PwC: 2009 M&A to be fueled by 'merger of necessity'

- Baz Hiralal, The Deal.com, December 31, 2009:
Robert Filek, a partner in PricewaterhouseCoopers' transaction services group -- and a former CD Forum moderator -- said "troubled companies will look to align with larger, stronger players in order to survive, creating the perfect storm for mergers of necessity," PwC said in a lengthy report that the deal landscape will be dominated by distressed investments across sectors including financial services, automotive, consumer products and retail.
The report analyzes major sectors including energy and healthcare, among others. It notes the new administration's goals include expanding access to quality and affordable health insurance, modernizing healthcare, reducing costs, and promoting public health, prevention and wellness. "This will create an uptick in 2009."
PwC also notes a "wild card," posing this question: Could public company valuations get so low that the public-to-private transaction could re-emerge? We'll see what the new year brings -- hopefully some looser credit markets.

Go to the PwC 2009 M&A report

E&Y: 2008 M&A recap and '09 outlook

Ernst & Young has issued a report on mergers and acquisitions that shows 2008 deal volume slowed to 2003 levels, valuations fell, and cash rich corporations are shopping cautiously. The report notes even corporations with cash on hand and strong balance sheets -- which previously faced competition from PE firms -- are now confronted with new players arriving on the scene: sovereign wealth funds and other foreign buyers looking to acquire undervalued and distressed U.S. assets.
E&Y makes note that in 2009 that those without a certain level of liquidity will need to figure out a way to re-engineer their capital position to survive the current cycle.
The report also contains numbers on private equity, emerging markets and a breakdown for M&A in the financial services, pharmaceutical, oil and gas, media and entertainment, technology, and auto sectors.

Global I.P.O. Activity Hits 13-Year Low

Ernst & Young has released its Global I.P.O. update and it should come as no surprise that the numbers are dismal.
The total number of global initial public offerings brought to market over the last 11 months was the lowest since 1995, according to the survey.
A total of 745 I.P.O.s worldwide raised $95.3 billion in capital in the first 11 months of 2008, compared with 1,790 I.P.O.s raising $256.9 billion over the same period last year.
So far this year, 298 I.P.O.s have been postponed or withdrawn and I.P.O. activity is at the lowest level recorded over the same 11-month period since 1995, which saw 374 I.P.O.s raise $52.4 billion in capital between 1 January and 30 November, according to data from Dealogic
Full-year figures for 2008 aren’t expected to show any improvement on the bleak performance thus far, the report said. The poor showing is particularly stark when compared with 2007, when a record-breaking 1,979 deals were completed, raising $287.1 billion.
Go to Press Release from Ernst &Young via MarketWatch »

Predicting More Pain for M&A

The worst is yet to come for the mergers and acquisitions market: That is the conclusion of a new analysis by Bernstein Research, which projects that the drop-off in M&A activity will accelerate in 2009 and won’t bottom out until 2010.
Such a prolonged decay would be a blow to the bottom lines of Morgan Stanley and Goldman Sachs, which are now more dependent on the revenues generated from deal-making because they can no longer rely on their trading arms — until recently heavily leveraged — to rake in the dough. It could also have a devastating effect on boutique investment banks, such as Greenhill and Evercore, which draw the bulk of their income from advisory work, the report said.
For most industries, the merger game is a pro-cyclical business. Strategic M&A activity has historically been correlated with favorable economic conditions. The same seems to be true of private equity deals, according to Bernstein’s analysis.
Bernstein projects that total M&A volume, including private equity and strategic deals, will decline by 25 percent in 2009 from the previous year, followed by a 15 percent year-over-year decline in 2010. This implies that the trough of the M&A market will be in the second half of 2010 and will mark a 45 percent decline from the peak 2007 levels.
That drop-off implies that peak-to-trough advisory revenues will decline by 52 percent. That is apt to hurt Goldman Sachs more than Morgan Stanley, because Goldman is more dependent on advisory revenue than its uptown rival, the report suggested.
There is a bit of a silver lining. M&A activity is still hot in some sectors where there isn’t a lot of emphasis put on leverage — like energy. Also, industries such as health care, which are not as affected by the downturn in the economy, should continue to be a source of deals, the report said.
And it could have been worse. The projected 45 percent decline this cycle is nowhere near as steep as the one that occurred in the last downturn from 2000 to 2003, after the tech bubble burst. Back then, M&A activity saw a peak-to-trough decline of 70 percent.
– Cyrus Sanati, NYT DealBook

Postmortem: Nearly as Many Cancelled Mergers as New Ones

Deal Journal - WSJ.com - December 1, 2008, 10:51 am
Postmortem: Nearly as Many Cancelled Mergers as New Ones
Posted by Heidi N. Moore
Deal Journal readers, welcome back from the Thanksgiving weekend. Let us catch you up on things in the deal world.
Monday’s disheartening statistic du jour comes from Thomson Reuters, which totted up the effect of last week’s abandoned $188 billion offer for Rio Tinto by BHP Billiton. (Deal Journal puts the acquisition price of that deal at $66 billion, but Thomson Reuters includes in the price the Rio Tinto debt BHP would have assumed in a deal as well as the value under the original share price.)
By that counting, the collapse of the BHP-Rio Tinto deal pushed the seesaw of merger volume to a rarely-seen balance: the value of busted mergers in the fourth quarter is nearly equal to the value of the mergers that were signed.
According to Thomson Reuters data, there have been $322 billion of withdrawn M&A deals in the fourth quarter, compared with $362 billion of announced deals. For every 100 mergers or acquisitions announced in the fourth quarter, seven were called off.
It probably won’t stop there. There are some gigantic proposed deals still very much on the wire. The squeeze in the credit markets has made it highly unlikely that Swiss pharmaceuticals giant Roche Holding will find banks willing to underwrite the $45 billion loan it needs to buy the majority of Genentech it doesn’t already own. The $42 billion takeover of BCE may be scuttled by an accounting firm’s preliminary opinion that the parent of Bell Canada wouldn’t be solvent after the deal.
Investment banks are already awash in losses and will dearly miss the accompanying lost merger fees. The BHP-Rio deal alone would have meant $304 million in fees spread out across a coterie of 16 banks including UBS, BNP Paribas, Goldman Sachs Group, Gresham Partners, Lazard, HSBC Holdings, Merrill Lynch and Citigroup, Rothschild, Deutsche Bank, Macquarie Group, Societe Generale, Morgan Stanley, JP Morgan Cazenove, Credit Suisse Group and Royal Bank of Scotland Group.
Of course, what the banks lose in merger fees on busted deals they often gain in peace of mind. A dead deal, after all, means that the banks don’t have to underwrite tens of billions of dollars of loans for which there are few buyers.

Broken Deals: Who’s to Blame?

Posted by Holger Spamann, co-editor, Harvard Law School Corporate Governance Blog, on Wednesday November 19, 2008 at 12:13 pm
Insights from Practice, Mergers and Acquisitions, Program Events -->
Who’s to blame when a signed deal falls through? This question is especially relevant with respect to LBO buyers these days. Deals negotiated when times were good and credit was easy look much less appealing if not disastrous now that the short term economic outlook is bleak and the credit environment has soured. In particular, banks are weary of lending into LBOs when their ability to securitize and sell off the loans has waned. Private equity buyers may want to extricate themselves from signed deals, or be forced to do so because debt financing is not forthcoming. What contractual rights do sellers, buyers, and financiers have against one another in such a situation? What reputational effects, if any, constrain them from exercising those rights? And how should a seller’s board trade off deal certainty against price when choosing between competing transactions? Isaac Corré of Eton Park, Steven Davidoff a/k/a The Deal Professor, John Finley of Simpson Thacher, and Jim Morphy of Sullivan & Cromwell debated these questions with Vice Chancellor Leo Strine, Jr. and Professor Robert C. Clark in their Mergers, Acquisitions, and Split-Ups class here at Harvard Law School last week.
The video of the event is available here.

More Oversight for Private Players?

