In Some Parts Apparently Scarier Than President Putin!

Extremely Scary Highschool Graduate (The Girl not the Man)

في بعض الأماكن على ما يبدو أكثر مخافة من الرئيس بوتين

в некоторых местах явно страшнее, чем президент Путин !!

If you're not prone to excessive fear, you can check out this scary story here.

On to law school!

Storm Signals in Private Equity

A Severe Warning Flag Given the Amounts Involved

Chris Schelling’s article in Institutional Investor flashes some very clear warning signals about PE.  

“Private equity sponsor-to-sponsor transactions are on the rise. But lately, some firms have begun selling companies to other funds in their stable — a far more worrying development.”  

Chris outlines the risks of both sorts of transactions:  

1. a private equity firm selling a fine investment to another PE firm and 
2. the more worrying one a private equity firm selling a fine investment from one of its own funds to another of its own funds. 

When "exits" aren't via trade sales or IPOs are they really exits?  Or are they symptoms of real problems?  When they represent a large percentage of declared but perhaps not real "exits", are the problems severe?

Let's look at these in order.

First inter sponsor sales.

One-third of all private equity “exits” in 2017 were the first type:  one sponsor selling to another sponsor.  Data for 1 H 2018 show a similar trend. 

There probably are some situations when these transactions can be economically justified in terms of value creation for the limited partner not just for the fund manager/sponsor.  

But such instances are clearly not one-third of all exits.   More likely to be for a fraction of that percentage.  3%? 

Essentially what the fund manager who sells is saying is that he can no longer increase the value of the investment.  What the fund manager who buys is saying is that he can.  

There could be special situations where this is true, e.g., a further increase in value of an investment requires that it be integrated with other companies that the selling fund manager doesn’t own and is unable to buy.  The buying fund manager may own those companies.  

But if the buying fund manager has no special advantage like that and is relying on making traditional operating or financial improvements to generate IRR, then:  

1. The buying fund manager believes he has the skills to make a PE like return on the investment at his higher entry price 
2. If the selling fund manager is realizing a profit that triggers carried interest, then the ultimate return on the investment must be such that two managers will separately and independently be able to generate PE like returns. That would be some investment! 

AA has a hard time believing that the probability of this happening is significant enough to justify one-third of all exits as sponsor to sponsor deals.  

As an aside, through this transaction, one or both of the fund managers may be displaying reasons why they are likely not to be good stewards of your money.

1. If the first manager can't use traditional methods to enhance value but the second can, then an LP might wonder if it's particularly wise to be investing in the first manager's funds
2. If the second manager is wrong and can't generate additional PE-like returns, then he's probably not a wise choice for LPs.

Naturally suspicious folks like AA would want to know if there are reciprocal deals.  Fund managers are helping each other out "exit" less than ideal investments.  Fund Manager A sells “fine” investment #1 to Fund Manager B.  Fund Manager B sells “fine” investment #2 to Fund Manager A.  Each generates an IRR which allows them to sell future funds, to earn carried interest, quiet current investor unease at lack of exits. Hopefully, the purchased investment turns out to generate a decent return or can be buried among other returns if it’s not so decent. 

In other words, are GPs passing around less than stellar investments among themselves?  Investments that they cannot place with a trade buyer or IPO?  That the volume of inter sponsor transactions is at one-third of all "exits" suggests something is not right.  When one factors in the rise intra sponsor sales, the red flag gets even bigger.

Or is the explanation the need to use so-called “dry powder” (uninvested funds) now perhaps as much as some US$1.5 trillion? LPs can't be happy seeing their univested funds earning cash returns that likely don't even cover the 2% management fee.

Fund managers are merrily raising more money.  One might question why any additional money needs to be raised, other than to increase GP's management fees—which as you know or should are independent of fund performance.  I

Interested in more on the topic of “dry powder”?  Check out this article by Melissa Mittleman from Bloomberg.  

An ocean of money looking for investments is more likely than not to be on average an ocean of particularly dumb money.  Overpayment and poor underwriting choices will be the result.  Limited partners’ future returns will be diminished. 

