In spite of the private equity slowdown, deal makers continue to seek value in fashion. According (subscription required) to The Wall Street Journal, "In August and September alone, designers Betsey Johnson and Matthew Williamson both sewed up deals with outside investors. NRDC Equity Partners, which owns Lord & Taylor, bought a stake in designer Peter Som's business for what was believed to be less than $10 million. Kenneth Cole Productions bought sportswear brand Le Tigre, and jeans maker Citizens of Humanity bought menswear brand Robert Talbott Inc."

You have to wonder if these firms are getting in over their heads. Fashion is a notoriously fickle industry, providing none of the reliable returns and stable growth that buyout shops typically seek. Sure, a lot of the deals will work out great but there will be a disproportionate number of fashion buyouts that end in big writeoffs as the brands acquired lose their cache.

For a fashion company that looks cheap and could possibly be in buyout territory, check out BloggingStocks writer Kevin Kelly's take on Steven Madden (NASDAQ: SHOO).

The gunfight at the OK Corral. Private equity firm JC Flowers tried to back out of its deal to buy student loan company Sallie Mae (NYSE: SLM). Then the firm came back with an offer $10 below the original $60 a shared price.

The whole matter put the Sallie Mae board in a bind. Take a lower price. Or take nothing and watch the shares fall. The stock trades just above $49 now.

But SLM got a big vote of support in its efforts to push Flowers to honor the original deal. Three of its big institutional shareholders said that the private equity firm has to do the right thing and write the $60-a-share check. The firms include Barrow, Hanley Mewhinney & Strauss, New York hedge fund QVT Financial and Capital Guardian Trust Company. "We strongly support your decision to hold firm to your contract and a $60-per-share sale price and hope you will continue to reject any overtures to renegotiate the contract price or the structure of the consideration," QVT Managing Director Nick Brumm said in a letter obtained by The New York Post.

Now, it would appear that Flowers is on the hot seat. These large investors are saying that it is liable for the $25 billion deal. No one should be surprised if they decide to take the buy-out operation to court.

With $25 billion on the table, the action has turned very unfriendly.

Douglas A. McIntyre is a partner at 24/7 Wall St.

Despite some improvement, the private equity folks are having some problems. Just take a look at the implosion of deals like Harman (NYSE: HAR). And, of course, major Wall Street banks are taking massive write-offs for problematic buyout loans.

Oh, and there's something else; that is, private equity firms also must deal with a possible tax hike. In fact, Senator Charles Schumer plans to introduce a bill on the matter according to Bloomberg.

Even if dealmaking slows down, a private equity surcharge could be a nice source of revenues. With current rates at only 15%, there is certainly lots of opportunity for Congress to soak.

Interestingly enough, Schumer is not too optimistic about his bill. That is, he thinks that President Bush will use his veto pen.

But, I have a feeling the tax issue won't go away. Simply put, it's just too big to ignore. And, no doubt, I'm sure private equity heavies are paying some big bucks for their tax advisers to gin up some creative strategies.

Tom Taulli is the author of various books, including The Complete M&A Handbook and The Edgar Online Guide to Decoding Financial Statements. He also operates DealProfiles.com.

The New York Times [registration required] reports that J.C. Flowers, the private equity firm that announced it was pulling out of its deal to buy SLM Corp. (NYSE: SLM), has changed its mind. Flowers is now offering $50 a share in cash, 10% 16.7% below its original $60 a share offer for the student lender.

But J.C. Flowers has offered a kicker: warrants to buy SLM shares, which it claims could eventually be worth as much as $10 a share if SLM meets or exceeds its earnings projections. Warrants, which give their owners the right to buy shares at a specific price, are sometimes used in bankruptcy cases as a way to repay creditors. The idea is that if the company fares better than expected, warrant holders can share in the profits by exercising the options. But a few hours ago SLM announced it rejected the offer.

