Kinder Morgan Inc.'s $38 billion purchase of natural gas pipeline operator El Paso Corp., announced Oct. 17, was welcome news after a dearth of big deals. It's the largest acquisition announced this year after AT&T Inc.'s proposed $39 billion purchase of T-Mobile USA Inc. in March and one of the largest energy deals ever. If it closes, the merger of the two Houston companies will create the largest pipeline operator and the fourth-largest energy company in North America.
Evercore Partners Inc.'s Roger Altman, Rob Pacha, Ray Strong III and Shaun Finnie, assisted by Barclays Capital's Lee Jacobe, advised Kinder Morgan, with Barclays having provided the financing for the $11.5 billion cash portion of the deal.
Evercore snared Pacha away from Bank of America Merrill Lynch in 2009 to open a Houston office and make rain in the pipeline, processing and storage segment of the energy industry. Besides the Kinder Morgan deal, Pacha advised Targa Resources Inc. on the sale of its 63% stake in Versado Gas Processors LLC, a joint venture with Chevron Corp., to affiliate Targa Resources Partners LP last year for $230 million in cash. Before that, Pacha was known for advising Dynegy Inc. on the $1 billion sale of its Northern Natural Gas Co. pipeline to Warren Buffett's MidAmerican Energy Holdings Co. in 2002.
Strong joined Evercore from Goldman, Sachs & Co. in the past year, having worked on the take-private of Kinder Morgan by its management, Goldman Sachs Capital Partners and others in 2006. Pacha and Strong both got a piece of the other big pipeline deal of the year: They advised Southern Union Co.'s special committee in June on the company's $9.4 billion sale to Energy Transfer Partners LP.
Barclays' Jacobe, meanwhile, has worked on the other side of a Kinder Morgan deal, advising Petrohawk Energy Corp. on its sale of 50% of KinderHawk Field Services LLC and other assets in May to affiliate Kinder Morgan Energy Partners LP for $855 million. He also worked opposite Pacha on the MidAmerican-Northern Natural deal when he was at Lehman Brothers Inc. And last year he assisted Yorktown Energy Partners-backed M2 Midstream LLC when it sold two natural gas-gathering and -treating systems to Enterprise Products Partners LP for $1.2 billion.
Giving Kinder Morgan legal help was a team from Weil, Gotshal & Manges LLP, including Thomas Roberts, R. Jay Tabor, Michael Epstein, Mary Korby and Annemargaret Connolly on the corporate side, Steven Newborn on antitrust, Marc Silberberg, Jared Rusman and Andrew Gaines on tax and P.J. Himelfarb on securities. Weil worked with Kinder Morgan on its take-private in 2006, with Tabor in Dallas on the corporate side, Newborn on antitrust and Silberberg and Rusman on tax, when Rusman was still an associate.
Bracewell & Giuliani LLP also assisted Kinder Morgan. Its team included Greg Bopp on tax and finance, J.J. McAnelly on energy, finance and real estate, and Lance Behnke on tax. Bracewell worked on Kinder Morgan Energy Partners' KinderHawk purchase and helped set up the original joint venture with Petrohawk and with Kinder Morgan's independent directors on the take-private.
El Paso used Morgan Stanley for financial advice and, to a more limited extent, Goldman Sachs. Goldman's Steve Daniel was already advising El Paso on the spinoff of its exploration and production unit, but the bank couldn't serve as the financial adviser on the merger because Goldman Sachs Capital Partners' 19% stake in Kinder Morgan made for a conflict of interest. So Morgan Stanley's Brian McCabe, Jonathan Cox and Steve Munger stepped in. McCabe advised El Paso on its $16 billion merger with Coastal Corp. 10 years ago and $1.5 billion worth of exploration and production divestitures and $2 billion of pipeline divestitures after that. He's also worked on some of the biggest pipeline deals in the industry. This year he's assisted (with Cox) ArcLight Capital Partners LLC on its August sale of Houston Fuel Oil Terminal Co. to Alinda Capital Partners LLC for an estimated $1.3 billion and the conflicts committee of DEP Holdings LLC, the general partner of Duncan Energy Partners LP, on its sale of 42% of Duncan to Enterprise Products Partners for $2.53 billion in stock.