Hedge funds and private equity firms may come in for more regulatory oversight, if Senator Charles Schumer has his way.
The Deal.com noted that the New York Democrat, speaking at the Securities Industry and Financial Markets Association’s Summit on the Troubled Asset Relief Program Monday, predicts that any regulatory reform would include more oversight of private capital players such as hedge funds or buyout shops, whose failure could present a systemic threat.
“All market participants [regulated and unregulated] are linked as counterparties,” he said.
Go to Article from The Deal.com »

Middle-market tech deals getting done

Posted on November 4, 2008 at 10:39 AM, The Deal.com:
M&A activity slowed considerably over the past three months, and most analysts we've talked with, including Booz & Co.'s Gerald Adolph and Cravath, Swaine & Moore's Jim Woolery, expect more slowing through the end of the year. But our colleague Alain Sherter over at Tech Confidential reports Tuesday on one industry segment that's maintaining respectable levels of M&A: the middle-market technology sector.Referencing a report from the boutique investment bank TM Capital, Sherter writes that:
Providers of enterprise application software, infrastructure management tools and information technology services saw 439 deals in the third quarter, roughly level with deal activity in the previous quarter and slightly ahead of totals in the year-ago period.The total value of tech deals, however, is off from last year, as strategic acquirers focus on smaller deals. - Suzanne Stevens

Lipton, Friedman and Rice on the Future of M&A

NYT DealBook, October 24, 2008
Three high-powered figures in the financial industry gathered at New York University’s law school on Thursday to discuss the future of mergers and acquisitions in the post-credit-bubble world.
The panelists — Stephen Friedman, the retired chairman of Goldman Sachs and the current Chairman of the Federal Reserve Bank of New York; Martin Lipton, the founding partner of the law firm Wachtell, Lipton, Rosen & Katz; and Joseph Rice III, the founder and chairman of private equity firm Clayton Dubilier & Rice — took turns discussing the challenges and opportunities ahead, as well as reflecting on the current economic crisis.
Mr. Rice said he was convinced that “human greed” took control of the system. But the bubble was egged on, he added, because “there was clearly too much capital around” and “people needed to find something to do with it.” He went on to say that “there is no question that there will be more regulation.”
As for the future of private equity, Mr. Rice sounded optimistic and expressed no doubt that it would make a comeback. “As respect to the buyout business, it is not going away — it’s comatose right now,” he said. “We will see a series of small deals next year and then they will grow in size… It is a perfectly good business, and it’s going to be around as long as there is a financial institution.”
Mr. Friedman spoke at length about the current crisis, which he described as the greatest financial panic since the Great Depression. Part of the problem, he said, was that “people will play the way you pay them,” meaning that the incentive structures that were in place encouraged bad lending and faulty business practices. He said he blamed the banks, consumers and the rating agencies for playing a part in the financial debacle.
He also lashed out at Wall Street bonuses, which he described as a “perverse incentive” that were “structured in a sort of way that you don’t have to give it back.”
Mr. Friedman praised regulators for their decisive and strong actions in 2008, calling them “heroic.” But he said that no one can say they had “done a first-rate job before then.”
Mr. Lipton, pictured above, spoke of a new financial order that he said will be dominated by large banks and filled with lots of smaller boutiques. “Capital raising will be in the hands of the big universal bank,” he said. “They will have the capital and the networks to do it.”
He said he believes the current economic crisis will last between three to five years, but was upbeat about the future of M&A.
“There will always be M&A,” he said, but added that “M&A is very psychological, and C.E.O.’s don’t like to go their boards in this type of economy” and ask to do a deal.

Deal Making Surpasses $3 Trillion

October 21, 2008, 1:12 pm
Posted by Stephen Grocer - DealJournal - WSJ.com
Perhaps you didn’t hear the M&A gong Monday, but global deal volume has passed $3 trillion–the fifth time that has happened though, not surprisingly, it took roughly three months longer than it did last year.
It did so on the backs of the new kings of deal making. No, not Henry Kravis or Stephen Schwarzman or Steve Ballmer or any other titan of industry, for that matter. No, this year’s M&A king makers earn far less, but wield far more power and capital. They are Hank Paulson and Ben Bernanke and, across the pond, Gordon Brown and Alistair Darling.
At a time when the financial crisis is sapping the life out of M&A–$149.1 billion of announced deals have been withdrawn since Sept. 1–the dramatic interventions of the U.S. and British governments have helped propel M&A activity in the financial sector, according to Dealogic.
Government investment in financial institutions has reached $76 billion this year, according to the data. That is almost eight times as much as in all of 2007, the previous high water mark. And this year’s total doesn’t include the planned U.S. investments in nine banks, which will top $120 billion, or the number of deals the federal government had a hand in orchestrating–think J.P. Morgan-Bear Stearns and J.P. Morgan Chase-Washington Mutual.
At the very least, the increased role of governments is representative of numerous issues buffeting the M&A marketplace. With the credit markets and global financial industry both frozen, governments are lenders and buyers of last resort.

Lehman Brothers Sale

FRI 17 Oct 2008
An auction of Lehman’s Neuberger Berman unit and other investment management bits and pieces moved closer yesterday with bid procedures getting clearance from a New York judge.Private equity groups Bain Capital and Hellman & Friedman agreed last month to purchase Lehman’s prized asset management unit for $2.15 billion, and they will be the lead bidders at an auction for the unit in December.In a status update prior to the judge’s ruling, Lehman’s lead attorney, Harvey Miller, said prosecutors had opened three grand jury investigations into the investment bank’s demise. The New York Post reported that disgraced CEO Dick Fuld is among 12 Lehman executives being subpoenaed. Fuld, questioned by a U.S. congressional panel earlier this month, denied deceiving shareholders.Politicians and the public are calling for heads to roll on Wall Street. Looking into Lehman are federal prosecutors as well as at least one state attorney general. And the FBI is in the early stages of examining mortgage finance companies Fannie Mae and Freddie Mac and insurer American International Group, which were bailed out by the government after getting caught in the credit crunch.Did anyone actually understand the rocket science behind the engineering of the credit default swaps and other complex financial tools that blew up behind the scenes? If not, then it might be a hard sell to convince anyone that investors were intentionally misled.In the brave new financial world that emerges from the chaos of the ‘08 crash, will Wall Street executives be expected to understand everything their firms are doing? Sounds reasonable, if unlikely.

United Technologies Withdraws Bid for Diebold

United Technologies said on Monday that it has withdrawn its $2.6 billion offer for Diebold, the maker of automated teller machines and electronic voting machines.
It is the second offer withdrawn on Monday, after Waste Management withdrew a hostile offer for fellow garbage collector Republic Services. Waste Management cited the turbulent markets as its reason for pulling its tender offer.
In a short letter sent to Diebold, United Technologies’ chairman, George David, cited Diebold’s continued refusal to hold talks or release financial information to its unwanted suitor. United Technologies had offered $40 a share, after having pursued Diebold for two years.
“We had hoped we could negotiate a transaction that would have created substantial value for both your and our shareholders,” Mr. David wrote in the letter. “It’s unfortunate this won’t happen.”
In Diebold, United Technologies sought to expand its electronic security business with one of the field’s largest players. Last year, United Technologies bought Initial Electronic Security Systems for about $1.2 billion.

PE Fund-Raising Still Going Strong. Buyout Shops, Not So Much

October 7, 2008, 6:30 am
Posted by Deal Journal
The investors who give private-equity firms the money to do deals still are plowing cash into the asset class, but increasingly it is being funneled away from buyout funds to more specialized investors.
Three-quarters of the way through the year, fund-raising by North American private-equity firms–a category that includes buyout, venture capital, mezzanine, distressed and several other types of firms–is ahead of last year’s pace. Through the end of September, 264 funds had raked in $222.6 billion, well ahead of the $200.4 billion raised by 298 funds at this time last year, according to data from LPSource.
That may seem a little nutty, given that the freeze-up in credit markets and the slower-growing economy stand to have a big impact on the private-equity asset class. But after the last downturn, in 2001 and 2002, many investors, known as limited partners, stopped investing in private equity, which turned out to be a bad move, as funds raised at that time eventually proved to be big winners. LPs say they have learned that lesson and will keep investing this time around.
That isn’t to say they aren’t hedging their bets. Buyout firms, which have been hardest hit by the credit crunch, raised $103.3 billion across 77 funds, down 12% from 98 funds that raised $118 billion last year. And venture capital fund-raising was flat, with 107 funds raising $19.7 billion compared with 103 funds raising $19 billion a year earlier.
Other types of firms–those perceived as most likely to benefit in the current environment–gained ground. Mezzanine funds, which invest in debt that also carries characteristics of equity, continue to have a strong year, gathering in $36.9 billion across 13 funds, compared with the $3 billion across nine funds through the third quarter of last year. Distressed firms also have well exceeded last year’s total through the third quarter. Eighteen funds have raised $37.9 billion, up 28% from $29.5 billion raised by 16 funds at this time last year.
“Instead of halting or materially decreasing investing in private equity–as was done in 2000 to 2002–this time around investors are looking to be more tactical investing capital in areas which may benefit in the current economic and business cycle,” said Brett Nelson, head of private equity at consulting firm Ennis Knupp + Associates.
–Keenan Skelly is a reporter for Private Equity Analyst, a Dow Jones publication and a contributor to Deal Journal.

