Don Reisinger, who pens The Digital Home column for Cnet, takes a dim view of video game publisher mergers - especially the proposed deal between Electronic Arts and Take-Two Interactive.

Reisinger believes consolidation results in high profits for pubishers and low-risk, lackluster titles for gamers:

Since the age of consolidation hit the video game industry, it has changed drastically... In fact, consolidation has spawned an industry that's dominated by sequel after sequel and enough first-person shooters and sports games that barely differ from year to year...

 

A quick glance at EA's upcoming lineup of games tells you everything you need to know about consolidation. Aside from Spore, it's dominated by sequels and titles that will do little but provide the same basic experience...

 

And if EA and Take-Two -- two of the biggest culprits of derivative gaming -- combine to form one major developer, this will only get worse.

Now that the Federal Trade Commission has opted not to place any regulatory hurdles in the way of a potential EA-T2 merger, the two publishers will begin meeting behind closed doors.

An filing made by Electronic Arts with the Securities & Exchange Commission late yesterday reads in part:

On August 25, 2008, [EA] and [T2] entered into the confidentiality agreement contemplated by the letter of August 17, 2008 from Strauss Zelnick, Executive Chairman of the Board of Directors of Take-Two to John Riccitiello, Chief Executive Officer of EA, and the letter of August 18 from Mr. Riccitiello to Mr. Zelnick.

 

The terms of the confidentiality agreement prohibit each of EA and Take-Two from, among other things, publicly disclosing the status or terms of any discussions or negotiations between EA and Take-Two unless EA or Take-Two notifies the other that it is terminating discussions. As a result, EA does not intend to make any further announcements regarding the status of any discussions or negotiations with Take-Two unless and until discussions between EA and Take-Two have been terminated or such parties have entered into a transaction. As previously disclosed, EA now requires due diligence to support any proposal to acquire Take-Two and there can be no assurance that any proposal, negotiations or transaction will result.

Among other things, EA will be looking at T2's three-year game release schedule. Not a tough one to figure out: GTA V, Bioshock 2. A GTA MMO would be a nice surprise...

The Federal Trade Commission has posted letters on its website which indicate that it will not oppose a proposed merger between Electronic Arts and Take-Two Interactive.

The letters, written in government bureaucrat-speak, are dated August 18th and read as follows:

The Federal Trade Commission’s Bureau of Competition has conducted a non-public investigation to determine whether the acquisition by Electronic Arts Inc. of Take-Two Interactive Software, Inc. may violate Section 7 of the Clayton Act or Section 5 of the Federal Trade Commission Act.

 

Upon further review of this matter, it now appears that no additional action by the Commission is warranted at this time. Accordingly, the investigation has been closed. This action is not to be construed as a determination that a violation may not have occurred, just as the pendency of an investigation should not be construed as a determination that a violation has occurred. The Commission reserves the right to take further action as the public interest may require.

With the FTC hurdle apparently out of the way, EA and Take-Two are free to attempt to reach agreement on a takeover.

Via: Reuters

Yesterday we noted a New York Post report on the proposed EA takeover of Take-Two which claimed that the Federal Trade Commission, scheduled to rule on the merger by tomorrow, might require that T2 spin off one or more of its sports franchises so as not to hand EA a stranglehold on the sports segment of the market.

Heidi Moore of the Wall Street Journal digs a little deeper, interviewing Jeff Anderson, CEO of startup online sports gaming service Play Hard Sports (and former Turbine CEO) concerning his view of potential monopoly issues:

It’s in the best interests of consumers to have a choice. I’m always in favor of having more choice in the marketplace. Look at the ESPN football product when it came out. There was no [NFL] exclusivity agreement then. When Take Two changed its price point, people moved toward the Take-Two product and forced EA to reduce its price. You saw how competition can work in the advantage of the consumer.

 

The question we’re looking at, and what the FTC should be looking at, is whether this will reduce competition. If Take-Two’s sports franchise becomes part of EA, will that influence competition for the better or not? And will it influence prices positively or negatively?

 

Generally I’m not a fan of monopolies in the gaming world. We’re interested in providing a new choice to consumers. As a gameplayer, we’d love to see great games produced by these studios. And we’d love to see them compete.

As GamePolitics reported yesterday, EA may have called a cease-fire in its hostile bid to absorb Take-Two Interactive. That development, however, does not mean that the two game publishers are ready to share a hug.