For legal advice, El Paso turned to a contingent from Wachtell, Lipton, Rosen & Katz, including David Katz and Dan Neff on the corporate side, Eric Rosof on financing, Nelson Fitts on regulatory, Jodi Schwartz on tax and Michael Segal on benefits. Katz, Neff and Schwartz also had been working on the spinoff of El Paso's exploration and production unit since May, so they had to switch gears in August when Kinder Morgan came calling.
Katz says dealmaking is tough now with the shaky economy and volatile stock market, but there are opportunities for companies that really want to do transactions, noting Barclays' committed financing. "For the bigger transactions using cash that don't have the balance sheet, it's going to take some work," he says.
Now the challenge will be getting the deal through regulators, who will be looking at market control issues generally and the two companies' overlap in the Rockies specifically. Kinder Morgan CEO Richard Kinder claims he'll do "whatever it takes" to get the deal through regulators, including shedding assets. El Paso was forced to sell 11 natural gas pipeline systems over 2,500 miles when it merged with Coastal. It will be interesting to see what happens 10 years later under a very different regime. --Claire Poole
Oil services continue to be one of the hottest areas in energy M&A, with Superior Energy Services Inc. agreeing Oct. 10 to buy Complete Production Services Inc. for $2.7 billion, creating a top provider of equipment to companies exploring for oil and natural gas in North America's burgeoning shale fields.
Greenhill & Co. LLC's Chris Mize and J.P. Morgan Chase & Co.'s Laurence Whittemore and Stephen Clark advised Superior, with J.P. Morgan kicking in a bridge financing commitment for the $570 million cash portion of the deal. Superior CEO David Dunlap chose Mize because he knew him from his days at BJ Services Co., which Mize sold to Baker Hughes Inc. in 2009 for $5.5 billion. Whittemore is an old oil services deal hand, having advised Smith International Inc. on its $3.2 billion acquisition of W-H Energy Services Inc. in 2008. Clark, who is based in Dallas, was senior managing director of natural resources at Bear Stearns Cos. when J.P. Morgan bought it in 2008.
Jones, Walker, Waechter, Poitevent, Carrère & Denègre LLP counseled Superior. Its team included M&A partners Scott Chenevert and Ken Najder, financing partner Hughes Grehan and tax partner Rudolph "Ruddy" Ramelli. No surprise there: Superior general counsel Bill Masters was an attorney at the firm for 26 years, including 13 years as outside general counsel of Superior, before joining the company in 2008.
Credit Suisse Securities (USA) LLC's Osmar Abib and Greg Weinberger assisted Complete Production. The two bankers are steeped in oil services deals, having advised Grant Prideco Inc. on its $7.4 billion acquisition by National Oilwell Varco Inc. in 2008 and in August assisting Cameron International Corp. on its $375 million acquisition of LeTourneau Technologies Inc. from heavy-equipment maker Joy Global Inc. Weinberger is a former Cravath, Swaine & Moore LLP partner who was named Credit Suisse Group's co-head of Americas mergers and acquisitions in June when global head of oil and gas Abib assumed Weinberger's position as head of Americas oil and gas. In August Weinberger advised Bermuda-based oil services provider Archer Ltd. on its agreement to buy Wexford Capital LP-backed Great White Energy Services of Oklahoma City for $742 million, pre-empting Great White's planned initial public offering but giving Archer access to the rapidly expanding U.S. fracturing market. In February he also assisted John Wood Group plc on the sale of its well support unit to General Electric Co. for $2.8 billion.
Latham & Watkins LLP corporate partners Scott Shean and Charles Ruck in Orange County, Calif., provided Complete Production with legal advice, along with tax partners Timothy Fenn and Pardis Zomorodi, antitrust partner Michael Egge, finance partner Daniel Seale, environmental partner Christopher Norton, intellectual property counsel David Kuiper and regulatory partners Alice Fisher and Claudia O'Brien. No surprise there, either: Latham assisted Complete on its acquisition of Pumpco Services Inc. in 2006 for $179 million.