CD Forum: Dealmakers take a measure of the market

From The Deal.com, October 2, 2008:

The opening panel at The Deal's Corporate Dealmaker Forum reviewed the current state of an M&A market going through one of its most turbulent times in years.
Dealmakers Kenneth R. Meyers, the vice president of mergers and acquisitions at Siemens Corp.; David Drake, president of Georgeson Inc.; and Douglas L. Braunstein, J.P. Morgan Chase & Co.'s head of investment banking discussed the raft of opportunities opening up to corporate buyers.
"Debt is more expansive," said Drake, "but the prices are cheaper."
"Capital on balance sheet and liquidity are critical," Braunstein added. "Having access to liquidity and cash creates a great opportunity for certain corporate buyers. Those that are prepared for this are going to have some great buying opportunities."
Siemens' Meyers agreed, commenting, "These are the kinds of times that it paid off to be conservative and have a strong balance sheet. There are structural advantages to being a large corporate now."
All of the panelists agreed that the best opportunities for acquirers lay in the future since valuations will likely continue to fall, although the mindset of shareholders at target companies is proving resistant to change.
"Over the past year we've seen old habits dying hard," said Georgeson's Drake. "A lot of arbs and hedge funds are really getting burned as private equity firms and others walk away from deals." Citing the Microsoft Corp.-Yahoo! Inc. and Take-Two Interactive Software Inc.-Electronic Arts Inc. cases, he said, "In both cases some investors lost a lot. I do think it's going to be a game of chicken between the buyer's and the target's shareholders now that prices are coming down." "Pricing hasn't come down enough for people to take advantage of opportunities, but I think we're only about three to four months away from that," Braunstein added. "The buying power of strategics are eventually going to align [with valuations]. The problem is that prices haven't yet fallen enough for that to happen. When those align, I think you're going to see a lot more activity at that point." - George White

What We Really Need from a Bailout Bill: 58 Trillion Reasons

The CorporateCounsel.Net blog, Sept. 24, 2008:

Predictably, the bare-boned Treasury proposal for a bailout bill - frought with Constitutional problems - is receiving backlash on the Hill. Also predictable - given that elections are coming up - many key Republicans have come around to the notion that the bailout bill should include limits on executive pay (see this Washington Post article and NY Times' article).

However, the bailout plan is missing a strategy to fix the problems that caused all the problems that the market faces. Without a going-forward plan, I don't see an end to shoveling money to the bailout. Simply banning short sales ain't gonna do it. Yesterday, SEC Chairman Cox testified about some of these problems before the Senate Banking Committee - here is an excerpt:

"The failure of the Gramm-Leach-Bliley Act to give regulatory authority over investment bank holding companies to any agency of government was, based on the experience of the last several months, a costly mistake. There is another similar regulatory hole that must be immediately addressed to avoid similar consequences. The $58 trillion notional market in credit default swaps - double the amount outstanding in 2006 - is regulated by no one. Neither the SEC nor any regulator has authority over the CDS market, even to require minimal disclosure to the market.
Economically, a CDS buyer is tantamount to a short seller of the bond underlying the CDS. Whereas a person who owns a bond profits when its issuer is in a position to repay the bond, a short seller profits when, among other things, the bond goes into default. Importantly, CDS buyers do not have to own the bond or other debt instrument upon which a CDS contract is based. This means CDS buyers can “naked short” the debt of companies without restriction. This potential for unfettered naked shorting and the lack of regulation in this market are cause for great concern. As the Congress considers fundamental reform of the financial system, I urge you to provide in statute the authority to regulate these products to enhance investor protection and ensure the operation of fair and orderly markets."

Sovereign Funds Agree on Voluntary Rules

NYT DealBook, September 3, 2008:
A working group of the International Monetary Fund said it reached a preliminary agreement on guidelines for sovereign wealth funds that invest abroad. It didn’t disclose specifics of the voluntary code of conduct, which is to be presented to I.M.F. members in October.
Government-run funds in the Mideast and Asia have recently stepped up their investments in overseas assets, taking minority stakes in companies — and especially troubled financial firms — in the United States, Europe and elsewhere.
This trend has created concern in some circles, because these sovereign funds generally disclose little information about their strategies or holdings. In some cases, these investments have generated a debate about potential national security implications.
The International Working Group of Sovereign Wealth Funds, whose members include representatives from more than 20 countries, including the United States and the United Arab Emirates, agreed on a set of principles after a two-day meeting in Santiago, Chile, that ended Tuesday.
In a joint statement, the group’s two co-chairs, Hamad al Suwaidi of the Abu Dhabi Investment Authority and Jaime Caruana, director of the International Monetary Funds Monetary and Capital Markets department, said, “These principles and practices will promote a clearer understanding of the institutional framework, governance, and investment operations of SWFs, thereby fostering trust and confidence in the international financial system.”
The details of the new guidelines weren’t revealed, but some are already speculating that they may not address all of the concerns out there.
“A voluntary set of principles and practices goes a long way to help de-mystify the methodology of sovereign wealth funds and how they invest, Debbie Fuller of law firm Eversheds told the BBC News. “However, a voluntary code will not satisfy certain governments who were hoping for some form of compulsory transparency rules.”
Go to Article from BBC News »Go to Press Release from the International Working Group of Sovereign Wealth Funds »

With Much Applause: DOJ Revises Attorney-Client Privilege Guidelines

Last Thursday, the DOJ released a new set of guidelines regarding how it would charge companies. The new guidelines are effective immediately and they revoke earlier - and heavily criticized - guidelines issued under then-Deputy Attorney General Larry Thompson, which were then subsequently revised by then-Deputy Attorney General Paul McNulty. Here is the DOJ press release - and remarks from Deputy Attorney General Mark Filip.
The new guidelines parallel the legislative proposals contained in the reborn "Attorney-Client Privilege Protection Act of 2008," which has passed in the House and pending in the Senate. So we ponder the big question: whether the new guidance sufficently protects the attorney-client privilege and work product protection, or whether congressional legislation is still desirable?
Apparently, the sponsor of the legislation thinks so. Sen. Arlen Specter issued a statement Thursday that says: “The revised guidelines are a step in the right direction but they leave many problems unresolved so that legislation will still be necessary. For example, there is no change in the benefit to corporations to waive the privilege by giving facts obtained by the corporate attorneys from the individuals in order to escape prosecution or to have a deferred prosecution agreement. The new guidelines expressly encourage corporations to comply with the waiver and disclosure programs of other agencies including the SEC and EPA. Legislation, of course, would bind all federal agencies and could not be changed except by an Act of Congress.”

How Tightening Credit Is Hitting Venture Debt Firms

DealJournal, WSJ.com, August 27, 2008:

Providers of loans to start-up and other venture-backed companies are feeling the pinch of the credit problems plaguing Wall Street.
The latest is publicly traded venture debt provider Hercules Technology Growth Capital, which on Monday said it secured a $50 million line of credit from Wells Fargo–much smaller than the $250 million in available credit it secured from Citigroup and Deutsche Bank last year. “We’ve been in discussions, and continue to be in discussions [with Citigroup and Deutsche Bank] about continuing the existing facility, but their appetite to expand the facility we have with them is somewhat limited,” said Scott Harvey, Hercules Technology’s chief legal officer.
Most venture debt providers use a combination of equity and debt to provide loans to small, privately held life science and technology businesses. These firms will still be able to make loans from their own equity, but expect fewer venture-backed companies to be on the receiving end of those loans. “The best companies can still find credit at attractive terms, but as the available credit shrinks, the marginal companies are having more trouble getting deals done,” as are those companies looking for bigger financings, said Maurice Werdegar, an investment partner with Western Technology.
But even the highest-quality venture-backed companies might begin to see tougher terms and higher interest rates as the credit crunch continues. “It’s fair to say that this is starting to trickle down into the borrowing base. As the cost of capital goes up, that has to get passed along,” said Harvey, who added that he expects to begin seeing higher rates in the next three to six months.
Harvey said $50 million is adequate to meet the firm’s needs, and Hercules won’t be looking to add to the facility for at least another three months, but could raise as much as $300 million over the next two years. Harvey added that the company is being cautious about expanding the line of credit because there is a nonuse fee built into it.
Hercules, which has made about $1.3 billion in commitments to life science and technology companies since its inception in 2003, isn’t alone. This month, Western Technology Investment disclosed that its $125 million credit facility is being pulled by J.P. Morgan Chase and Deutsche Bank. “This is not isolated to us or our industry. Basically, the banks are unwinding the lending process,” said Ron Swenson, Western Technology’s chief executive.
Western Technology still has $220 million in equity remaining in its twelfth and most recent fund, which closed in February 2007.

–Scott Denne is a reporter at VentureWire, a Dow Jones publication and a contributor to Deal Journal.

A Record Pace for Buying Minority Stakes in Companies

WSJ DealJournal, August 26, 2008:

Takeover activity may be down in the dumps, but acquisitions of minority stakes in companies are on a record pace, with financial industry purchases dominating the category.
Roughly $496 billion has been spent this year buying minority stakes in companies, the highest year-to-date figure recorded by data provider Dealogic, and 30% more than the $381 million of deals struck in the year-earlier period. The financial sector is the most targeted industry, with acquisitions totaling $88.9 billion, followed by mining sector and oil-and-gas companies, at $49.8 billion and $44.4 billion, respectively.
The largest completed acquisition of a minority stake this year is Aluminium Corp. of China and Alcoa’s spending $14.3 billion to buy a 12% stake in miner Rio Tinto. Last month’s $9.1 billion purchase by German ball-bearing concern Schaeffler Group of a stake in tire maker Continental is the most recent large deal.
U.S. companies have been the most targeted, with deals valued at $83.9 billion completed this year, followed by the U.K. at $60 billion and Germany at $37.1 billion.
Goldman Sachs Group tops the rankings for advising on minority acquisitions, with deal credits totaling $49.5 billion, $6 million ahead of second-place Credit Suisse Group.

–Harry Wilson is investment banking editor at Financial News, a Dow Jones publication and a contributor to Deal Journal.