The New York Post reports on snarky (and anonymous) barbs traded between EA and T2:

"To say that EA blinked is a huge understatement," said one source close to the Take-Two camp. "They finally came to their senses and realized this wasn't going to be done their way."

 

A source close to EA countered by suggesting that the company was miffed that it had to make the first overture to Take-Two. The source added that EA officials don't want to negotiate with Take-Two's current management team.

The Post also reports that, while the FTC is expected to bless the proposed merger, it will insist that Take-Two spin off some of its sports franchises, so as not to give EA a complete monopoly on sports games:

Though a deal would combine two of the world's largest video-game publishers, the Federal Trade Commission is expected to give the go-ahead to a potential combination by Thursday on the condition that it divest one or more of its sports gaming franchises, with basketball or hockey being the most likely.

GP: Great mashup (left) of GTA and T2 boss Strauss Zelnick accompanies the NY Post article...

As we mentioned in the previous story, EA released some surprising info today:

• it will not renew its tender offer (expiring at midnight) to buy T2 shares at $25.74
• EA and T2 have been talking, with T2 preparing a secret presentation for EX execs

For expert analysis we turned to Michael Pachter (left) of Wedbush-Morgan who told GP:

It appears that EA is proceeding with a friendly deal.  The two companies exchanged letters over the weekend, with EA saying the offer price would require review (meaning they are inclined to go lower) because the deal cannot be completed before the holidays.  Take-Two's response was an offer of due diligence, including the presentation of non-public information under a non-disclosure agreement, intended to support a higher value.

 

EA accepted the offer of a presentation, and intends to allow its hostile tender offer to expire.  This merely changes the proposal from hostile to friendly, and keeps the pressure on the FTC to rule by Thursday, as previously expected.

 

My guess is that the parties reach an accommodation shortly at a $1 - 2 premium to EA's current $25.74 offer.  We have said this consistently since February 25, and continue to believe a deal gets done this month.  If Take-Two management holds out for a price in the $30s, EA will go hostile again, likely at a price closer to $20.  If Take-Two management negotiates a price below $27.50, I think a deal gets done.

 

The only surprise to me is that EA agreed to go friendly.  I suppose that they figured it was magnanimous to make the attempt, and Take-Two management recognized that this was its last and only opportunity to affect the outcome.  I really expect the parties to reach an agreement close to the $25.74 price (slightly above).

 

I do not expect EA to be impressed with the presentation, which will include a 3-year release schedule and a list of cost control initiatives, but believe that it will allow TTWO management to save face.  EA is unconcerned about cost control, since it will eliminate most operating expense once Take-Two is integrated, and should not be particularly surprised to learn that GTA 5 and BioShock 2 are planned.
 

With its most recent tender offer for Take-Two stock expiring at midnight, EA says that it will not renew the offer. 

It seems, however, that the two companies have been talking. As per a just-issued press release, EA CEO John Riccitiello telephoned T2 chairman Strauss Zelnick on Friday. Zelnick apparently offered to provide EA execs with a secret presentation concerning T2's game schedule for through 2011.

It's unclear what EA's decision not to renew its offer portends. It could be that EA has acquired sufficient T2 stock to seize control. Or, perhaps a new offer with a revised (i.e., lower) price structure is coming. Take-Two stock (TTWO) closed at $24.84 on Friday, nearly a dollar below EA's $25.74 tender offer. As Riccitiello points out, the proposed takeover has dragged past the point where an acquisition of T2 will provide a positive impact for EA's holiday sales, so perhaps the deal is less attractive at this point.

EA also mentioned that the Federal Trade Commission will complete its anti-trust review of the proposed merger by Thursday, August 21st. The press release also included a letter dated today from Riccitiello to Zelnick as well as one Zelnick to Riccitiello dated last Friday:

Here's Riccitiello to Zelnick:

Dear Strauss:

Thank you for taking my call on Friday and for your response letter  on August 17, 2008.

 

As discussed on Friday, given the passage of time, we have to validate the assumptions used in the model to support our offer price of $25.74 per share in cash. In addition, we no longer believe we can integrate Take-Two ahead of the important holiday season. 

 

Accordingly, we require due diligence to support a transaction and are therefore letting the tender offer expire tonight. However, we are pleased to accept your offer to review your management presentation as outlined in your letter.

 

We continue to have great respect for Take-Two's creative teams and products and are hopeful that we can work together to reach a mutually agreed transaction.

