Sarkis Jebejian, 43, a corporate partner in the New York office of Kirkland & Ellis.
A private equity consortium led by buyout firms Bain Capital and Golden Gate Capital.
Houston-based business software company BMC Software said Monday it has agreed to be sold to the private equity group, which also includes GIC Special Investments and Insight Venture Partners, for $6.9 billion in cash. (GIC and Insight are being advised by Sidley Austin and Willkie Farr & Gallagher, respectively.)
The investor group has agreed to pay $46.25 for each share of BMC, which provides businesses with information technology and cloud computing services. The purchase price represents a premium of 1.8 percent over the target’s May 3 closing price.
The agreement’s terms give BMC a 30-day "go-shop" period during which it can solicit rival offers. If a competing bid doesn’t materialize, the deal with the group led by Bain and Golden Gate is expected to close later this year, pending the approval of regulators and BMC shareholders. Elliott Management, which currently holds a 9.6 percent stake in BMC and has been waging a proxy battle with the company, has said it will vote in favor of the deal.
THE BIG PICTURE
This week’s announcement came almost exactly a year after Elliott first began calling for BMC to explore a possible sale of the company. The BMC board’s initial response was to hire Wachtell, Lipton, Rosen & Katz last year and adopt a "poison pill" shareholder rights plan aimed at counteracting the activist investor’s attempt to gain control of the company.
Arguing for a BMC sale, Elliott—which owned a 5.5 percent stake in BMC when it began pressing its case—told the board the company faced a challenging future as a stand-alone entity going up against much larger competitors like IBM and Hewlett-Packard. BMC and Elliott ultimately reached an accord last summer under which Elliott was allowed to install two board members. (Elliott increased its stake in BMC earlier this year through a share purchase.)
Rumors began to swirl last fall that BMC was finally capitulating to Elliott’s push to explore a strategic move. When the deal was announced earlier this week, some publications suggested the minuscule premium included in the purchase price reflected the market’s concern about the company’s ability to compete in the business software sector. At the same time, CNNMoney’s David Goldman noted that the offer price actually represents a nearly 11 percent premium over BMC’s stock price before word came out that a sale might be brewing.
As The Am Law Daily reported earlier this week, the deal is the latest in a series of major leveraged buyouts and offers in which Kirkland has played a role this year. Both Bain and Golden Gate are frequent firm clients. Kirkland advised the latter on its sale of Vistec Lithography earlier this year for an undisclosed amount, and represented Bain in connection with a pair of October 2012 transactions: its $1.6 billion purchase of Apex Tool Group and its $1.34 billion deal for the call-center division of telecommunications company Telefónica.
Jebejian, who joined Kirkland from Cravath, Swaine & Moore in December, had not previously worked on deals for either Bain or Golden Gate. He did have some familiarity with the former, though, as a result of advising Genpact in connection with Bain’s $1 billion investment in the Indian business services company last year while he was still at Cravath.
The BMC deal is the largest transaction Jebejian has handled in his short time with Kirkland, the first announced leveraged buyout he has worked on since joining the firm from Cravath, and a significant step in his transition from one firm to the other. "Bain and Golden Gate obviously are important and long-standing clients for Kirkland, and part of my project at Kirkland was to get to know the important [private equity] clients and [to work on] significant public company transactions," he says.
After months of speculation about a potential BMC sale, reports of early bids in the company’s auction process first surfaced in March. Citing several anonymous sources, Reuters reported at the time that a deal worth more than $6 billion was in the works and that Bain and Golden Gate had teamed up to compete against a field of rival investor groups that included one led by private equity firm Thoma Bravo and another fronted by KKR and TPG Capital.
Jebejian is reluctant to discuss details about the auction process that ended with Kirkland’s clients as the winning bidders, but says the deal was an interesting one to work on for several reasons. Specifically, he cites BMC’s public battle with Elliott Management.
"When a key shareholder is prepared to make their thinking public, obviously, it’s quite normal for everyone involved in the transaction to keep their views in mind," Jebejian says. "And in this situation, our clients [and the target] were all quite interested in obtaining Elliott’s support for the transaction, which we did."
BMC’s global business structure, meanwhile, required the firm to deploy enough lawyers to perform all the due diligence necessary in multiple jurisdictions while coordinating with an array of local counsel.
"When you add in all of the factors it was a real multifaceted process that required Kirkland to assemble a pretty broad and deep team in a lot of disciplines," Jebejian says. "It was really a big team effort."