
Credit : Dancing Astronaut
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![]() Catherine Cook |
The Securities and Exchange Commission has begun examining whether disclosure rules for privately held firms need to be rewritten as a result of recent deals allowing investors to buy shares in Internet companies such as Facebook Inc. and Twitter Inc., according to people familiar with the situation.
The review is at an early stage, these people cautioned, and SEC officials looking at the recent deals haven't concluded that any of them run afoul of the 47-year-old rules governing private companies. The rules require firms with 500 or more shareholders of record in a given type of stock to publicly disclose certain financial information. The requirement is designed to protect investors from risking money on companies that say little about their operations and performance.
Still, Facebook's agreement with Goldman Sachs Group Inc. to create an investment vehicle that will allow some of the securities firm's richest clients to buy as much as $1.5 billion of equity in Facebook is causing the SEC to re-examine a key dividing line between public and private companies.
While SEC officials could decide the rules need to be updated in order to provide adequate protection for investors, the agency is trying to balance that with the demands of private companies that want to raise capital. As part of the investigation, SEC officials plan to scrutinize special-purpose vehicles like the one being created by Goldman and Facebook to determine if they are being designed primarily to circumvent the so-called 500-shareholder rule, according to people familiar with the matter. Both companies declined to comment.
Facebook had fewer than 500 investors as of the end of last year, said a person familiar with the Palo Alto, Calif., company, including current and former employees, venture-capital firms and private investors. In 2008, Facebook told the SEC that the company had fewer than 499 holders in each of five classes of stock.
In addition, Facebook is getting a $500 million infusion from Goldman and Russian investment company Digital Sky Technologies. That would give DST slightly less than a 10% stake in Facebook, people familiar with the situation said. Goldman would own a roughly 0.8% stake, and if the special-purpose goes through, its clients would own a combined 3% of the social-networking firm. Facebook President and CEO Mark Zuckerberg owns about 25%.
The 500-shareholder rule, issued in 1964, has been a headache for private companies that wanted outside investors and venture capital, but didn't want to disclose any financial information. Google Inc.'s decision to go public in 2004 was triggered partly because the Internet-search giant exceeded the 500-shareholder limit.
Facebook already has taken steps to avoid breaching the current rules. Employees aren't allowed to sell any of their shares in the company, and employees hired since 2007 are granted restricted stock units that have no value unless Facebook goes public or is acquired. A Facebook spokesman has said the moves were designed "to better comply with insider trading laws and to protect the interests of the company and its employees and shareholders." Facebook got an exemption from the SEC in 2008 that excludes the restricted stock units from counting toward the 500-shareholder limit.
"The bigger issue is these hybrid companies … are betwixt and between: not quite private and not quite public," says Keith Bishop, a partner at law firm Allen Matkins and a former California commissioner of corporations. "They have these shares being traded but not the same disclosure requirements as a public company."
Executives at Wall Street firms are wondering if the SEC will "open the floodgates" to allow clones of the Facebook deal, according to one official at a large U.S. bank.
Special-purpose vehicles usually are formed to move assets off a company's balance sheet to help avoid some regulatory scrutiny and capital requirements. The vehicles must be created for a specific and limited purpose, according to lawyers.
The investment vehicle being created by Goldman is intended solely to pool investors' money to create the legal effect of a single new shareholder in Facebook, since each special-purpose vehicle counts as one shareholder of record. While such an arrangement is similar to a big venture-capital firm or hedge fund with many investors pumping money into a company at a pre-public stage, it has the potential to include many more investors in the pool.
Clients approached by Goldman about investing in Facebook must decide by the end of this week if they are interested, according to people familiar with the matter. "It's hard to imagine how this thing is going to make money," said one Goldman client who has been approached by the firm. Still, the deal is "an attractive opportunity," the client said.
It isn't clear how many Goldman clients will be allowed to invest, but it could be in the hundreds. Potential investors have been told that the minimum commitment in the $1.5 billion investment vehicle is $2 million. If the SEC determines that the vehicle was designed to evade the 500-shareholder rule, then the agency could force Facebook to count all the beneficial shareholders in the vehicle toward the company's total.
In a post on Facebook, Salesforce.com Inc. Chief Executive Marc Benioff, who took the San Francisco-based Internet software company public in 2004, wrote: "There are now thousands of investors in Facebook and more coming with these new investment vehicles. It's already a public company. It's just unregulated." A Salesforce spokeswoman said Mr. Benioff wasn't immediately available for comment.
Goldman is following in the footsteps of several small brokerage firms that have popped up in recent years to take advantage of rabid investor interest in private Internet companies.
Such brokerage firms allow employees and former employees of well-developed private companies to sell their shares even though the shares aren't publicly traded. The secondary markets help companies "retain their talent and grow so that when they finally join the public market, they'll be incredibly financially strong," says Frank Mazzola, an executive at Felix Investments LLC, a New York company that pairs buyers and sellers of shares in Facebook and other closely held companies. The SEC's "scrutiny is a good thing."
