David Sokol resigns to Berkshire Hathaway

Wall Street Journal

By Serena NG and Erik Holm

David Sokol, widely seen as the leading contender to succeed billionaire Warren Buffett at the helm of Berkshire Hathaway Inc., resigned unexpectedly amid surprising revelations about his personal stock trading.

In an unusual and personal announcement, Mr. Buffett said the resignation followed revelations that Mr. Sokol had purchased shares of a company that Berkshire recently bought, Lubrizol Corp., at the initial suggestion of Mr. Sokol.

Mr. Buffett said Mr. Sokol, 54 years old, had bought roughly $10 million in shares of the chemicals maker in January, before Berkshire reached a $9 billion deal to acquire the company. Berkshire's purchase price of $135 per share meant that Mr. Sokol's stake rose $3 million in value.

Mr. Buffett said he and Mr. Sokol didn't feel the Lubrizol purchases were "in any way unlawful." The Securities and Exchange Commission declined to comment.

The Berkshire chairman and chief executive said the purchases weren't a factor in Mr. Sokol's decision to leave. He said Mr. Sokol, in a March 28 resignation letter, cited his desire to spend more time on his family's investments.

The revelations throw into question Mr. Buffett's carefully crafted succession plan, one of America's most widely watched boardroom dramas. Berkshire has said it has identified four executives at the company who could replace him. Mr. Sokol has long been considered high on that short list.

The incident is also a potential black eye for Mr. Buffett, 80, who emphasizes character and integrity in his manager choices and who himself is known for his ethics. Shares of the conglomerate, one of the nation's biggest companies, declined in after-hours trading. The development comes amid questions about trading by senior members of corporate America.

This month, regulators alleged that Rajat Gupta, one of the nation's most widely respected corporate directors, shared inside information with hedge-fund king Raj Rajaratnam, an allegation both men deny.

Mr. Buffett said he had been aware Mr. Sokol owned stock in Lubrizol, but only found out about the timing and size of the trades on March 19—a few days after Berkshire agreed to buy Lubrizol at a 28% premium to its share price before the deal. In an interview Wednesday evening, Mr. Sokol said his resignation "had absolutely nothing to do" with Lubrizol, and said the company elected to disclose his trades before they appeared in a proxy statement in the coming weeks.

"This was 100% my decision," Mr. Sokol said. He said he had contemplated leaving Berkshire for the past three years and had told Mr. Buffett that he wanted to hand over management of the companies he ran "when the timing was right."

Mr. Sokol was chairman of Berkshire utility subsidiary MidAmerican Energy Holding Co. and chief executive of its fractional jet business NetJets Inc. He had identified Lubrizol as a potential acquisition for Berkshire late last year and took the early lead on the deal, which Mr. Buffett eventually closed, according to a recent company filing on the deal.

In his initial conversation with Mr. Buffett about the company, Mr. Sokol mentioned he owned stock in Lubrizol, Mr. Buffett said Wednesday. "It was a passing remark and I did not ask him about the date of his purchase or the extent of his holdings," he wrote.

Mr. Sokol brought the idea for buying Lubrizol to Mr. Buffett in mid-January. Just days earlier, on Jan. 5, 6 and 7, he bought 96,060 shares in the company. This followed trades of 2,300 Lubrizol shares Mr. Sokol had bought and sold in December, according to Mr. Buffett's announcement. Mr. Buffett said he learned of the extent of the stock purchases shortly before beginning a trip to Asia on March 19.

On Lubrizol, Mr. Sokol said he "had no inside information and no knowledge if Warren would be interested or not in the company" at the time he bought the shares and when he brought the company to Mr. Buffett's attention.

"There's nothing in there that's embarrassing," Mr. Sokol said, though he acknowledged "it would look bad 60 days later" if his stake in Lubrizol was disclosed in public filings and Berkshire hadn't said anything about it. "We wanted it all out." He said the analysis he did on Lubrizol was "done off public information."

Mr. Buffett, he said, didn't ask him about the stake he held and found out about its details only when Mr. Sokol submitted the information to Berkshire's general counsel, who was helping to prepare regulatory filings for the deal.

"I have been a CEO for 27 years in two companies, and my interest is in growing companies," he said, adding his goal is to build an entity of his own that's similar to Berkshire.

