The financial and legal team that shopped Ista Pharmaceuticals Inc. was faced with an issue that many sell-side advisers would be happy to have: one too many suitors. Before Ista accepted a $500 million, or $9.10 per share, offer late last month from Bausch & Lomb Inc., it had been courted by Valeant Pharmaceuticals International Inc. with a $327 million, or $7.50 per share, bid. Ista rejected Valeant's offer on Dec. 16 as inadequate despite its being nearly double what Ista's shares had closed at the day before it was announced.
Ista's financial adviser, a Greenhill & Co. team including Rich Jacobsen, Ashish Contractor and CEO Scott Bok, was tasked with helping the company find another buyer in the face of potentially impatient Ista shareholders who may have been disappointed with the board's rejection of Valeant. "When Valeant raised the offer to $7.50 and said it could go to $8.50, a lot of long-term holders traded out of the stock, and a lot of hedge funds and arbs moved in and just wanted a deal," says a source close to the situation. "The board rejecting that offer took a lot of guts. They wanted to complete the full [auction] process and get what they viewed as fair value."
Warburg Pincus-owned Bausch & Lomb's offer for Ista was roughly 3.2 times Ista's annual revenue, the same as the multiple paid by Merck & Co. in its $430 million acquisition of ophthalmic products maker Inspire Pharmaceutical Inc. in May, the source says, calling that deal a "useful barometer." The purchase price is also 134% higher than the company's share price in December before Valeant's bid went public.
Greenhill had some time to assess Ista's worth, having been hired by the company in late 2010 to work on unspecified assignments. Early in the auction process, a member of the deal team, Greenhill's Jeffrey Buckalew, was killed in a December plane crash. Bok stepped in to replace him on the assignment.
This was not the first time Irvine, Calif.-based Ista put itself on the block. In early 2008, the company hired Cowen & Co. LLC to run a strategic review process. At the time, Ista was pressed to sell or raise money, as its new eye infection drug did not prove any more effective than a predecessor drug in clinical trials. A sale never materialized, and the company entered into an agreement with long-term shareholders Deerfield Management Co. LP, Sprout Group and Sanderling Venture Partners for a $65 million credit facility. In exchange for the loan, the shareholders were granted warrants to purchase 12.5 million Ista common shares at an exercise price of $1.41.
Ista's longtime counsel, California's Stradling Yocca Carlson & Rauth PC, worked on that transaction and has since advised the company on "a variety of different matters including financing, operational, licensing and employee relations," says the law firm's chief marketing officer, Samantha McDermott. A Stradling team led by Craig Carlson and including Larry Cohn, Numan Siddiqi and Shahzad Malik worked on the sale to Bausch & Lomb. Ista also brought in Wilmer Cutler Pickering Hale and Dorr LLP's Jay Bothwick and David Redlick for additional M&A counsel.
Rochester, N.Y.-based Bausch & Lomb also sought out familiar faces for this deal, turning to Cleary Gottlieb Steen & Hamilton LLP's Robert Davis, Glenn McGrory, Meme Peponis, Laurent Alpert, Arthur Kohn, Jason Factor, Len Jacoby and Jeremy Calsyn. Davis led the Cleary team that counseled Warburg Pincus when it paid $4.5 billion for Bausch & Lomb in 2007. Goldman, Sachs & Co. served as Bausch & Lomb's financial adviser on the Ista purchase. The Goldman team was led by Robert King and Luke Sarsfield. --Michael Rudnick
Wabash National Corp. has been looking to diversify ever since conducting a strategic review in 2009. On March 27, the Lafayette, Ind.-based manufacturer of standard and customized truck trailers agreed to pay $360 million for Walker Group Holdings LLC, a New Lisbon, Wis.-based liquid transportation systems maker owned by Insight Equity Holdings LLC.
Walker had hired Harris Williams & Co. in 2011 to run a competitive auction and received more bids from private equity firms than from strategics, according to a source familiar with the process. John Arendale, John Neuner IV, Darwin Olympia and Matt McLain made up the Harris Williams team, while Sean Ducharme, Wyatt Deal and Benjamin Cooper IV of Hunton & Williams LLP provided Walker with legal advice.
Wabash outbid the private equity groups to win the auction. It also agreed to pay Walker a $20 million termination fee if it decides to call off the deal.
