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With Esmark Case, SEC Returns Focus To Tender Offer Rules

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Spencer Klein, Joe Sulzbach and Hannah Yang authored a Law360 article discussing the September 6, 2024 charges by the U.S. Securities and Exchange Commission against Esmark Inc. and its founder, chairman and former CEO James Bouchard in connection with Esmark's failed bid to acquire United States Steel Corp.

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Spencer Klein, Joe Sulzbach and Hannah Yang authored a Law360 article discussing the September 6, 2024 charges by the U.S. Securities and Exchange Commission against Esmark Inc. and its founder, chairman and former CEO James Bouchard in connection with Esmark's failed bid to acquire United States Steel Corp.The SEC focused on Part (c) of Rule 14e-8, which specifically prohibits a person from publicly announcing a tender offer without a reasonable belief that the person will have the means to purchase securities to complete the offer.This case serves as a reminder of the SEC's active regulatory oversight of tender offers, and indicates a renewed focus under Rule 14e-8 on truthful tender offer communications with respect to adequate financial resources at the time they are made.Read the <a href="https://media2.mofo.com/v3/assets/blt5775cc69c999c255/blt981b25e98f543bba/6728e746f66b726d009bbf3d/241015-with-esmark-case-sec-returns-focus-to-tender-offer-rules.pdf" target="_blank">full article</a>.

With Esmark Case, SEC Returns Focus To Tender Offer Rules

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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

Hannah Yang is a corporate associate in the New York office.Hannah represents publicly and privately held companies in a variety of corporate and securities law matters. She advises on domestic and cross-border mergers and acquisitions and private equity transactions in various industries. She also represents issuers and underwriters in connection with securities regulation, governance matters, and securities offerings, including initial public offerings, private securities offerings under Rule 144A, and debt and equity offerings.Hannah earned her J.D. from New York University School of Law, where she was awarded the White & Case Award in Law & Social Entrepreneurship. While there, she served as the Articles Editor for the NYU Environmental Law Journal and as a research assistant at the Grunin Center for Law and Social Entrepreneurship.

Hannah Yang

Associate

Rebecca Chacon-Naranjo is a corporate associate in the New York office of Morrison Foerster.Rebecca has experience in corporate and securities transactions, including mergers and acquisitions, capital markets, company side venture capital, financial advisory, and general corporate governance matters. Prior to joining Morrison Foerster, Rebecca served as the UN Administrative and Legal Intern to the Director of Education at the United Nations Refugee Agency.Rebecca earned her L.L.M. from Columbia Law School and is a Harlan Fiske Stone Scholar. She also holds a B.S. in International Law and Middle Eastern Studies from Sciences Po Paris and an L.L.B. from Science Po Paris and Columbia Law School in Business Law and Governance, cum laude.She is fluent in Spanish, Italian, and French.

Rebecca Chacon Naranjo

Sahana Ragunathan is a corporate associate in the New York office of Morrison Foerster.Prior to joining Morrison Foerster, Sahana worked as an analyst for Goldman Sachs, where she supported global cross-asset derivative desks for institutional clients across Asia and EMEA. She also served as a summer intern with Lawyers for Children.﻿Sahana earned her J.D. from Columbia Law School, where she served as a Staff Member for the Columbia Business Law Review. She received her B.B.A. from Christ University.She is proficient in Hindi and Tamil.

Sahana Ragunathan

Mergers + Acquisitions

Public Company Advisory & Governance