When will Lehman Brothers die?

NYT DealBook, by Andrew Ross Sorkin, August 26, 2008:

Judging by the headlines, you’d think the troubled investment bank would go belly up any day now. In fact, it probably never will.
Lehman may not be too big to fail, but it may be too important to fail. Why? Because Richard S. Fuld Jr., Lehman’s chairman and chief executive, is too important. He is a member of an exclusive club: the board of directors of the Federal Reserve Bank of New York.
It’s hard to believe that the Fed would let one of its own fail the way Bear Stearns did. Another member of club Fed, James Dimon, JPMorgan Chase’s chief executive, was handed the deal of a lifetime. Alan D. Schwartz of Bear Stearns? Not a member.
Given Mr. Fuld’s access to Fed chief Ben S. Bernanke and Mr. Bernanke’s man on Wall Street, Timothy F. Geithner, Mr. Fuld is in a much better position than his rivals to keep his firm alive. A prediction: Watch the Fed’s discount window for loans to brokerage firms. It won’t close until Mr. Fuld is out of the woods.

PE Sales to Strategic Buyers Defy Weak Exit Market

WSJ DealJournal, August 25, 2008:

With a lackluster IPO market and continued weakness in the appetite of financial buyers, strategic acquirers have been a key source of liquidity for firms that look to sell assets.
U.S. sales to strategic, or corporate, buyers by private-equity firms are up 46% to $63.1 billion through Aug. 20, from $43.1 billion a year earlier, according to data provider Dealogic. though the number of such deals fell to 70 from 88.
This theme is playing out more modestly around the globe. Sales to corporate buyers world-wide are up 8% to $107.5 billion from $99.4 billion, with the number of deals falling to 255 from 356. By contrast, secondary buyouts–or sales to other PE firms–are down 93% in the U.S. and 83% globally.
Buyout shop executives and intermediaries alike say since the credit markets seized up, strategic buyers have come back with a vengeance, after previously losing auctions repeatedly to cash-rich financial sponsors. For PE firms, it is a silver lining in an otherwise bleak exit environment.
Chicago Growth Partners and ClearLight Partners stand to receive more than three times their money when their sale of campus-services company U.S. Education to education concern DeVry for $290 million is complete. while Carlyle Venture Partners, Wachovia Capital Partners and Spire Capital Partners sold security company Sonitrol to Stanley Works last month for $276 million, or about 10 times earnings before interest, taxes, depreciation and amortization. That is more than twice what the PE firms paid for Sonitrol in 2004 and on top of a sonitrol dividend the sponsors paid themselves in 2005.

Germany backs law to protect firms from foreigners

BERLIN, Aug 20 (Reuters) - Germany's cabinet agreed on Wednesday to bring in rules to protect domestic firms from foreign buyers, notably sovereign wealth funds (SWFs), who could exert political influence, a German government official said.
Under the new rules, the government will be able to review and veto purchases of stakes of 25 percent or more in German firms made by buyers outside the EU or European Free Trade Association if it deems German security is at risk.
The rules, to stop cash-rich SWFs from countries including Russia, China and Gulf states exerting leverage in strategic sectors, extend the law -- which currently applies only to the arms industry -- to all sectors.
SWFs control an estimated $3 trillion in assets globally.
Economists and some industry groups have warned that any signs the government of the world's No.1 goods exporter is taking steps which could be viewed by markets as protectionist may frighten off foreign investors.
The government has stressed it would intervene only in exceptional cases.
The Economy Ministry will be able to look at a purchase up to three months after the acquisition is made or the intention to make an acquisition is made public. It then has two months to decide whether to veto the purchase.
Parliament still has to pass the plans. For a factbox on the rules, please click on [ID:nLJ374737] (Reporting by Madeline Chambers; Editing by Louise Ireland)

In an Ohio State of Mind

August 15, 2008, NYT Times DealBook, by Steven M. Davidoff, The Deal Professor.

In light of Delaware’s dominance of takeover regulation, it is easy to forget that other states have their own, sometimes very different, takeover laws and procedures.
California rejects Delaware’s Revlon doctrine, which requires that a board obtain the highest price reasonably available when a break-up or sale of the company is inevitable; Texas requires a two-thirds vote to approve a takeover via a merger; and Pennsylvania has the toughest antitakeover laws in the nation, the result of an attempt in the 1980s to protect its industrial enterprises from out-of-state acquirers.
I was thinking about this in light of Thursday’s moves by Harbinger Capital Management.
Harbinger, a hedge-fund firm much in the headlines these days, has delivered a control share acquisition statement to Cleveland-Cliffs under Ohio’s Control Share Acquisition Statute, proposing to acquire up to one-third of Cleveland-Cliffs.
Cleveland-Cliffs is a mining company incorporated under the laws of Ohio and therefore governed by Ohio’s takeover laws. Harbinger took this step in order to block Cleveland’s pending acquisition of Alpha Natural Resources.
Cleveland is the proposed acquirer of Alpha, but it is required to hold a vote to approve the acquisition under Ohio law (and New York Stock Exchange rules, for that matter).
A quirky Ohio antitakeover statute (Section 1701.83 of the Ohio General Corporate law) requires Cleveland-Cliffs to have a vote of its shareholders to approve any issuance of its shares in an acquisition transaction in which it issues stock representing more than than one-sixth of its voting power.
The vote requirement is not the quirk; NYSE rules require a similar vote if a company issues more than 20 percent of its voting power. But rather the quirk is that two-thirds of Cleveland’s shareholders must approve the acquisition under the statute.
This is a problem for Cleveland. Harbinger already owns 15.57 percent of the company. If it acquires all of the shares it seeks, or even a significant portion of them, it will be able to block Cleveland-Cliffs’ acquisition of Alpha.
But before Harbinger can acquire this position, it must comply with another Ohio law, the Ohio Control Share Acquisition Statute (Section 1701.831 of the Ohio General Corporate Law).
This species of law is common in many states, but is not the law of Delaware. Control share acquisition statutes, along with other state antitakeover laws, were often passed in the 1980s to stem hostile takeovers of local enterprises.
Ohio’s version of the control share acquisition statute requires that shareholders pre-approve any acquisition that, when added to the proposed buyer’s current share ownership, would equal one-fifth or more of the company’s voting power as relates to the election of directors.
So, Harbinger’s delivery of a control share acquisition statement is the first step required in this process.
Ultimately, the statute requires that Harbinger’s acquisition be approved by a majority of those shares that are present at the shareholder meeting voting on this acquisition. However, the count excludes all interested shares; interested shares are defined to include the acquiring person’s shares (in this case Harbinger).
Notably, Ohio, in its infinite wisdom, has also adopted an anti-arbitrageur provision to this statute. This so-called “arb” provision was added in 2003 after Northrop Grumman’s acquisition of TRW, which was based in Ohio. It effectively disenfranchises from voting at the meeting, for the purposes of the control share acquisition statute, any shareholder who acquires a block of shares constituting more than 0.5 percent of the company — in this situation, Cleveland-Cliffs — after the announcement of the control share acquisition.
In Cleveland’s case, that cutoff date was Thursday. Be careful out there.
Now, Cleveland is in a race, with two separate shareholder meetings on the horizon. One is to approve or reject the Alpha Natural Resources acquisition. The second will decide whether or not Harbinger can acquire a sufficient number of shares to block the Alpha transaction.
The question is this: Can Cleveland hold a vote to approve the acquisition of Alpha before the vote to authorize Harbinger’s acquisition of more shares in order to block the transaction?
Or, more appropriately, can Cleveland set the record date for the Alpha meeting — the date on which it counts shareholders eligible to vote — before Harbinger acquires the shares it seeks?
If Cleveland can do so, then Harbinger will need to obtain the votes of other shareholders to block the transaction. Harbinger is stuck until then. Though it can conduct a proxy solicitation against the vote, under the law it can’t acquire more than one-fifth of Cleveland without this shareholder approval.
For those handicapping this race, the determinant of whether or not Cleveland can indeed set this record date before the Alpha meeting will be Cleveland’s ability to clear its pending registration statement with the Securities and Exchange Commission in time.
Under Ohio law, the Harbinger meeting can be set by the Cleveland board on a date any day 50 days after Thursday, and the record date any day in that period.
That is a decent amount of time, and so I am betting that Cleveland will win this race.
Of course, Cleveland could simply cut through all this by adopting a poison pill to block the acquisition.
Ultimately, Harbinger is posturing here: At this point, Harbinger can likely pull together the remaining shares to block this deal even if it cannot purchase them. The Alpha deal is unlikely to be completed and the question is whether or not Cleveland actually pushes this to a vote and Alpha, out of hope or simply because they are furious, requires that Cleveland do so.
In the meantime, Alpha disclosed in the Cleveland registration statement that it had other suitors (Arcelor Mittal?) though not at the right price.
Will those suitors return? Of course, there are other questions too, such as, what does Harbinger really want? And why didn’t Cleveland get better assurances from Harbinger before agreeing to this acquisition?
This battle also points to the absurdity of the Ohio Control Share Acquisition statute and similar laws. They were adopted back in the 1980s, before the poison pill, to provide companies a defense against tender offers.
Putting aside the appropriateness of states protecting inefficient enterprises and their doubtful economic efficiency, the threat the tender offer posed back then no longer exists. A company can adopt a poison pill to stop a tender offer in its tracks.
So at this point, these statutes are a needless procedural formality. Though for companies like Cleveland Cliffs and Diebold, which is the subject of a hostile offer by United Technologies, they’re a nice protective boon.
Harbingers control share acquisition statement is available here.