Securities lawyers debated whether Mr. Sokol's dealings could fall into a gray legal area. In broad terms, insider trading laws prohibit individuals from trading on shares based on material non-public information in violation of some duty of trust.

One key question, lawyers say, is whether Mr. Sokol knew that he would pitch a Lubrizol deal to Mr. Buffett, or even that he might do so, at the time he bought Lubrizol shares. If Mr. Sokol did know at that time, that could suggest he had material information at the time he bought the shares, because Mr. Sokol is a trusted Buffett lieutenant, lawyers said.

However, it could be harder to show that Mr. Sokol violated any duty to Berkshire Hathaway, because he told Mr. Buffett that he owned Lubrizol shares, the lawyers said. Scrutiny could more likely focus on whether Mr. Buffett made a mistake by not learning more about Mr. Sokol's Lubrizol stake when weighing a decision to pursue a deal.

Buffett’s Secret Deal Recipe

Dealpolitik: Exposing Warren Buffett’s Secret Deal Recipe

By Ronald Barusch

If KKR or TPG had called Lubrizol with a “Let’s Make a Deal” phone call, the board would have immediately formed an independent committee and hired independent financial advisors before pursuing it. If one of Lubrizol’s competitors had made the same call, it would likely have received a very strong message that the company is not for sale and they should go away. We used to characterize that kind of a message as “[expletive deleted] you; stronger message to follow.”

But when Berkshire called, according to the background section of Lubrizol’s preliminary proxy statement, everyone seemed to slobber all over himself to play the game the Berkshire way. No independent committee was created. The board even hired as a financial advisor the banker who brought Lubrizol to Berkshire’s attention. And a strange courtship began. How come? We will come back to that question in a moment.

First, let’s look at how strange this dance seems to be. If a rich guy called you saying he wanted to buy your house, what would be the first thing you would ask? I would ask “how much?” Well, apparently that kind of common sense doesn’t apply when Berkshire comes knocking at your door. Between December 17, when Lubrizol’s CEO first learned of Berkshire’s interest, and February 8, when the CEO met with Warren Buffett himself, no one asked Berkshire the simple question “how much?”

During that period, there were four formal and informal board meetings. During at least two of those meetings the board “engaged in an extensive and thorough discussion about Berkshire Hathaway’s possible interest.” No one seems to have wanted to ask Berkshire the big question. The board even asked management and its financial advisors to assess “the value that might be achieved through negotiations with Berkshire Hathaway.” But Berkshire was not asked the “how much?” question until the CEO met with Buffett on February 8.

There is little question that Berkshire received more favored treatment that another bidder would have. To some extent, that is understandable. Berkshire has an impressive balance sheet. But the favoritism toward Berkshire seems much deeper rooted than that. In the preliminary proxy statement it is signaled in code words that describe a meeting in mid-January between the CEO and David Sokol of Berkshire. The two of them “generally discussed the corporate cultures and philosophies” of both companies.

And in a meeting 10 days later when Sokol provided reassurance by saying Berkshire “would want Mr. Hambrick to continue to run the business.” The preliminary proxy repeatedly assures us that no employment terms were discussed. But of course they did not need to be. The Berkshire “culture” of retaining and rewarding existing management is well known and was obviously affirmed.

And, of course management does not have to completely rely on history and the soothing words of Berkshire executives. They have generous golden parachutes that will compensate executives with an aggregate of $100 million if they leave Lubrizol for “good reason” within three years of the Berkshire deal. That’s on top of the equity-based cash outs they will receive at the closing. More importantly, they know that, because of the “culture,” the bulk of those golden-parachute payments likely will be rolled into new employment agreements to compensate them nicely them for staying.

But of course no one wants to admit that Berkshire received favored status because of the “culture” issue. That is because it leads to this question: how does a deal with Berkshire differ from a leveraged buyout sponsored by a private equity fund?

Leveraged buyouts, which are frequently criticized because of the inherent self-interest of management, require much more procedural protections than the Lubrizol board decided would be appropriate for a Berkshire transaction. They typically involve independent committees, independent advisers, executive sessions and negotiations largely conducted by the committee. It is true that leverage is not a part of the Berkshire transaction and that distinguishes it from an LBO. But that is not why the procedural protections are invoked. The board needs those procedures because management may have a conflicting interest. And that is true whether management has a formal agreement with the private equity firm or not.

