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November 2014
Volume 3, Issue 11
VINSON &
ELKINS LLP
ACTIVISM
CONFERENCE
REPORT
ENERGY
ACTIVISM IN
NUMBERS
ACTIVISM
MONTHLY
Lite
In association with
Editor’s letter
Josh Black, Activist Insight
T
his month’s edition of Activism
Capital. A private equity swoop for
With not only this conference, but
Monthly Premium magazine
some of Bellatrix’s assets is exactly
also several others on activism or
has
on
what Orange Capital would like to
securities regulation taking place at
activism in companies in the energy
see, while Civeo is also likely to see
the same time, Canadians continue
markets, which is timely given current
some activism over its decision not
to have an intense interest in activism.
concerns about the oil market. In a
to become a REIT but to instead re-
Since at least seven activist firms and
month where crude oil dipped below
domicile to Canada to enjoy lower
more or less all of the major players on
$85, albeit briefly, there have been
corporate taxes.
the advisory side were represented
a
special
focus
concerns about the sustainability of
many companies’ business plans.
As our feature article shows, this
brings both pitfalls and opportunities
for activist investors. On the one
hand, some investors who have
waded deeply into the energy market
are now looking to get themselves
out of tricky positions. Lower prices
“
Some investors
in energy
markets are
looking to get
themselves out of tricky
positions”
at the Activist Investing conference,
this had a good claim to being the
most comprehensive conference of
all, and we have tried to bring you the
best insights from the day later in this
issue.
Of course, this was also the month
that Carl Icahn said Apple was trading
We are fortunate to have input this
at “half price” and Bill Ackman listed
eating into quarterly earnings could
month not only from some experienced
his Pershing Square Holdings fund
mean many cut their losses and
investors, but from some of the
on the Amsterdam Stock Exchange.
run. Attiva Capital, an occasional
pre-eminent advisers in the energy
Activism Monthly Premium is often
activist with a penchant for emerging
space. Vinson & Elkins, a Houston
described as the only publication
markets, tweeted last month that oil
firm originally but increasingly a
dedicated solely to the activism
was “headed towards $50.” An almost
global one, is frequently named the
space, and yet we feel it is worth
apocalyptic prediction, to be sure,
world’s leading energy law firm, and
reminding readers of our Lite, online
but even a more gradual slide would
have kindly sponsored this month’s
version that a whole lot more awaits
cause some companies trouble.
issue of Activism Monthly. For them
them in the paid-subscription print
to say that activism is the number one
version. Coming to the end of our
More attuned investors may hope to
external issue in the boardrooms of
first year of publishing, we are keen to
spot bargains, however, particular
companies they advise says a great
hear feedback from our readers and
in
companies
deal about the vulnerability the sector
will increasingly be soliciting opinions
that can be restructured in a more
feels it has acquired over the past
with a view to staying ahead of the
shareholder-friendly
three years.
game in 2015.
bigger player. Regular readers may
Indeed, the impact of activism on
For now though, thank you for
remember last month’s discussion
Calgary was one of many topics
reading, and feel free to get in touch
of Bellatrix Exploration, a Canadian
being discussed on the fringes of the
with any questions.
company subject to some interest
Arrowcon Partners Activist Investing
recently from Daniel Lewis’ Orange
in Canada conference in mid-October.
infrastructure-heavy
format,
such
as a REIT or MLP, or sold to a
[email protected]
2
Contents
2
Editor’s letter
4
Nervous energy
8
The tip of the iceberg
Full contents of Activism Monthly Premium Magazine,
November 2014. To subscribe and access all this and
more, see overleaf.
8
4
An interview with Kai Liekefett &
Stephen Gill, Vinson & Elkins
10
Two ways to invest
An interview with Franck
Berlamont, Geneva Partners
12
12
Activist investing in Canada:
Conference report
15
One to watch
Elliott Management at Family Dollar
Stores
16
Globalstar
18
News in brief
20
New investments
22
In the bank
16
An interview with Johnny Guerry,
Clover Partners
23
Activism in numbers
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The tip
of the
iceberg
H
An interview with Kai Liekefett and Stephen Gill
ave you noticed an upsurge
drop-downs
into
master
in activism in the energy
par tnerships, or MLPs.
limited
gas companies sometimes have
industr y recently?
more room for improvement than
And
third,
the
energy
industr y
Kai Liekefett: Up until 2012, activists
has, for better or for worse, an
weren’t
entrepreneurial
really
focused
companies. Indeed, smaller oil and
on
this
or
wildcatter
mid- or large-cap companies.
