BB&T Corp. has successfully used M&A to expand in the Southeast for almost 20 years. At first glance, then, the Winston-Salem, N.C.-based bank's decision to acquire the commercial banking subsidiary of troubled BankAtlantic Bancorp Inc. on Nov. 1 -- in a deal that looked dubious from the get-go -- is puzzling.
Delaware Vice Chancellor J. Travis Laster killed the transaction on Feb. 27 in an opinion that occasioned little comment among deal lawyers. A closer look at the transaction suggests that BB&T may well have understood the risks involved but struck the deal that gave it the best chance of getting BankAtlantic's Florida commercial banking network -- whether that chance came in the contemplated deal or in a future one.
Alan Levan, Fort Lauderdale, Fla.-based BankAtlantic Bancorp's CEO and de facto controlling shareholder, is a controversial, litigious character who's been sued by both his own shareholders and the Securities and Exchange Commission. But he insisted on a structure that allowed him to retain control of the parent company even after the Office of Thrift Supervision essentially demanded the sale of BankAtlantic, the subsidiary that constitutes most of the parent's assets. As part of a deal, the parent would have kept $285 million in trust preferred securities issued between 2002 and 2007. Critically, covenants in the trust preferred securities bar BankAtlantic Bancorp from selling "all or substantially all" of its assets unless the buyer assumes the debt.
Nevertheless, Levan thought the price he could get for the entire company was too low, and he had his bankers -- Emmett Daly, Christopher DeCresce and Liz Jacobs of Sandler O'Neill + Partners LP and Charles Edelman, the head of M&A at Cantor Fitzgerald LP -- pursue a sale of only the subsidiary. BankAtlantic used Alison Miller and Michael Keyes of Stearns Weaver Miller Weissler Alhadeff & Sitterson PA, a midsized South Florida firm, as counsel. Miller represented the company on its $35 million sale of 21 branches in 2011 and $350 million in deposits to PNC Financial Services Group Inc. and on its $170 million purchase of Community Savings Bancshares Inc. in 2001. She did not return an e-mail requesting comment.
Beginning in September, Laster wrote in his 42-page opinion, Sandler O'Neill and Cantor Fitzgerald contacted 24 companies, nine of which expressed an interest in the BankAtlantic assets and signed nondisclosure agreements. BankAtlantic Bancorp refused to consider a sale of the whole company or a deal in which the buyer would assume the debt securities, Laster found, and only BB&T agreed to pay a 10% premium on the $3.4 billion in BankAtlantic deposits to be sold.
Instead of paying in cash or stock, BB&T would allow BankAtlantic Bancorp to keep troubled assets whose book value is $624 million but whose real value is a good deal less -- though how much less is unclear. Those troubled assets "constitute the consideration for the transaction," Laster found.
The deal was signed on Nov. 1. BB&T used Deutsche Bank AG's Vinnie Badinehal and Jason Braunstein for financial advice. They also advised BB&T in 2009 when it bought Colonial BancGroup Inc., a failed bank based in Alabama with a significant presence in Florida. Credit Suisse Group also worked on the deal for BB&T, and the two investment banks teamed to underwrite a $962 million equity offering to finance the purchase. For legal advice on the BankAtlantic deal, BB&T tapped David Zagore and James Barresi of Squire Sanders (US) LLP in Cleveland, which represented BB&T on the Colonial deal along with Wachtell, Lipton, Rosen & Katz. Zagore did not return an e-mail requesting comment.
BB&T has been active in Florida. In 2002, it bought Tallahassee-based Regional Financial Corp. for $275 million, and two years later it paid $437 million for St. Petersburg, Fla.-based Republic Bancshares Inc. BB&T also reportedly submitted an offer for Miami Lakes, Fla.-based BankUnited Inc., which a group of private equity firms bought in 2009 after it was seized by the Federal Deposit Insurance Corp., but BankUnited announced in January that it would remain independent.