In that regard, as a practical matter, the possible conflicts for management are no different in a transaction with Berkshire than they would be in one with KKR. Berkshire and Buffett have just done a better job in perfecting a “brand.”

The Lubrizol board and its advisers seemed to have missed this issue entirely. In what may be a new world record, the proxy statement indicates that the lawyers advised the board at six separate board meetings of its fiduciary duties.

It is amazing that the potential conflict of management was either not identified or ignored. It may well be that the price is adequate and Berkshire may be composed of good people. Nevertheless, the independent directors should have done more to take control of the process.

(Note: the author owns shares of Berkshire Hathaway.)

Why Warren Buffett Just Spent $10 Billion

The Wall Street Journal

by Brett Arends

In other news on the markets this week, Warren Buffett quietly made an acquisition. A big one. Even by his standards.

The 80-year old investor put down $9.7 billion, or about a quarter of Berkshire Hathaway's entire cash pile, to buy Lubrizol Corporation, a specialty chemicals company based in Wickliffe, Ohio.

What does this mean for you? Warren Buffett's investment moves are usually worth a closer look, even if you're not one of his stockholders. After all, he's one of the most successful stock pickers ever. And it's never too late to practice your swing, even if your own stock portfolio is closer to $20,000 than, say, $20 billion.

A look through the company's financials reveals nine reasons Warren Buffett loves Lubrizol.

1. It has a lucrative niche.
Lubrizol's main business is making additives for fuel, which make engines run better and last longer. They are a small part of the cost of the fuel, but they are valuable to the end users and they are lucrative. Lubrizol's gross margins last year were a thumping 33%, up from 25% five years ago. The company's return on equity is 34%.

2. It has a wide moat.
Lubrizol has little trouble defending its business from competition. It has been around for 82 years – even longer than Mr. Buffett – and has built up a strong franchise. It is the market leader in the industry. And the fuel additives industry is technically advanced. Lubrizol owns a remarkable 1,600 patents and has 6,900 employees worldwide.

3. It's in a dull industry.
Nobody goes into the fuel additives business for the glamour. Venture capitalists are not throwing money after new fuel additives start-ups. Companies in the sector do not typically give away their products for free to gain market share, "eyeballs," "mind share" or the like. Indeed some of the existing players have been getting out – making life better for those who are left.

4. It has pricing power.
Mr. Buffett recently said "the single most important decision in evaluating a business is pricing power. If you've got the power to raise prices without losing business to a competitor, you've got a very good business." At a time of rising raw material costs, that's especially important. Lubrizol fits the bill. The company's own raw materials jumped 10% last year, but it was able to pass those costs on to its customers.

5. It's stable.
Sales fell 9% in 2009, but gross profits actually rose, from $1.1 billion to $1.5 billion. And the company says less than half of its revenues rely on boom-and-bust cyclical industries, such as construction and industrial production. Lubrizol had $2.7 billion in total liabilities at the end of last year – and $2.5 billion in cash and other current assets. Dividends have risen steadily, from $1.04 per share five years ago to $1.39 last year.

6. It benefits from overseas growth.
Two-thirds of last year's revenues came from outside the U.S.A. The company has 40% of its plant and equipment overseas. And that's rising. Last fall Lubrizol broke ground on a new factory in southern China, that will begin production in 2013. The company is a big beneficiary from economic growth in emerging markets. In countries like China, India and Brazil, hundreds of millions of people are moving into the middle class, buying cars, and driving them more. Every drive needs fuel, and every gallon of gas needs additives.

7. It has low unionization.
Just 4% of Lubrizol's U.S. employees are members of a union (although some overseas workers are also members of collective bargaining agreements). That's good for profits. Mr. Buffett may be a Democrat at nights and on weekends, but when he's at the office he's all business.
8. The stock was reasonably priced.
Even a great company can be a bad investment if you pay too much for it. In the case of Lubrizol, Mr. Buffett is paying $135 a share. That's less than 13 times last year's earnings, and 12 times forecasts for 2011. If you find a good company at a good price, who cares what "the market" is doing?

9. He likes the management.
Lubrizol chief executive James Hambrick has been with the company since 1973, when he started there as a co-operative education student. He's been CEO for seven years. "Lubrizol is exactly the sort of company with which we love to partner – the global leader in several market applications run by a talented CEO, James Hambrick," Mr. Buffett said when he announced the deal. "Our only instruction to James – just keep doing for us what you have done so successfully for your shareholders."