Securities Law Alert
In This Edition:• Supreme Court: Upholds Liability Under Rules 10b-5(a) and (c) for an Individual Who Disseminated but
Was Not the “Maker” of a Fraudulent Statement• Southern District of New York: Plaintiffs’ Pleadings May Rely on Allegations in an UnadjudicatedComplaint• Southern District of New York: Digital Coins Sold in an Initial Coin Offering to Finance a Blockchain Are
Securities Under the Howey Test
• Delaware Supreme Court: Business Judgment Rule Did Not Apply to a Controlling Stockholder
Transaction Where the Parties Allegedly “Set the Field of Play for the Economic Negotiations” Before theTransaction Was Conditioned on MFW’s Procedural Protections• Delaware Supreme Court: Holds the Chancery Court Erred in Appraising Shares Using the UnaffectedMarket Price, Rather Than the Merger Price Less Synergies, in an Arm’s Length Transaction Following a
Fair Sales Process
April 2019

SimpsonThacher’s litigators
are “[u]niformly
excellent in all
respects.”–The Legal 500 2019

Simpson Thacher & Bartlett LLPSupreme Court: Upholds
Liability Under Rules 10b-5(a)and (c) for an Individual Who
Disseminated but Was Not
the “Maker” of a Fraudulent
Statement
On March 27, 2019, the Supreme Court
held that an individual who disseminates
false or misleading statements with anintent to defraud can be found to haveviolated the “fraudulent scheme” provisionsof Rules 10b-5(a) and (c) even if such anindividual did not “make” the statements andis therefore outside the scope of subsection(b) of Rule 10b-5. Lorenzo v. SEC, 139
S. Ct. 1094 (2019) (Breyer, J.). A 6-2
Justice majority affirmed the D.C. Circuit’s
conclusion that petitioner-defendant is liablefor knowingly conveying his boss’s false

statements to potential investors. JusticeKavanaugh was recused from the case, as hedissented from the D.C. Circuit’s ruling.

Background
SEC Rule 10b-5 proscribes three types of
securities fraud: subsection (a) makes it
unlawful “[t]o employ any device, scheme or
artifice to defraud”; subsection (b) prohibits
making a false statement or omitting
information that would be misleading toan investor; and subsection (c) prohibits
engaging in fraudulent or deceitful conduct.
In 2013, the SEC initiated an administrative
enforcement action against a representativeof a registered broker-dealer, alleging that
he intended to defraud potential investors
when he sent two emails to potential
investors, “at the request” of his boss, making
misrepresentations and omitting material
information. An SEC administrative law judge

found that defendant’s conduct amounted tooffenses under all three provisions of Rule10b-5. The SEC affirmed this ruling in 2015,
issuing a lifetime bar prohibiting defendantfrom working in the securities industry; andimposing a $15,000 monetary penalty.
Defendant appealed to the D.C. Circuit, and in2017 the court reversed the SEC, finding that
although defendant had the requisite intent to
defraud, defendant was not the “maker” of thestatements under the test set forth in Janus
Capital Group v. First Derivative Traders,
564 U.S. 135 (2011).1

Defendants Can Face Primary
Liability Under Rules 10b-5(a)and (c) for Disseminating False or
Misleading Information
In an opinion delivered by Justice Breyer,
the Court concluded that the language ofsubsections (a) and (c) of Rule 10b-5 is“sufficiently broad to include within theirscope the dissemination of false or misleading
information with the intent to defraud.”
The Court emphasized that defendant knew
the emails he sent to potential investors
contained materially false information, hesent them in his capacity as vice presidentof an investment banking company, andhe invited follow-up questions. Whileacknowledging that borderline cases could
involve difficult questions concerning thescope of these provisions, which should beread narrowly to avoid liability for tangential
actors (for example, a mailroom clerk), theCourt determined that there was “nothingborderline” about defendant’s actions inthis case.
The Court further addressed three primaryarguments advanced by defendant andarticulated in a dissenting opinion penned
by Justice Thomas and joined by JusticeGorsuch. First, both defendant and thedissent posited that subsections (a) and(c) of Rule 10b-5 address only “scheme
liability claims,” not liability for false
statements, and that to hold otherwise
would render subsection (b) “superfluous.”
Citing dictionary definitions and historicalprecedent, the dissent reasoned that
subsection (a) cannot impose liability fora mere misstatement that does not involve“some form of planning, designing, devising,
1. Please click here to read our prior discussion of the Supreme
Court’s decision in Janus.