So on the BankAtlantic deal, the buyer was familiar with Florida, used its regular deal team and had previously bought troubled assets. Furthermore, BB&T had also issued trust preferred securities, a common instrument whose terms are standardized, and thus knew that the Nov. 1 deal violated covenants in the BankAtlantic trust preferred.
It couldn't have surprised BB&T when several investors that owned the securities and their trustee, Wells Fargo Bank NA, sued in Delaware's Court of Chancery to challenge the deal. Jonathan Pickhardt and Richard Werder Jr. of Quinn Emanuel Urquhart & Sullivan LLP in New York represented the investors along with Kenneth Nachbar of Morris, Nichols, Arsht & Tunnell LLP in Wilmington, Del. Wells Fargo tapped Mark Hyland, Greg B. Cioffi and Jeffrey M. Berman of Seward & Kissel LLP in New York and Gary Traynor, Bruce Jameson and J. Clayton Athey of Prickett, Jones & Elliot PA.
Laster found that the BankAtlantic subsidiary constitutes "substantially all" of the parent's assets and therefore that the sale as structured violated the terms of the trust preferred. He voided the deal. Toward the end of his decision, he contradicted BankAltantic Bancorp's claims that his action would lead to its "failure as an entity." Instead, he wrote, BankAtlantic's loan portfolio and performance are improving along with the Florida real estate market. "If necessary," he wrote, "Bancorp could continue on its current course for another two years" and has "alternatives" that would not violate the terms of the trust preferred.
That means BB&T has ample time to strike a deal that will satisfy both Levan and the holders of the trust preferred. BB&T may well have signed the Nov. 1 agreement for the same reasons a stalking-horse bidder makes the opening offer for a bankrupt company: to position itself favorably for the eventual, inevitable sale of the asset. -- David Marcus
SBA Communications Corp.'s race to keep up with its competitors' wireless tower portfolios led to its late-February purchase of Oaktree Capital Management LP-backed Mobilitie LLC for $1.09 billion. For its largest deal yet, SBA sought advice from the same legal and financial advisers that walked it through its $1 billion acquisition of AAT Communications Corp. in 2006.
Greenberg Traurig LLP's Kara MacCullough, John Mascialino, Alix Lumpkin and Zachary Schlichter counseled SBA on the purchase of Mobilitie's more than 2,300 U.S. and Central American tower sites as well as indoor and outdoor distributed antenna systems, or DAS, in Chicago, Las Vegas, New York and Alabama. MacCullough also counseled SBA on the AAT purchase and on more than $5 billion worth of public and private equity and debt offerings.
J.P. Morgan Chase & Co., which advised SBA on the AAT deal, returned for Mobilitie with a team led by James Woolery and including Marco Caggiano and Kurt Simon. They were joined by Barclays Capital's Barry Boniface and Gordon Kroft. Barclays has a long-term financing relationship with the Boca Raton, Fla., company, most recently serving as a bookrunner on an April 2010 $1.23 billion debt securities offering.
The Mobilitie deal, which calls for SBA to pay $850 million in cash and 5.25 million common shares for the Newport Beach, Calif.-based wirelesss tower provider, follows similar acquisitions by SBA's larger rivals. In December American Tower Corp. agreed to buy 2,500 Mexican towers from Telefónica SA. Crown Castle International Corp., also in December, announced it would buy NextG Networks Inc. for $1 billion. In January, it acquired Wireless Capital Partners LLC for $180 million in cash and $320 million in assumed debt.
Mobilitie, for its part, hired Moelis & Co. in the fall to help it find strategic buyers. Its team includes Matthew Clark, Jeffrey Raich, Stanley Holtz and Matthew O'Hearn. The Moelis bankers worked alongside Bank of America Merrill Lynch, which Mobilitie had hired in early 2011 to seek financial buyers. The BofA team included Ben Braun and Mandar Donde.
