Click to listen highlighted text! Powered By GSpeech

Home » Posts tagged 'debt finance'

Tag Archives: debt finance

Labour needs to keep scrutinising PFI and the NHS



Farage QT

Nigel Farage’s supporters often say that at least UKIP is forcing the main political parties onto the ‘immigration agenda’, despite the main parties not wishing to discuss immigration.

Critics have argued that UKIP have discussed moving the NHS towards a private insurance system, whereas Nigel Farage, leader of UKIP, on Question Time, argued that the matter had indeed been discussed but later rejected by their party.

It is reported that the Labour Party wishes to make the NHS its ‘number 1 electoral priority’, and that Lynton Crosby, the current strategist and tactician for the Conservative Party, is desperate not to make it so.

Labour themselves have criticised heavily how PFI represented poor value for the NHS, while most people generally concede that the NHS has suffered from lack of capital for its various necessary infrastructure projects.

“Take the PFI contracts – the private finance initiatives”, Farage mentioned on Question Time in a lengthy answer on the NHS.

Through PFI, large debts have been stored up for future taxpayers – at some stage need to be repaid. PFI debts do not form part of the deficit balance sheet.

“New hospitals were built, but rather than going to borrow money rather than going to the gilts market in that horrible City place, where they’re all crooks, Labour went to really rich people in private equity – and we borrowed £50 billion sterling to build new hospitals, which we built, but the repayments are £300 billion sterling.”

PFI deals were invented in 1992 by the Conservative government led by Sir John Major, but became widespread under Labour after 1997.

The schemes usually involved large scale buildings such as new schools and hospitals, or infrastructure projects which would previously have been publicly funded by the Treasury.

The projects are put out to tender with bids invited from building firms and developers who put in the investment, build new schools, hospitals or other schemes and then lease them back.

Love them or loathe them, the people in the City understand finance.

I suspect Nigel Farage does too.

Debt finance is a loan – an “IOU” – where you pay back the money, together with debt interest payments.

Equity finance is the bread-and-butter of the City and its lawyers.

For a pot of money, you buy a stake in a project which you can later sell at a profit. The critical thing about equity finance, which is why some people don’t like it, is that this stake buys you a slice in the management and control of projects.

Equity financiers, by buying stakes in PFI, exert from a distance a lot of control on our current NHS. This is a subject that no mainstream politician wishes to talk about; except…. bless him… Nigel Farage.

Nigel Farage may have become public enemy number 1 over their previous commments suggestive of privatising the NHS, but it is still not out of the question that Nigel Farage or Alex Salmond become Deputy Prime Minister in a formal coalition or a supply-and-confidence government led by Labour following May 8th 2015.

According to a Guardian analysis of contracts that were sanctioned by the Treasury dating from 2012, the cost of Britain’s controversial private finance initiative will continue to soar for another five years and end up costing taxpayers more than £300bn.

Andy Burnham MP continues to argue that Labour will return to the NHS to ‘people before profit’.

But Burnham has previously admitted PFI is problematic.

And all the mood music sounds as if Burnham is ‘seeing red over PFI’. Literally.

“We made mistakes. I’m not defending every pen-stroke of the PFI contracts we signed.”

Due to the costs of PFI, many NHS hospitals have found themselves struggling to pay for safe staffing in their budgets. It was recently reported that half of NHS workers would not receive a 1% pay rise.

Despite recent coalition criticism suggesting that the government was going cold on the scheme, published figures from the current Government have indicated that repayments will continue ballooning until they peak at £10.1bn a year by 2017-18.

According to the Guardian newspaper from 2012, the 717 PFI contracts currently under way across the UK are funding new schools, hospitals and other public facilities with a total capital value of £54.7bn, but the overall ultimate cost will reach £301bn by the time they have been paid off over the coming decades.

Equity investors have helped to deliver many public sector infrastructure projects via the Private Finance Initiative and have managed them in ways from which the public sector can learn.

