesk Inc. said it is acquiring Alias Systems Corp., Schneidman, Edward
a Toronto-based movie graphics technology company, from Accel-KKR and
Teachers’ Private Capital. Acquirer: Prime Property Fund
Investment adviser: Morgan Stanley
Outside counsel: Davis Polk & Wardwell
Target: Alias Systems Corp.
Goldberg, Louis
Shareholder target: Accel-KKR Mollerus, Michael
Outside counsel: Kirkland & Ellis LLP Outside counsel: King & Spalding LLP
Fryer, William
PR firm: Kekst and Co.
Genz, Peter
Shareholder target: Teachers’ Private Capital Goodwin, Timothy

Acquirer: Autodesk Inc. Announcement date: 10/24/05

Outside counsel: Wilson Sonsini Goodrich & Rosati
Bertelsen, Mark
Anderson-Tully Co.
Announcement date: 10/04/05 $465 million (cash/stock acquisition)
deal description:
Anderson-Tully Co. and Heartwood Forestland Fund V LP, an affiliate of
Alpharma Inc.—human generics unit Forestland Group LLC, announced that they have entered into a definitive
$810 million (cash/stock acquisition) merger agreement. Under the terms of this agreement, which was unani-
mously approved by ATCO’s board of directors, TFG will acquire all of the
deal description: outstanding shares of ATCO for approximately $500,000 per common
Icelandic generic drug company Actavis Group hf agreed to pay $810 mil- share in cash, implying an enterprise value for the company of approxi-
lion for the human generics unit of Alpharma Inc. mately $465 million.

Target: Alpharma Inc.—human generics unit Target: Anderson-Tully Co.

Investment adviser: Banc of America Securities LLC Investment adviser: Goldman, Sachs & Co.
Donofrio, Paul Counsel to I-bank: Fried, Frank, Harris, Shriver & Jacobson LLP
Miller, Matt Katz, Stuart
Outside counsel: Kirkland & Ellis LLP Richter, Philip
Fraidin, Stephen Outside counsel: Skadden, Arps, Slate, Meagher & Flom LLP
Krupp, Peter
Nagel, Andrew
Gallagher, Patrick Acquirer: Forestland Group LLC
Outside counsel: Sutherland, Asbill & Brennan LLP
Shareholder target: Alpharma Inc.
Outside counsel: Richards, Layton & Finger Announcement date: 10/05/05
Haubert, William

Acquirer: Actavis Group hf Antares Capital Corp.

Investment adviser: UBS AG
Gutzwiller, Philip
$800 million (cash/stock acquisition)
Borten, Giles deal description:
Hourihan, Marc-Anthony General Electric Co. said it has acquired Antares Capital Corp., a specialty
Outside counsel: Dewey Ballantine LLP lender for middle-market deals.
Aiello, Michael
Target: Antares Capital Corp.
Announcement date: 10/17/05 Investment adviser: Lehman Brothers Inc.
Einbinder, Lee
Outside counsel: Winston & Strawn LLP
Gavin, Steven

10 Corporate Control Alert

P O I S O N P I L L S
Aug. 11, 2004 to Jan. 31, 2005
The Poison Pill Chart includes the name of
the adopting company, its headquarters, its
state of incorporation (INC), the date the
plan was adopted and/or amended, the
exercise price of a right, the flip-in percent-
age threshold and the banking and law
firms that advised the company.
To the extent possible, we have iden-
tified notable provisions of plans. The
terms used in the footnotes are defined
as follows:
Adverse person provision—Board
authority to lower the flip-in trigger in the
face of an acquirer deemed adverse to
the interests of the company. All adverse
person provisions permit reduction to
10% unless otherwise noted.
Continuing directors or indepen-
dent directors redemption require-
ment—Redemption of the pill in certain
circumstances requires the concurrence
of the continuing or independent direc-
tors. Continuing directors typically in-
clude board members elected before the
adoption of the pill or elected after the
adoption of the pill and approved by the
continuing directors but expressly do not
include the acquirer or its affiliates.
Exchange option—The board has
the power, after the flip-in is triggered,
but before the acquirer obtains 50% of
the stock, to issue one share of common
stock for each right.
Qualified offer provision—Under
this provision, which varies substantially
in strictness from plan to plan, the pill
will lie dormant in the face of certain
offers specified in the plan. Typical re-
quirements include that the offer must
be for all cash, all shares, fully financed,
accompanied by a fairness opinion from
a nationally recognized investment bank,
and left open for a specified period, typi-
cally 45 days.
Shareholder referendum—If an of-
ferer makes an all-cash, all-shares offer,
has written financing commitments in
place, and holds a written fairness opin-
ion from a nationally recognized invest-
ment bank, such a bidder is entitled to
demand a special meeting of stockhold-
ers to vote on its offer. This right is only
granted to offerers who at the time of the
demand own less than a certain percent-
age of target company stock, typically
1% to 5% of the outstanding shares.

