Digest
What is keeping buyers out of the market? uncertainty caused by lack of confidence in the uS economic recovery, a low growth environment and global economic uncertainty. Tomorrow may be another day, but C-Suite memories from 2008 still have not faded. When management teams began scrambling to accumulate cash and reduce debt and expenses in 2008, a trend that continued through 2011, they did so because they were concerned about the economy. While many herald the arrival of recovery, skepticism abounds in corporate boardrooms. Coupled with the specters of inflation and a continued low growth environment, the acquisition pace is understandably low. It is clear that the stock markets do not currently reflect the economy generally as the stock markets are climbing ever higher buoyed by continued quantitative easing and bursts of mainly unsupported consumer confidence. record high profit margins on relatively flat revenues this year have bought some time for potential acquirors. High margins have allowed management to delay questions about the sustainability of those margins amidst concerns about the uncertain cost of acquisitions. With 271 companies of the S&P 500 having reported earnings, only 19% have seen revenues increase beyond guidance while 30% dropped lower than expected. expense uncertainty encourages hoarding cash and keeping rosters trim. employees are typically the single largest expense in a company and growing by acquisition means acquiring more employees. Healthcare costs and other taxes are still undetermined and employers hesitate to acquire additional employees en masse without fully understanding the associated costs. Private equity funds face uncertainties related to the cost of doing business in the m&a market. regulators want more transparency, more consistency in valuing illiquid assets
and higher taxes. each of these new requirements carries its own set of costs and challenges for a private equity fund. acquisitions are made based on the cost of acquisition and ownership compared to forecast exit scenarios. If the cost of owning companies could skyrocket, it makes it very difficult to forecast the exit required to reach a particular return. With the IPo market still flagging, the most lucrative exit is, at least temporarily, less viable. This means that a sale of the asset is a more likely exit. It is also more likely to be a less profitable exit than an IPo. These factors go into the determination of purchase price and in this market may delay or derail transactions because of a disconnect between what sellers believe their businesses to be worth and what buyers are able to pay given their financial modeling. The history of returns over the past decade as well as the longer holding period for investments because of the continuing liquidity crunch has caused many limited partners to significantly reduce their participation in private equity or exit the asset class all together. This puts increased pressure on the remaining private equity funds to perform, which means they have to be right about valuations when going into an acquisition: a difficult task when the costs are undefined. Data analytics play an increasingly important role in m&a decision-making. For the past several years we have been gathering data on the behaviors of our potential targets. Investment bankers study acquirors (and serial sellers) to find the ideal suitors for a particular company. Sophisticated acquirors study the costs and benefits of acquisitions from employee retention to the effectiveness of IP. Private equity funds are relentless in their understanding of the competitive landscape and how companies will or wont benefit from a combination. No matter the perspective, data analytics is increasingly used to shape choices. While it is true that the quest for certainty leads to missed opportunity, data can be used quite effectively as a guide. The Other Side of the Coin Despite global economic conditions, activity in highgrowth markets increased slightly in 2012, and these markets should remain attractive options for transactions in 2013. Healthcare and oil & gas are busy industries and commercial real estate is making a comeback. Southeast asia and South america continue to be top investment destinations.
Keli Whitlock is a partner in the Baltimore office and serves as co-chair of the Venture Capital/ emerging Companies Practice. she represents clients in connection with corporate and securities transactions, focusing on venture capital, public and private securities offerings, mergers and acquisitions and the representation of emerging growth and middle market companies. ms. Whitlock represents a number of leading venture capital firms and angel investors. in 2005, ms. Whitlock was named one of the 40 under 40 outstanding business leaders in Baltimore by the Baltimore Business Journal. she can be reached at 410.949.2912 or kwhitlock@duanemorris.com.
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Deal Forum Digest 3
Lee Duran is a Partner and Private equity Practice leader at BDo. He can be reached at lduran@bdo.com.
BDO is the brand name for BDo usa, llP, a u.s. professional services firm providing assurance, tax, financial advisory and consulting services to a wide range of publicly traded and privately held companies. For more than 100 years, BDo has provided quality service through the active involvement of experienced and committed professionals. the firm serves clients through 45 offices and more than 400 independent alliance firm locations nationwide. as an independent member Firm of BDo international limited, BDo serves multi-national clients through a global network of 1,204 offices in 138 countries. BDo usa, llP, a Delaware limited liability partnership, is the u.s. member of BDo international limited, a uK company limited by guarantee, and forms part of the international BDo network of independent member firms. BDo is the brand name for the BDo network and for each of the BDo member Firms. For more information please visit: www.bdo.com
leading the transaction advisory services practice for the mid-atlantic region, Joseph S. Kinslow has been with mcgladrey llP since 1999. He specializes in providing advisory services to both private equity funds and strategic investors, including due diligence investigations and pre-transaction planning, analysis and assessment. Joe also has experience with sell-side engagements, working capital analysis, profitability improvement and strategic planning. For several years, Joes expertise included performing business valuations, financial analysis, business planning, profit analysis and litigation support. He has assisted start-ups and established businesses with raising capital and executing acquisition strategies, as well as financial projects related to budgeting, pricing analysis and profit improvement. He has also prepared businesses for sale through strategy development, preparation of marketing materials, recasting financial statements and advising on structure and negotiations. in 2003, Joe transitioned into transaction services, which includes leading due diligence and pretransaction planning engagements with a focus on accounting and business issues surrounding buy-side acquisitions. He has successfully completed due diligence for private equity groups with transaction sizes ranging from $5 million to $500 million, including the preparation of comprehensive reports detailing quality of earnings, quality of working capital, and observations of key deal issues for a variety of industries. He can be reached at 410.246.9190 or joe.kinslow@ mcgladrey.com.