U.S. Regulations Did Not Hurt Companies, Study Finds

It has become received wisdom on Wall Street that the Sarbanes-Oxley Act has damaged American competitiveness. It made listing in the American market less attractive to foreign companies and drove initial public offerings overseas. It raised costs for American companies without providing any significant benefit.
But do the facts support that wisdom?
The answer, according to The New York Times’s Floyd Norris: No.
A new study of the foreign companies that fled the American market after the Securities and Exchange Commission made it easy for them to do so in 2007 suggests that the companies that left were largely ones whose slow growth, and poor market performance, had reduced their need and ability to attract American capital. There is even some indication that the market punished companies that decided to leave even though they could still use the capital.
What the study shows, said one of the authors, G. Andrew Karolyi, a finance professor at Ohio State, is that the market did not react favorably when companies got out from under American regulation.
Instead, the paper by Mr. Korolyi, along with René M. Stulz, also of Ohio State, and Craig Doidge of the University of Toronto, found that share prices suffered in the few cases where foreign companies with good growth prospects left the American market. “When they choose to leave even though they are benefiting” from the American listing, Mr. Karolyi said in an interview, “shareholders may wonder if there is something sneaky going on.”
There has long been evidence that overseas firms benefit, through a lower cost of capital, when they choose to list their shares in the United States. Their shares trade for higher prices than do those of similar companies that do not choose to list here.
Why is that? The traditional answer is that investors have more faith in companies that comply with American disclosure rules and reconcile their books to United States accounting standards.
The advantage of an American listing faded early in this decade, although it did not vanish. The scandals at Enron and WorldCom did not renew faith in American rules, and it turned out that the American listing premium had soared in the late 1990s in part because foreign technology companies flocked to the United States to take advantage of what turned out to be a bubble. Their collapse made the American premium seem smaller.
The premium hit bottom in 2002, and recovered somewhat after that. Was that a reflection of investor confidence being renewed by passage of Sarbanes-Oxley? Not to hear the critics tell it. The Committee on Capital Markets Regulation, an independent panel whose creation in 2006 was heralded by Treasury Secretary Henry M. Paulson Jr., cited that data as proof that Sarbanes-Oxley hurt the markets. Their logic: The average premium after 2002, when the law passed, was lower than it was before the bubble burst. The committee ignored the fact the premium rose after the law was passed.
There is no question that the costs of complying with Section 404 of the law — requiring audits of corporate internal controls — has scared executives in the United States and abroad. The first year of audits found lots of problems, but for the vast majority of large companies those problems have since been fixed. And the costs of audits, which soared, have stabilized.
That does not prove the audits were worth the cost, although the fact that so many problems were fixed — in some cases requiring substantial accounting restatements — does indicate there was considerable benefit.
Go to Article from The New York Times »

Who Should Watch the Investment Banks?

The head of the Securities and Exchange Commission urged lawmakers Thursday to give his agency the power to oversee investment banks -- even as a top Federal Reserve official said the Fed needed similar powers.
Both the S.E.C. chairman, Christopher Cox, and the New York Federal Reserve Bank president, Timothy F. Geithner, told a congressional committee that the decades-old patchwork of regulatory agencies deserved part of the blame for the recent financial market turmoil, which helped bring down Bear Stearns and has hammered the shares of other banks and brokerages.
But there seemed to be a subtle competition in the air on Thursday over which government body should get expanded powers to supervise investment banks, if lawmakers decide that greater regulation is the way to go.
Go to Article from Reuters via The New York Times»
Go to Item from DealBook»
Go to Article from Bloomberg News»
Go to CNBC Video of Timothy Geithner's Testimony

Second Half Brings More Of The Same

MergerMogul, July 8, 2008:
In the first quarter, many M&A professionals were hopeful that things would improve in the second or third quarter. Then the second quarter came, and some forecasted recovery was going to happen in the third or fourth quarters. But now that the third quarter is officially upon us, most people I talk to expect the second half will bring more of the same.
For large deals that heavily rely on debt, that means a scant number of transactions. Banks just don’t have the appetite for risk right now. And while the middle market is definitely faring better, the dropoff from a year ago is substantial. The latest statistics I saw showed just 226 private equity deals in 2008 through June 13, 2008, compared with 669 during the same time period the year before.
The good news is, even if things remain the same for the second half, market conditions are far from dire. For example, cross border M&A activity is only slightly lower for the first half of 2008 than it was in 2007. And certain industries, such as financial, healthcare and energy remain hot spots for investment. (However, when I say hot spots, that’s relative—those sectors are holding their own, but probably still won't reach 2007 transaction levels.
In the short term, things really can’t get much better as we enter the dog days of summer. But perhaps where the middle market is today is the new reality, something that everyone just needs to get used to. No sense of waiting around for the hay days to return. Whatever the extent of the next recovery, in the meantime it’s best to focus on getting quality deals done at decent multiples, a task that is clearly easier said than done. Let me know what you think about the second half.Danielle Fugazy danielle.fugazy@sourcemedia.com

Deal Volume Falls, but Corporate Buyers Keep Rising

NYT DealBook, June 27, 2008:
Already, one report has noted doom and gloom in the deal-making world. Now Dealogic is adding its own take on the slump that has overtaken the world of mergers and acquisitions.
Global M&A volume fell 30 percent in the first half of 2008 from the same period last year, according to preliminary data just released by Dealogic. Much of the decline came from an 88 percent drop in private equity transactions.
But it looks like things may be on the upswing as strategic buyers are stepping in and doing increasingly larger deals now that private equity has exited the stage.
The first half of 2007 may be considered the Golden Age of M&A by financial historians. The credit crunch had yet to hit and banks were tripping over themselves to lend countless billions of dollars to buyout shops. The result was nearly $2.7 trillion worth of announced transactions. Deals in the tens of billions were commonplace, like the $45 billion buyout of power provider TXU.
In contrast, the first half of 2008 was marred by the failure of Bear Stearns, restricted lending, skyrocketing commodity prices and fears about inflation. But despite this, $1.87 trillion of deals were announced during that time. That is more than the volume announced for the entire years of 2001, 2002, and 2003.
Much of the deal volume stemmed from strategic buyers that were willing to pony up billions of their own capital to acquire a competitor. In fact, strategic M&A volume in the United States fell just 2 percent in the first half of 2008 compared to same period last year. InBev’s $46.4 billion hostile bid for Anheuser-Busch and Mars‘ $22.64 billion offer for Wm. Wrigley Jr. were two examples of mega-strategic deals that were announced in the first half of the year.
Many deals were done in non-cyclical sectors that are somewhat protected from a downturn in the economy. Consumer products, telecom, and food and beverages were the sectors that saw the most deal volume in the United States. That compares to last year which saw financial services, real-estate, and utilities lead the way.
So don’t pity the bankers; there are still deals getting done and fees to be reaped. Goldman Sachs was again the top dog in global M&A advisory, announcing $530 million worth of deals through June 26th of this year. Morgan Stanley, which was nipping at Goldman’s heels last year, was slammed, falling to number six in the league tables and announcing half of Goldman’s M&A volume at just $278 million.
But in Asia, the only region that showed growth in M&A volumes, with a 5 percent gain over last year, Goldman was not even in the top five. Leading the pack was JPMorgan Chase, with $61 billion in announced deals. In a sign of the times, newcomer China International Capital swept onto the stage at the number four spot, with $47 billion in announced deals.

As Markets Plunge, Deal-Making Plummets

NYT DealBook, June 27, 2008:
Gloom has descended over Wall Street once again. While the price of oil is rising, the health of the financial sector is flagging, taking yet another heavy toll on the markets.
And that has hit deal-making hard as well: Global mergers and acquisitions activity fell 35 percent in the year to date to $1.579 trillion, according to the latest 2008 data from Thomson Reuters. The pain doesn’t stop there: Mergers and acquisitions bankers are bracing for more job cuts as volumes fail to recover from their first-quarter tumble, and the markets seem unlikely to recover this year.
Among the reasons for the deal-making malaise, Reuters said, is that the credit crunch kept buyout firms away from large deals and economic uncertainty made companies reluctant to push the button.
Private equity buyout activity, which underpinned the recent M&A boom, fell 66 percent in Europe to $48 billion and slumped by 86 percent in the United States to $42 billion in the first half.
With inflation rising and no end in sight for economic woes in the U.S. and Europe, it seems unlikely that volumes will recover quickly to the record levels seen for the year until June 2007, observers said.
“We won’t see a boom like early 2007 again for another three or four years,” Hermann Prelle, joint-head of EMEA investment banking at UBS, told Reuters.
Several banks, including Citigroup and Goldman Sachs have already shed M&A jobs to try to adapt to the slower market, and there could be more cuts as the slowdown in activity eats into banks’ income.
In the U.S., the world’s biggest economy, a slowdown and bleak outlook were compounded this week as U.S. consumer confidence hit a 16-year low and housing prices suffered a record annual drop.
The slowdown that started with the credit crunch last summer has spread and is now undermining much of the economic stability in Europe and the U.S. that allowed the M&A boom.
Go to Article from Reuters via The New York Times »

AMT Relief Bill

From PE Week Wire, June 26, 2008:
The U.S. House of Reps yesterday passed an AMT relief bill, which would partially be “paid” for by changing the tax treatment of carried interest from capital gains to ordinary income. Unclear if it can pass the Senate, and President Bush has promised a veto. So why are Charlie Rangel et. all going through the charade? My theory is twofold: (1) Carried interest is going to become a bargaining chip this year. Most everyone acknowledges that AMT must be dealt with at least on a temporary basis, so Rangel has preemptively created a sacrificial lamb. (2) There is now a legislative framework in place for 2009, when it’s expected that Democrats will have a few more Senators and a President Obama. With that, this change passes like taxis on a freeway.