According to its statement, J.C. Flowers wanted out because of a law signed by the president which limited government reimbursement of student loans. But SLM countered with a statement reaffirming its rights under the merger contract. So what does the cash and warrants deal mean? It could be seen as a clever way to tie SLM's sale price to its business prospects. Or it may be an attempt to buy SLM on the cheap while claiming to stand by its previous bid

Mutual funds have never been known for their willingness to take on management -- opting instead to just sell their shares and move on -- but that may be changing.

According to The Wall Street Journal, some fund managers are gaining a newfound feistiness, particularly when it comes to management-led leveraged buyouts that they believe offer inadequate value to shareholders. The whole idea of a management buyout seems unfair to outside shareholders, almost by definition: the current executives are taking the company private while retaining a large stake, in the hope of creating more value. If they thought shareholders were getting a good deal, why would they do the deal in the first place?

In his excellent book The Battle For the Soul of Capitalism, John Bogle discusses the supine attitude so many mutual funds have had toward corporate governance: In recent years, holding periods have shrunk to the point where few money managers really have a long-term stake in the companies they own. He argues, and I would agree, that the complacency of mutual funds is one of they key factors that has led to the corporate governance disaster that currently exists in American business.

The 13-Ds that mutual funds are filing with increased frequency are a sign of positive change, and hopefully more will come.

The hedge fund industry, which is as popular on Capitol Hill as Iranian President Mahmoud Ahmadinejad, may have more trouble coming its way from the U.S. Congress.

The Wall Street Journal is reporting that the Senate Finance Committee may change the tax rules to prevent offshore hedge funds from using derivatives to avoid withholding taxes on U.S. stock dividends, a practice which costs the U.S. treasury $1 billion in revenue.

Wall Street firms such as Citigroup Inc. (NYSE: C) and Lehman Brothers Holdings Inc. (NYSE: LEH) are "bracing for questions," the paper said, Maybe that's a polite way to say that the companies are going to get tons and tons of rude questions from irate Democratic senators who are convinced that they are cheating the government.

The funds also are facing scrutiny over how managers can pay 15 percent capital gains tax on their performance fees instead of the 35% ordinary top income tax rate, a tax break that Talking Points Memo estimates costs taxpayers between $4 billion and $6 billion.

Hedge funds , though, are fighting back. As Politico.com notes, they spent $1.3 million lobbying Congress last year, up 46% from 2002 while managers at the top 30 funds increased their political donations by about 17% to $14.7 million between 2004 and 2006.

As the presidential election heats up, the industry will become even more generous.

Another private equity deal is crumbling. Acxiom (NASDAQ: ACXM), which was to be bought out by ValueAct Capital Partners LP and Silver Lake Partners for $2.25 billion , is now negotiating break-up fees with the firms. The private equity companies had made a $27.10 in cash offer for the data management company.

According to The Wall Street Journal "one of the issues likely to be discussed is whether the company has breached the deal's material adverse-effect clause." Operating income at the company did drop 89% in the June quarter and the company has made some lay-offs.

But, Acxiom's board may believe that one weak quarter is not material, especially if the trend of the company's business is up. At some point one of the private equity withdrawals is likely to bring a large suit both from a company and its shareholders.

Acxiom's stock holders are facing a share price that is below $20 and will probably drop further on the announcement. They may not take kindly to that.

Douglas A. McIntyre is a partner at 24/7 Wall St.

This morning 3Com (NASDAQ: COMS) announced that private equity firm, Bain Capital, would put it out of its misery and pay $2.2 billion in cash for the company. 3Com has lagged so far behind that it has been painful to watch. 3Com and Cisco Systems (NASDAQ: CSCO) indeed could provide at least two to three chapters in an investing teaching and history book. Here's the CliffsNotes version:

Summer of 1994 was a tough technology environment. Technology had a great run from 1990 through 1994, till summer that is. Valuations contracted and investor fatigue set in for about four to five months. I was traveling through Silicon Valley with a couple of British portfolio managers visiting companies. One day we had a breakfast meeting with then CEO Eric Benamou of 3Com and lunch with a senior VP at Cisco (whose name escapes me). Benamou was an intellectual, a refined man, but did not possess the street smarts necessary for a tech company CEO. He was arrogant and bluntly declared that Cisco's days were numbered and 3Com would acquire any tech company necessary to achieve total domination. OK, great, and we went on to Cisco for lunch.

