Daily Journal Western M&A/Private Equity Forum

Thursday, October 11, 2018 - Friday, October 12, 2018

12:00 AM BST - 12:00 AM BST

Omni San Francisco 500 California Street San Francisco, CA 94104

500 California Street

San Francisco , USA

Paul Hastings is proud to sponsor the 9th Annual Daily Journal Western M&A/ Private Equity Forum on October 11, 2018 at the Omni San Francisco.

Partner Mike Kennedy will be participating on the Private Equity Acquisitions panel, which 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.

Registration & Breakfast

8:00 am - 8:45 am

Opening Remarks

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/healthcare

  • 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, Par__tner & C__o-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

Taylor Henricks, Head of West Coast Software M&A,  Morgan Stanley

Colin Ryan, Managing Director, Goldman Sachs


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

  • Earnouts

    • 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


G**regory 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

A Conversation between Cindy McAdam, Partner and General Counsel, Ribbit Capital and Dave Healy, Partner and Co-Chair of the Mergers & Acquisitions Group at Fenwick & West

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

  • Indemnity:

  • 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

  • Double scrapes

  • Representations:

  • 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

  • HR:

  • Forced re-vesting

  • 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

Networking Reception

3:45 pm - 5:00 pm

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