Some thoughts from Kevin Miller of Alston & Bird: A recent Bloomberg.com article highlighted some of the pros – as well as some cons – of stapled financing, but could have paid greater attention to the following points:

In the “Toys ‘R Us” decision, Vice Chancellor Strine – after criticizing the decision of the Toy’s board to allow its financial advisor to finance the winning bidder – noted that: “By stating this, I do not want to be perceived as making a bright-line statement. One can imagine a process when a board decides to sell an entire division or the whole company, and when the board obtains a commitment from its financial advisor to provide a certain amount of financing to any bidder, in order to induce more bidders to take the risk of an acquisition. These and other scenarios might exist when roles on both sides for the investment banker would be wholly consistent with the best interests of the primary client company.”

In addition to inducing more bidders, stapled financing can provide the following additional benefits to a seller:

– speedier consummation of a transaction, because the provider of stapled financing will have completed or nearly completed its financing due diligence and will have obtained or be well advanced in obtaining internal approvals to provide the necessary financing commitments;

– the creation of a financing floor that prevents winning bidders from attempting to renegotiate the purchase price based on a deterioration in the terms of the financing available from their third party sources of financing; and

– greater certainty of consummation as a result of the demonstrated capacity of a select group of investment banks to successfully market and sell the significant amounts of high yield securities necessary to finance leveraged acquisitions, particularly the larger transactions.

Stapled financing is routinely used by financial sponsors, the most sophisticated market participants, when they choose to sell businesses that may be attractive to other financial sponsors.

Investment banks have developed a number of policies to address potential conflicts of interest including:

– refusing to offer stapled financing when representing a special committee evaluating a management buyout; and

– effectively requiring sellers to obtain fairness opinions from unconflicted financial advisors by either refusing to provide fairness opinions when they are offering financing or conditioning the rendering of a fairness opinion on the Seller’s receipt of a fairness opinion from a second financial advisor.

Finally, it is worth noting that the “Toys” sale process did not involve stapled financing. The term “stapled financing” is generally used to describe prepackaged financing made available to bidders as part of an auction process. In “Toys,” the seller’s financial advisor was not authorized to offer financing until after the auction was over and the winning bidder selected, significantly reducing the risk that the seller’s financial advisor would tilt the playing field in favor of a particular bidder.

In sum, a properly functioning and rational board of directors may conclude that the benefits of stapled financing outweigh the risks.

In yesterday’s NY Times, Andrew Sorkin ran this interesting article in his weekly column: “Among Wall Street’s swashbuckling buyout kings, not many words are off limits. But with private equity firms teaming up to go after bigger prey, one dirty word has become unspeakable. It is collusion.

Virtually any big company that puts itself up for auction these days is deluged with interest from private equity firms, which have too much money and too little time to spend it. Witness the $15 billion sale of Ford’s Hertz rental car unit to a consortium of private equity players including Clayton, Dubilier & Rice Inc., the Carlyle Group and Merrill Lynch Global Private Equity. Or the $11.3 billion sale of SunGard to a supersized group of seven buyout firms led by Silver Lake Partners. What has gone largely unquestioned is whether the formation of these consortiums of firms, or “clubs” in industry parlance, has the potential to artificially depress buyout prices and hurt corporate shareholders.

While no buyout executives will say on the record that the purpose of forming a team is to keep the asking price from going too high, privately, most will concede that reducing the final takeover price is sometimes the result. “You’re not going to get me to say that aloud, but let’s just say that you’re not wrong,” said one legendary private equity investor who then immediately added, “Please don’t quote me by name.”

To be sure, private equity consortiums are being driven in large part by the desire of firms to bag bigger game than they could manage on their own. And by banding together, they can defray some of the risk of an investment going horribly wrong.

Nonetheless, the players obviously remain concerned about the possibility of collusion. In an effort to prevent the strongest buyers from ganging up together, sellers include strict contractual language that keeps the private equity firms from communicating during an auction without the sellers’ permission. It is an open secret that the firms rarely adhere to the rules.

Private equity firms recently have come up with a clever maneuver. Instead of simply getting together, they are now also enlisting Wall Street banks to back their buyouts. These banking arrangements can effectively lock out competitive suitors. A case in point is the latest $16 billion auction for the supermarket company Albertson’s. In that deal, a group of buyout firms led by Kohlberg Kravis Roberts has corralled three of the biggest investment banks, Citigroup, Credit Suisse First Boston and Deutsche Bank, to exclusively lend them money to support their offer. Another team led, by Thomas H. Lee Partners, has done the same with Morgan Stanley, Bank of America and UBS. Several other bidders, including Cerberus, may be forced to drop out if they can’t find financing.

Companies involved in hostile takeovers have long used a strategy of signing up many big investment banks as advisers if only to deprive their opponents of these services. But private equity firms have taken this tactic to a new level.

Sellers may begin to fight back. In recent weeks, bankers and lawyers have been talking about the possibility of signing up as many as a half-dozen banks in advance of auctions to work for the seller and provide preapproved loans to buyers, in what some are describing as a “community staple” – a takeoff on the concept of “staple financing.” (Staple financing is when a seller’s adviser also offers financing to the buyer that is stapled onto the auction material.)

WHILE chief executives of companies thinking of selling are worried about possible collusion, many private equity folk pooh-pooh the issue. As one private equity executive said to me, “As long as two girls show up to the dance, there’s enough competition.”

That may be true. But chew on this scenario: When Kohlberg Kravis Roberts led a group that won a $4.3 billion auction for PanAmSat last year, it beat out a rival consortium led by the Carlyle Group. Several months after the deal had been completed, guess who got an offer from Kohlberg Kravis for an opportunity to buy into the group? Yes, Carlyle.

Some would say this is simply good business. Cynics may be tempted to think that unspeakable word.”

In this podcast, George Casey of Shearman & Sterling discusses the SEC’s Divisions of Corporation Finance and Market Regulation jointly issued no-action and exemptive letter to Axel Springer providing relief under the tender offer rules (Axel Springer, a German stock corporation, made a cash tender offer for another German company), in particular focusing on the following questions:

– What is the significance of the SEC giving a cross-border relief in connection with an offer for a company that does not qualify as a “foreign private issuer”?
– It appears that the bidder would be permitted to pay for the tendered shares with a significant delay after the expiration of the offer period. Why was this relief necessary?
– Is the “prompt payment” relief likely to become recurring in German offers?
– The bidder will give withdrawal rights after the expiration of the offer. Why is this necessary?

Loved the webcast on “The Convergence of Hedge Funds and Its Impact on M&A” that just concluded (audio archive up and transcript in next week or so). Check out this Forbes article about how Computer Horizons’ board was just ousted by an activist hedge fund, Crescendo Partners.

Crescendo Partners is one of those fairly rare hedge funds that is a “special situation” fund (ie. often takes a position to force a transaction), rather than an arbitrage fund. On the webcast, Dan Burch from MacKenzie Partners noted that only 40 or so funds are full-time activists out of a pool of 8000 funds! But he noted that many funds are part-time activists and a new fund springs up, on average, one per day – and that it is fairly easy for these new funds to raise $100 million. Dan also reminds us that these investors are quite sophisticated.

My take is that the Computer Horizons’ board was overthrown in the wake of a poorly designed merger, which was rejected by shareholders last month. Wondering how hedge funds fit into the majority vote movement equation? It’s a scary thought (and good topic for a future webcast).

We have posted a new “Canadian M&A” Practice Area that provides a comprehensive overview of Canada’s mergers and acquisitions legal system and regulatory issues. The information is courtesy of Stikeman Elliott.