S.E.C. Seeks to Reduce Reliance on Credit Ratings

Securities regulators proposed weaning investors and Wall Street institutions from over-reliance on credit ratings, part of changes to the rating industry prompted by the subprime mortgage crisis.
The Securities and Exchange Commission voted 3-0 on Wednesday in favor of reducing reliance on credit ratings, including proposing to eliminate a requirement that money market funds hold highly-rated securities.
“The official recognition of credit ratings… may have played a role in encouraging investors’ overreliance on ratings,” S.E.C. Chairman Christopher Cox told an open meeting of the commission.
Rating agencies such as Moody’s, McGraw-Hill’s Standard & Poor’s and Fimalac’s Fitch Ratings have been blamed for contributing to the crisis by assigning top ratings to mortgage-backed securities that later deteriorated.
“The recommendations we consider today are consistent with the objective of having investors make an independent judgment of the risks associated with a particular security,” Mr. Cox said.
Mr. Cox said high credit ratings are often not an indication of liquidity or low price volatility for structured financial products, such as mortgage-backed securities.
Fund managers would be required under the proposals to assess a security’s liquidity, or how easily the security can be bought or sold, before buying it for a money market fund.
The new rules would allow the asset to be valued based not only on credit ratings, but also on other subjective standards to determine credit risk.
Go to Article from Reuters via The New York Times »

The Return of Stealth Mode

PE Week Wire - Wednesday, June 25:

Josh Kopelman of First Round Capital is one of the better VC bloggers, and yesterday posted something called The Death of Stealth Mode. Here’s his intro:
A pre-launch, stealth-mode company just closes a seed round of funding. Three weeks go by, and the news of the company's funding starts appearing in VentureBeat, peHUB and Venturewire. The story is then picked up by mainstream tech bloggers and press.The CEO starts getting phone calls from journalists.I then receive frantic, angry phone calls and emails from the CEO that go something like this: "Dude! Did you announce the funding? We wanted to stay under the radar..."
I want to reply, "No. I didn't announce the funding. Your lawyer did."
What Josh is talking about, of course, is an SEC requirement that companies falling under Regulation D exemptions must submit a brief filing after raising capital. It should include the company’s name, business description, executive officers, significant shareholders, placement agents, amount of capital raised and what the capital will be used for. These are called Form D filings, and are what I regularly use to sniff out unannounced deals and fundraisings (when doing so, I cite “regulatory filings”).
Now Josh correctly asserts that these filings make it more difficult to keep a company in stealth mode. He also laments the fact that issuers soon will be required to submit Form D filings electronically, which will make them far more public than the current system of paper filings and reference room scouring. In other words, every blogger and their cousin will be able to “out” stealth mode companies. No need to have a colleague in DC.
But let me make a counter argument, which I’ll call The Rebirth of Stealth Mode.
What all of these Form D newbies are about to find out is that there can be more than 100 Form D filings in a single day. The majority of those have little to do with venture capital. Instead, they are capital raises from hedge funds, REITs, energy exploration companies and banks. Or small-time businesses that got $50k from Uncle Al (you can spot these quickly, because they’re often hand-written instead of typed). In other words, it takes lots of time to separate the wheat from the chafe.
Making matters worse, there are a lot of issuers that file for small Series A funding rounds that may or may not have institutional VCs behind them. I currently can identify the “real” ones because the company must list its significant shareholders. But the revised SEC restrictions remove that requirement, which means that my job is about to become much, much more difficult. For every one VC-backed deal I find via the SEC, there are another five companies I ignore because there does not appear to be institutional backing. Now the only way I can make the distinction will be through shoe-leather journalism. Not complaining about having to work hard, but pointing out that I’ll be unable to identify nearly as many deals as I do now.
The result, of course, is that more companies may slip through the cracks and remain in stealth mode. Yes there will be more people looking, but I think the change still favors secrecy. This is particularly true if/when clever lawyers tell their clients to make up bogus holding company names, so that the jazzy Web 2.0 startup funded by Sequoia now becomes Maple Holding Co. funded by anonymous. Unless I recognize the executive’s name, I’m probably skipping over it. So will most everyone else.

McCain Joins "Say on Pay" Wagon

Recently, Senator John McCain has been speaking out against excessive executive compensation and has now joined Senator Obama in calling for mandatory "say on pay." Here is a Business Week article about this - and here is an excerpt from McCain's June 10th speech:
"Americans are right to be offended when the extravagant salaries and severance deals of CEOs ... bear no relation to the success of the company or the wishes of shareholders," says McCain, adding that some of those chief executives helped bring on the country's housing crisis and market troubles. "If I am elected president, I intend to see that wrongdoing of this kind is called to account by federal prosecutors. And under my reforms, all aspects of a CEO's pay, including any severance arrangements, must be approved by shareholders."
The proposals that both Senators Obama and McCain support not only would provide shareholders an annual non-binding vote on executive pay, they would also provide shareholders with a separate non-binding vote when a company gives a golden parachute to executives while simultaneously negotiating to buy or sell the company.
With H&R Block joining the list, there are now nine companies that have agreed to a non-binding vote on pay.

Hedge Funds Results Take a Beating in 2007

Hedge funds around the world became more cautious, reducing the amount of debt they took on to buy assets by the end of last year as returns took a beating from turmoil in global credit markets, according to a study released on Monday by Greenwich Associates.
Hedge fund leverage ratios declined to about 2.1 at the end of 2007 from 2.3 a year earlier, the Greenwich Associates/Global Custodian study showed. Meanwhile, the study showed the share of hedge managers reporting returns of more than 10 percent dropped to 52 percent in 2007 from 62 percent in calendar year 2006.
Go to Article from The Associated Press via The Guardian »

Will Higher Fees Hurt Riverside’s Latest Fund-Raising?

Posted by Deal Journal @ WSJ.com, June 23, 2008, 9:34 am

Plans by Cleveland private-equity firm Riverside Co. to raise the carried-interest fee on its latest fund to 25% from 20% are causing some static on the fund-raising trail.
There are three or four past investors who will likely not re-up with the new fund, which aims to raise $900 million, several people familiar with the fund said. Stanford Management Co., which manages the endowment of Stanford University, is among them, these people said.
According to these people, Riverside said its past performance and large investment team–170 professionals across the globe–justified the increase. Riverside says on its Web site it has generated gross internal rates of return of over 50% on realized investments in North America and Europe. Riverside focuses on the lower middle market and invests in companies that have enterprise values of as much as $150 million.
According to public data from Oregon State Treasury, the 2000 Riverside Capital Appreciation Fund generated a net internal rate of return of 23.6% as of June 30. That is roughly in line with the 23.8% median return to limited partners from similar vintage funds, according to Cambridge Associates data, which is from the end of the year.
Despite the LP push back, Riverside Capital Appreciation Fund V LP is meeting with some interest. Fund V has had a first closing, one person said, declining to provide details on size. The City of Philadelphia Board of Pensions and Retirement, a new investor, has pledged $25 million to the fund.
The predecessor fund closed at $750 million in 2004.
Carried-interest fees of 25% and 30% remain rare among buyout firms. Only the best firms with the most loyal LP bases have been able to push through such a fee structure. Both Abry Partners LLC and Bain Capital LLC take 30% of their funds’ profits.

Former U.S. Attorneys Assail McNulty Memo

Joe Palazzolo, Legal Times, June 23, 2008

In the latest assault on the McNulty memo, a bipartisan group of 32 former U.S. Attorneys has written a letter to the chairman of the Senate Judiciary Committee, asking him to hold a vote on a bill that would shore up attorney-client privilege for corporations.
The letter to Sen. Patrick Leahy, D-Vt., marks the first time a group of the Justice Department’s own have panned the memo, which allows federal prosecutors to pressure, and in some circumstance force, corporations to waive their privilege, usually in return for leniency.
"The widespread practice of requiring waiver has led to the erosion not only of the privilege itself, but also to the constitutional rights of the employees who are caught up, often tangentially, in business investigations," the letter says.
The bill would bar the practice. Prosecutors would no longer be able to use a waiver as a factor in determining whether to indict a corporation, and they would also be prohibited from compelling a corporation to submit its attorneys' work product. The House passed a similar bill last fall.
Justice officials have argued that the legislation would weaken the government's ability to uncover corporate fraud and wrongdoing to the detriment of pension holders and investors. "There are some people who favor legislation. We think and continue to think that the McNulty memo is working and has worked," Attorney General Michael Mukasey told reporters earlier this month. "There were either no or very, very, very small numbers for actual requests of waiver of the privilege. There were requests for information."