Wabash received financial advice from Morgan Stanley's Eli Gross, Guru Gupta and Benn Calhoun. The Morgan Stanley team got to know Wabash when it advised the company on two secondary stock offerings in 2010 that both involved New York private equity firm Lincolnshire Management Inc.'s selling down its stake.
The first offering was completed in May 2010, valued at around $180 million, and the second was completed in September 2010 for about $63 million. Lincolnshire had made a $35 million minority investment in Wabash in July 2009 after the company, which was struggling financially, hired BB&T Capital Markets to run a strategic review process.
After completing its second stock offering, Wabash looked at numerous potential acquisition targets, but was attracted to Walker because it provided product diversification, says the source. Walker makes stainless steel engineered products and tanks for the dairy, chemical, defense and transportation sectors. The two sides were in discussions for three or four months, Wabash CEO Richard Giromini said in a March 27 conference call.
The buyer has received $450 million in financing commitments from Morgan Stanley Senior Funding Inc. and Wells Fargo Securities LLC to help fund the transaction. The purchase price is subject to a working capital adjustment.
Michael Silver, Alex Johnson, Paul Donnelly, Venroy July, Kevin Gralley, Scott Reisch, Jennifer McClister, Edward Purdon and William Intner of Hogan Lovells US LLP represented Wabash in the deal. Erin Roth is Wabash's general counsel.
-- Demitri Diakantonis
Sandy Smith, a partner at Womble Carlyle Sandridge & Rice LLP in Atlanta, has been close to Atlanta-based medical-transcription outsourcer Transcend Services Inc. for more than a decade. And he was on hand when Transcend agreed to be bought by speech recognition software company Nuance Communications Inc. for about $300 million in a deal announced March 7.
Smith says he has known Transcend CEO Larry Gerdes and CFO Lance Cornell for about 15 years. "I took my M&A practice, my group, from my previous firm, Morris, Manning & Martin LLP, [to Womble Carlyle] three years ago. Transcend was nice enough to stay with me."
Transcend's board, meanwhile, was represented by a Latham & Watkins LLP team led by partner Mark Gerstein and including Bradley Faris and Jonathan Solomon. Gerstein and Gerdes met each other through their work for the J. Kyle Braid Leadership Foundation, a nonprofit based in Villa Grove, Colo., that teaches leadership skills to young people. "What they do is take acknowledged student athletes around the Midwest and South, take them out for a fully paid, seven-day program in peer mentoring and crisis intervention, and send them back to their high schools, where they have an enormous impact," Gerstein says. Gerstein also represented the special transaction committee of CBOT Holdings Inc., the holding company for the Chicago Board of Trade, when it was acquired by Chicago Mercantile Exchange Holdings Inc. in 2007 for $11.9 billion. Gerdes was the committee chair for CBOT.
It was on that deal that Gerstein and Gerdes met Al Garner of Lazard, who advised CBOT on the CME transaction and worked with Lazard colleague Ian Wijaya to advise Transcend on its acquisition. Lazard received counsel from Lois Herzeca and Matthew Walsh of Gibson, Dunn & Crutcher LLP. When Lazard underwrote a stock offering for Transcend in 2009, it was represented by Herzeca.
Burlington, Mass.-based Nuance was advised by Naveen Nataraj, Nima Safabakhsh, Vishal Jadav, Henoch Senbetta, Joshua Qin and Adisha Verma of Evercore Partners Inc. Robert Sanchez and Daniel Peale of Wilson Sonsini Goodrich & Rosati PC served as legal counsel for Nuance.
The Health Information Technology for Economic and Clinical Health, or Hitech, Act, signed into law in February 2009, was created to ensure that all of the nation's medical records are computerized by 2014 in an attempt to lower costs. The law mandates the distribution of $19 billion to those healthcare constituents that adopt new technologies.
"I think this fits right in with that, of course," says Smith of the deal. "It's good for both companies."
"The thing [the companies] worked quite carefully on was responsibility for the technology transitions for Nuance," adds Gerstein.
Nuance's cash tender offer of $29.50 a share values Transcend at about a 30% premium over its 90-day volume-weighted average share price. The deal is structured as a tender offer for a quicker regulatory review. Founded in 1976, Transcend, which employs about 1,950 transcription specialists, has about a 4% share of the $3.5 billion transcription services market and about 390 customers, mostly large and midsized hospitals. Transcend and Nuance combined would have about 7% of the market.