Against a background of limited information, evidence gathered by the National Audit Office raises concern that the public sector is paying more than it should for equity investment. This report was published in February 2012.

The report still makes for interesting reading.

“Banks or bondholders provide around 90 per cent of the project funding for a PFI project on the condition that the remaining money is provided by the investors as risk capital or equity, which will be lost first if the project runs into difficulty.”

“Investors are rewarded for taking risks. The risks the investors bear are mainly the costs of bidding; that their contractors may fail to perform; or that other project costs the investors bear the risk for will be higher than envisaged. However, the investors limit their risk by passing it to their contractors. In addition, the government is a very safe credit risk and many projects such as hospitals and schools are repeat projects.”

“The Treasury and departments to date have relied on competition to secure efficient pricing of the contract but have not gathered systematic information to prove the pricing of equity is optimal. The NAO report identifies three potential inefficiencies in the pricing of equity. These are the time and costs of bidding; minimum rates set by investors, which sometimes do not reflect the actual risks the project will face; and bank requirements.”

The NAO report argued that, generally, public sector authorities have not been equipped with the skills and information required to challenge investors’ proposed returns rigorously. The NAO shows how further analysis during the bidding process would help authorities to assess the reasonableness of the investor returns. As an illustration, the NAO estimates that around 1.5 per cent to 2.2 per cent of the annual service payments in three projects it analysed were difficult to explain in terms of the main risks investors said they were bearing.

“Some investors in successful projects have gone on to sell shares in their equity to release capital and fund new projects. This has also resulted in accelerating the receipt of their returns. Analysis by the NAO has shown that investors selling shares early have typically earned annual returns of between 15 per cent and 30 per cent. The NAO recommends that the Treasury should use its current review of PFI to consider alternative investment models that limit the potential for very high investor returns in relation to risk.”

A future Labour Government will have to confront PFI, as it is an integral component of why the NHS is facing difficulties. A future Government could have the power to cancel or substantially renegotiate PFI projects where it could be proved that taxpayers were not receiving value for money.

It is also critical that the Government has the critical skills and expertise to use its huge buying power to obtain better deals, if it remains keen to pursue this policy route. It is already hardly coping with the deluge of contracts being put out to tender under section 75 Health and Social Care Act (2012), but Labour plans to repeal that Act in its first Queen’s Speech of the next parliament.

Unfortunately, total repeal of the Health and Social Care Act (2012) will have absolutely no effect on the operational or strategic management of PFI in the NHS.

Margaret Hodge has thankfully spoken out very vociferously about the problems with PFI under successive Governments.

“A rotten deal”

I agree with Margaret (full account here).

Andy needs to keep up the pressure on this.

Sale of Maxinutrition to GSK



Macfarlanes have recently advised Darwin Private Equity and Management on the sale (exit) of Maxinutrition Group Holdings Limited (Maxinutrition) to GlaxoSmithKline (GSK) for £162m. The Macfarlanes team was led by Luke Powell with competition partner Marc Israel advising in relation to the OFT filing. Nabarro was acting for GSK on the competition law side, which was subject to approval from the Office of Fair Trading. Slaughter & May acted for GSK. The exit is three years to the day since Darwin acquired the business for £75m.

Commercial rationale

GSK is a world-leading healthcare group engaged in the development, manufacture and marketing of pharmaceutical and consumer healthcare products. Its shares are listed on the London Stock Exchange and the New York Stock exchange. GSK has its corporate head office in London with operations in 120 countries and products sold in over 150 countries. GSK’s global turnover in 2009 was £28,368 million, and includes well-known brands such as Lucozade.

Maxinutrition, a European sports nutrition company, supplies and distributes sports nutrition products. Its main brand is Maximuscle. It is currently Europe’s leading sports nutrition business in market share terms and recorded a sales total of 36 million in the most recent fiscal year, as well as achieving a compound annual growth rate of 21% in the last three years. In its last financial year, Maxinutrition’s UK turnover was £34.9 million.