or strategizing.” The dissent further opinedthat while subsection (c) appears to proscribe
broader conduct, it must not be construed
to encompass primary liability solely for
misstatements because that conduct is
specifically covered by the language insubsection (b) of Rule 10b-5.
The majority, however, held that thesubsections of Rule 10b-5 are not mutually
exclusive; to the contrary, the Court andthe SEC have always understood that these
subsections, as well as related provisions of
the securities laws, overlap and may prohibit
the same conduct in certain circumstances.
Second, defendant and the dissent both raiseda concern that the Court’s decision in Janus
would be a “dead letter” if the Court were to
apply subsections (a) and (c) to fraudulent
misstatements. The majority dismissed thisconcern, noting that Janus did not address
the application of Rule 10b-5 to disseminationof false or misleading information, andfurther noted that Janus would still haveforce and preclude liability where an
individual neither makes nor disseminateswith fraudulent intent the false or misleading
information—“provided, of course, that theindividual is not involved in some other formof fraud.”
Finally, the majority addressed the dissent’s
concern that imposing liability in this casewould improperly result in an individual
who disseminates but does not “make” amisstatement being held both primarily
liable under subsections (a) and (c), as
well as secondarily liable under subsection(b) of Rule 10b-5. The Court noted, “[I]t ishardly unusual for the same conduct to be a
primary violation with respect to one offense
and aiding and abetting with respect toanother.” Further, the Court explained that a
construction of Rule 10b-5 that would impose
only secondary liability on an individual who
fraudulently disseminates false statements
would risk allowing such an individual to“escape liability” altogether (for example,
where the “maker” of the statement is found
not to have held the requisite intent, andthere is therefore no primary violation forthe disseminator to have aided and abetted).
The Court stated: “That is not what Congress
intended. Rather, Congress intended to rootout all manner of fraud in the securities
industry. And it gave to the [SEC] the tools toaccomplish that job.”2

Southern District of New
York: Plaintiffs’ Pleadings
May Rely on Allegations in an
Unadjudicated Complaint
On March 29, 2019, the Southern District of
New York held that plaintiffs had adequately
pled scienter based on allegations that wereborrowed from an unadjudicated complaint
in a suit filed by a group of state attorneys
general (the “State AG action”). In re Mylan
Sec. Litig., 2019 WL 1427430 (S.D.N.Y.
2019) (Oetken, J.). The court rejected
defendants’ contention that these allegations“must be disregarded” because they were“taken from the State AG action.” The court
found that “it makes little sense to say that
information . . . which a complaint could
unquestionably rely on if it were mentioned
in a news clipping or public testimony isimmaterial simply because it is conveyed in
an unadjudicated complaint.” Id. (quoting
In re Bear Stearns Mortg. Pass-ThroughCertificates Litig., 851 F. Supp. 2d 746(S.D.N.Y. 2012)).
Defendants pointed to several decisions inwhich courts in the Southern District of New
York “have held that unproven allegations
taken from a complaint in another matter do
not constitute factual allegations and are thus
immaterial under Rule 12(f).”2 But the court
found that “the weight of authority holds
that plaintiffs may base factual allegations
on complaints from other proceedings
because ‘neither Circuit precedent nor logic
supports . . . an absolute rule’ against doingso.” Id. (quoting Youngers v. Virtus Inv.
Partners, 195 F. Supp. 3d 499 (S.D.N.Y.
2016)). The court explained that “[t]o theextent the cases on which [defendants
rely] suggest that Second Circuit precedentrequires a different result, other cases in thisDistrict have cogently explained that thosedecisions emanate from a misconstruction of
Circuit precedent.”
2. See In re CRM Holdings Sec. Litig., 2012 WL 1646888(S.D.N.Y. 2012) (“Plaintiffs’ citation to unproven allegations
made in [other] complaints do not constitute factual
allegations. Second Circuit case law is clear that paragraphs in
a complaint that are either based on, or rely on, complaints inother actions that have been dismissed, settled, or otherwise
not resolved, are, as a matter of law, immaterial within themeaning of [Rule] 12(f).”); Janbay v. Canadian Solar, 2012
WL 1080306 (S.D.N.Y. 2012) (“Allegations contained in
the complaint of an unrelated matter . . . cannot establish
the particularized facts necessary to support this securities
fraud claim.”); Low v. Robb, 2012 WL 173472 (S.D.N.Y.
2012) (finding it “well settled under Second Circuit law”
that plaintiffs cannot rely on allegations in unadjudicatedcomplaints).

