May 2, 2024

DealBook: One Vote Down, One to Go for N.Y.S.E. and Deutsche Borse Merger

Henny Ray Abrams/Associated PressThe floor of the New York Stock Exchange.

8:48 a.m. | Updated

With NYSE Euronext shareholders approving the merger with Deutsche Börse, the fate of the exchange merger lies across the Atlantic.

On Thursday, more than 65 percent of NYSE Euronext shareholders voted in favor of the deal, according to people briefed on the matter.

The odds of a deal increased sharply in May once the Nasdaq OMX Group and the IntercontinentalExchange withdrew their rival offer for the New York Stock Exchange operator.

Last month, both companies also agreed to pay out a special dividend to shareholders to help sweeten the proposal. Several proxy advisory firms, including Institutional Shareholder Services, recommended that shareholders back the merger.

Still, the deal is not done.

Deutsche Börse’s shareholders have about a week to tender their shares in support of the merger. The German exchange operator must win the support of 75 percent of shareholders by July 13. Thus far, about 11.11 percent of investors have tendered their shares, according to regulatory documents filed by Deutsche Börse.

People involved in the process say that even that is not too much of a problem, given that many investors are likely to tender their shares in the last few days before the deadline. Some shareholders might also have been waiting for the results of NYSE Euronext’s vote before lending their support.

Deutsche Börse can also ask for a deadline extension of up to two weeks, if necessary.

Spokesmen for NYSE Euronext and Deutsche Börse declined to comment.

In addition to the shareholder votes, another consideration for the deal is government approval. While American antitrust regulators seem likely to approve the merger, deal makers have said that persuading their European counterparts may be more difficult. Still, Deutsche Börse officials have said that they have made “significant progress” in working with regulators.

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DealBook: Nasdaq-Led Bid for NYSE Euronext Turns Hostile

NYSERamin Talaie/Bloomberg News The floor of the New York Stock Exchange

The Nasdaq OMX and IntercontinentalExchange said on Monday that they would take their $11 billion offer for NYSE Euronext directly to shareholders after twice being rebuffed.

Nasdaq had warned two weeks ago that it might approach shareholders if the NYSE board continued to refuse to talk with it and ICE. NYSE Euronext, which is planning a merger with the Deutsche Börse, has said that there is too much regulatory risk in the Nasdaq-ICE proposal, among other issues.

Yet at the NYSE Euronext shareholders meeting on Thursday, a number of shareholders expressed dismay at the board’s resistance to negotiate with a rival suitor.

Jeffrey C. Sprecher, the chief executive of ICE, said in a statement on Monday: “The board of NYSE Euronext has twice rejected our superior proposal without meeting with us, despite the fact that their existing merger agreement with the Deutsche Börse allows them to talk with us. While we are hopeful that the board will decide to consider this transaction, we are taking our proposal to NYSE Euronext stockholders upon the commencement of this exchange offer to provide the opportunity to consider our proposal directly.”

Under the terms of the Nasdaq-ICE offer, each share of NYSE Euronext would be exchanged for $14.24 in cash, 0.4069 share of Nasdaq OMX common stock and 0.1436 share of ICE common stock.

The move escalates the battle between the two long-time rivals. Deutsche Börse plans to begin its stock tender offer this month and conclude in early July.

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DealBook: NYSE Euronext: A Fight About Cost Savings

The battle over NYSE Euronext may come down in part to a question of who can save more in a deal with the Big Board.

NYSE Euronext’s chief executive, Duncan Niederauer, told The Financial Times that his company had essentially understated the amount of cost savings in its proposed merger with Deutsche Börse by about 100 million euros. That puts the figure at “closer to” 400 million euros, or about $583 million.

In his interview, Mr. Niederauer said that the savings would come in part from combining NYSE Euronext’s derivatives clearing platform with Deutsche Börse’s, allowing customers to pay just once.

Hinted at for some time, the revised numbers are meant to push back against the more than $700 million in cost savings estimated by the Nasdaq OMX Group and the IntercontinentalExchange in their proposed takeover of NYSE Euronext.

That’s in part because there’s more overlap in the Nasdaq-ICE proposal, especially in combining Nasdaq with NYSE Euronext’s stock-trading business, which would be a merger of the nation’s two biggest stock market operators.

Unsurprisingly, Nasdaq and ICE are skeptical about NYSE Euronext’s new numbers. In a statement on Monday, they question how, after more than two years of due diligence, NYSE Euronext was suddenly able to find an additional 100 million euros of cost savings. They also questioned where the additional savings come from, since the combined NYSE Euronext and Deutsche Börse plan to maintain two headquarters and two technology platforms.

In a separate presentation (below), Nasdaq and ICE highlighted what they said were flaws in NYSE Euronext’s own merger history, including missing both expense reduction and revenue combination targets in the original combination of the New York Stock Exchange and Euronext. They also pointed to a $1.6 billion write-down that NYSE Euronext took in late 2008 to reflect the lower value of the merger.

Nasdaq’s chief executive, Robert Greifeld, has said that his mooted cost savings would come in large part from combining data centers and backoffice systems. But NYSE Euronext has fought back by saying that its merger with Deutsche Börse would create minimal job cuts in the United States, whereas the Nasdaq offer’s cost savings are built on widespread pink slips.

That argument appears to have gotten the ear of Senator Charles E. Schumer, Democrat of New York. In a letter to the chief executives of Nasdaq and ICE, Mr. Schumer demanded more information about what their deal would mean for New York City jobs.

According to estimates prepared for him by NYSE Euronext, the Nasdaq-ICE proposal would lead to more than 1,000 job cuts in the United States — and 800 in New York City.

