John Thain says he put shareholders first and his interests second in deciding to sell Merrill Lynch to Bank of America.

Thain, speaking at the Reuters Global Finance Summit in New York, said a deal to sell a partial stake in Merrill Lynch to Goldman Sachs would have been better for him, but the sale of the entire Wall Street firm to Bank of America was the best outcome for shareholders.

Over a fateful weekend in September 2008, as Lehman hurtled toward bankruptcy, AIG floundered and the financial system looked into the abyss, Merrill held discussions with Bank of America, Goldman Sachs and Morgan Stanley for various transactions, Thain said.

Initial discussions with Bank of America involved either the sale of the entire company or a 9.9 percent stake and a multibillion credit line, the former Merrill CEO said.

With Goldman, discussions only involved the stake sale and the credit line. Discussions with Morgan Stanley about a strategic transaction were brief, he said.

"When Bank of America offered $29 a share on Sunday afternoon, it was clear to me that was the best thing for our shareholders," Thain said. 

Thain was fired by Bank of America soon after the deal closed, and is now considering a career in private equity and other jobs. 

"The risk to the shareholders, the risk to the company that a 9.9 percent stake and a multibillion dollar credit facility might not be enough was much too high," Thain said. "Now, for me personally, it might have been better. But my job was to protect the shareholders."

One public-relations lesson for Bank of America <BAC.N> after a year of crisis and a pummelling in the court of public opinion: Don’t always listen to the lawyers.
That’s the word from James Mahoney, director of communication and public policy at the country’s largest bank.
B of A has taken a beating over everything from its pay scale and lending practices to the fees it charges consumers.
It’s humbling for the institution that a year ago was the country’s “leading bank,” Mahoney told a trade conference sponsored by by Financial Research Corp of Boston.
“Two words emerged: bonus and bailout. It’s been all downhill ever since.”
He said the bank’s lawyers barred it from offering a single narrative on the decisions leading up to its takeover of the investment bank Merrill Lynch at the height of the financial crisis just over a year ago.
The lawyers fretted that executives might stray from the script during any future depositions to investigators, Mahoney said. But that left B of A exposed to a lot of attacks and with no easy way to protect its flank.
The lesson? “Don’t listen to lawyers if you’re trying too manage the public reaction.”
Mahoney had a receptive audience for a rare peek under the hood at the bank’s rough year.
While B of A sorts out its leadership with the pending departure of longtime chief executive Ken Lewis, Mahoney’s said the bank has taken more than its share of PR black eyes because of its size.
“I think we really became the target of a lot of the anger that’s out there because (the bank) is a highly visible, convenient place to vent,” he said.
(Reporting by Ross Kerber)

For asset managers, the shedding season seems to have no end in sight.

More asset management units of financial institutions are likely to find their way into the market in the months ahead, as they look to separate distribution from product creation, Jefferies & Co’s financial institution group predicts. 

More than two-thirds of global asset management deal activity came from such divestitures in the third quarter, a record level in a three-month period, Jefferies said.

These included deals such as Bank of America’s agreement to sell the long-term asset management business of Columbia Management to Ameriprise, Bank of New York Mellon’s acquisition of Insight Investment from Lloyds, and the purchase by Sumitomo Trust & Banking of Citigroup’s 64 percent interest in Nikko Asset Management. 

“As larger financial institutions refocus on strategic strengths, we expect they will continue to separate asset management distribution from manufacturing,” said Aaron Dorr, a managing director.

There were 38 deals in the third quarter, down from  66 in the same period last year, but disclosed deal value climbed to $4.5 billion from $4.2 billion and managed assets transacted rose to $749 billion from $728 billion, Jefferies said.

Ken Lewis started at Bank of America 40 years ago, working his way up from junior credit analyst to the CEO suite. His employment contract at the nation’s largest banks obviously predates the government’s bailout of Bank of America. Yet pay czar Kenneth Feinberg may have a say on whether he cashes in on retirement benefits and accumulated compensation worth $125 million.

Some argue it is simply inappropriate for Feinberg to try to tackle Lewis’ retirement package.

“A fair reading of the situation would be he is getting what he is entitled to and game over,” said Alan Johnson, a Wall Street compensation consultant.

But to many, Lewis is a poster child for the crisis that struck Wall Street banks last year, nearly collapsing the financial sector and resulting in taxpayers spending hundreds of billions of dollars to bail out firms like Bank of America.

“The Obama administration has to use every tool at its disposal to fix the pay problem, particularly the golden parachute for failed executives,” said Richard Ferlauto, director of corporate governance and pension investments for the American Federation of State, County and Municipal Employees, one of the largest U.S. labor unions.