December retail sales were up 54 percent from last year due to improving product availability and a popular Hyundai Holiday marketing effort that helped increase traffic to Hyundai.com 120 percent over last year. Full year retail sales were up 35 percent. Fleet sales mix for the month of December was 7 percent, with fleet mix for the year at 16 percent.
"December was the capstone to a good year for Hyundai, with our total sales results actually understating the more important gains we made at retail, where we added a full point of market share," said John Krafcik, president and CEO, Hyundai Motor America. "While we grew total volume 24 percent, retail volume through our 800-strong dealer network climbed 35 percent, or 115,786 units, with 90,349 of that retail gain coming from the game-changing 2011 Sonata."
"That marks the biggest retail sales increase of any car in the entire industry, and it shows how well consumers have responded to our high-tech 4-cylinder lineup, dynamic new design, and the mid-size segment's first 5-star 2011 NHTSA crash test result," Krafcik added. "Improving Sonata Turbo availability, and the lithium-polymer battery-powered Sonata Hybrid that arrives later this month, should help Sonata find a few more buyers in 2011."
Elantra, Sonata
Genesis continued its impressive growth with the 18th consecutive month of year-over-year sales increases. For the year, Genesis sales increased 33 percent, to 29,122. "The continued growth in Genesis sales shows how much the Hyundai brand has grown over the last two years," said John Krafcik. "Genesis market share has now exceeded our most optimistic early projections, and has set the stage well for continued growth in premium segments." Hyundai's all-new flagship Equus, with higher residual value than Mercedes-Benz S-Class, BMW 7-Series, and Audi A8, began hitting showrooms in December to high demand and limited availability, resulting in 196 sales. Hyundai targets Equus sales volume of 2,000 to 3,000 in 2011.
FRANKFURT | Mon Jan 3, 2011 8:18am EST
FRANKFURT (Reuters) - Shares in German automaker Porsche SE (PSHG_p.DE) soared on Monday after a U.S. judge dismissed a hedge fund lawsuit seeking more than $2 billion in damages, removing a key obstacle to a merger with Volkswagen (VOWG_p.DE).
At 0819 GMT shares in the Stuttgart-based automaker were 12 percent higher, while Volkswagen gained 3.2 percent.
"We regard this as ... positive news for Porsche SE shareholders as the biggest risk to the merger with VW has been removed," Credit Suisse analysts said.
The lawsuit had delayed attempts by Volkswagen to fold Porsche into its operations next year and the ruling opens the door for a planned rights issue by Porsche.
"(This ruling) clearly paves the way for the planned rights issue at Porsche SE to raise 5 billion euros ($6.7 billion) in the first half of 2011," DZ Bank analyst Michael Punzet said.
Late last week, U.S. District Judge Harold Baer said hedge funds led by Elliott Associates and Black Diamond Offshore Ltd, could not maintain securities fraud claims based on Porsche's tactics when it tried to take over VW in 2008.
The hedge funds alleged they were victimized when Porsche covertly bought a stake of Volkswagen ordinary shares using swap instruments as part of a so-called "sneak attack" method plan to take over Europe's largest auto maker.
Spain's ACS (ACS.MC) used similar tactics to amass a stake of almost 30 percent in Germany's Hochtief (HOTG.DE), while auto supplier Schaeffler SCHA.UL bought up a stake in Continental (CONG.DE) using swap agreements that skirted disclosure rules.
When Porsche revealed its holding in October 2008, shares of VW soared, briefly making the company the world's biggest by market value and causing losses for hedge funds which had bet on a share price decline.
Baer dismissed most of the plaintiffs' claims with prejudice, meaning they cannot be brought again. The ruling came after the closing of the market on Thursday. On Friday the German stock market was closed for New Year.
Volkswagen said on Sunday it had extended the contract of Chief Executive Martin Winterkorn until 2016.
Facebook, the popular social networking site, has raised $500 million from Goldman Sachs and a Russian investor in a deal that values the company at $50 billion, according to people involved in the transaction.
The deal makes Facebook now worth more than companies like eBay, Yahoo and Time Warner.
The stake by Goldman Sachs, considered one of Wall Street’s savviest investors, signals the increasing might of Facebook, which has already been bearing down on giants like Google.
The new money will give Facebook more firepower to steal away valuable employees, develop new products and possibly pursue acquisitions — all without being a publicly traded company. The investment may also allow earlier shareholders, including Facebook employees, to cash out at least some of their stakes.
The new investment comes as the Securities and Exchange Commission has begun an inquiry into the increasingly hot private market for shares in Internet companies, including Facebook, Twitter, the gaming site Zynga and LinkedIn, an online professional networking site. Some experts suggest the inquiry is focused on whether certain companies are improperly using the private market to get around public disclosure requirements.
The deal could add pressure on Facebook to go public even as its executives have resisted. The popularity of shares of Microsoft and Google in the private market ultimately pressured them to pursue initial public offerings.
So far, Facebook’s chief executive, Mark Zuckerberg, has brushed aside the possibility of an initial public offering or a sale of the company. At an industry conference in November, he said on the topic, “Don’t hold your breath.” However, people involved in the fund-raising effort suggest that Facebook’s board has indicated an intention to consider a public offering in 2012.