The court noted that the Southern District of
New York’s decision in Strougo v. Barclays,
105 F. Supp. 3d 330 (S.D.N.Y. 2015), was“particularly relevant.” There, the court“permitt[ed] plaintiffs to borrow allegations
from . . . a credible complaint” brought by the
New York Attorney General (“NYAG”). The
Strougo court found it significant that the
NYAG complaint was “based on facts obtained
after an investigation” and plaintiffs’ counsel“ha[d] reached out to attorneys at the NYAG
to verify the allegations” before filing suit.
The Mylan court found that the case before
it involved “[t]he same circumstances” asin Strougo because the allegations at issue“originate[d] from the State AG action, were
the result of a government investigation, andwere verified by [p]laintiffs’ counsel.” The
Mylan court therefore “treat[ed] allegations
borrowed from the State AG complaint as aproper basis for the pleadings.”

Southern District of New York:
Digital Coins Sold in an Initial
Coin Offering to Finance a
Blockchain Are Securities
Under the Howey Test
On March 31, 2019, the Southern District of
New York held that digital coins sold in an
initial coin offering (“ICO”) to finance a new
blockchain were “securities” pursuant to thetest set forth in SEC v. W.J. Howey Co., 328
U.S. 293 (1946). Balestra v. ATBCOIN, 2019
WL 1437160 (S.D.N.Y. 2019) (Broderick, J.).
The court explained that “[u]nder Howey, anoffering is an investment contract security
where there is (i) an investment of money;(ii) in a common enterprise; (iii) with the
expectation of profits to be derived solely
from the efforts of others.” The court rejected
defendants’ contention that the second
and third prongs of the Howey test were
not met. The court explained that “[i]nanalyzing whether an investment satisfies
the Howey test, form should be disregarded
for substance,” and “the emphasis should
be on the economic realities underlying
a transaction.”3

Howey’s “Common Enterprise”
Prong Does Not Require Pro Rata
Profit Sharing
The court noted that plaintiffs can satisfy
the “common enterprise” requirement“by pleading the existence of horizontal
commonality,” which exists when “thefortunes of each investor in a pool of investors
are tied to one another and to the success ofthe overall venture.” The court recognizedthat “a finding of horizontal commonality
requires a sharing or pooling of funds.” Here,the court found that the “common enterprise”
requirement was met because plaintiffs
alleged that “the funds raised through the ICO
were pooled together to facilitate the launchof the [blockchain], the success of which, inturn, would increase the value of” the digitalcoins sold in the ICO.
Defendants argued that there was no
horizontal commonality because the digitalcoins “did not entitle purchasers to a pro
rata share of the profits derived from any[company]-managed transaction.” But the
court found that “a formalized profit-sharing
mechanism is not required for a finding ofhorizontal commonality.” The court notedthat the SEC had recently concluded that
digital assets offered in an ICO to fund an
iPhone application constituted securities“even though the terms of the offer did notprovide for a pro rata distribution of profits.”
The SEC determined that “investors were
led to believe that as more individuals began
using [the iPhone application], the value ofinvestors’ [digital assets] would increase.”
The court found that the digital coins at
issue in the case before it were also securities
because the value of the digital coins “wasdictated by the success of [the company’s]
enterprise as a whole, thereby establishinghorizontal commonality.”

Howey’s Third Prong Was Met
Because Defendants Alone
Controlled the Success of theBlockchain, Which in Turn
Determined the Value of theDigital CoinsThe court explained that “[t]he third prongof the Howey test is satisfied where investors
have been led to expect profits solely fromthe efforts of the promoter.” The court notedthat in U.S. v. Leonard, 529 F.3d 83 (2d Cir.
2008), the Second Circuit cautioned that“the word ‘solely’ should not be construed
as a literal limitation.” The Second Circuit
further instructed that courts must “consider
whether under all the circumstances, thescheme was being promoted primarily as
an investment.” Here, the court found thatplaintiffs adequately alleged that purchasersof the digital coins “reasonably believed thatthose coins would increase in value based
primarily on [d]efendants’ entrepreneurial
and managerial efforts” with respect to theblockchain.