The sports nutrition market appeals across a broad spectrum of consumers from elite athletes to sports participants and those seeking additional nutritional supplementation.   Through this share acquisition, GSK will are investing in Maxinutrition’s science-proven products to extend the growth of Maxinutrition within its UK and European infrastructure and expand to the global marketplace, where GSK already has proven success.

The acquisition is further a demonstration of GSK’s strategy to expand its Consumer Healthcare business through appropriate “bolt-on” acquisitions which meet their strict financial criteria. Maxinutrition is a fast growing, focused sports nutrition business with excellent growth prospects and a strong management team – it’s a natural fit for GSK and its ambition to extend and expand its Nutritional Healthcare business.  GSK’s strong commercial and R&D capability, coupled with a strong record in investment in expanding their global nutritional healthcare franchise in new markets and territories, does offer substantial new opportunities to develop the Maxinutrition brands and continue to deliver impressive growth in the coming years.

Legal Awareness

This transaction shows the importance of both commercial awareness and legal awareness to furthering the business ambitions of the commercial parties involved: Maxinutrition and GSK. The three major components are the private equity, share acquisition and competition issues. These are described below.

1. Private Equity

The Macfarlanes private equity lawyers are highly-regarded specialist lawyers in all areas who hold the key to private equity, including funds, financial services regulation, tax structuring, pensions and environment. As private equity transactions become increasingly international, their international legal network ensures that they can offer commercial clients access to the best lawyers at the best independent firms in the world.

The history is that Darwin Private Equity and Management acquired Maxinutrition in 2007. Hogan Lovells acted for Zef Eisenberg and Paul Hick, the founder and the former chairman of the business respectively, who both retained stakes in the business when it was sold to Darwin Private Equity in December 2007. Hogan Lovells had also acted on the original Darwin MBO, advising previous owners Piper Private Equity and the selling shareholder group on the sale of the business.

For an introduction to private equity, please see the Legal Aware debt finance page here.

Share acquisition

On 10 December 2010, GSK and Darwin signed a conditional Share Sale Agreement under which GSK agreed to acquire the entire issued share capital of Maxinutrition, for a consideration of approximately £162 million. As a result of this transaction, the enterprises GSK and Maxinutrition will cease to be distinct.

For an introduction to share acquisitions, please see the Legal Aware share acquisitions page here.

Competition issues

This proposed transaction was not referred to the Competition Commission under section 33(1) of the Competition Act. In successfully obtaining approval from the OFT, the parties submitted that the relevant product markets are the supply of soft drinks, within which the sports and energy drinks segment is most relevant, and the supply of sports nutrition products. In any event, the OFT did not believe it was actually necessary to define the precise product scope in this case since no material competition concerns arise howsoever defined.

On the basis that:

(1) there are only nominal increments caused by the merger in the supply of sports and energy drinks, the supply of sports nutrition products, and the supply of energy and nutrition bars in the UK;

(2) the parties cannot, and are not considered to be close competitors; and

(3) no third parties raised any material concerns,

the OFT did not consider that the proposed transaction gives rise to a realistic prospect of a substantial lessening of competition on the basis of horizontal unilateral effects.

Conglomerate effects

The OFT also considered “conglomerate effects”. As stated in the OFT’s Merger Assessment Guidelines, mergers between firms producing complementary products may give rise to anticompetitive effects if they enhance the merged firm’s scope for tying or bundling. In such a case, customers would have an incentive to buy the second product from the merged firm (where they may not do so if purchasing both products separately), such that rivals in the second product market would be at a disadvantage. The OFT looked at the ability, incentive and the effect of such a strategy. The OFT did not consider that this particular merger created or strengthened the ability of the merged firm to foreclose others by tying or bundling. In particular, the OFT notes that the customer base and distribution channels for sports and energy drinks are significantly different from that of sports nutrition products.

For an introduction to competition, please see the Legal Aware competition page here.

For more information about this transaction, please refer to the Macfarlanes website here.

Click to listen highlighted text! Powered By GSpeech