There has been an explosion in user interest in social media sites. The social buying site Groupon, which recently rejected a $6 billion takeover bid from Google, is in the process of raising as much as $950 million from major institutional investors, at a valuation near $5 billion, according to people briefed on the matter who were not authorized to speak publicly.
“When you think back to the early days of Google, they were kind of ignored by Wall Street investors, until it was time to go public,” said Chris Sacca, an angel investor in Silicon Valley who is a former Google employee and an investor in Twitter. “This time, the Street is smartening up. They realize there are true growth businesses out here. Facebook has become a real business, and investors are coming out here and saying, ‘We want a piece of it.’ ”
The Facebook investment deal is likely to stir up a debate about what the company would be worth in the public market. Though it does not disclose its financial performance, analysts estimate the company is profitable and could bring in as much as $2 billion in revenue annually.
Under the terms of the deal, Goldman has invested $450 million, and Digital Sky Technologies, a Russian investment firm that has already sunk about half a billion dollars into Facebook, invested $50 million, people involved in the talks said.
Goldman has the right to sell part of its stake, up to $75 million, to the Russian firm, these people said. For Digital Sky Technologies, the deal means its original investment in Facebook, at a valuation of $10 billion, has gone up fivefold.
Representatives for Facebook, Goldman and Digital Sky Technologies all declined to comment.
Goldman’s involvement means it may be in a strong position to take Facebook public when it decides to do so in what is likely to be a lucrative and prominent deal.
As part of the deal, Goldman is expected to raise as much as $1.5 billion from investors for Facebook at the $50 billion valuation, people involved in the discussions said, speaking on the condition of anonymity because the transaction was not supposed to be made public until the fund-raising had been completed.
In a rare move, Goldman is planning to create a “special purpose vehicle” to allow its high-net-worth clients to invest in Facebook, these people said. While the S.E.C. requires companies with more than 499 investors to disclose their financial results to the public, Goldman’s proposed special purpose vehicle may be able get around such a rule because it would be managed by Goldman and considered just one investor, even though it could conceivably be pooling investments from thousands of clients.
It is unclear whether the S.E.C. will look favorably upon the arrangement.
Already, a thriving secondary market exists for shares of Facebook and other private Internet companies. In November, $40 million worth of Facebook shares changed hands in an auction on a private exchange called SecondMarket. According to SharesPost, Facebook’s value has roughly tripled over the last year, to $42.4 billion. Some investors appear to have bought Facebook shares at a price that implies a valuation of $56 billion. But the credibility of one of Wall Street’s largest names, Goldman, may help justify the company’s worth.
Facebook also surpassed Google as the most visited Web site in 2010, according to the Internet tracking firm Experian Hitwise.
Facebook received 8.9 percent of all Web visits in the United States between January and November 2010. Google’s main site was second with 7.2 percent, followed by Yahoo Mail service, Yahoo’s Web portal and YouTube, part of Google.
For Mr. Zuckerberg, the deal may double his personal fortune, which Forbes estimated at $6.9 billion when Facebook was valued at $23 billion. That would put him in a league with the founders of Google, Larry Page and Sergey Brin, who are reportedly worth $15 billion apiece.
Even as Goldman takes a stake in Facebook, its employees may struggle to view what they invested in. Like those at most major Wall Street firms, Goldman’s computers automatically block access to social networking sites, including Facebook.
George Pipas, Ford's sales analyst, told a group of reporters this week the automaker isn't concerned that the Chevrolet Camaro will outsell the Mustang this year for the first time since 1985.
Through November, Ford sold 68,264 Mustangs. Chevy had sold 75,685 Camaros. This despite the Mustang coming in both Coupe and Convertible flavors. Dodge's Challenger is farther back in the pack at 33,461 units sold through November.
Pipas told reporters this week that "If that was important, we wouldn't have taken a shift off at Flat Rock," the Michigan factory that builds the Mustang, he said.
What this means is twofold — first, that Ford's more interested in making profits than with pride. At this point, that's a good thing if you ask us — up until the point they begin putting profits above sensibility — like if they go and brand a Ford Focus crossover as a Bronco, for example. GM's been down that road before, let's hope Ford doesn't follow them.
Secondly, it's great because for the first time in 25 years, there's actually competition in the muscle car category — and competition's good for everyone, right?
PARIS—French wines, spirits and luxury goods group LVMH Moët Hennessy Louis Vuitton SA said Tuesday it has built up its shareholding in French luxury-goods company Hermès International SA to more than 20%.
The company released a statement saying that it "has crossed the threshold of 20% of Hermès International and today holds 21, 338, 675 shares."
The family that controls Hermès was taken by surprise when LVMH in October said it owned 17.1% of the fashion house.
Earlier this month, members of the family said they plan to create a holding company that will harbor more than 50% of Hermès, in an effort to fend off advances by LVMH. The holding company would have the first right to purchase any of the remaining family-owned shares, according to the plans.