SEC Approves One-Year Delay for Smaller Companies' Auditor Attestations

As proposed back in February, the SEC has approved another one-year extension of the compliance date for smaller companies to meet the Section 404(b) auditor attestation requirement of Sarbanes-Oxley. Smaller companies will now be required to provide the attestation reports in their annual reports for fiscal years ending on or after December 15, 2009.
In addition, the Office of Management and Budget is allowing the SEC to proceed with data collection for a study of the costs/benefits of Section 404, focusing on the consequences for smaller companies and the effects of the auditor attestation requirements.

Lieberman Seeks Limits to Reduce Speculation

A prominent Washington lawmaker said Wednesday that he would propose next week to ban large institutional investors, including index funds, from the nation’s booming commodity markets.
The idea is one of several outlined by Senator Joseph I. Lieberman, independent of Connecticut, who is chairman of the Senate Homeland Security and Governmental Affairs Committee. That committee will hold a hearing on June 24 to continue examining whether financial speculation is affecting the prices of crops and fuel.
Go to NYT article - http://www.nytimes.com/2008/06/12/washington/12trade.html?dlbk

CFTC to discuss energy speculators with Fed, SEC

SAN FRANCISCO (MarketWatch) -- The Commodities Futures Trading Commission said Tuesday that it is establishing a task force to study the role of speculators and index traders in commodities that will include representatives of the Federal Reserve, the Securities Exchange Commission and other agencies.
The announcement comes as the futures regulator furthers its investigation into whether financial investors are driving up the price of oil and other commodities, and if so, by how much. The task force also will include staff representatives of the Treasury Department, the Agriculture Department and the Energy Department.
The CFTC's own analysis of commodities prices and index traders, or investors who invest in commodities via a benchmark, such as the Dow Jones-AIG Commodity Index, has found no significant correlation between these financial investors and recent price spikes.
Still, under pressure by big users and producers of commodities as well as Congress, the regulator has acknowledged that it needs to dig deeper into trading data. It's already said that it will require more data from certain types of traders, such as swaps dealers and overseas oil traders.
Go to Article from MarketWatch»

CSX Grasps at Straws to Fight a Fund

CSX has scored a coup in its efforts to win a proxy fight against a pair of hedge funds, one of which is British: It has cast the battle as a matter of national security.
That has prompted howls of outrage from Congress and voluble CNN pundit Lou Dobbs. But, says Andrew Ross Sorkin in his latest DealBook column, it's an absurd situation, especially since Britain's The Children's Investment Fund isn't even seeking a majority of board seats.
Beyond that, however, CSX's fight is a case study of how a company's executives will go to defend themselves -- and how counterproductive those actions can be.

Go to Article from The New York Times»

Geithner’s Plan to Save the Financial System

NYT DealBook, June 9, 2008

Timothy F. Geithner has lived through the rockiest moments of the credit squeeze that have battered the global financial system, leading to the collapse of Bear Stearns. Now he has some ideas to help prevent a future crisis.
In Monday’s Financial Times, the president of the New York Federal Reserve Bank outlines several steps to help shore up what he calls a “fragile” financial network. Among his proposals: greater capital and liquidity requirements for big financial institutions; more robust and exacting supervision of both financial institutions and complex, highly levered derivatives; and more secure and formalized connections among the largest central banks to better work in concert should another potential catastrophe loom on the horizon.
Go to Article from The Financial Times »

Will M&A Die Under Obama or Clinton?

Posted by Heidi N. Moore, May 29, 2008, 2:48 pm
Deal Journal, WSJ.com

While Barack Obama predicts his own victory in the Democratic presidential primaries as of June 3, deal makers fret about whether a Democratic administration would mean never being able to do a big M&A deal again.
US Airways and United Airlines, for instance, said today that they are pedaling as fast as they can to get a deal done before the Bush administration leaves. Are their fears justified?
If you go by the rhetoric, yes.
Both Obama and Democratic rival Hillary Clinton have indicated they don’t see antitrust matters as loosely as they accuse the Bush administration of doing. Obama has been more outspoken, criticizing the Bush administration for what he sees as lax enforcement of the nation’s antitrust laws. Clinton has been less so.
Here is Obama’s first salvo: “We live in a globalized economy and we probably have to update how we approach antitrust to figure out what is truly uncompetitive behavior on the part of monopolies or oligopolies and what are just big successful companies that need to be big in order to compete internationally….Some of the consolidations that have been taking place, I think, may be anticompetitive….We’re going to have an antitrust division in the Justice Department that actually believes in antitrust law. We haven’t had that for the last seven, eight years.”
Of course, Obama is campaigning, and on a Democratic platform you would expect him to talk tough on mergers. The Clinton Administration gave Microsoft a heck of a time, for instance. But some believe that the important courts right now will still be staffed by Republican judges who may not be amenable to antitrust challenges.
Hillary Clinton is a little harder to read. Her only stance on antitrust has come in the form of comments against OPEC. She has promised to amend antitrust law to confront OPEC and has threatened repeatedly to confront the cartel through the World Trade Organization.
But as first lady in the ’90s, Clinton tried to encourage hospitals to communicate with each other as part her push for universal health care; she also promised to dial down any antitrust enforcement that would prevent hospitals from sharing information with each other.
Of course, the antitrust stances of these two candidates don’t extend to their own interests: there is, after all, rampant speculation about a merger of their two campaigns.

LBO Firms Must Return Cash to Change Plan

LBO Firms Must Return Cash to Change Plan, Hands Says
By Edward Evans
May 28 (Bloomberg) -- Leveraged buyout firms should hand back investors' money if they change strategy because of the credit crunch, British financier Guy Hands said.
Buyout firms that once focused on large investments have ``suddenly'' started investing in distressed debt, while other firms with little experience beyond their local markets are targeting Asia to profit from the region's economic growth, Hands wrote in his quarterly report to investors. He didn't identify the firms in the document, which was published on his Web site.
``This approach means using the capital entrusted to one strategy to pursue another,'' Hands said. Firms should return to investors' money they haven't already spent and ask investors' permission to invest it in other ways, he added. ``The firm one chooses to back to do mega-deals may well not be the firm one chooses to back in, for example, the mid-market. The limited partners should have the opportunity to decide.''
The world's largest leveraged buyout firms are struggling to get loans for deals after the collapse of the U.S. subprime- mortgage market spurred investors to flee all but the safest forms of debt. The firms have announced $118 billion of deals this year, about a third as much as in the same period in 2007, according to data compiled by Bloomberg.
Few Return Cash
Few, if any, buyout firms have ever returned cash to investors, apart from a number of venture capital firms that were unable to find investments after the bursting of the dot- com bubble, Hands added.
Hands, who runs London-based private equity firm Terra Firma Capital Partners Ltd., said his firm's only option is to invest in areas less affected by a slowdown in the economy, targeting asset-rich companies that require changes to their management and operations. He warned investors to expect short- term losses from this strategy.
``Whilst following this strategy early in a bear market may still lead to investors suffering mark to market losses in the short term, most private equity investors are more concerned about creating value over the whole economic cycle than they are with achieving performance in any particular part of that cycle,'' Hands added.
Hands, 48, built up Nomura Holdings Inc.'s buyout business in the 1990s before quitting to run his own firm with Nomura's backing in 2002. Terra Firma is investing a 5.4 billion-euro ($8.4 billion) fund that closed in May last year.
Terra Firma bought EMI Group Plc, the record label whose acts include the Beatles, for 2.4 billion pounds ($4.9 billion) last year. New York-based Citigroup, which financed Terra Firma's bid, postponed plans last month to sell the loans because of investor anxiety about EMI's turnaround under Hands.
``This is not ideal for EMI,'' Hands wrote. ``We have worked hard, and continue to work hard, to see if there are ways to help Citigroup syndicate or sell down this loan.''

Study Claims Milberg Weiss Scheme Hurt Shareholders

Anthony Lin, New York Law Journal, May 28, 2008:

As former securities class action king Melvyn I. Weiss awaits sentencing for his role in the payment of kickbacks to named plaintiffs in shareholder suits, a conservative think tank is set to release a study purporting to show that the scheme injured shareholders.
The American Enterprise Institute Legal Center is releasing today an article by professor Michael Perino of St. John's University School of Law that takes on the argument that the Milberg Weiss kickbacks constituted a victimless crime because the payments came out of legal fees awarded to the firm and named plaintiffs had incentive to maximize class recoveries.
Examining a database of 730 Milberg Weiss class action settlements and legal fee awards, Perino compared those that were cited in the indictments against the firm and its partners and those that were not. He found the indictment cases on average actually settled for slightly less than the non-indictment cases, suggesting the kickback incentives did not improve recoveries.
On the other hand, Perino found that the legal fees requested and awarded in the indictment cases were significantly higher than those in the non-indictment cases, and also higher than those in cases handled by firms other than Milberg Weiss.
According to the report, the findings support the notion that class members were hurt by the kickbacks, as they "appear to have received a lower proportion of the settlement proceeds than class members in otherwise substantially similar non-indictment cases."
Federal prosecutors have requested a 33-month sentence for Weiss, who pleaded guilty in March. He is in turn arguing for 18 months. His sentencing is scheduled for June 2.