After the Deal Closes: Establishing a PostClosing Legal Program for Portfolio Companies
KeviN aCKliN, PartNer, saul eWiNG llP Private equity and venture funds spend billions of dollars annually on legal fees in acquiring and investing in target portfolio companies, but too often the legal discipline that defines the deal negotiations quickly dissipates after the closing. Fund managers can tell horror stories of portfolio companies tanking because of significant, but preventable, legal issues that arise post-closing, often without sufficient or timely visibility by fund managers to react appropriately. after the closing of the deal, fund managers join the companys board of directors and properly focus their attention on business, operational and market issues. often times, company management is left to engage their own company legal counsel for ongoing matters. This decision can be costly, as post-closing mistakes in commercial contracts, failures to address employment issues, mishandling of intellectual property licensing issues, misunderstanding of complex regulatory issues, and ongoing commercial litigation matters all have actual and opportunity costs that drag company, and thereby, overall fund performance. Having spent much of my career representing private equity and venture funds in negotiating platform acquisitions and investments, I have witnessed these costs first hand. I have fielded the calls from fund managers well after the issues had arisen, often as a surprise to them, and lamented the lack of more efficient management of legal services across a funds entire portfolio. Fund managers often convince themselves that deferring the decision on engaging legal counsel to each companys management team makes perfect sense, because funds are investing in that team. While that may be true, the question begs, however: why would any private equity or venture fund permit its deployment of significant investor capital to be subjected to risks of not having consistent and coordinated legal counsel at the portfolio company level after the closing? The answers to this question are, of course, practical in nature. often times, it is simply not cost effective to engage the funds higher-priced law firms to handle day-to-day portfolio company matters after closing. as a result, company management usually relies on its legal counsel, a firm that may or may not address these issues in a manner preferred by the fund. moreover, many funds 8
Deal Forum Digest
do not have full time in house counsel with sufficient bandwidth to work with the portfolio company to properly address these risks. There is a better way. after the deal closes, funds should strongly consider the value of incorporating the newly-acquired portfolio company into a coordinated portfolio-wide program of legal services. We have participated in establishing and managing these programs for funds, and they have worked well to help minimize risks of legal issues arising at the portfolio company level, maximizing visibility to fund managers at the board level, and recognizing economies of scale in the provision of legal services across the funds entire portfolio. The main features of establishing a portfolio company legal program are as follows: Develop a clear list of matters that require review and approval by legal counsel prior to execution by the company; Implement a system for analyzing legal risks and effectively communicating such risks to the board on a regular basis; Identify the types of contracts and actions that require prior review and approval by the board; Specify internal approval processes and signature matrix identifying officers authorized to sign contracts on behalf of the company; manage company general counsel and corporate governance issues, including minutes of board actions and records of incentive plan awards; Conduct initial audits of the portfolio companys significant contracts, employee documents, and regulatory issues immediately after the deal closes; Develop company-specific forms of contracts and commercial terms and conditions; Present training on legal program to company management and senior personnel; and Conduct periodic audits to confirm portfolio company compliance with the program. In our experience, the legal fees incurred in establishing a portfolio company legal program may be proportionally shared across the portfolio.
Kevin Acklin is a corporate lawyer with extensive experience in mergers and acquisitions, recapitalizations, and private equity and venture capital transactions. He also serves as outside general counsel to various technology, manufacturing and real estate investment companies. Kevin advises his clients on debt and equity financings, securities, technology, emerging company formation and growth, and corporate governance issues. He also is active in Pittsburghs nonprofit community with numerous board positions. He has provided pro bono representation to victims of domestic violence in protection from abuse matters. Kevin received his J.D., cum laude, from georgetown university law Center and his a.B. in government, cum laude, from Harvard College.
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Michael B. Kennedy has been with merrill for 21 years in various technology, management and leadership positions. During his tenure at merrill he has been involved in developing Document management solutions for the Corporate, investment Banking and law Firm communities globally. Currently he is regional Director for Datasite, merrills virtual due diligence tool. michael is one of the visionaries behind merrills push to move the corporate due diligence processes from a purely paper oriented environment into an electronic medium leveraging the technological advances of the past decade. last year michael was involved in over 550 m&a transactions that totaled over 8 million pages. michael holds a Bachelors of science degree in Finance from Virginia Polytechnic institute and state university.
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