Dow started as a manufacturer of commercial bleach in 1897, and was founded by Herbert Dow. He merged his company in 1900 with Midland Chemical, which lead to diversification of his portfolio to agricultural and food products. In 1912, Dow started to pay dividends every quarter without any reductions or interruptions. By doing so, they were the only Fortune 200 firm that established these figures. Dow became a major player in the M&a field, since they acquired between 1983 and 2007 95 business, took stakes in 58 firms and divested 166 businesses. In 2006, Dow’s CEO Andrew Liveris announced the ‘Dow of Tomorrow’ strategy, which consisted of two pillars.
One was pursuing an asset light approach to its commodity business. In order to do so, he signed a JV agreement with a subsidiary of the Kuwait Petroleum Company, named Petroleum Industries Company. Dow and PIC signed a Memorandum of Understanding, which generated Dow a $7.2 billion after tax revenues. Second, Mr. Liveris wanted to build a high-growth and high-value added performance business. In order to achieve this objective, Dow agreed to purchase Rohm and Haas. This acquisition had the purpose for Dow to become a producer of high-value chemicals and advanced materials.
Why does Dow want to buy Rohm and Haas?
As mentioned in the introduction, CEO Andrew Liveris announced the ‘Dow of Tomorrow’ strategy. This included becoming a high growth and high-value added producer of specialty chemicals, with less cyclicality. Rohm and Haas fitted the picture perfectly, since they were an advanced material and specialty chemicals company, operating in 27 countries. Besides the interesting company profile description, there were several other reasons why Dow was interested in the Rohm and Haas company. Most important reason was that the acquisition would make Dow reduce its cyclicality and increase its growth prospects. Expanded product portfolios, increased geographic market, improved market channels and innovative technologies will obtain the expected growth and cost synergies.
Forecasts predict additional growth synergies values between $2.0 and $2.6 billion and $0.8 billion costs synergies, including shared services and governance, manufacturing, supply chain and work process improvements. Besides the above-mentioned advantages, Dow and Rohm could be a global leader in specialty chemicals and advanced materials if they combined forces. Also by combining their R&D, the development of new products and innovations could be stimulated. So overall, Rohm and Haas fitted the picture projected by Andrew Liveris perfectly. Rohm and Haas supported Dow’s commitment to maintain their highest standards in pursuing and selecting growth opportunities to satisfy their long-term shareholder values.
Was $78 per share a reasonable bid?
In order to draw a conclusion of the reasonability of the bid, we need to valuate Rohm and Haas as a firm with and without the synergies created by the acquisition. If this total value exceeds the $78 share price, Dow will pay the price, since it will be beneficial for them. The benefits of the synergies can be calculated by dividing it between the two firms on a multiple or 50/50 basis.
The excel file attached to the assignment contained a WACC of 8,5% based on a tax rate of 35%. In our analysis, we also calculated a WACC with a tax rate of 26%, since this was the average tax rate. This leads to a WACC of 8,7%. As a basis, we took 2% growth.
Rohm and Haas had at time of the acquisition 195,200,000 shares outstanding. From the balance sheet of Rohm and Haas 2008H1, we took the values of cash and debt (long and short term debt). Both inputs were needed in order to calculate the share price. Below, you can find how we calculated the share price for the situations with and without synergies.
The synergies involved consist of two different types, namely growth and cost synergies. Growth synergies include expanded product portfolios, increased geographic reach, improved market channels and innovative technologies. These synergies are expected to create between 2 and 2.6 billion dollars, which gives an average of 2.3 billion. Second, potential cost synergies consist of purchasing synergies, shared services and governance, manufacturing & supply chain improvements and work process optimization. These synergies are expected to generate 0.8 billion dollar. The values of these synergies combined totals a 3.1 billion dollar gross benefit, which is a netted by deducting the 1.3 billion cost of implementation, leaving a value of 1.8 billion dollars.
In order to make the most suitable valuation and draw the best conclusion for the reasonability of the share price of $78, we take the original and revised forecast into account. Both cases are also used for the sensitivity analysis to be as specific as possible. Below are the sensitivity analyses of Rohm and Haas for the original forecasts.
Based on our assumptions, share price of Rohm and Haas is $55.79 without synergies and $65.01 with synergies. These values differ a little from the share price we found in our valuation analysis, however this is due to rounding and number of decimals difference in WACC and growth percentages. Lowest value without synergies is $47.10 with a growth of 1% and a WACC of 9% and a highest share price of $95.58 with a growth of 3% and a WACC of 7%. If we now look at the original forecast with synergies, we see an increased share price, which is logical, since value is created by the synergy. The share price of Rohm and Haas is $65.01 based on the growth rate of 2% and a WACC of 8.7%. The share price differ between lowest value of $56.32 and highest value of $104.80, based on the same input as with the analysis with no synergies.