Do activists need exper tise in this
sector. But in the last three years,
culture, which has led to activists
there were more than 30 repor ted
calling
activism campaigns in the U.S. and
governance at energy companies.
SG:
numerous activist situations that
Now, I think that focus is a bit
characteristics that need to be
were resolved outside the public
overblown,
understood,
eye.
investors
firms
What’s behind this rising activity in
for
care
have
been
three drivers that we’ve seen. First,
the shale boom has changed the
industr y. The U.S. is now a leading
producer of oil and gas in the
world. The problem is that energy
companies incurred record capital
advisor y
governance,
In this
industry, a lot
of companies
are
susceptible to financial
engineering”
Are companies of all sizes being
oil and gas prices have fallen and
near-term
profitability
has
been
reduced.
but
has
that
unique
doesn’t
preclude the same plans being
replicated.
Understanding
how
assets are valued, and how they
af fected?
There
proxy
about
industr y
oil and gas companies and their
shale boom, while at the same time
Gill:
and
institutional
The
audience.
expenditures in the midst of the
Stephen
but
corporate
and activists are playing to that
“
the sector?
better
industr y to be successful?
per form is impor tant.
accounting
Also, the
requirements
for
oil
and gas reser ves can be a trap for
the unwar y. That said, we’ve seen
most of the well-known activists
investing in the sector, and we
expect
those
that
haven’t,
like
Pershing Square or Trian, to target
the energy industr y before long.
What are some of the arguments
KL: It’s really happening all over the
that do or don’t resonate in the
energy industr y. Size is no longer
industr y?
a deterrent to activism. Last year,
Second, in this industr y, a lot
Elliot waged a proxy fight against
KL: Let’s star t with what most of ten
of
Hess, which was then a $25 billion
doesn’t work:
company.
shor t-term debate.
companies
are
susceptible
to financial engineering.
Many
This year Apache, a
The long-term vs.
Institutional
energy companies have upstream
$30 billion company, has become
shareholders care primarily about
and midstream assets; some also
the target of Jana Par tners. The
the situation at hand, and therefore
have
The
bread and butter of activism in
we advise clients to focus on
downstream
market
pure
the energy space, however, are
near-term or mid-term results in a
drives
small- and mid-cap companies.
campaign. This may be regrettable
activist demands for spin-of fs and
Some activists such as Loan Star
because
other
Value specialize in targeting those
beneficial or detrimental to our
play
currently
assets.
companies,
divestitures,
rewards
which
in
par ticular
whether
activism
5
is
“ACTIVISM FACILITATES DEALS, BUT IT CAN ALSO
HAVE A CHILLING EFFECT”
“
This is now
the number
one topic in
our clients’
boardrooms”
energy sector, we represent only
issuers in this space. We have held
discussions with some of the wellknown activists about other sectors
and have represented “occasional
activists”
in
economy in the long term remains
however.
For example last year
other
an impor tant question.
we
represented
industries,
an
investment
fund in its proxy fight to stop the
SG:
Kai Liekefett
a
$6 billion merger of Clear wire and
coherent strategy, which is easily
What
does
resonate
is
Sprint. Af ter four adjournments and
understood by analysts, the market
an intense campaign, the merger
and investors generally. Proactive
consideration
engagement with your shareholders
increased by around 70%.
was
eventually
is critical – you need to be able
to explain your strategy to a non-
What do you expect to see from
activist. Other than that, we advise
activists in this sector in the near
our clients to sit down and have a
future?
productive private meeting with the
activist. Campaigns won’t see the
KL: We think we’ve only seen the tip
light of day if you can convince an
of the iceberg. Many activists have
activist that their plan won’t work.
discovered this sector and we think
that more will invest in the coming
Has this increased activist activity
years, especially as valuations in
had an impact in the boardroom?
equity markets may not reflect the
intrinsic value of energy companies.