According to a source, Superior and Complete discussed a combination back in 2006 when Complete was contemplating an initial public offering, but there was a disparity in price expectations, so Complete went ahead with its IPO. Now Dunlap is running Superior and looking to build the company, and he was willing to pay up to do so, the source says. Pay up he did: Superior's offer represented a 61% premium over Complete's share price the last trading day before the deal was announced. That caused Superior's stock to fall 14% the day the deal was announced as investors reacted to what looks to be an ill-timed foray into pressure pumping and to Superior's straying from its international growth story. Tudor, Pickering, Holt & Co. Securities Inc. said the same thing happened in 2006 when Superior bought land contractor Warrior Energy Services Corp. Back then, its stock ended up recovering a week later and outperformed its peers over the next three months.
"We think the deal ... will prove smart in time," Tudor Pickering said. It will be interesting to see if history repeats itself. -- C.P.
White & Case LLP partner George Paul got a taste of how the new U.S. merger guidelines will be implemented, as he helped shepherd the purchase of Sara Lee Corp.'s North American Fresh Bakery business by BBU Inc., a unit of Mexico City's Grupo Bimbo SAB de CV, over the past year.
On Oct. 21 the Department of Justice approved the $959 million acquisition, conditioned upon divestitures of various Sara Lee and BBU bread brands in eight metro markets around the U.S. The companies must divest rights to Sara Lee's EarthGrains brand and brands in the Sara Lee family in four California cities; EarthGrains and BBU's Mrs Baird's brand in the Kansas City, Kan., area; EarthGrains in the Oklahoma City region; EarthGrains and Healthy Choice brands in the Omaha area; and Sara Lee's Holsum and Milano brands in the Harrisburg, Pa., region.
Paul led Grupo Bimbo's antitrust team with partner Noah Brumfield. They got an assist on antitrust matters from Mark Leddy and Jeremy Calsyn of Cleary Gottlieb Steen & Hamilton LLP. Sara Lee was represented by Marc Raven of Sidley Austin LLP.
The antitrust review got under way just after the DOJ and the Federal Trade Commission's August 2010 issuance of new horizontal merger guidelines. One important change called for the regulators to place less emphasis on defining the specific market affected by a merger and to put more on measurements of a deal's effects on competition. The revision obligates merging parties to submit more sales and other data so the agencies can model how consumers will be affected.
In the case of the Sara Lee sale, this meant the DOJ would conduct a market-by-market, product-by-product analysis to examine which of the companies' many bread varieties were likely to experience a price increase and where. "This is a good example of how transactions in which we have local markets in the retail consumer goods sector will be reviewed under the new guidelines," Paul says. "Every purchase of bread in a supermarket or convenience store is logged in scanner data."
Before the new guidelines, the agencies early in a review might have eliminated local markets where there was little concentration in the overall bread market. But increased emphasis on competitive effects gave the DOJ reason, even in markets where bread generally was highly competitive, to drill down into the "mountains and mountains" of data to parse through the likely impact on plain-old white bread, multigrain breads and every other conceivable variety available in the bakery aisle.
"DOJ moved through almost every major metro area of the country to find areas where they thought there was a problem," Paul says. "There was more investigation and thought regarding individual areas, and there was a broader look at the market than there may have been in past transactions." -- Bill McConnell
Meanwhile, on Oct. 10, Grupo Bimbo SAB de CV announced a $154 million cash acquisition of Sara Lee Corp.'s bakery units in Spain and Portugal. For the third time in three years, Grupo Bimbo turned to New York-based Atlas Strategic Advisors LLC for financial help and Cleary Gottlieb Steen & Hamilton LLP for legal advice. Palden Namgyal, Eugenia Wilds, Patricia Buckley, Fred Sykes, Ricardo Martiniski and Antonio Georgalos were on the Atlas team, while Chantal Kordula, Glorimari Vargas and Angela Escobar led the Cleary contingent.
A Sidley Austin LLP team led by Scott Williams, Alan Jakimo, Mary Niehaus and John Schaff gave Sara Lee legal advice on its latest deal. The transaction is expected to close by year's end. -- Demitri Diakantonis