But even if firms have discipline to avoid these mistakes, they will generate lower returns for their LPs because of the earnings drag on the overall portfolio from cash holdings.  

So here's another worry for LPs to add to worries about asset quality, lower returns for a long-term commitment.

Second, intra sponsor sales.

But all this pales when one considers the even more troubling intra-sponsor sales. A sponsor sells a “fine” asset from one of its own funds to another of its own funds.   This is a major red flag.  

As before, there are no doubt excellent reasons why this should be done sometimes, but the incidence of these “sometimes” is likely to be less than observed demonstrations of probity by the political class.  That would take this to much less than the 3% for sales of “fine” investments from one sponsor to another sponsor.  

I’ve mentioned before that we were once approached by a prominent PE firm pitching us on their new fund and touting the return on a predecessor fund.  A closer look at that fund disclosed that its return was almost all generated by a single deal.  A sale of a “fine” investment from that fund to another managed by the same GP.  We, of course, declined the opportunity to invest and struck that firm off our list of “serious” firms.  No further due diligence needed.  When you don’t trust the people, due diligence really isn’t needed at all.  

And finally a shout out to Chris’s first comment:   

“A well-known GP in our portfolio has been known to say that PE performance “isn’t a return until you can buy a beer with it.”

Quite!   

But if your GP is generating beer rather than champagne returns, you might consider interviewing additional fund managers.  "Beer and pretzels" is the lowest stage of FY money among investment bankers.

Corporate Governance: It's Your Responsibility Too – Some Inconvenient and Uncomfortable Truths

Hate to Be Contrary But You Have A Responsibility for Corporate Governance

Warning:  This post contains some inconvenient and uncomfortable “truths” about your responsibility for corporate governance.  To make corporate governance work, you actually have to do something more than whinge about the failings of others.  Or issue calls for vague enhancements to corporate governance like calling on firms, auditors, regulators, and others to “step up their games”.     

Corporate governance generally focuses on roles and responsibilities of the board of directors, external auditors, and regulators.  Shareholders’ roles and responsibilities are not sufficiently discussed.  You can see this in the “founding document” of corporate governance the Cadbury Report (1992) which was sparked by perceptions of corporate misgovernance in Robert Maxwell’s companies. 

Typically the role of shareholder is summarized in a single sentence:  

“The shareholders’ role in governance is to appoint the directors and the auditors and to satisfy themselves that an appropriate governance structure is in place.”  

This post argues that there are clear defects in that formulation and more importantly shareholders’ responsibilities exceed those outlined therein.  If corporate governance is going to be built on this slender reed alone, should we expect brilliant results?  

First to the defects. 

As a practical matter, the shareholders’ role in “appointing directors and auditors” is generally to vote on the candidates proposed by the board of directors.  Often there is a nominations committee of the board generally structured to be “independent” of executive directors (e.g., senior management) that recommends candidates to the full board (which includes executive directors).  There’s a great deal of reliance on “independence” of the nominating committee here.  

In general boards have not demonstrated a lot of “independence”, but perhaps they are when we're not looking.  Or perhaps not.  The full board then decides whether to approve the candidate.  There’s a potential conflict of interest in this arrangement. The full board includes executive directors.  Management may therefore have a significant role in hiring those who are supposed to monitor its performance.   

But there’s more.  

Generally the board only recommends a single candidate for a position.  If there are 6 director slots open, shareholders get to vote on six candidates. If it’s time to appoint auditors, one firm is proposed. Shareholders have all the choice given voters in “democratic” elections in one-party states.  On a positive note for shareholders, a “no” vote doesn’t usually lead to unhappy consequences. In either case it is “take it or leave it” which probably explains why the directors’ recommended candidates win, except in extreme cases.   

There are two reasons for this state of affairs. 