Delaware Supreme Court:
Business Judgment Rule Did
Not Apply to a Controlling
Stockholder Transaction
Where the Parties Allegedly“Set the Field of Play for the
Economic Negotiations”
Before the Transaction Was
Conditioned on MFW’s
Procedural Protections
On April 11, 2019, the Delaware Supreme
Court reversed the dismissal of a shareholder
derivative suit alleging that the directors
breached their fiduciary duties in approving
a controlling stockholder transaction. Olenik
v. Lodzinski, 2019 WL 1497167 (Del. 2019)(Seitz, J.) (Olenik II). The Delaware Supreme
Court held that the Chancery Court erred inapplying the business judgment standardof review because plaintiffs alleged that thecompany and its controlling stockholder“substantially negotiated the financial state ofplay” before the transaction was conditionedon the procedural protections set forth inKahn v. M&F Worldwide Corp., 88 A.3d 635(Del. 2014) (MFW).3
3. Please click here to read our discussion of the Delaware
Supreme Court’s decision in MFW.
4

Background
Over the course of more than eight months inlate 2015 and 2016, the company engaged in
discussions with its controlling shareholder
concerning the possibility of acquiring an
entity controlled by the same shareholder.
These discussions included a “joint exercise”
by the acquiring company and its controllingshareholder to value the target company.
This “joint exercise” yielded a valuation of$305 million in the acquiring company’s firstpresentation to its controlling shareholder,
and $335 million in the second presentation.
On August 19, 2016, the acquiring company’s
CEO submitted a letter to the target company(the “Offer Letter”) proposing the acquisitionand conditioning the transaction on MFW’s
procedural protections, namely, approval by
the acquiring company’s special committee
and approval by a majority of the acquiring
company’s minority stockholders. The “firstformal offer” submitted in the Offer Letter“reflected an equity valuation for [the target
company] of about $300 million, and the final
deal reflected an equity valuation for [thetarget company] of around $333 million.”
One of the acquiring company’s minority
stockholders subsequently filed a shareholder
derivative suit; defendants moved todismiss. In a decision dated July 20, 2018,the Delaware Chancery Court held that thesubmission of the Offer Letter “marked
the appropriate time at which to announce
the MFW ab initio conditions.” Olenik v.
Lodzinski, 2018 WL 3493092 (Del. Ch. July20, 2018). The court reasoned that although
the discussions preceding the Offer Letter
were “extensive,” they “never rose to the levelof bargaining” but were instead “entirely
exploratory in nature.”4 The court applied
4. Please click here to read our discussion of the Delaware
Chancery Court’s decision in Olenik.

the business judgment rule and dismissed
plaintiffs’ complaint; plaintiffs appealed.
While the appeal was pending, the Delaware
Supreme Court issued its decision in Floodv. Synutra Int’l, 195 A.3d 754 (Del. 2018),
in which it held that MFW’s ab initio
requirement is satisfied “so long as thecontroller conditions its offer on the key
protections” before the commencement of“substantive economic negotiations withthe controller.”5