Should Lewis get his retirement package in full? Leave your answer in the comments section.

Is pay Czar Kenneth Feinberg going to name and shame?

At a speech yesterday in Washington, Feinberg said he planned to disclose the pay for the top 25 employees at Wall Street firms within the next 30 days, according to a research note by Jaret Seiberg, of Concept Capital. Seiberg saw Feinberg’s talk.

But it is not clear if names would be redacted from that disclosure, with perhaps only titles and salaries revealed.

Feinberg is charged with examining pay packages at companies that received government bailout money, including Citigroup <C.N> and American International Group Inc. <AIG.N>

Feinberg yesterday also indicated that he would like his work as pay czar to have staying power, according to Seiberg’s note, but it would be up to other regulators to “ultimately decide how broadly” his policies apply.

Seiberg also noted that Feinberg “seemed very uncomfortable” about using his power to claw back compensation already paid. But he also sugested egregious examples may warrant recoupment.

HSBC, perhaps the most Chinese of the big European banks, says it is in talks to set up an investment banking joint venture in China. Australia and New Zealand Bank and Asia-focused Standard Chartered have lined up opportunistic buys in Asia, picking up the pieces of imploded RBS. Even beaten-down Citigroup is talking about acquisitions … in Indonesia.

ANZ said it agreed to pay a smaller-than-expected $550 million to buy some Asian units from RBS. StanChart, just nine months after launching a 1.8 billion pound rights issue, unveiled a surprise 1 billion pound ($1.7 billion) share placement to give it firepower to grasp opportunities as Asia’s economies recover. The bank said it was in talks about small acquisitions in China and India likely to cost between $100 million and $200 million. We’re told those talks involve RBS assets.

HSBC’s move would allow it to expand into China’s domestic securities and debt markets, areas it is presumably well-placed to exploit, given its dominant role in Hong Kong finance. Asia chief Vincent Cheng said HSBC Hong Kong has enough capital for acquisitions, has looked into some RBS Asian assets but has found, in general, that Asian assets are too expensive. So it will focus on organic growth.

Bank of America-Merrill Lynch said just days ago it was moving to boost its position in China with the hiring of veteran banker Wang Bing to head its corporate finance business there. Last week, we reported that Bank of America planned to set up a wholly owned subsidiary in China to bolster its corporate, investment banking and wealth management businesses.

Since Asia’s biggest asset is its position as manufacturing base for the world, the banks’ moves can be seen as a leading indicator of confidence in recovery. Or they could just be bold bets.

Dennis Kucinich pointed out at a Congressional hearing Thursday that Merrill’s weekly losses in mid-November were greater than the losses in mid-December, and that Bank of America boss Ken Lewis got weekly updates on the investment bank’s losses. Lawmakers repeatedly said Lewis must have known much earlier than he claims about the heavy losses at Merrill, which lost $15.84 billion in the fourth quarter of last year.

That’s something that class action lawyers may latch on to, as they push their case over the Bank of America-Merrill Lynch deal, which hinges on what the bank disclosed and when.

Shareholders OK’d the deal on Dec. 5. Bank of America disclosed Merrill’s losses in January, after the deal closed. If shareholders knew of the losses before, the outcome could have been different.

Even just days before voting on the deal in December, shareholders appeared to doubt the likelihood of the merger going through on the original terms set in September. As of the close on Dec. 1, Merrill shares were still trading at an 8.3 percent discount to the Bank of America offer. 

At the Congressional hearing Thursday, Lewis said Ben Bernanke and Hank Paulson did not tell him what to tell shareholders. He said decisions on what to disclose to shareholders is made by “our securities lawyers and our outside counsel.”

But under questioning he also agreed with lawmakers that there was pressure from the government to complete the deal despite growing losses at Merrill. 

Clearly, Lewis was in a tough spot. But how would that play out in court?

If they could have printed money the way the government does, they probably would have. Instead Bank of America and PNC Financial Services Group plugged some of their government-identified capital shortfalls with one of the things they can print - stock.

The two banks are among 10 ordered by Uncle Sam to raise $74.6 billion of capital after failing stress tests of their ability to handle a deep recession. Top U.S. bank Bank of America was told to raise $33.9 billion, and number-seven PNC $600 million.

Bank of America said it has raised about $5.9 billion of capital by swapping 436 million common shares for preferred stock, and has raised close to $26 billion of capital since the stress test. PNC said it sold 15 million common shares in an “at-the-market” offering and said it plans “as soon as appropriate” to pay back the $7.6 billion it took from the Treasury Department’s Troubled Asset Relief Program. Bank of America took $45 billion from TARP.