M&A Optimism: It’s Spreading!

Posted by WSJ Deal Journal, May 15, 2008:
After months of paring back on loans, Wall Street’s banks are finally loosing their lending for private-equity deals, according to bankers speaking at a conference in New York on Wednesday.
Banks have committed $10 billion to $20 billion in new private-equity deals during 2008, meaning the total backlog now stands less than $80B, said John Eydenberg, head of Deutsche Bank’s leveraged finance group, speaking at The Deal’s Private Capital Symposium.
“Panic has been behind us,” said Eydenberg. “About three weeks ago, backlog didn’t matter any more. People started to think about fundamentals again.”
Optimism is budding on Wall Street and that’s primarily due to the speed banks with which banks like Citigroup have been able to sell down hung bridge loans. The backlog has decreased to its current level from around $250 billion a few months ago.
People are “less sanguine” than they were at earlier stages of the credit crunch, said Peter Schoenfeld, CEO of P. Schoenfeld Asset Management LLC. “The real horror stories are gone.”
But market participants say the recovery is still at an early stage.
“You will see us walk before we run,” said Alan Jones, co-head of Morgan Stanley’s private equity group. “We will be in a normal, more protected environment,” he said. But the recovery is “going to be gradual. We are in the crawling maybe walking phase.”

SEC Scrutinizing Investment Bank Liquidity

By Rachelle Younglai and Karey Wutkowski
WASHINGTON (Reuters) - The U.S. Securities and Exchange Commission is scrutinizing the liquidity of investment banks it supervises and is planning to require the top Wall Street firms to publicly disclose their current liquidity and capital positions, SEC officials said on Wednesday.
Attention has been on funding at the biggest U.S. investment banks since March, when Bear Stearns Cos Inc nearly collapsed after a sharp decline in its liquidity.
Go to Article from The New York Times»
Go to Article from Reuters»

IPOs: Back from the Dead?

by Ben Steverman, BusinessWeek.com, May 8, 2008:
A nervous Wall Street scorned initial public offerings for months, but suddenly IPOs are popular again.
Recent stock market debuts have been successful, including the largest IPO ever—Visa's (V) $19.6 billion deal—and a herd of new offerings are hitting the market soon. The next couple weeks are expected to be the busiest time for IPOs so far this year.
Investors seem more and more willing to take chances on small, fast-growing startups. That sort of appetite for risk has been hard to find since last fall, as a bear market and a credit crisis took big bites out of many portfolios.
After a tough start to 2008, the broader stock market recovered a bit. The broad Standard & Poor's 500-stock index gained 3.5% in the month before May 6. But the IPO market is doing even better. Recent IPOs, measured by Renaissance Capital's IPO index, are up 12.2% in the past month.
Go to Article from BusinessWeek»

Simply Appalling: Good judgment seems to have been short-circuited in the Circuit City boardroom

From Directors & Boards E-Briefing, May, 2008:
A perennial mystery to this longtime governance observer is how a board can seemingly sit silently by and watch a management trash a business. This seems to be what’s been happening at Circuit City Stores Inc. A year ago the company announced a turnaround plan. A centerpiece of the plan was laying off a slew of more experienced salespeople, to be replaced with lower-paid hires. But get this: Those who lost their jobs could reapply for their old jobs, at the lower pay, but had to wait 10 weeks to do so. That’s simply appalling.“That’s the most cynical thing I’ve heard about in a long time,” said Peter Cappelli, in a critique of the plan published by the Wharton School’s Knowledge@Wharton newsletter. Cappelli is a management professor and director of Wharton’s Center for Human Resources . Another Wharton professor, Daniel Levinthal, termed the layoff plan “a massive de-skilling” of the company. I’m all for companies doing what they feel they must do to survive. But let’s be mindful of what Peter Drucker said: “The purpose of a business is to create a customer.”When a company takes steps that are repellent in its treatment of its human resources — its work force and its customers — is it really a business anymore? Or a business that should stay in business?I didn’t write about this abhorrent policy at the time. My personal response was to vow never to set foot in a Circuit City store again, and to leave it at that.I did wait for the follow-on announcement that the current board members all submitted their resignations — so as, in the spirit of their approved turnaround plan, to allow management to replace them with a newer, younger board, which would be paid a lower retainer and fees than the old directors received. Less experienced? Who cares about that? And the current board, after a cool-down period, would be allowed to reapply for their old seats, at the lower scale, of course. Funny … I missed that announcement. Did you, too?Well, a year has gone by, and Circuit City is now much in the news. Perhaps my personal reaction was shared by similarly offended spirits. The turnaround seems to have run aground. Circuit City’s results are punk, the stock price has collapsed, and a hedge fund, which has called the turnaround effort “disastrous,” is at the board’s throat. Then, in a bizarre turn, in mid-April Blockbuster Inc. weighed in with a merger proposal. That’s being charitable to call it bizarre. It’s also being called “crazy,” “reckless,” and “looney” by deals analysts.All I can hope is that there were some dissenting voices in the boardroom — “What are they thinking?!” —when management unveiled the HR components of its turnaround plan. It must be a sad day in the life of a director when he or she sees the company’s business and reputation about to be trashed.

Jim Kristie is the editor and associate publisher of Directors & Boards.

Wall Street, Run Amok?

How on earth did the credit crisis on Wall Street become such a catastrophe, Ben Stein wonders in his latest column for The New York Times? How, he asks, did all of the mechanisms operated by the mind-bogglingly well-paid men and women of the Street go so wrong that we saw a major investment bank, Bear Stearns, essentially disappear?
In an effort to answer those questions, Mr. Stein, a lawyer, writer, actor and economist, points to a speech on the matter that was given on April 8 by hedge fund manager David Einhorn at a Grant’s Interest Rate Observer event.
One of Mr. Einhorn’s more troubling observations, Mr. Stein says, is that the Securities and Exchange Commission allowed broker-dealers to set their own valuations on assets and liabilities that were hard to value. And broker-dealers could assign their own creditworthiness ratings to counterparties in complex derivatives transactions when those counterparties were otherwise unrated.
In a word, Mr. Einhorn says, the S.E.C. told Wall Street to police itself to save on regulatory costs, while not bothering to “discuss the cost to society of increasing the probability that a large broker-dealer could go bust.”
A result of all this, he says, was as follows:
“The owners, employees and creditors of these institutions are rewarded when they succeed, but it is all of us, the taxpayers, who are left on the hook if they fail. This is called private profits and socialized risk. Heads, I win. Tails you lose. It is a reverse-Robin Hood system.”
In his response to Mr. Einhorn’s thesis, Mr. Stein writes:
It looks to me as if the inmates are running the asylum. One truth, that deregulation is sometimes a good thing, has been followed down so long and winding a road that it has led to an immense lie: that deregulation carried to an extreme will not lead to calamity.
To think that people of this mind-set are in charge of the finances of the nation that is the cornerstone of world freedom is terrifying.
Go to Article from The New York Times »

A Tale of Two Public Offerings

New York Times DealBook, April 24, 2008:
With the credit market still in lockdown and the equity market on a downswing, taking a company public might seem a bit loopy. Two companies that actually took the plunge this week, American Waterworks and Intrepid Potash, exemplify how bipolar this market has become.
There has been much hand-wringing about the horrible environment for initial public offerings — but the reality is a bit more nuanced. At $24 billion, the volume of new issuances in the United States actually doubled in the first quarter from a year earlier. But if you exclude the gargantuan stock sale from Visa, the total value in the first quarter was about $5 billion, down 58 percent from last year, according to Dealogic.
Those that did brave the market have seen wildly different outcomes. Take American Waterworks, which hit the market Wednesday. The spinoff of German utility giant RWE might normally have attracted a lot of attention from risk-averse institutional investors — especially now that risk is out of fashion.
But it was far from popular, bankers working the deal said. RWE priced the stock at $21.50, 40 percent below what it originally thought it could grab last year. And investors were still not impressed — the shares fell as much as 6 percent Wednesday morning.
On the flipside, Intrepid Potash, which makes fertilizer, saw its stock pop as much as 60 percent in its debut Tuesday. Commodity-crazed investors fell over each other to buy a piece of the agricultural company, whose main product, potash, has seen a 131 percent increase in value in just seven months.
This wild market is scaring a lot of companies from going public. A total of 83 companies withdrew their initial public offerings this year and another 24 have delayed share sales, according to Ernst and Young. That is a record.
At this pace, the long-anticipated public offering from private equity giant Kohlberg Kravis Roberts might be sitting on the shelf for many more months to come.