In both cases, the share price is below $78 so if Dow offers this price in both situations, the will not profit from this acquisition. However, we will still perform the 50/50 and multiples valuation in order to see which is the best in the situation if Dow is obliged to acquire Rohm and Haas. Looking at case were synergies are created and using the 50/50 method, we get a share price of $55.79 + ($65.01 – $55.79)/2 = $60.4. As we already mentioned, this price does not match the $78. Now using the gross profit of Rohm and Haas as a percentage of the gross profit of both companies combined, we get a multiple of 26.11%. Using this 0,2611 multiple, the appropriate share price is $55.79 + (0,2611 * (65.01 – $55.79)) = $58.20 Again, this is below the share price of $78, which makes the outcomes of both methods unfavorable for Dow.
Now let us look at the revised forecast. Since this is a post-crisis forecast, predictions were lowered, which lead to a lower overall value. Hence, this will be reflected in our sensitivity analysis by lower share prices. Below are our findings.
As already predicted, share prices are lower in the revised forecast due to the crisis adjustments. For the sake of the case, we will also perform a 50/50 and multiples calculation. If we look at the 50/50 share price, we get a share price of $41.38 + ($50.60 – $41.38)/2 = $45.99. The multiples basis will give us a share price of $41.38 + (0,2661 * ($50.60 – $41.38)) = $43.79.
Reviewing both forecasts and within these forecasts both with and without synergy, we can conclude that a share price of $78 is not reasonable. This conclusion holds in the case of 50/50 and multiples calculations.
Major deals risks and allocation
We will pay special attention to Exhibit 4 when examining the major risks and their respective allocations. The first risk comes from the item 1.01 describing the financing of the deal. Dow will issue a fixed amount of $4 billion in convertible preferred stocks to Berkshire, Hathaway and Kuwait Investment Authority. This amount is independent of the current stock price of Dow, meaning that a drop in Dow’s share price would need more shares to pay for the deal, decreasing the relative voting rights of current shareholders. To be even more precise, in paragraph 2.1a it states that no matter what happens Dow has to pay $78 dollar per share at the time of the merger, transferring all the financial risk to Dow.
Furthermore, a large part of the deal is financed with a $13 billion loan, issued by a consortium of 19 banks lead by Citigroup, Merrill Lynch and Morgan Stanley, increasing their leverage ratio and overall risk of the company. These high debt values come with high interest payments, leaving fewer cash to meet its dividend obligations. In a possible economic downturn this problem becomes larger, increasing the probability of not meeting their dividend payments which have not been changed for over 97 years.
A further interesting statement is the ticking fee to ensure the deal would close. When the deal is not closed before January 10, 2009, the payment per share will increase with 8% annually, translating to a higher deal price of approximately $3 million more per day until the deal is closed. In addition if the deal is not closed before October 10, 2009, Dow has to pay $750 million termination fee. This will, again, transfer all the risk to Dow if the deal cannot be closed before October 10, 2009.
In paragraph 3.1 the Material Adverse Effect clause states that Dow is allowed to withdraw from the transaction if the business, operations or financial conditions of Rohm is hit by a material adverse effect. This seems fair but there is a large set of exceptions made in the clause for which Dow cannot withdraw from the transaction, including the following events: any event which affects the chemical industry, macro economy as a whole, the financial, debt, credit or security market, any decline in Rohm’s stock price or any failure to meet internal or published projections. So, in case of an economic downturn mainly Dow is affected and not Rohm. Roam and Haas are even protected from a decline in their share price. Thus, these statements will, again, transfer almost all the risk to Dow
Furthermore, Dow takes on another risk by relying on the joint venture with Kuwait’s PIC to finance $7 billion of the deal. They do not take into account the possibility that this joint venture could fail due to i.e. a downturn in the overall economy. If it fails it leaves a gap of $7 billion in their financing plan, exposing Dow to even more risk.
Finally, the overall high price and ticking clauses make it a risky deal when compared to the expected synergies. The probability of achieving all expected synergies is a magnitude smaller than the probability of high costs, which is certain. It leaves Dow exposed to a possibly large loss when the expected synergies are not met in the future.
The only risk that Rohm and Haas face is the possible termination of the deal from their side if the deal is i.e. taking too long. They have to pay a $600 million termination fee if the decide to do so. Other than that, considering the mentioned risk allocations from above, the total risk of this deal is mainly resting on the shoulders of Dow Chemical.
To give a complete view of the options that both CEOs had at the time we will first describe the situation they were in. Shortly after the deal announcement the financial crisis started, causing an overall recession including in the chemical industry. Dow was hit on many fronts: overall share prices dropped with over 50%, a fourth quarter loss of $1.6 billion, quarterly sales decline of 23% and a drop in operating rate to 44% in 2008. Forcing Dow to close off 20 facilities and firing over 5000 employees. Furthermore, after the joint venture deal was closed with KPC’s PIC, the failing oil prices and overall recession caused KPC to terminate the contract by paying a termination fee of $2.5 billion to Dow. This caused a gap in the financial plan for the merger for Dow, decreasing their stock price even further and degrading their rating to BBB.