The Business Judgment Rule Did
Not Apply Because the Purchase
Price Parameters Were Allegedly
Set Before the Transaction Was
Conditioned on MFW’s Procedural
Protections
The Delaware Supreme Court relied on
Synutra to hold that the Chancery Court“erred when it found that MFW’s dual
protections had been agreed to from the deal’s
inception.” The court determined that the
Chancery Court “failed to credit reasonable
inferences from well-pled facts that the MFW
procedural protections were not put in place
until after almost eight months of substantive
economic dealings among the parties.” The
Delaware Supreme Court acknowledgedthat “some of the early interactions between[the acquiring company and its controllingshareholder] could fairly be described as
preliminary discussions outside of MFW’s‘from the beginning’ requirement.” However,the court found plaintiffs adequately allegedthat “the preliminary discussions transitioned
to substantive economic negotiations when
the parties engaged in a joint exercise tovalue” the target company. The Delaware
Supreme Court found that “these valuations
set the field of play for the economic
negotiations to come by fixing the range inwhich offers and counteroffers might bemade.” The court observed that the final
deal reflected an equity valuation for thetarget company of $333 million—just shy of
the $335 million valuation presented in theacquiring company’s second presentation to
the controlling stockholder.
The Delaware Supreme Court rejected
defendants’ contention that the Chancery
Court’s decision should nevertheless be
5. Please click here to read our discussion of the Delaware
Supreme Court’s decision in Synutra.
5affirmed because the alleged controllingstockholder “shed its controller status”
through a reduction in stock ownership
before the submission of the Offer Letter.
The Delaware Supreme Court foundthat MFW still governed the transaction
because the stockholder “controlled [thecompany] . . . and also held a majority of [thecompany’s] stock while substantive economic
negotiations took place that fixed the field ofplay for the eventual transaction price.”
The court reversed the Chancery Court’s
decision, and remanded for further
proceedings consistent with its opinion.

Delaware Supreme Court:
Holds the Chancery Court
Erred in Appraising Shares
Using the Unaffected Market
Price, Rather Than the Merger
Price Less Synergies, in anArm’s Length Transaction
Following a Fair Sales Process
On April 16, 2019, the Delaware Supreme
Court held that the Chancery Court abused
its discretion in appraising a company’s
shares using the unaffected market price,
rather than the merger price less synergies,
in an arm’s length transaction following afair sales process. Verition Partners MasterFund v. Aruba Networks, 2019 WL 1614026(Del. 2019) (per curiam). The Chancery Court
found the deal price less synergies valuation
unreliable because “it needed to make an
additional deduction . . . for unspecified‘reduced agency costs.’” But the Delaware
Supreme Court determined that there was noevidence of any agency cost reductions that“were not already captured by [the acquirer’s]
synergies estimate.”
The Delaware Supreme Court noted thata stock’s market price “is an important
indicator of its economic value.” However,the court underscored that when a company
is sold in an arm’s length transaction thatis preceded by extensive due diligence, “theprice that results . . . is even more likely to
be indicative of so-called fundamental value”
than the unaffected market price.

BackgroundThe company at issue (Aruba) was acquired
for $24.67 per share in 2015. Before accepting
the acquirer’s (HP’s) offer, the company
conducted a pre-signing market check withfive other potential bidders, none of whichshowed any interest. The company’s stock
price rose twice between its acceptance of
the acquirer’s offer and the signing of the
final merger agreement. First, the shareprice increased from $18.37 to $22.24
when news of the transaction was leaked
to the press. Second, the stock price rose to$24.81 upon the company’s release of its
quarterly earnings, which exceeded analyst
expectations. The final merger agreement
permitted consideration of a superior inboundoffer, but no competing bidder emerged.

Following the merger, certain shareholders
sought appraisal. The appraisal petitioners
argued that the fair value of their shares at
the time of the merger was $32.57 per share,
based on a discounted cash flow (DCF)
analysis. The company contended that the fairvalue was $19.10 per share using a deal priceless synergies valuation.

Chancery Court Relies on the
Unaffected Stock Price Because ofDifficulties Estimating Synergies in
the Form of Reduced Agency Costs
The Chancery Court found that the fair valueof the company’s shares at the time of themerger was $17.13 per share, based on thecompany’s average share price during thethirty days prior to the market leak. Verition
Partners Master Fund v. Aruba Networks,
2018 WL 922139 (Del. Ch. 2018). The court
recognized that the Delaware Supreme
Court’s decisions in DFC Global Corp. v.
Muirfield Value Partners, 172 A.3d 346 (Del.
2017), and Dell v. Magnetar Global Event
6

Driven Master Fund, 177 A.3d 1 (Del. 2017),“teach that the deal price is . . . entitled to
substantial weight.”6 The Chancery Court
noted that the deal was “an arm’s-lengthtransaction” in which the merger price“contained synergies,” and “petitioners failed
to identify a bidder who would pay morethan” the acquirer. The Chancery Court
therefore determined that “the deal price inthis case operates as a ceiling for fair value.”