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

U. S. incorporated companies
Aclara Biosciences Inc. Mountain View, Calif. 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 qualification to amend or redeem (dead hand).

American Medical Green Bay, Wis. Wis. 8/9/2001 9/15/2004 $30/16% Skadden Arps Slate
Security Group Inc. Meagher & Flom LLP;
Quarles & Brady LLP
Amendment exempts PacifiCare Health Systems Inc. in connection with its agreement to acquire the company.

Aphton Corp. Miami Del. 8/17/2004 $29.80/15% Akerman Senterfitt

Includes 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 from 8.31.11.

Artisan Components Inc. Sunnyvale, Calif. 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, qualified offer 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

March 2005 11
Poison Pill chart as seen in the March 2005 issue of Corporate Control Alert
 Company Name Headquarters INC Adopt. Date Amend. Date Price/Thresh Law Firm Bank

Assisted Living Concepts Inc. Dallas Nev. 10/1/2004 $60/20% Andrews Kurth LLP
Includes 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% of the company.

Bentley Pharmaceuticals Inc. Exeter, N.H. Del. 12/15/2004 $72.55/15%

Original plan adopted in 1999; new plan includes exchange option and qualified offer provision.

Beverly Enterprises Inc. Fort Smith, Ark. Del. 1/25/2005 $50/10%

Original plan adopted in 1994; new plan includes exchange option and qualified offer provision.

Bill Barrett Corp. Denver Del. 10/8/2004 $150/15% Akin Gump Strauss
Hauer & Feld LLP
Includes exchange option.

Bioenvision Inc. New York Del. 11/17/2004 $70/15% Paul Hastings Janofsky 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 from BNS Co. as part of reorganization into a holding company structure.

Calgon Carbon Corp.

Pittsburgh Del. 1/27/2005 $35/10% Skadden Arps Slate
Meagher & Flom LLP
Original plan adopted in 1995; new plan includes exchange option.

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

Calpine Corp. San Jose, Calif. 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. for common shares the company will issue to DB to hold until the end
of the 10-year term of the Share Lending Agreement dated 9.28.04.

CancerVax Corp. Carlsbad, Calif. Del. 11/3/2004 $95/15% Latham & Watkins
Includes exchange option.

CardioGenesis Corp. Foothill Ranch, Calif. Calif. 6/15/2001 10/26/2004 $15/15%

Amendment exempts Laurus Master Funds, Ltd. for 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 Sonsini
Goodrich & Rosati
Amendment increases flip-in to 20% from 15%.

Cheniere Energy Inc. Houston Del. 10/13/2004 1/24/2005 $700/15%

Amendment increases exercise price to $700 from $200.

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

Includes exchange option.

12 Corporate Control Alert

2 0 0 5 si x - month r ankin g s cha r t

Advisers in deals announced between Jan. 1, 2005 and June 30, 2005 with a value of $100 million or more

