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Understanding Advance Notice Bylaws Is Key For All Parties

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Spencer Klein, Joe Sulzbach, Tyler Miller, and Mohammed Alismail authored an article for Law360 that explored the most recent proxy season and the increase in rejected director nominations by dissident stockholders due to purported noncompliance with companies’ advance notice bylaws. 

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Spencer Klein, Joe Sulzbach, Tyler Miller, and Mohammed Alismail authored an article for Law360 that explored the most recent proxy season and the increase in rejected director nominations by dissident stockholders due to purported noncompliance with companies’ advance notice bylaws. “The increase underscores the importance of having state-of-the-art advance notice bylaws in place prior to a dissident surfacing,” the authors wrote. “From the nominating stockholders' perspective, compliance with advance notice bylaws cannot be taken lightly.” Read the <a href="https://media2.mofo.com/v3/assets/blt5775cc69c999c255/blt8417de5f161d978e/65820da94dad154714e53760/231218-understanding-advance-notice-bylaws-is-key-for-all-parties.pdf" target="_blank">full article</a>.

Understanding Advance Notice Bylaws Is Key For All Parties

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Spencer Klein is a corporate partner and serves as co-chair of the firm's global Mergers & Acquisitions Group.Spencer focuses his practice on M+A transactions and related matters such as proxy contests and takeover defense counseling. He has advised on more than 200 successfully closed mergers, tender and exchange offers, stock and asset acquisitions, divestitures and joint ventures. He is also a veteran of numerous contested matters and regularly counsels corporate boards and committees in transactional and high-profile corporate governance matters.Spencer frequently advises leading U.S. and multinational companies across multiple industries. His engagements include multi-billion dollar deals in health care and life sciences, financial services, technology, consumer products, manufacturing, retail, energy, and entertainment and media. In addition to prominent corporate clients and private equity funds, he has represented some of the world's leading bulge bracket and boutique investment banks.Prior to joining Morrison & Foerster, Spencer was a partner at O’Melveny & Myers LLP, McDermott Will & Emery LLP and Shearman & Sterling LLP. Spencer received his B.A. from The Pennsylvania State University in 1986, and his J.D. from Hofstra University School of Law in 1989, where he served as Editor-in-Chief of the Hofstra Law Review.Spencer has been recognized regularly as one of the world's leading M+A lawyers by International Financial Law Review, Super Lawyers, Legal 500 United States, and The World's Leading Lawyers for Mergers and Acquisitions: U.S. Expert Guide (Legal Media Group). He has been named a "New York Super Lawyer" by Law & Politics in each of the last fifteen editions. Legal 500 US has referred to Spencer as "one of the best deal lawyers in the country."Spencer serves as a Special Professor of Law at Hofstra University School of Law, a member of the Alumni Board of Visitors of the Department of Political Science at The Pennsylvania State University, and the founding Chair of the Hofstra Law Review Alumni Advisory Board.  In 2022, Spencer was an inaugural inductee into the Hofstra Law School Hall of Fame.