1. As a practical matter how would shareholders—usually an unwieldy large number--select potential board members or auditors?  Do they have the skills, contacts, knowledge?  How would consensus be achieved among shareholders over their competing candidates?  If consensus cannot be reached, there could be a plethora of candidates which could be as problematic as having only one candidate. 
2. While individual shareholders generally have a right to nominate directors, the directors’ candidates have a much easier road to election.   If you look at a typical US proxy, shareholder resolutions are included in a separate section with management arguments as to why these should be rejected. When a hedge fund or other professional investor wishes to get its own slate of directors elected, it typically hires third parties to draft, print, and mail its own proxy to each shareholder.  Why does it incur this not inconsiderable expense? It doesn’t believe that management will give its slate a fair shake in the management proxy.  It can’t wait until the meeting to propose directors and make its case because “management” proxies will already have been voted for directors and most shareholders skip the AGM.  They do give management representatives the right to vote their shares, but realistically are management representatives going to vote for the insurgent slate of directors?   
3. In some jurisdictions, if a shareholder owns 10% or more of the stock of a company, that shareholder can name a director and there is no requirement for other shareholders to support.  Differences in cumulative versus non-cumulative voting rights also affect the election of directors.  
4. But in general shareholders’ oversight through the election of directors is more theoretical than real. 

Given the very practical limitations on shareholder selection of directors and the numerous cases of board “failure” in corporate governance, including by ostensibly “independent” directors, shareholders need to do more to protect their interests and to foster good corporate governance.   

This is key because people are the critical variable in good corporate governance.  It wasn’t Enron’s corporate governance structure that caused problems at Enron. It was people. 

Let’s run through what the “more” shareholders must do by way of questions.  

These will allow you to check just how real your commitment to corporate governance is.  Are you Augustine of Hippo or St. Augustine of Hippo?  

Do Corporate Governance Principles  Inform Your Investment Behaviour?

Let’s assume that indeed you are firm believer in corporate governance. Or at least claim to be whenever there is corporate governance failure. 

Among the good practice principles you endorse is that the roles of chairman and chief executive officer be separated and that the chairman be an independent director, not an executive of the firm. Do you refuse to invest in corporations where the roles are combined? 

Suppose your principles also include a requirement for strong risk controls and non-manipulation of markets.  If your bank holdings include one that like Sea World has “whales”, do you refuse to invest or divest your holdings?      

How many of your firmly held corporate governance principles can a firm violate before you take concrete action?   

Remember that the road to corporate governance failure is a slippery slope.  It begins with a first bending of one rule and eventually the breaking of more.  If the firm is highly profitable, can you easily justify poor corporate governance?  Sure they lost US$ 6 billion but they still made a profit. 

In applying your corporate governance principles, do you allow yourself more slack that the CEO of a firm?  You wouldn’t tolerate his breaking even a single rule, but you can let your own principles slide a bit and perhaps even quite a bit, depending on profitability.  

Do You Perform Proper Due Diligence Before Investing?

Do you read more than the glossy pitchbook they give you?  Consider more than the cut of their suits and flash of their MontBlanc cuff links?  Read beyond the gushing appellation “Goldman Sachs of the GCC” or similar in the local press.   Or a shrieking recommendation delivered by Brother Jim on the TV?  

Does that due diligence include checking on corporate governance?  And situations that might cause corporate governance to fail, i.e., distressed financial conditions? 

Do You Know How to Perform Due Diligence Properly?  

Have you bothered to learn how to do due diligence on an investment?

Do you know the tricks used to enhance the presentation of performance in sales pitches?  When you were presented with financial performance, did you check what standards were used for reporting?  A good rule:  No GIPS no investment.  Were there model portfolios included?  Projections to the past:  “Using our strategy on a proforma basis, over the past 10 years we would have earned an IRR of 35%”.  What they don’t say is:  Of course, we didn’t, but it sure looks good.  And if we pick the right time period, we can find a sweet spot IRR.”  

If they're lying to you or stretching the truth in their pitches, what should infer about their ethics and their corporate governance?  

Do you know a bit about financial statements so you can at least spot if cashflow is not in line with reported income?  Would you have noticed that despite Dubious Gas’s reported income, the KRG and Egypt weren’t paying DG what they owed it?  

Understand that under accrual accounting, there can be different methods of recognizing the same transactions both on the balance sheet and the income statement? 