Mobilitie turned to Goodwin Procter LLP's Robert Fore, William Whitledge and Michael Kendall for counsel. Fore's relationship with Mobilitie dates back to 2005 when he helped the company secure equity financing from Oaktree, giving the New York private equity firm an unspecified majority stake.
Oaktree was counseled by Paul, Weiss, Rifkind, Wharton & Garrison LLP's Kenneth Schneider, Eric Goodison, Patrick Campbell, John Kennedy, Lawrence Wee and Mitchell Berg. Schneider and Berg serve as Oaktree's regular counsel. Berg also counseled SBA on its July 2008 $224 million acquisition of Light Tower Wireless LLC. --Michael Rudnick
The road to Procter & Gamble Co.'s sale of its Pringles chip business to Kellogg Co. was marked by a failed deal with Diamond Foods Inc. along the way. Less than a week after P&G's $2.35 billion stock-and-debt deal to sell Pringles to Diamond Foods collapsed due to the would-be buyer's 2010 and 2011 earnings accounting errors, Kellogg jumped in with a $2.7 billion cash offer. It's unclear how long Battle Creek, Mich.-based Kellogg had been circling prior to its offer.
Kellogg's bid lacks the tax-friendly component of the Diamond Foods' Reverse Morris Trust structure. San Francisco-based Diamond was to issue 29.1 million shares and assume about $850 million in Pringles debt while P&G was to establish a separate entity to hold its 57% stake in the combined company, which would have been distributed to P&G shareholders who chose to exchange P&G shares for Diamond shares.
It appears that P&G had several suitors, but it's unclear whether any offered another Reverse Morris Trust structure. "I think P&G was very lucky to have several bids, and I think [Kellogg] was a superior bid," says a source close to the deal. "It provided sufficient value to shareholders, and they did not feel compelled to seek another bid." Reverse Morris Trusts are not easy to come by because the seller must find a buyer that is smaller than the spun-off entity and the buyer must have "a stock that's going to hold its value," the source adds.
P&G is no stranger to Reverse Morris Trusts, and neither are its advisers. Jones Day's Robert Profusek, who has counseled P&G on deals for the past seven years, worked on the Pringles sale as well as the 2008 sale of P&G's Folgers coffee unit to J.M. Smucker Co. in a Reverse Morris Trust worth about $3.3 billion. Profusek was joined by Randi Lesnick on the Pringles sale.
P&G's tax counsel on the Pringles sale was Cadwalader, Wickersham & Taft LLP's Linda Swartz, who first worked for the Cincinnati food giant on its $57 billion all-stock acquisition of Gillette Co. in 2005. Cadwalader's Dennis Block (now with Greenberg Traurig LLP) did the M&A work for P&G on the Gillette transaction. Swartz also provided tax counsel on the Folgers sale, among other P&G transactions.
The Pringles deal was a reunion of P&G advisers from Folgers. Morgan Stanley's Kristen Rossi, who provided financial advice on that sale, advised P&G on the Pringles divestiture.
Wachtell, Lipton, Rosen & Katz's Daniel Neff, Benjamin Roth, Stephanie Seligman, Joshua Feltman, Adam Shapiro, Eiko Stange and Jodi Schwartz served as Kellogg's counsel. Neff had counseled Kellogg on its 2001 $4.6 billion acquisition of Keebler Foods Co.
Barclays Capital's Adam Taetle and Sandeep Patel advised Kellogg on the Pringles purchase. Barclays served as a bookrunner on Kellogg's $500 million debt offering in November.
Diamond's advisers, whose efforts to acquire Pringles date back to late 2009 when Diamond first approached P&G, included Fenwick & West LLP's Douglas Cogen, David Michaels, Michael Solomon and Kee Kim; Blackstone Group LP; and Bank of America Merrill Lynch's Brian Callaci, Jeff Rose and Richard Casavechia. -- M.R.