Delaware Supreme Court Holds
That the Fair Value Is Merger Price
Less Synergies

The Chancery Court then acknowledged
challenges in calculating the amount ofsynergies to deduct from the deal price,and particularly in how to account for(a) academic literature suggesting thata deduction for “reduced agency costs”
should be made, and (b) Dell’s emphasis onreal world indicators of value. Rather than
accepting the company’s $19.10 valuation(which was generally consistent with DCF
valuations conducted by the company’s

In reviewing the Chancery Court’s analysis,
the Delaware Supreme Court first reaffirmedthat “fair value” under the Delaware appraisal
statute is the “going concern” value—i.e.,
excluding any value from potential acquisitionsynergies. The Delaware Supreme Court thenopined that the Chancery Court abused its
discretion by attempting to deduct reduced
agency costs under the facts of the case. The
Delaware Supreme Court did not outright
reject academic literature which has argued
that “replacing a dispersed group of owners
with a concentrated group of owners canbe expected to add value because the newowners are more capable of making suremanagement isn’t shirking or diverting thecompany’s profits.” However, the Delaware
Supreme Court found that “unlike a private
equity deal, the merger at issue in this casewould not replace [the company’s] publicstockholders with a concentrated group ofowners; rather, it would swap out one setof public stockholders for another.” The
Delaware Supreme Court stated that “theCourt of Chancery’s belief that it had todeduct for agency costs ignores the realitythat [the acquirer’s] synergies case likely
already priced any agency cost reductions it
may have expected.”financial advisors), the court estimated thecompany’s merger price minus synergies
valuation at $18.20 per share by applying
certain academic literature. The court
then disregarded this estimate because it“continues to incorporate an element of value
resulting from the merger” in the form of“reduced agency costs that result from unitary(or controlling) ownership,” again relying
on academic literature. In the absence of a
precise way to calculate reduced agency costs,
the Chancery Court looked to the unaffected
stock price of $17.13 per share, as a “directroute” to valuation and entitled to substantial
weight under DFC and Dell. The court foundthat both DFC and Dell “endorse using
the market price of a widely traded firm as
evidence of fair value.”

6. Please click here to read our discussion of the Delaware
Supreme Court’s decision in DFC and here to read our
discussion of the Delaware Supreme Court’s decision in Dell.

The Delaware Supreme Court reversed theChancery Court’s decision and held that thefair value was $19.10 per share—the merger
price less synergies, as calculated by thecompany. It found this value “corroborated byabundant record evidence.”

The Delaware Supreme Court next rejected
the Chancery Court’s view that Dell required
deference to the unaffected stock price as“not supported by any reasonable reading”
of precedent. It clarified that Dell “did not
imply that the market price of a stock wasnecessarily the best estimate of the stock’s
so-called fundamental value at any particulartime,” but rather that when a market was“informationally efficient,” the market
price was “informative” of—not equivalent
to—fair value under the Delaware appraisal
statute. Here, the Delaware Supreme Court
determined that the deal price “could beseen as reflecting a better assessment of [thecompany’s] going-concern value” than theunaffected market price because the acquirer“had more incentive to study [the company]
7

closely than ordinary traders in small blocksof [the company’s] shares, and also hadmaterial, nonpublic information that, bydefinition, could not have been baked into the
public trading price.” The Delaware Supreme
Court finally criticized the Chancery Court’s
decision to unilaterally render a fair value
award based on an unaffected market pricethat was lower than the company’s litigation
position, which the Court found “injected
due process and fairness problems into theproceedings” by raising the prospect of relying

on the unaffected market price “late in theproceedings.” The Delaware Supreme Court
found it troublesome that “the extent to which
the market price approximated fair value wasnever subjected to the crucible of pretrial
discovery, expert depositions, cross-expert
rebuttal, expert testimony at trial, and crossexamination at trial.” The Delaware Supreme
Court stated that this was “antithetical to the
traditional hallmarks of a Court of Chancery
appraisal proceeding.”

This edition of the
Securities Law Alert was edited by
Susannah S. Geltman
sgeltman@stblaw.com / +1-212-455-2762,
Paul C. Gluckow
pgluckow@stblaw.com / +1-212-455-2653,
Linton Mann III
lmann@stblaw.com / +1-212-455-2654,
and Jonathan K. Youngwood
jyoungwood@stblaw.com / +1-212-455-3539.