The senior VP was a classy guy, never said a bad word about any competitor and just explained Cisco's game plan and execution philosophy. Here is the funny part: In July 1994, BOTH companies had a market capitalization of $9 billion.

BusinessWeek reports that the value of private equity deals tumbled 68% from the second quarter to the third as a liquidity crisis slashed the availibility of credit that makes such deals possible. While the absence of deals from the business headlines has been obvious, the extent of the damage is now clear.

The statistics are startling. Worldwide, there were just three buyouts of $1 billion or more during September, 10% of the 30 such deals reported in May. The trend was global, although it was most severe in the U.S. Global M&A in the third quarter slowed to $992.1 billion, down 43%, from $1.7 trillion a year earlier. The third quarter this year was still 24% higher than the volume of $799.5 billion during the third quarter of 2006. U.S. deal volume in fell nearly 50% during the third quarter, to $308 billion, down from $606 billion in the second quarter. But U.S. deal volume for the quarter was up 13%, from $274.1 billion a year earlier.

What's next? If the credit markets can find a way to reprice risk that's acceptable to private equity firms, acquisition targets, and investors in private equity loans then the deal business could revive. The recent closing of KKR's acquisition of First Data suggests that this is possible. Most likely, only the most conservatively structured deals will make it through this tighter credit sieve.

That means deal volume will not return to where it was and that investment banks -- which have invested so heavily in serving private equity firms -- will need to find new ways to make money.

Peter Cohan is president of Peter S. Cohan & Associates. He also teaches management at Babson College and edits The Cohan Letter.

According to the Wall Street Journal [subscription required] Marlborough, MA-based 3Com Corp. (NASDAQ: COMS) is going private with the help of Bain Capital and Huawei Technologies for more than $2 billion -- or $5.50 a share. 3Com is up 34% to $4.94 in pre-market.

3Com has been hobbled for most of this decade but it has a storied history. Its founder invented Ethernet -- a way for computers to share information. It bought a company that made a very popular modem during the era when people dialed up the Internet on a telephone line. And with this acquisition came a technology which became the Palm Pilot -- a Personal Digital Assistant (PDA) which was an indispensable appendage for dot-commers in the 1990s.

Unfortunately, 3Com's financial position was weak -- it lost $89 million on $1.27 billion in sales in the year ending June 2007 but it generated $58 million in cash. It couldn't maintain its technology lead and it was surpassed by competitors in all its markets.

As BloggingStock's Douglas McIntyre wrote earlier today, the Wendy's Intl (NYSE:WEN) hamburger chain has attracted the attention of more than one group of investors interested in taking it private. Monique Curet, of Wendy's hometown paper, The Columbus Dispatch, had some interesting insights into the landscape of a possible purchase, including the news that a full dozen parties are believed to have signed confidentiality agreements in order to study the financials.

A point of debate among industry experts is the corporation's worth. Most agree that its current stock price already reflects a pre-sale bump. One group of franchisees considering the purchase is led by J. David Karam of Cedar Enterprises, Inc., who considers the current stock price, in the mid 30's, a problem in light of its trading at 12 times core income.

On its prior conference call, The Blackstone Group LP (NYSE: BX) said it's planning to scoop up distressed buyout bonds. With its cash hoard, it seems like a good bet. Besides, there are signs that the debt markets are picking up, especially in light of the financing of the First Data deal.

According to news reports, some other firms now are seeing dollar signs from the same strategy. Take Onex, which is a top private equity firm in Canada.