Here’s the full text of the letter that Mr. Schumer sent to Nasdaq and ICE:

Robert Greifeld
Chief Executive Officer President
The NASDAQ OMX Group, Inc
One Liberty Plaza
165 Broadway
New York, NY 10006

Jeffrey Sprecher
Chairman Chief Executive Officer
IntercontinentalExchange, Inc.
2100 RiverEdge Parkway
Suite 500
Atlanta, GA 30328

Dear Mr. Greifeld and Mr. Sprecher,

I write you today regarding an area of critical importance to me with respect to your ongoing efforts to acquire NYSE Euronext. As we previously discussed, I am concerned with the potential impact a NASDAQ/ICE takeover of NYSE Euronext would have on jobs in and around New York City. This would be a major consideration in judging any potential transaction.

I understand that the NYSE Euronext board of directors has once again reaffirmed its support for the Deutsche Börse transaction, but I also understand that NASDAQ and ICE may further revise their proposal or take it directly to NYSE Euronext’s stockholders. Accordingly, I wanted to follow up on our previous conversation, during which I requested your best estimates of expected job losses in the New York City area that would result from a NASDAQ/ICE takeover of NYSE Euronext. By your own account, the business rationale for a NASDAQ/ICE transaction appears predicated largely on over $700 million in so-called “cost synergies”. That almost certainly means significant job losses. At my request, NYSE Euronext estimated that the NASDAQ/ICE proposal, if effectuated, would result in the loss of 1,000-1,100 U.S. jobs, including approximately 800 in the New York City area.

Prior to taking additional steps in your acquisition efforts, please provide me with your best estimate of how many jobs would be lost in the New York City area in the event of a NASDAQ/NYSE combination, and an explanation for how the claimed cost synergies would be achieved in light of your estimated level of job losses.

Please let me know if you have any questions or would like to discuss this further.

Sincerely,

Charles E. Schumer
United States Senator

Nasdaq and ICE presentation on NYSE Euronext deal cost savings

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Indian Accounting Firm Is Fined $7.5 Million Over Fraud at Satyam

The S.E.C. and the Public Company Accounting Oversight Board fined the affiliate, PW India, $7.5 million in what was described as the largest American penalty ever against a foreign accounting firm.

The Satyam fraud, which was exposed in early 2009 when the company’s chairman admitted it, stunned India and American investors who had relied upon the company’s statements. The company’s securities traded on the New York Stock Exchange, as well as in Indian markets. Former Satyam officials, as well as two partners in PW India, face criminal charges in a trial under way in India.

The S.E.C. said the auditors had failed to independently confirm cash balances in bank accounts that supposedly rose to over $1 billion by the time the fraud ended. Had the balances been real, they would have accounted for more than half the company’s assets. The company later said that its actual cash balances at the end of September 2008 were $66 million, not the more than $1 billion it claimed.

The auditors, legally part of five separate firms that, together with five others, do business as PW India, did not seek confirmation of cash balances from the banks involved, but instead relied on management to provide them, the S.E.C. said, adding that that was a violation of auditing standards.

“The failures in the confirmation process on the Satyam audit were not limited to that engagement,” the S.E.C. stated in a cease-and-desist order issued against the firm, “but were indicative of a quality control failure throughout PW India.” The commission added that audit “engagement teams throughout PW India routinely relinquished control of the delivery and receipt of cash confirmations to their audit clients and rarely, if ever, questioned the integrity of the confirmation responses they received from the clients.”

In some cases, banks sent confirmations to the audit firm directly — despite not being asked to do so — and those statements differed markedly from the ones the management provided. BNP Paribas advised the auditors that Satyam had a cash balance on March 31, 2007, of $11.2 million, while the company claimed $108.6 million. A year later, Citibank reported $330,172 in its Satyam account, only 2 percent of the $152.9 million Satyam claimed. The audit firm did not follow up on the discrepancies.

“PW India violated its most fundamental duty as a public watchdog by failing to comply with some of the most elementary auditing standards and procedures in conducting the Satyam audits,” said Robert Khuzami, the commission’s director of enforcement.

Although audit firms around the world use similar names and are part of global networks, the firms say they are legally independent. The international networks say they have procedures to assure that their affiliates perform high-quality audits, but those procedures appear to have broken down in this case.

Those procedures include having partners from different firms in the network review audits. While the 2008 audit was being conducted, the S.E.C. said, a partner from a different PwC firm “alerted members of the Satyam engagement team that its cash confirmation procedures appeared substantially deficient,” but the Indian firm did nothing to correct the procedures.

Had the firm done as the foreign partner advised was proper, the commission said, “Satyam’s fraud could have been uncovered in the summer of 2008.”

Satyam is now under new management and continues in business. It agreed to pay a $10 million fine to settle a related S.E.C. case regarding the fraud.

The Public Company Accounting Oversight Board, which licenses and inspects audit firms, was established by the Sarbanes-Oxley Act in 2002 after the Enron and WorldCom scandals. It fined PW India $1.5 million, in addition to the $6 million penalty levied by the S.E.C.

In a statement, PW India said that it had neither admitted nor denied wrongdoing and emphasized that neither of the American regulators “found that PW India or any of its professionals engaged in any intentional wrongdoing or was otherwise involved in the fraud perpetrated by Satyam management.”

The accounting board barred two PW India accountants from taking part in audits of American companies but said it did so because they had refused to cooperate with its investigation.

An official in PwC’s global network, Donald A. McGovern Jr., said that after the Satyam fraud was revealed, the PwC network took steps “to verify that professional standards relating to confirmations were being met” throughout the network. Mr. McGovern, whose title is global assurance leader, said the firm also “instituted an enhanced assurance quality review process for all network firms.”

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