Steve Gill
SG: Beyond the usual industr y
There’s also a relationship between
trends, this is now the number
activism and M& A activity in the
one topic in the boardrooms of our
sector. Activism facilitates deals,
clients. As a result, boards are more
but it can also have a chilling ef fect,
sensitive to it. It can get personal,
as
but on the whole directors are
about how transformational deals
willing to listen to activists’ ideas.
might be attacked by activists.
There’s a lot more openness in
Therefore, our clients have become
terms of change, these directors
careful about deals that are not
are not zealots to their own ideas.
immediately
Also, activists have become more
synergies
sophisticated and the quality of
apparent to the market.
there
have
been
accretive
are
not
concerns
or
where
immediately
their nominees has become a lot
better. Some boards might have
Vinson
financial exper tise, but an activist
international
&
may come along and say, “I’ve
approximately
got one of the best COOs in the
across 15 of fices worldwide.
industr y among my nominees.”
More than 400 V&E attorneys
regularly
Elkins
LLP
law
700
advise
is
firm
an
with
law yers
clients
on
Does Vinson & Elkins represent
energy-related matters. Kai and
activists as well as issuers?
Stephen are based in the firm’s
of fices in Houston, Texas.
SG: As a leading law firm in the
6
Since 1917, V&E has been providing business solutions for clients, with a particular
focus on the energy industry. Our international corporate practice collaborates
across 15 global offices, handling corporate governance matters, transactions,
investments, projects and disputes worldwide. V&E lawyers advise both public
companies and shareholders in connection with shareholder activism, proxy
contests, board structures, corporate governance and compliance, shareholder
litigation, and internal investigations.
To learn more, contact us or visit our website at www.velaw.com.
Jeffery Burton Floyd
+1.713.758.2194
[email protected]
Stephen M. Gill
+1.713.758.4458
[email protected]
Vinson & Elkins LLP Attorneys at Law Abu Dhabi Austin Beijing
Dallas Dubai Hong Kong Houston London Moscow New York
Palo Alto Riyadh San Francisco Tokyo Washington www.velaw.com
Kai Haakon E. Liekefett
+1.713.758.3839
[email protected]
Activist Investing in Canada: Conference report
I
ncreased
interest
investing
in
activist
Partners Activist Investing in Canada
Services, quipped, “When you have
ever
conference. “We do the latter, and
dinner with someone, you have to
since Pershing Square Capital
we call all her workmates and tell
expect that something’s going to
them to share their views.”
happen.”
Management’s
in
Canada
stunning
victory
over Canadian Pacific has left many
seeking to understand what activists
Indeed,
grand
gestures
are
a
Nervousness
about
activism
are looking for and how they build
permanent fixture of the activist
therefore
support, and this event provided
landscape on both sides of the US-
Feinstein,
an unbeatable introduction. With
Canadian border. Engaged Capital’s
Houlihan Lokey, says activism is on
Pershing Square, Kerrisdale Capital,
Glenn Welling, who prefers to stay
its way to being viewed as a threat at
Engaged Capital, FrontFour Capital
out of the limelight where possible,
the same level as hostile takeovers
Management and VN Capital all
admitted to the crowd that the
in the 1980s, with similar efforts at
represented on panels or in “fireside
media had its uses. He went public
preparedness taking place. Activism
chats,” that introduction came direct,
with the threat of a proxy contest
now affects companies not merely
as well as from the advisory side.
at Abercrombie & Fitch after his
at board level, but in all walks of
concerns were dismissed, and within
business, including on deals, with
For one, Kerrisdale’s Navi Hehar sees
weeks the company had added
Feinstein saying roughly a third
activist investing in a romantic light.
seven new directors. More often,
of M&A activity is stimulated by
“Some guys like to message a girl
he faces up to a CEO or Chairman
activists. According to Scott Winters,
up privately on Tinder, others send
privately, over dinner. Sometimes the
a Managing Director at proxy solicitor
a dozen roses to her workplace,” he
companies continue to stall. Yet as
Innisfree, “The days of signing a
told the audience at the Arrowcon
Wes Hall, of Kingsdale Shareholder
merger agreement and that being
understandable.
of
investment
is
Gregg
bank
8
“THE DAYS OF SIGNING A MERGER AGREEMENT AND
THAT BEING THE END OF IT BECAUSE SHAREHOLDERS
WILL BACK YOU REGARDLESS ARE OVER”
“
Everyone
thinks they
can go a
round with
Mike Tyson until they
get the first punch”
the end of it because shareholders
hold the reporting threshold for
will back you regardless are over.”
investments at 10% of a company’s
equity
and
not
of
require
greater
Hall says he has a call once a week
disclosures
from an activist, but only acts on
friendliness of Canada’s regulatory
instances where the dissident is
framework
prepared to put up serious cash and
unquestionable.
to
derivatives,
activism
the
remains
has an attractive value proposition.
