Cypress Associates LLC offered as Expert Witness in case related to IPO of crossroads
Cowen and Co.
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Cypress Associates LLC acted as a consultant to investigate in case regarding process and governance issues
Data Domain
Data Domain specializes in target-based deduplication solutions for disk based data backup. The company’s products minimize tape automation, replacing it with a disk based substitute by implementing lossless data compression and optimizing for streaming workloads.
Case description: Alleged breaches of fiduciary duty by the Data Domain board of directors by refusing to negotiate with a potential acquiror (EMC Corporation), agreeing to sell the Company without steps to maximize value, and agreeing to certain entrenching deal protection provisions in its merger agreement with NetApp.
Cypress acted as consultants to the Police & Fire Retirement System of the City of Detroit with regard to no-shop and matching rights provisions in the sale agreements and process and governance issues. The case settled.
High Voltage Engineering Corporation
High Voltage Engineering Corporation owns and operates a diversified group of three industrial and technology based manufacturing and services businesses. HVE’s businesses focus on designing and manufacturing high quality applications and engineered products which are designed to address specific customer needs. The company has an established customer base spanning more than 60 countries, in a variety of industries including process automation, metal and steel, water and wastewater treatment, petrochemicals, oil and gas extraction and transportation, and semiconductor fabrication.
Case description: Alleged failure to pay M&A “tail” fee to original investment banker.
Cypress was offered as expert witness on behalf of High Voltage with regard to customary investment banking compensation and indemnification provisions in restructurings, bankruptcies and mergers and acquisitions. The case settled.
Onex
Onex, an investment firm, has equity interests across several industries in North America, mainly manufacturing and health care, but financial services, building products, and transportation, as well. While large-cap private equity is its biggest segment, the company also invests in debt and credit securities and real estate, including real estate investment trusts, commercial real estate loans, and residential developments. Onex’s credit securities investments are designed to take advantage of the subprime mortgage crisis and credit shortage. The company’s ONCAP family of private equity funds invest in mid-cap firms. All told, Onex has around $7 billion in third-party capital under management.
Case description: Alleged fraudulent conveyance arising from Onex’s acquisition of American Buildings Company and American Buildings’ subsequent acquisition of two other companies.
Cypress acted as expert witness on behalf of Onex as to the valuation and solvency of three companies acquired by Onex, the reasonableness of certain fees paid to Onex, the transaction structures and the events leading to the companies’ ultimate bankruptcies. On summary judgment, the majority of the plaintiff’s claims were dismissed. In addition, based on questions developed by Cypress and other rebuttal analysis of the plaintiff’s expert, the court refused to admit the testimony or analysis of that expert under the Daubert decision standards.
Energy Transfer ElPaso
ETP owns and operates a diversified portfolio of energy assets. ETP is also the fourth largest retailer of propane in the United States, serving more than 700,000 customers from coast to coast.
CrossCountry Energy operates natural gas pipeline businesses in North America. The company provides energy transportation services to West and East markets through its bi-directional system. Its customers include electric utilities, independent power producers, cogeneration facilities, marketers, electric power generators, industrial end-users, municipal generators, and local distribution companies.
El Paso Corporation provides natural gas and related energy products and is one of North America’s largest natural gas producers. The company owns North America’s largest natural gas pipeline system which goes from border-to-border and coast-to-coast.
El Paso alleged that the acquisition of CrossCountry by Energy Transfer Partners triggered a right of first refusal by El Paso to acquire CrossCountry’s 50% interest in a joint venture in which El Paso held the other 50%. Following Cypress’ deposition testimony, El Paso withdrew its complaint and stipulated that the ROFR had never been triggered.
Williams
Williams is a domestic leader in finding, producing, gathering, processing and transporting natural gas. Williams’ operations are concentrated in the Pacific Northwest, Rocky Mountains, Gulf Coast, Southern California and Eastern Seaboard.
Cypress acted as financial advisor to the Ontario Teachers’ Pension Plan and the Arkansas Teacher Retirement System in the restructuring of claims by securities purchasers against Williams arising from Williams’ accounting fraud. Cypress evaluated Williams’ financial condition and prospects, analyzed various forms of consideration, and assisted in the mediation which culminated in the agreement by Williams under which it paid $290 million of cash to Williams’ securities purchasers.
State of New Hampshire
In early 2009, Cypress Associates was retained by the office of the Attorney General of New Hampshire on behalf of the State to assist it in evaluating the financial feasibility of a proposed 99 megawatt $275 million wind power project to be located in Coos County, NH. The project is being sponsored by Granite Reliable Power, LLC (“Granite Power”), a company established and majority owned by Noble Environmental Power, a renewable energy company founded in 2004.
Cypress provided expert testimony on Granite Power/Noble Environmental’s business and financial plan, especially focused on their ability to complete the project financing during a period of severe stress in the financial markets. We were the “publics” financial advisor and expert financial witness at New Hampshire Site Evaluation Committee hearings in direct testimony and cross examination. As a result of our work product and testimony, Granite Power materially augmented the financial strength of the project.
Musicland Holding Corp.
Musicland Holding Corp. is a leading national specialty retailer of music, movies and entertainment-related products. Musicland operates more than 800 retail stores and online under the names Sam Goody (SamGoody.com), Suncoast Motion Picture Company (Suncoast.com) and MediaPlay.com. In June 2003, Musicland was acquired by an affiliate of Sun Capital Partners, Inc.
Case description: Alleged fraudulent conveyances to controlling shareholder Sun Capital before Musicland filed for bankruptcy protection.
Cypress acted as expert witness on behalf of the Liquidating Trustee of Musicland as to the solvency of the Company prior to its bankruptcy.
Amylin
Amylin Pharmaceuticals makes and markets two injectable diabetes drugs, Byetta and Symlin, that are approved as adjunct therapies to other diabetes treatments such as metformin and insulin. Amylin’s US-based sales force co-promotes Byetta with Eli Lilly and markets Symlin on its own. The company is working on other diabetes drugs, including a once-weekly version of Byetta, as well as treatments for obesity.
The San Antonio Fire & Police Pension Fund provides comprehensive retirement, death and disability benefits for the City of San Antonio’s approximately 5,377 police officers, fire fighters, retirees and their beneficiaries. They are an investor in Amylin.
Case description: Alleged breaches of fiduciary duty by the Board of Directors of Amylin arising from their adoption of defensive measures in two debt instruments.
Cypress acted as consultants to San Antonio Fire & Police as to customary terms of bank loans and convertible debentures and market conditions for debt issuance. Oral arguments were heard on September 30, 2009 concerning Plaintiff’s appeal of the Court’s ruling denying summary judgment.