As mentioned before, Dow was not the only one affected by the economic recession. Rohm was facing a poor performance as well, forcing it to fire over 900 employees, freeze spending and a 20% decline in sales.
Considering the above, Dow refused to close the deal with Rohm and Haas after approval from the European Commission and U.S. Federal Trade Commission. Arguing that the recent macro-economic developments are material adverse effects, enabling them to terminate the deal.
Options and recommendation for Dow’s CEO, Andrew Liveris
Considering the situation as described above, Liveris had three different options: continue with the termination of the deal, close the deal for $78 per share or renegotiate with Rohm and Haas to agree on different terms. If Dow continues to terminate the deal it will go to court for the approval by the judge. It needs to win in court otherwise Dow is forced to commit to the deal. Given the statements enclosed in the material adverse effect clause, the chances for Dow to win are pretty slim. If Liveris opts to close the deal for $78 per share he will need a lot of additional cash. Considering the economic situation, and the fact that the joint venture failed, acquiring this amount of additional cash will be very hard.
The possibility to acquire more debt through the already existing bridge bank loan from 19 different banks is pretty small considering the low credit rating of BBB. If he does succeed in acquiring more debt he will probably not be able to meet the net-debt-to-total-capitalization restriction in the covenant. This is, according to the first loan of $13 billion, required to be lower than 65% which they will not be able to meet, thus not creating incentives for the banks to lend more money.
Considering the above, terminating the deal will not be possible and closing the deal for $78 per share lacks financing. The best option Andrew Liveris thus has is to renegotiate the merger deal and buy some time. He will then be able to look for other sources of financing or renegotiate the already existing bank loan. One possible option could be to sue KPC for terminating the joint venture and claiming the $2.5 billion, which in turn could finance the termination fee. Considering that this will destroy the relationship between these two companies this would not be recommended.
Options and recommendation for the CEO of Rohm and Haas, Raj Gupta The situation for Raj Gupta is a bit simpler: either sue Dow for not completing the deal or renegotiate with Dow to postpone the deal. Both having different advantages and disadvantages.
The first option is to go to court and continue the case that Dow has to complete the deal or otherwise pay the termination fee. Considering the exceptions stated in the material adverse effect clause that macro-economic effects and effect on the chemical industry in general are excluded from this clause, Gupta will have a strong case and is likely to prevail in court. Committing Dow to the deal or otherwise paying the termination fee of $750 million.
The second option is to renegotiate the deal with Dow. The most important disadvantage considering this option is that it would almost certainly come to a deal which is less favorable for Rohm and Haas when compared to the original deal. Which term should be reconsidered? For example, a lower price per share would decrease the expected value for the shareholders. Shareholders will not vote for such a deal, especially the Haas family who owns 30% of the company and is waiting to exit for $78 a share. The only option, although shareholders will not be amused in the least, is to delay the due date of the deal, preserving the harmony between the companies.
Even if Gupta will win in court, the possibility that the deal will go through considering the financing problems of Dow is still small. Rohm and Haas will in this case only receive the termination fee of $750 million. Gupta obviously wants the deal to go through and so do the shareholders of Rohm and Haas, enabling them to exit the company and receiving a high premium while doing so. Terminating the deal will negatively affect both companies and their shareholders. Therefore it would be better for Gupta to facilitate any possibility that the deal will go through, even implying a possible decrease in price per share. Our recommendation thus is to renegotiate the deal, making sure that it succeeds. The premium for the shareholders might be lower but both companies can benefit from the acquired synergies and shareholders can still opt to exit.
Resolving the legal dispute
Considering the above, it would have been in the best interest of both companies to renegotiate the deal. However, Rohm and Haas decided to continue their trail against Dow Chemicals. The judge will therefore make a decision based upon the facts presented to him.
Based on the facts alone, the most likely option for me, William B. Chandler the Third, Chancellor in the Delaware Court of Chancery, is to enforce the merger contract between the two parties. In particular, the specifics of the Material Adverse Effect clause in paragraph 3.1 state that the MAE clause does not include the following events: “any event which affects the chemical industry, macro economy as a whole, the financial, debt, credit or security market, any decline in Rohm’s stock price or any failure to meet internal or published projections.” To be more specific; the argument according to Dow that the recent material developments have created unacceptable uncertainties on the funding and economics of the combined enterprise, justifying the termination of the deal, is overruled by the ‘specific performance’ clause in paragraph 3.1.
Therefore, the ‘specific performance’ clause, as requested by Rohm and agreed upon by Dow, is binding and hereby enforced. The merger will be executed as planned. Dow will have several different options to solve the financing issue, cutting dividends, renegotiating debt and other means to generate cash could be used. If the deal is not closed before January 10, 2009, as stated in the contract, Dow will pay a ticking fee of 8% per annum.
Dow should have been more careful drawing up the contract as it is signed and before me today. Since the possibility of an economic downfall is especially stated in the deal clause, I will make no exception and hereby conclude that the Dow will meet all deal requirements as stated in the contract. Every penny has to sides, if you risk it, you could lose it. Thank you. *slams the hammer*