But there's a hitch: Onex does not have the right staff to pull it off. Just like many other private equity firms, Onex focused on putting deals together. Onex said it is talking to a two-person group to help out. Hmmm....does seem kind of flimsy, huh?

Basically, this is yet another indication of why big firms, like KKR, TPG, and Blackstone, have big advantages. With their scale and resources, they certainly are nicely positioned when markets have sudden changes.

But, the distressed debt opportunity might be big enough for many firms. After all, as Onex's CEO, Gerald Schwartz, said: "there are opportunities that are just staggering."

Tom Taulli is the author of various books, including The Complete M&A Handbook and The Edgar Online Guide to Decoding Financial Statements. He also operates DealProfiles.com.

Since the dog days of August, a chill has spread through the hallowed halls of private equity. $350 billion worth of leveraged buyout loans are sitting on the books of banks, looking for a home with investors. While one deal that was on the rocks, First Data's acquisition by KKR, managed to close, there are others, like J.C. Flowers' proposed $60 a share takeover of SLM Corp. (NYSE: SLM) which have fallen through.

As more and more deals go the way of Sallie Mae, you'll be hearing a lot more of the expression Material Adverse Change (MAC). MAC is a standard contract clause in a merger agreement which gives the acquirer the right to back out of a deal if there is a material adverse change -- an unexpected and permanent impairment in the value of the company. If an acquirer can successfully "call a MAC," it can get out of a deal without paying the breakup fee.

In the case of the SLM deal, J.C. Flowers announced it was backing out due to legislation signed by the president which makes the student lending business less attractive by cutting subsidies to student-loan providers, thus reducing Sallie Mae's profit prospects. In the case of KKR and The Goldman Sachs Group's (NYSE: GS) effort to welch on its proposed deal to acquire Harman International (NYSE: HAR), the MAC is an earnings report that came in lower than expected -- 93 cents instead of $1.22.

Billionaire Nelson Peltz may have thought he had the inside track to buy Wendy's (NYSE: WEN) since his Triarc Group already owns Arby's.

According to The Wall Street Journal, Mr. Peltz will have competition from a group including Thomas H. Lee Partners LP, Oaktree Capital, and First National Financial. The head of First National once ran the Carl's Jr. and Hardee's chains. And, a third group has come to the table, this one backed by Kelso & Co. and Oak Hill Capital Partners.

Unlike several private equity deals that are falling apart because of tight credit markets, the Wendy's deal looks like it may be done at a nice premium for shareholders. Wall Street anticipates that the company could go for $37 to $41 a share. Wendy's stock is under $34.

Why is this deal different from others? Perhaps because the most visible bidders have a great deal of experience in the fast food business. This may give them more confidence that they will know which parts of the company can be improved to yield better cash flow.

That makes Wendy's shareholders more fortunate than those in other companies being pursued for buy-outs.

Douglas A. McIntyre is a partner at 24/7 Wall St.

There have been rumors and press reports for a couple of weeks that the J.C. Flowers deal to buy student loan company Sallie Mae (NYSE: SLM) might fall apart. Finding debt to close the purchase of the company was getting tough.

Yesterday, the rumors became news. Flowers backed out of its commitment. The Wall Street Journal writes that, "Mr. Flowers informed a group of UBS bankers that he wasn't prepared to pay the $60-a-share price he had agreed to in April." UBS is Sallie Mae's banker.

Flowers may simply be fishing for a price lower than his first offer. With its stock price at risk, the SLM board might be tempted to take a reduced price.

The buyout firm is arguing that legislation which could hurt the student loan market amounts to a "material adverse effect" to the deal, and that this gives Flowers the legal right to walk away.

The SLM board does not have any good choices. It could sue Flowers to complete the deal, and it probably should. But, as the legal fight drags on shares in the student loan company are likely to fall. That leaves the board between Scylla and Charybdis.

Douglas A. McIntyre is a partner at 24/7 Wall St.