Spencer Klein

Global Co-Chair of M&A Practice

Joe Sulzbach is a partner in the Corporate Transactional group, focusing on mergers and acquisitions and private equity. Joe has represented numerous public and private entities in a variety of transactions, including domestic and cross-border merger and acquisition transactions, private equity transactions, joint ventures, and corporate governance matters. He has advised a broad range of clients across industries, including technology, media, and telecom (TMT), industrial, chemicals, consumer goods and retail, energy, healthcare and pharmaceuticals, and real estate.Joe has also represented a number of companies in engagements with activist stockholders, including in responding to Starboard Value, Carl Icahn, Elliott Management, JANA Partners, Farallon Capital Management, and VIEX Capital.In addition, Joe has represented investment banking firms and financial advisors in a variety of significant transactions, including representation of Qatalyst Partners, Evercore Partners, Ducera Securities, and Solomon Partners.Select examples of Joe’s experience include the following representations:<ul><li>U.S. Silica Holdings, Inc. in its $1.85 billion sale to entities affiliated with Apollo Global Management.</li><li>Centuri Holdings and parent company Southwest Gas Holdings in Centuri’s $353 million IPO and concurrent private placement.</li><li>The rock band KISS and its co-founders Gene Simmons and Paul Stanley in the sale of substantially all rights related to KISS to Pophouse Entertainment.</li></ul><ul><li>Sekisui House, Ltd. in its $4.9 billion acquisition of M.D.C. Holdings, Inc.</li><li>Astellas Pharma Inc. in its $175 million acquisition of Propella Therapeutics, Inc.</li></ul><ul><li dir="ltr">Southwest Gas Holdings, Inc. in its adoption of a Tax-Free Spin Protection Plan.</li><li dir="ltr">Kyowa Kirin Co., Ltd. in its up to $477 million acquisition of Orchard Therapeutics plc, including CVR payment.</li><li dir="ltr">Sugar Foods Corporation in its sale to Pritzker Private Capital.</li></ul><ul><li>The News Lens Co., Ltd. in its $275 million business combination with Blue Ocean Acquisition Corporation.</li></ul><ul><li>Upland Software, Inc. in its adoption of a Tax Benefit Preservation Plan.</li></ul><ul><li>The Board of Directors and Special Committee of Toshiba in the $15.2 billion takeover of Toshiba by a consortium led by Japan Industrial Partners.</li><li>Infineon Technologies AG in the sale of its HiRel DC-DC converter business to Micross Components, Inc.</li></ul><ul><li>AgroFresh Solutions, Inc. in its $545 million going-private acquisition by Paine Schwartz Partners.</li><li>Unity Software Inc. in multiple transactions, including its all-stock $4.4 billion acquisition of ironSource and Unity’s concurrent $1 billion PIPE investment by Silver Lake and Sequoia, and in response to the related $13.6 billion unsolicited acquisition proposal from AppLovin Corporation.</li><li>Southwest Gas Holdings, Inc. in its defense against a hostile tender offer and proxy contest for board control by Carl Icahn, including adoption of a shareholder rights plan, and negotiated resolution.</li><li>Marrone Bio Innovations in its $244 million acquisition by Bioceres Crop Solutions Corp. in a stock-for-stock merger.</li><li>Paine Schwartz Partners, a global leader in sustainable food chain investing, in its new platform investment in Registrar Corp., a leading provider of supply chain compliance software and services to domestic and foreign food and beverage, medical device, pharmaceutical, and cosmetic customers.</li><li>Silver Crest Acquisition Corporation in its $1.7 billion business combination with TH International Limited (Tims China), a master franchisee and operator of Tim Hortons coffee shops in China.</li><li>Sky Harbour LLC in its $777 million business combination with Yellowstone Acquisition Company.</li><li>SoftBank Group Corp., as the largest investor in WeWork, in WeWork’s $9 billion business combination with BowX Acquisition Corp.</li><li>Leading provider of patient access and engagement platform in its sale to a publicly listed company.</li><li>ON Semiconductor Corporation in its adoption of a shareholder rights plan.</li><li>Whitestone REIT in its adoption of a shareholder rights plan.</li><li>Exantas Capital Corp. in the acquisition of its external management contract by ACRES Capital Corp. from C-III Capital Partners LLC, and $375 million financing from MassMutual and Oaktree Capital Management.</li><li>NTT Communications Corporation and Secure-24 in the acquisition of SymSoft Holding Inc. and Symmetry Holding Inc. from Symmetry Holdings, LLC, a portfolio company of Great Hill Equity Partners.</li><li>Kirin Holdings Company, Limited in its acquisition of approximately 40% of the capital stock of Thorne Holding Corp.</li><li>Rao’s Specialty Foods, Inc. in its sale to Sovos Brands, an affiliate of funds managed by Advent International.</li><li>JERA in its sale of a minority interest in Cricket Valley Energy Center to Development Bank of Japan.</li><li>JERA in the acquisition of a 43% stake in Cricket Valley Energy Center, the developer of a 1,000 MW natural gas-fired power plant located in Dover, New York.</li><li>Renesas Electronics in its $3.2 billion acquisition of Intersil Corporation.</li><li>DaVita HealthCare Partners in its acquisition of Renal Ventures Limited.</li><li>Inovalon Holdings, Inc. in its acquisition of Creehan Holding Co., Inc.</li><li>Inovalon Holdings, Inc. in its acquisition of Avalere Health, Inc.</li><li>GLP Pte. Ltd. in the acquisition of a $4.55 billion U.S. logistics portfolio from Industrial Income Trust.</li><li>JLB Group, LLC in its acquisition of Sneakz, LLC.</li><li>Futamura Chemical Co., Ltd. in its acquisition of the cellulose business of Innovia Films.</li><li>Kirin Holdings Company, Limited in its acquisition of approximately 24.5% of the capital stock of The Brooklyn Brewery Corporation.</li></ul>