Do you know what the role of auditors, regulators, stock markets are? And what reliance you can or cannot put on them to look after your interests?  

Know what to look for in corporate governance structures, if you're looking for one that is complete and well-structured?  

Do you know the “red flags” of corporate distress?  As stated in my previous post, unless a firm is set up as a criminal enterprise, corporate misgovernance is more likely to occur when management is dealing with a serious problem than when things are going well.  

Some practical examples, before investing in one of Abraaj’s funds, did you look to see where their parent, the management company, etc were incorporated?  Did you understand that offshore companies in the Cayman Islands and other similar jurisdictions are lightly regulated (first euphemism of this post and in a long time)?  Did you ask why? A plausible answer might have been tax planning, but the flag of light regulation should have caught your eye.  

Did you ask for audited financials?  A good but not necessarily foolproof way to check if the firm is in financial distress.  The sort of “occasion of sin” that might lead to corporate misgovernance.   It's also a good way to check on the business performance.  If the funds they manage are performing well, that is, have a flow of exits and good returns, the bonanza of carried interest fees should show up here.  

But they might have told you: “No PE firm publishes financials.  We’re a partnership.  Our partners don’t want their remuneration disclosed.”  Did you know that Charterhouse Capital Partners and associated companies publish financials and that you can obtain a copy at Companies House?  You don’t get individual details but you get an aggregate number.  

Ask about performance of their funds?  If you had asked about their flagship “infrastructure” fund (IGCF) you might have noticed rather dismal performance as Arkad has pointed out. The delay in closing the “sale” of Karachi Electric might have caught your eye. You might have noticed that the GOP wasn’t paying K-El.  Or that K-El had been in Abraaj’s portfolio for some time. Might you have wondered about their wisdom in plunking down a whale-sized amount to invest in power in the subcontinent?  Or wondered what made this investment different from others in the subcontinent?  Enron Dabhol.    

If you looked at that fund’s investments, you might wonder, as Sabah Al-Binali did, why a Private Equity firm was buying listed stocks and what this meant about their stated investment mandate and adherence thereto.   Assuming it was a pure private equity fund, if they won't keep to the mandate, what other promises might they not keep?

What Post-Purchase Investment Monitoring Do You Perform? 

The Abraaj scandal came to light because a few investors saw something that raised red flags and they acted on that information.   

Do you read the company’s financials and investor presentations carefully and not just rely on company press releases or puff pieces in the press for your monitoring?   Local press analysis often being little more than a regurgitation of the press release.  

Do you look for changes in behaviour or reporting by the firm that are red flags of potential problems? 

Do You Exercise Your Corporate Governance Rights?  

Do you attend the annual shareholders’ meeting?  Ask questions you have from your post-purchase monitoring?  Listen to the questions of other shareholders and management’s responses?  React and participate? 

Where there are proxy materials, do you actually read them?  Do you vote your proxy?  Do you do more than “tick” yes on the management recommendations?    

In some jurisdictions there aren’t proxies. Some of this information is in the audited annual report.  Or in separate corporate governance reports.   

If you've got a problem with information provided have you ever complained in the AGM (with auditors, representatives from the MOIC or equivalent, and directors present) that information in financials and disclosures is insufficient.  Ever make similar complaints in writing to your stock market or local regulator about insufficient, unclear or misleading disclosures?    

CONCLUSION 

At this point I imagine that some of you are thinking.  

But this is hard work. It’s unrealistic.   We don’t have the skills or time to do all of this. The auditors, the board, the regulators should do their jobs properly and we won’t have to.  Quite!  Police and neighbors should be keeping watch to prevent burglaries.   I shouldn’t have to lock my door. 

Or wait just a minute, AA.  Are you seriously arguing that if we do this, there won’t be corporate misgovernance?  

No!  But you may make it harder.  You may create an environment that encourages other shareholders to take similar actions.  

You may deliver a very clear message to board members that you are watching.  Auditors, regulators, the MOIC may be awakened to action.

On the other hand, you can decide that this is too much and not really your responsibility. You can remain among the sheep. That entitles you to bleat on-and-on about corporate misgovernance whenever you’re sheared.