The Shareholder Forum

Special Program


Independent Analysis of Shareholder Interests

in a merger transaction proposed by

Providian Financial Corporation

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Program Summary

(August 10, 2005)

     In response to publicly expressed investor concerns about the pricing of a merger transaction proposed by the management of Providian Financial Corporation (“PVN”), a special “Forum” program has been initiated for the limited purpose of arranging an independent analysis of shareholder interests.

     The program is intended to develop a broadly applicable process for providing public shareholders with objective, professional analyses of transaction proposals, as an alternative to the current practice of relying on “fairness opinions” presented by a transaction’s proponents.

     Anyone with an interest in Providian or in the general objective of assuring informed investment decisions  is encouraged to participate in the program, which will be managed by Gary Lutin according to the usual Forum policies.

August 10, 2005



The New York Times 
March 20, 2005


Mergers: Fair Should Be Fair



SO maybe all is not fair in love and investment banking.

For the last several months, regulators have been on Wall Street's back about "fairness opinions," those conflict-ridden fig leaves that banks provide to clients to justify a proposed merger or acquisition. The National Association of Securities Dealers has just finished gathering comments from the public on how to change the practice and is expected to set new rules for fairness opinions soon, possibly in concert with the Securities and Exchange Commission.

Fairness opinion reform is a contentious issue on Wall Street. After all, it represents a big business - and is a big part of an even bigger business, merger advice. Typically, investment banks that advise a company on a deal also issue a fairness opinion proclaiming that the deal is fair to shareholders and within the parameters of market values. You don't have to be Eliot Spitzer to see the conflict of interest here: banks are paid on a contingent basis for their advice, so they only get paid if the deal gets done. That's a mighty big incentive to rubber-stamp a deal - any deal - as "fair."

Most shareholders probably don't realize that fairness opinions were never meant to be fair. They're really just insurance policies for boards of directors to protect themselves against shareholders who sue. The genesis of fairness opinions is a 1985 Delaware Supreme Court ruling that said ordering up an opinion from a bank was a valid way to defend against accusations that a board did not provide its "duty of care." Ever since, boards have routinely asked for fairness opinions on most deals.

So, as regulators consider reforms, here's one way to start the ball rolling: any company's disclosure about receiving a fairness opinion on a deal should come with a disclaimer that fairness opinions should not be considered when voting on a transaction. The disclaimer should also point out that a reason the board requested a fairness opinion was for protection against shareholder lawsuits. By stating this upfront, much of the conflict is diffused.

But there's more that can be done. Companies should also disclose the fees they are paying banks for their advice and for the fairness opinion. They should also reveal what other business relationships they have with the banks and the total amount in fees paid to the bank for the last three years.

Banks usually don't like to disclose the fees they have received - often company filings say the adviser was paid a "customary fee." It is not that the banks don't want the shareholders or the public to see that they are getting paid a fortune. The dirty little secret is that they often don't want the public or their competitors to know how embarrassingly little they are getting paid, doing the work for a pittance just to get credit in those all-important Wall Street rankings known as league tables.

As part of the reform measures, corporate directors should also be required to pledge that they have been presented with not just the fairness opinion but also with all of the potential conflicts of interest with the bank providing the opinion. This way, shareholders will know that the directors did their evaluation with all the proper information and took into account the possible conflicts when considering the advice of the advisers. Such a step would also help protect the directors, too.

Beyond simple disclosures, there are a couple of areas where even more change must occur. Banks that have connections to both sides of a deal should not be allowed to provide an opinion at all. For example, a number of banks act as advisers to a seller and also lend money to the buyer to finance the deal. This is called staple financing in the industry's parlance, and this column has been critical of the practice before.

The appearance of a conflict is so blatant, it's farcical to believe that a fairness opinion from a bank playing both sides could provide any comfort to shareholders and any protection in court for board members. The same goes for banks providing fairness opinions to themselves on financial deals. J. P. Morgan Chase wrote its own fairness opinion for its $58 billion acquisition of Bank One - c'mon, guys.

Wall Street may initially blanch at these reforms, but they could turn out to be a boon for business: companies are more likely to ask for second and third opinions from different banks just to cover themselves - and that could produce fairness opinions that are really fair.


Copyright 2005 The New York Times Company




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This public program addressing shareholder interests in Providian Financial Corporation (PVN) was initiated with the leadership support of Putnam Investment Management, and according to the Forum’s stated "Conditions of Participation" is open to all shareholders of the subject company and to any fiduciaries or professionals concerned with their decisions. In all cases, each participant is expected to make independent use of information obtained through the Forum, and participation is considered private unless the party specifically authorizes identification.

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