Joseph Sulzbach

Partner

Tyler Miller is a corporate associate in the firm's New York office.Tyler’s practice focuses on representing public and private companies in corporate transactions, securities regulation, and governance matters. Tyler advises on domestic and cross-border mergers and acquisitions and private equity transactions in various industries, including technology and life sciences. He also represents issuers and underwriters in connection with capital markets transactions, including initial public offerings, debt and equity offerings, and SPAC transactions.Prior to joining Morrison Foerster, Tyler was a summer associate in the firm’s New York and Tokyo offices during the summer of 2019.Tyler earned his J.D. at the University of Michigan Law School, where he was an associate editor for Michigan Business & Entrepreneurial Law Review. During that period, he also studied abroad at Amsterdam Law School in the Netherlands.<h4 dir="ltr">Representative Experience</h4><ul><li>Arm Holdings plc, the world’s leading semiconductor IP company, in its blockbuster $5.22 billion USD IPO on Nasdaq, the largest IPO of 2023.</li><li>Crinetics Pharmaceuticals in multiple transactions, including an upsized $500 million public offering of common stock and a $350 million at-the-market equity offering.</li><li>Alexandria Real Estate Equities, Inc. in numerous public offerings of debt and equity, resulting in proceeds totaling over $8 billion.</li><li>Qatalyst Partners as financial advisor in multiple transactions, including (i) Zuora, Inc.’s $1.7 billion sale to Silver Lake and GIC, (ii) WalkMe Ltd.’s $1.5 billion sale to SAP SE, (iii) HashiCorp, Inc.’s $6.4 billion sale to IBM, (iv) ANSYS, Inc.’s $35 billion sale to Synopsys, Inc., (v) New Relic, Inc.’s $6.5 billion sale to Francisco Partners and TPG, (vi) Coupa Software Incorporated’s $8 billion sale to Thoma Bravo, (vii) Zendesk, Inc.’s $10.2 billion sale to an investor group led by Permira and Hellman & Friedman, and (viii) Anaplan, Inc.’s $10.7 billion sale to Thoma Bravo.</li></ul><ul><li dir="ltr">Infineon Technologies AG in the sale of its HiRel DC-DC converter business to Micross Components, Inc.</li><li dir="ltr">Unity Software Inc. in its all-stock $4.4 billion acquisition of ironSource and in its concurrent $1 billion PIPE investment by Silver Lake and Sequoia.</li><li dir="ltr">Endurance Acquisition Corp. in its $200 million initial public offering and subsequent $813 million business combination with SatixFy Communications, Ltd. (NASDAQ: SATX).</li><li dir="ltr">Vimian Group AB in its acquisition of the assets of New Generation Devices, Inc.</li><li dir="ltr">Antarctica Capital in multiple transactions, including its acquisition of a controlling interest in Descartes Labs.</li><li dir="ltr">Solomon Partners as financial advisor to Aries I Acquisition Corporation in its business combination with Infinite Assets, Inc.</li><li dir="ltr">Steadfast Apartment REIT, Inc. in its merger with and into Independence Realty Trust, Inc. (NYSE: IRT), with IRT surviving as the continuing public company.</li><li dir="ltr">Lyons Magnus in its acquisition of Phillips Syrups and Sauces.</li><li dir="ltr">Axalta Coating Systems in its acquisition of U-POL Holdings Limited for approximately $590 million.</li><li dir="ltr">BofA Securities, J.P. Morgan Securities, and Deutsche Bank Securities in the underwritten secondary offering of shares of BrightSpire Capital, Inc. (NYSE: BRSP) by a stockholder affiliated with DigitalBridge Group, Inc. (NYSE: DBRG).</li><li dir="ltr">Honey Birdette, the fast-growing, luxury lingerie and lifestyle brand, and its sellers, in its $333 million sale to PLBY Group, Inc. (NASDAQ: PLBY), a leading pleasure and leisure lifestyle company and owner of Playboy magazine.</li><li dir="ltr">Verisem BV and Paine Schwartz Partners in connection with the sale of Verisem to Syngenta’s vegetable seeds business, part of Syngenta Group.</li><li dir="ltr">Rakuten Medical in its $166 million Series D preferred stock financing.</li></ul>

Tyler Miller

Associate

Mohammed Alismail is a Corporate associate in the New York office of Morrison Foerster.Mohammed’s practice focuses on advising on a range of corporate matters, including public and private M&A, private equity transactions, and general corporate and securities matters.Prior to joining MoFo, Mohammed spent nearly two years at the Saudi office of another international law firm, where he advised on domestic and inbound M&A transactions, as well as general corporate, securities and antitrust matters.Mohammed received his LL.B. from the University of Reading (UK) and his LL.M. from the NYU School of Law. Mohammed is a native Arabic speaker.

Mohammed Alismail

Mergers + Acquisitions

Public Company Advisory & Governance