8

New York

Los Angeles

Brooke E. Cucinella+1-212-455-3070
brooke.cucinella@stblaw.com

Lynn K. Neuner+1-212-455-2696
lneuner@stblaw.com

Michael D. Kibler+1-310-407-7515
mkibler@stblaw.com

Paul C. Curnin+1-212-455-2519
pcurnin@stblaw.com

Michael J. Osnato, Jr.
+1-212-455-3252
michael.osnato@stblaw.com

Chet A. Kronenberg+1-310-407-7557
ckronenberg@stblaw.com

Stephen M. Cutler+1-212-455-2773
stephen.cutler@stblaw.com

Mark J. Stein+1-212-455-2310
mstein@stblaw.com

Palo Alto

Michael J. Garvey+1-212-455-7358
mgarvey@stblaw.com

Alan C. Turner+1-212-455-2472
aturner@stblaw.com

Susannah S. Geltman+1-212-455-2762
sgeltman@stblaw.com

Craig S. Waldman+1-212-455-2881
cwaldman@stblaw.com

Paul C. Gluckow+1-212-455-2653
pgluckow@stblaw.com

George S. Wang
+1-212-455-2228
gwang@stblaw.com

Nicholas S. Goldin+1-212-455-3685
ngoldin@stblaw.com

Jonathan K. Youngwood+1-212-455-3539
jyoungwood@stblaw.com

Peter E. Kazanoff+1-212-455-3525
pkazanoff@stblaw.com

David Elbaum
Senior Counsel+1-212-455-2861
david.elbaum@stblaw.com

Joshua A. Levine+1-212-455-7694
jlevine@stblaw.com
Linton Mann III+1-212-455-2654
lmann@stblaw.com
Joseph M. McLaughlin+1-212-455-3242
jmclaughlin@stblaw.com

Janet A. Gochman
Senior Counsel+1-212-455-2815
jgochman@stblaw.com

Stephen P. Blake+1-650-251-5153
sblake@stblaw.com
Alexis S. Coll-Very+1-650-251-5201
acoll-very@stblaw.com
James G. Kreissman+1-650-251-5080
jkreissman@stblaw.com
Simona G. Strauss
Senior Counsel+1-650-251-5203
sstrauss@stblaw.com

Washington, D.C.
Jeffrey H. Knox
+1-202-636-5532
jeffrey.knox@stblaw.com
Cheryl J. Scarboro+1-202-636-5529
cscarboro@stblaw.com
Peter C. Thomas+1-202-636-5535
pthomas@stblaw.com

The contents of this publication are for informational purposes only. Neither this publication nor the
lawyers who authored it are rendering legal or other professional advice or opinions on specific facts
or matters, nor does the distribution of this publication to any person constitute the establishment of an
attorney-client relationship. Simpson Thacher & Bartlett LLP assumes no liability in connection withthe use of this publication. Please contact your relationship partner if we can be of assistance regardingthese important developments. The names and office locations of all of our partners, as well as ourrecent memoranda, can be obtained from our website, www.simpsonthacher.com.
9SimpsonThacherWorldwide

UNITED STATESEUROPE

SOUTH AMERICANew York
425 Lexington Avenue
New York, NY 10017+1-212-455-2000

LondonCityPoint
One Ropemaker Street
London EC2Y 9HUEngland+44-(0)20-7275-6500

São Paulo
Av. Presidente Juscelino
Kubitschek, 1455
São Paulo, SP 04543-011
Brazil+55-11-3546-1000

Houston
600 Travis Street, Suite 5400
Houston, TX 77002+1-713-821-5650
Los Angeles
1999 Avenue of the Stars
Los Angeles, CA 90067+1-310-407-7500
Palo Alto
2475 Hanover Street
Palo Alto, CA 94304+1-650-251-5000
Washington, D.C.
900 G Street, NW
Washington, D.C. 20001+1-202-636-5500

ASIA

Beijing
3901 China World Tower A
1 Jian Guo Men Wai Avenue
Beijing 100004
China+86-10-5965-2999
Hong Kong
ICBC Tower
3 Garden Road, Central
Hong Kong+852-2514-7600
Tokyo
Ark Hills Sengokuyama Mori Tower
9-10, Roppongi 1-Chome
Minato-Ku, Tokyo 106-0032
Japan+81-3-5562-6200

10