1. A report in the Mint demonstrates the popularity of convertible instruments over plain-vanilla equity when it comes to investments by private equity firms.
2. A post on New York Times’ Deal Professor Blog discusses trends in contractual structures for private equity investments from a broader perspective in the wake of the financial crisis. Most of those structures, however, are in the context of buyouts (by private equity firms) which continue to be few and far between in the Indian markets.
It was interesting to read both the pieces, especially the one by Steven Davidoff.
Interestingly, he is the votary for the deal-structure that does not include a provision for specific performance in lieu of a higher termination fee. His reasons seem to be that if the deal-structure includes a specific performance provision, the target and the buyer will fight it out in the court and that would mean that public markets will hear about the investment-risk incipient in the target, something that the target does not necessarily want the public to know.
Fair enough. But why throw the baby out with the bathwater? If the "stink" as he puts it, is the concern, surely, the courts will agree to do the proceedings in secrecy. Or maybe, private contractual dispute resolution remedies may be availed of.
An ex ante specific performance clause is likely to deter the buyer from walking away. Not having such a clause ex ante and instead retaining the termination fee provision may induce moral hazard in the buyers and create incentives for walking away.
Davidoff probably understands that the risk of moral hazard and so argues for a no specific performance clause with the qualification of increased termination fees. But I would imagine, haggling over the opportunity cost of finding other buyers should the present buyers walk away is costlier exercise (this is so particularly for unlisted targets) than merely negotiating for an arbitration clause/convincing the court adjudicating post-hoc of the need to secrecy.
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Indeed it was nice reading both the posts. And I agree with Mandar's point of view.
Private equity investment