Capital Markets/Securities Transactions

Calfee’s Securities and Capital Markets practice offers a wealth of experience representing public companies, including NYSE and NASDAQ-listed issuers, as well as a strong history, unique in our region, of representing financial services providers such as banks, broker-dealers and investment advisors with respect to capital markets and securities and regulatory compliance matters.

This experience is evidenced by our firm’s representation of issuers and underwriters in connection with nearly 200 public and Rule 144A debt and equity offerings since 1981, with aggregate proceeds from such offerings of approximately $43 billion.  Our securities expertise, coupled with long-standing investment banking relationships, drives a thriving capital markets practice at Calfee.

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Representative of our strong historical experience in the capital markets is our experience as the long-standing underwriters’ counsel in connection with multiple debt, preferred and common equity offerings by Welltower Inc. (formerly Health Care REIT), a member of the S&P 500 with a market capitalization of approximately $26 billion.  Since May 1996, we have represented numerous underwriters including B of A Merrill Lynch, Goldman Sachs Co., J.P. Morgan, Morgan Stanley, Deutsche Bank and UBS Investment Bank, with respect to 58 Welltower offerings.  To give an indication of our level of activity in this role, since 2010, we have served as underwriters counsel for 22 Welltower offerings raising approximately $18 billion in proceeds.

Consistent with Calfee’s Capital Markets expertise, we have substantial experience in guiding issuers through the Initial Public Offering (“IPO”) process, as we have represented issuers and underwriters with respect to 20 IPOs completed since 1991.  Our firm has participated in most of the IPOs completed in Northeast Ohio during the past 25 years, as well as a number of IPOs in other parts of Ohio and outside of the state.

Practice members also assist clients with public and private offerings of securities, regulatory compliance and reporting, proxy solicitations and proxy fights, takeover preparedness and public company M&A activities, tender offers and securities litigation before the Securities and Exchange Commission, self-regulatory organizations, and federal and state courts. We also work with investment bankers in connection with fairness opinions, mergers and acquisitions, financings and other engagements.

In addition to serving on numerous advisory boards and boards of directors of its clients, Calfee lawyers are active in their local communities and also have had many articles published on various M&A, securities and corporate governance topics.  The Securities and Capital Markets practice group count amongst its members: an adjunct law professor on M&A at The Cleveland State University School of Law and member of the Board of Advisors and Editor of Corporate Counsel.net (John J. Jenkins); and a member of the NASDAQ Stock Market, Inc. Market Operations Review Committee, Distinguished Practitioner in Residence teaching courses in Securities Regulation and Law, Theory and Practice in the Financial Markets at Case Western Reserve University School of Law and author of a comprehensive four volume treatise on state securities law.

 

Transactional/Counseling Engagements

Calfee’s Securities and Capital Markets group has advised our public company clients in connection with a number of complex transactions, securities compliance and corporate governance matters.  Notable public company projects in the past few years include:

  • Acted as counsel to The J.M. Smucker Company with respect to its approximately $3.0 billion acquisition of the Folgers Coffee Business from Proctor & Gamble in a complex “Reverse Morris Trust” structure. P&G consolidated its Folgers Coffee Business under a new wholly-owned subsidiary of P&G ("Newco"). Prior to the split-off of Newco, P&G received a dividend of $350 million in cash from Newco.  On the closing date of the transaction, P&G split-off Newco to P&G shareholders in an exchange offer.  Newco then was merged with Merger Sub (a wholly owned subsidiary of The J. M. Smucker Company), with Newco as the surviving corporation, and holders of Newco common stock (the P&G shareholders electing to participate in the split-off) were issued Smucker common shares.
  • Advised RPM International Inc. in connection with the corporate, strategic and financing aspects associated with the Chapter 11 reorganization proceeding of two non-operating subsidiaries in order to resolve asbestos claims associated with Bondex International, Inc.
  • Advised several clients, including Agilysys, Inc., LNB Bancorp, Inc. and DATATRAK International Inc. in connection with proxy contests with activist shareholders and advised Invacare Corporation in connection with responding to shareholder proposals and related shareholder discussions. Representations included significant counseling on proxy solicitation rules and regulations and interactions with the SEC on behalf of our clients, as well as substantial involvement in strategic considerations and shareholder communications in connection with such contests and proposals (including “fight letters” and ISS/related shareholder service recommendations) and settlement negotiations and documentation.
  • Acted as counsel to LNB Bancorp, Inc. and National Bancshares Corporation in connection withtheir public company merger transactions completed in 2015.
  • Acted as special counsel to MTD Products Inc. in connection with the negotiated repurchase of a significant minority stake in MTD.
  • Advised LNB Bancorp, Inc. in its issuance of $25 million in preferred stock to the U.S. Treasury under the TARP Capital Purchase Program, and the subsequent resale of the preferred stock by the U.S. Treasury in a public offering. Further advised LNB regarding the compensation restrictions and related disclosure considerations applicable to recipients of TARP funds.
  • Advised DATATRAK International, Inc. in connection with the delisting of its Common Shares from NASDAQ and the subsequent deregistration of its securities under the Securities Exchange Act of 1934. In connection with such engagement, advised DATATRAK with respect to various aspects of the deregistration process, including preparing and negotiating a no-action request with the SEC in order to complete the deregistration process. 

Recent Public Offerings

Consistent with our long-standing capital markets practice, during the past few years the group represented issuers and underwriters in the following public and 144A offerings:

  • As described above, represented Underwriters in connection with numerous public offerings for Welltower Inc. (formerly Health Care REIT) (NYSE: HCN), including two common stock offerings in 2014 and a common stock and two Senior Note offerings in 2015. The 2015 equity offering had the distinction of being the largest overnight common stock offering completed since 2013. Likewise, the 2014 offerings were the largest overnight common stock offerings completed by a NYSE-listed company in 2014. 
  • Acted as counsel to Fairmount Santrol Holdings Inc. in connection with a Common Sock offering raising in excess of $160 million.
  • Acted as counsel to RPM International Inc. in connection with Senior Note and Convertible Note offerings raising approximately $1.9 billion.
  • Acted as counsel to Invacare Corporation in connection with a Convertible Note offering raising $150 million.
  • Acted as counsel to The J.M. Smucker Company in connection with a Senior Note offering raising $750 million.
  • Acted as counsel to Chart Industries, Inc. in connection with a Convertible Note offering raising $250 million.
  • Represented Underwriters (including Barclays Capital, Credit Suisse, Goldman Sachs & Co., J.P. Morgan, KeyBanc Capital Markets, Morgan Stanley, RBS Greenwich Capital, Scotia Capital, and UBS Investment Bank as joint book -running managers) in connection with multiple debt offerings for Ohio Edison, Toledo Edison and The Illuminating Company, electric utilities and subsidiaries of FirstEnergy Corp., raising more than $1.2 billion.
  • Represented Initial Purchasers (Barclays Capital, Goldman Sachs & Co. and P. Morgan as joint book-running managers) in connection with a 144A offering of $400 million aggregate principal amount of Senior Notes of American Transmission Systems, Incorporated, a regulated transmission utility and subsidiary of FirstEnergy Corp.
  • Served as Ohio counsel for entities affiliated with Ohio Edison, Toledo Edison and The Illuminating Company (the “Issuers”) in connection with an approximately $450 million public offering of pass-through certificate in trusts formed in connection with this complicated stranded cost securitization.