When acting for companies, he
Nonetheless,
differences
first speaks to major shareholders
The early warning report, used when
to determine how much support
an activist acquires more than 10%
management can rely on. Where that
of a business, requires an immediate
support is limited, he recommends
moratorium
negotiation. “Everyone thinks they
announcement within a couple of
can go a round with Mike Tyson until
days at most, unlike Schedule 13D,
they get the first punch,” he says.
which grants a ten day window before
on
trading
remain.
and
an
disclosure. Poison pills, previously
Norton
Rose
Orestes
used mostly for a 60-day halt in
of
the
hostile bids, can now stretch to 120
Special Situations team at the law
days and there is talk of a threshold
firm, cautions his clients to beware
below 10%. Many companies have
of
Pasparakis,
“sheep
Fulbright’s
a
in
Co-Head
clothing,”
adopted advanced notice bylaws to
saying that although there are lots
wolves’
prevent nominations from the floor—
of opportunities in Canada, there
those that don’t have to maintain a
are few real activists. Yet in the
heightened level of preparedness.
same week as the Ontario Securities
Commission announced it would
Activist Insight was a media sponsor
of the inaugural ArrowCon Partners
“Activist
Investing
in
Canada”
conference and produced a special
edition of Activism Monthly Premium
magazine for attendees.
The document features interviews with
conference speakers Walied Soliman
and Orestes Pasparakis, of Norton
Rose Fulbright, Wes Hall of Kingsdale
Shareholder Services, and Paul Hilal of
Pershing Square Capital Management.
Those interested in receiving a copy
can request a PDF by e-mailing
[email protected].
As simple as:
1
Voting policies and contacts of each investor
2
Who voted and how at any shareholder meeting
3
How an institution typically votes on a particular issue
Call or visit our website to arrange a trial:
+44 (0) 20 7788 7772
• www.proxyinsight.com
Activism in numbers
High energy activists
Fig 1: Number of campaigns launched by activists in the
energy sector since 2010
6
5
Several activists have made the energy sector something of a
specialty since 2010, despite being regarded as generalists. Carl
Icahn has led campaigns at six different companies, according
to Activist Insight, while JANA Partners and relatively new firm
Lone Star Value Management are on five each. These include
billion dollar companies, like Apache, Marathon Petroleum and
Oil States International, as well as micro-caps like Antares Energy
and Callon Petroleum.
5
3
2
In all, just under 50 investors have led activist campaigns in the
sector since 2010.
* Atlantic Investment Management, CalPERS, Osmium Partners, Sandell Asset Management, West Face
Capital, Worldview Capital Management
Carl Icahn
JANA
Lone Star
Nanes
Balkany
Others*
Can
ada
)
The challenge faced by American energy firms is highlighted
by the fact that more than half of the activist targets in this
sector are based in the US. Carl Icahn’s recent forays into
Swiss firm Transocean and Canada’s Talisman Energy
highlight the global reach of activism in this sector.
r (8%
Fig 2: Location of activist targets in energy sector
since 2010
Othe
US biggest stage for energy activism
(18%
)
)
pe
US (52%)
2%
(2
o
ur
E
Energy sector subject to array of strategies
46
Fig 3: Frequency of activist tactics used in the energy
sector since 2010
17
As in most sectors, activists investing in energy companies
are keen to join the board in order to influence everything
from operations to spin-offs and strategic planning. Board
representation is therefore the dominant public demand made by
activists, with twice as many campaigns as the next most frequent.
16
12
6
Board rep
M&A
CEO
Spin-offs
Return cash
That said, the sector has its own trends, and consolidation and
divestment strategies are popular with activists, as evidenced by
the number of campaigns focused on M&A or spin-offs. Finally, the
removal of powerful CEOs or founders, often deeply embedded
in the fabric of energy companies, remains a popular tactic.
11
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