Party represented
Total Target Acquirer/ Merger Other Special
deals bidder partner
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
3 Wachtell, Lipton, Rosen & Katz 29 18 11 0 0 0
4 Latham & Watkins LLP 26 11 13 0 0 2
5 Simpson Thacher & Bartlett LLP 23 8 14 0 1 0
6 Jones Day 22 4 11 0 0 7
7 Gibson, Dunn & Crutcher LLP 19 7 10 0 2 0
8 Wilson Sonsini Goodrich & Rosati PC 18 9 9 0 0 0
9 Kirkland & Ellis LLP 17 7 11 0 0 0
9 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
14 O’Melveny & Myers LLP 14 7 6 0 1 0
14 Ropes & Gray 14 5 9 0 0 0
14 Cleary Gottlieb Steen & Hamilton LLP 14 0 9 0 0 5
17 Mayer, Brown, Rowe & Maw 13 6 5 0 1 1
17 Vinson & Elkins LLP 13 6 7 0 0 0
17 Paul, Weiss, Rifkind, Wharton & Garrison LLP 13 7 6 0 0 0
17 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
23 Wilmer Cutler Pickering Hale and Dorr LLP 10 4 5 0 0 1
24 Fenwick & West LLP 9 6 3 0 0 0
24 Freshfields Bruckhaus Deringer 9 5 4 0 0 0
26 Alston & Bird LLP 8 5 3 0 0 0
26 Goodwin Procter LLP 8 2 6 0 0 0
26 Cooley Godward LLP 8 4 4 0 0 0
26 Clifford Chance LLP 8 2 6 0 0 0
26 Linklaters 8 5 3 0 0 0

DELAWARE LAW FIRMS

1 Richards, Layton & Finger 40 20 19 0 0 1
2 Morris, Nichols, Arsht & Tunnell 20 11 8 0 1 0
3 Potter Anderson & Corroon 12 7 4 0 1 0

August/September 2005 13
2005 rankings chart as seen in the August/September 2005 issue of Corporate Control Alert
 Party represented
Total Target Acquirer/ Merger Other Special
deals bidder partner
INVESTMENT ADVISERS
1 Goldman, Sachs & Co. 76 38 39 0 0
2 Morgan Stanley 52 25 24 0 3
3 UBS Investment Bank 50 25 23 0 2
4 Credit Suisse First Boston 49 28 21 0 0
5 Lehman Brothers Inc. 42 21 18 0 3
6 Merrill Lynch & Co. 41 20 19 0 2
7 Citigroup Global Markets Inc. 40 15 17 0 1
8 J.P. Morgan Chase & Co. 36 16 20 0 0
9 Banc of America Securities LLC 29 8 21 0 0
10 Deutsche Bank AG 27 7 20 0 0
11 Lazard 25 15 9 0 1
12 Bear, Stearns & Co. 21 11 10 0 0
13 CIBC World Markets 10 5 5 0 0
13 Wachovia Securities Corp. 10 4 6 0 0
15 Houlihan Lokey Howard & Zukin 9 5 4 0 0
16 Piper Jaffray & Co. 8 5 3 0 0
16 Rothschild 8 3 4 0 1
18 William Blair & Co. LLC 7 5 2 0 0
19 SG Cowen Securities Corp. 6 5 1 0 0
19 Allen & Co. Inc. 6 6 0 0 0
21 Sandler O’Neill & Partners LP 5 4 1 0 0
21 ABN Amro Bank NV 5 3 2 0 0
21 Blackstone Group 5 2 3 0 0
21 Thomas Weisel Partners LLC 5 2 3 0 0
25 Greenhill & Co. 4 3 1 0 0
25 Evercore Partners 4 2 1 0 1
25 Keefe, Bruyette & Woods Inc. 4 0 4 0 0
25 N.M. Rothschild & Sons Ltd. 4 1 3 0 0
25 Stephens Inc. 4 1 3 0 0

PR FIRMS
1 Kekst and Co. 42 18 24 0 0
2 Citigate Sard Verbinnen 25 9 16 0 0
3 Abernathy MacGregor Group Inc. 20 7 13 0 0
4 Joele Frank, Wilkinson Brimmer Katcher 18 11 7 0 0
5 Brunswick Group 12 2 10 0 0
6 Owen Blicksilver Public Relations Inc. 7 2 5 0 0
7 Edelman 6 4 2 0 0
8 Financial Dynamics 5 3 2 0 0
9 Sloane & Co. 4 2 2 0 0
10 Fleishman-Hillard Inc. 2 0 2 0 0

PROXY SOLICITORS/INFORMATION AGENTS

1 Georgeson Shareholder Communications Inc. 41 32 9 0 0
2 D.F. King & Co. Inc. 19 13 3 0 3
3 Innisfree M&A Inc. 18 12 6 0 0
4 Mellon Investor Services 9 4 5 0 0
4 Altman Group Inc. 9 7 2 0 0
4 Morrow & Co. Inc. 9 6 3 0 0
7 MacKenzie Partners Inc. 8 4 4 0 0

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

14 Corporate Control Alert