When governments print money they risk devaluing their currency. For banks, these sales could well do the same for their shares, and the drop in value could be vertiginous.

News that top investment banks want to pay back their TARP funds is welcome news for the M&A market. Though the tens of billions of dollars in capital that will slosh out of the banks and into government coffers may sap the banks of the funds to make big buys, the fact that most post-stress-test capital-raisings have gone smoothly must be encouraging for dealmakers.

Plus, banks that are unable to pull themselves from the government teat will have a whole lot less pricing power. It was interesting to see HSBC commenting on Tuesday that it expects industry consolidation in the second half of this year and in 2010. Though they may be looking more closely at non-U.S. assets, given the burns on their fingers from their foray into the U.S. mortgage market, that big global may sit out the next round of mergers. Will they be missing the boat, particularly given the conviction of many analysts that the U.S. economy will be the earliest to recover?

A key question that could rain on any M&A party is asset quality, and the radiation emitting from the toxic assets still poisoning the financial system. While most of it has been moved to the bomb shelter balance sheet of the U.S. taxpayer, there is little conviction that valuations will have the golden glow of yesteryear, and plenty of lingering fear that the glow is the toxicity of the lost decade.

It seemed only a bit odd that media star Arianna Huffington was the guest host on CNBC the day the all-important stress test results were due. Not to play down her credentials in media or commentary circles, but where were the celebrated bank analysts, the corporate chieftains and the investment gurus who so routinely enjoy a dose of the limelight on America’s Business Channel?

Wasn’t this the perfect day for a newsmaker rather than a news talker? The Huffington Post founder has been a good reality check on market cheerleaders who live on CNBC, but on Stress-Test Thursday, the less-than-casual viewer expects insiders with insight. It tasted like something strange and exotic had made its way into the DealZone coffee machine.

Then disgraced former New York Governor and Attorney General Eliot Spitzer joined the fray, and the slightly odd became surreal. Spitzer, who casually noted he was invited to the show (hint, hint), gave a spirited view from the nosebleed seats, far back from the federal policymakers’ bench.

Forget all this stress test stuff — what about Spitzer’s attempt at resurrection? Anchor Joe Kernen asked whether Spitzer the AG would have prosecuted Spitzer the governor and Spitzer the guest legal expert answered no, arguing that issues of judgment are more important than issues of law.

This should be equally true for the banks, Spitzer said. But the banks’ transgressions were far more damaging to many more people than Spitzer’s own. It’s hard to believe moral suasion and limiting access to cheap funds would have been enough to persuade greedy bankers to act more responsibly. Certainly, shareholders would not have rewarded them for behaving better while others were making a killing selling toxic investments.

DealZone commends CNBC’s producers and guest bookers for creative thinking. While the stress test results are not due until late this afternoon, so much has been leaked already that the minutiae still to come will probably numb the minds of even the hardiest financial news junkies. With no news to break, the Huffington/Spitzer show turned out to be refreshingly watchable. Indeed, who understands a stress test better than Eliot Spitzer?

Deals of the Day:

* Anheuser-Busch InBev said it agreed to sell its South Korean Oriental Brewery to private equity firm Kohlberg Kravis Roberts & Co for $1.8 billion, allowing the world’s largest brewer to repay debt.

* Global miner Rio Tinto Ltd/Plc has not talked to Chinese state-owned metals firm Chinalco about revising a planned $19.5 billion tie-up, and still believes the deal makes sense.

* Australian blood-products and vaccines maker CSL said U.S. competition regulators had yet to make a decision on its proposed $3.1 billion takeover of smaller rival Talecris Biotherapeutics Holdings Corp.

* Australian brewer Lion Nathan, which has agreed to a $2.5 billion takeover by Japanese brewer Kirin, halted trade in its shares on Thursday on concerns the confidentiality of its talks with Kirin may have been breached.

* U.S. coal miner Peabody Energy and Anglo-Swiss miner Xstrata plan to bid for a majority stake in Indonesian coal miner PT Berau Coal in a deal that may be valued at around $1 billion, two sources with direct knowledge of the deal said.

* Porsche Automobil Holding SE stock fell as much as 17 percent after the sports car maker scrapped attempts to take over Volkswagen and agreed to explore a merger with Europe’s biggest carmaker.

* Magna International has so far presented a more concrete proposal on General Motors unit Opel to the German carmaker than Fiat, Opel’s supervisory board member Armin Schild told Reuters.

(PHOTO: New York Governor Eliot Spitzer stands next to his wife Silda Wall Spitzer as he announces his resignation at his office in New York March 12, 2008. REUTERS/Brendan McDermid)