And here's Zelnick to Riccitiello, dated yesterday:

Sega of America CEO  Simon Jeffrey (left) has issued a bit of a spanking to his counterparts at Electronic Arts over their handling of the never-ending Take-Two takeover bid.

In a wide-ranging interview with Forbes, Jeffrey said:

It feels like EA kind of needs [Take-Two], but it probably shouldn't have made it so public that it really needed it. I think that it's losing some investor confidence; the stock price is at a three-year low. And it seems like EA has been the petulant child instead of the professional market leader. However it's EA, and it's really good at coming back.

Jeffrey praised Activision in the same interview:

[Activision Chairman] Bobby Kotick is one of the smartest people in the business. The way he's constructed Activision is really admirable... Bobby has grown Activision in stages over a long number of years to get to this point. And it's very calculating and very clever the way he's done that. Activision has also managed to be the first company in this business to market games properly. Anyone who can turn a hardcore brand like "Call of Duty" into a 10 million unit seller … is outstanding.

GP: Alas, no talk of the return of the Dreamcast... (sigh)

Via:Virgin Media

As expected, Electronic Arts has once again extended its deadline for Take-Two Interactive stockholders to tender their shares at $25.74. The new deadline is August 18th.

EA is apparently beginning to make some progress in its bid to acquire T2. The game publisher says that 11,741,339 shares have been tendered under the offer, nearly double the amount turned in when the previous deadline expired in late June. That is almost certainly related to T2's sagging share price of late. The stock has been trading below EA's offer price, making the deal more attractive to shareholders. TTWO closed on Friday at 25.04

This morning's EA press release links the extension to the Federal Trade Commission's review of potential anti-trust implications:

Extending the tender offer allows the FTC review process to continue. The proposed transaction is still subject to certain conditions that include regulatory approval. EA retains the right to terminate the offer if the conditions are not satisfied.

Coming up later today: Take-Two's obligatory press release explaining why, in its view, EA's offer is a bad deal for shareholders.

UPDATE: Wow, that didn't take long. In a press release which followed EA's by less than an hour, Take-Two, as expected, slams EA's offer. T2 chairman Strauss Zelnick alludes to "multiple" suitors, but does not name them (Activision? Ubisoft?):

We are fully engaged in a formal process to evaluate strategic alternatives that have the potential to deliver greater value than EA's inadequate offer. As part of this process, we continue to engage in meaningful discussions with multiple parties, a number of whom have been conducting due diligence.

UPDATE: In a lively interview wiith VentureBeat's Dean Takahashi, EA CEO John Riccitiello touches on the T2 deal:

Having clever verbal sword play about Take-Two doesn’t really matter. I’m not really playing for a headline in the New York Times...

 

I don’t think we’ve played a poker hand. We have expressed our interest. We have made a public bid. We are in the Hart-Scott-Rodino antitrust review. All of the information has been disclosed. We’re playing it to the way we’ve said we would play it. There have basically been three moves and there have 6,000 articles on it. It’s sort of amusing. I feel a little bit like those strobe light things where it looks like a guy is moving a lot. The flash goes off but the body doesn’t move. Every time a flash goes off, somebody writes a story on it. To be honest with you, the last time there was news was a couple of months ago.

A piece in today's New York Post reminds us that EA's most recent renewal of its $25.74 tender offer to acquire Take-Two stock expires today.

The most likely development is a renewed offer by EA.

The New York Times' Deal Book blog speculates today that Activision Blizzard may be eyeing an acquisition of Grand Theft Auto publisher Take-Two Interactive.

Electronic Arts, of course, has been chasing T2 for most of 2008 and has a tender offer outstanding. EA's problem, however, is that T2 shareholders just aren't jumping on board so far.

Analyst Mike Hickey of Janco Partners told the Deal Book:

We absolutely believe Activision will take a look at Take-Two. If a competitor is for sale, you take a look, and if EA is your real rival, why wouldn't you stir the pot a little bit?

However, UBS Securities analyst Ben Schachter pooh-pooh any such deal:

It is highly unlikely that Activision would try to outbid EA. They have enough on their plate at the moment.

The oft-quoted Michael Pachter of Wedbush-Morgan had his own opinion:

There are only three players involved — EA, the FTC and the arbs. Is EA likely to withdraw or lower their offer? No, because they want Take-Two. The odds of the FTC not approving the deal on market concentration is virtually zero. And if the arbs want to sell the stock, they'll sell the stock — they don't care what [T2 chairman] Strauss Zelnick thinks the stock is worth.

Mike Musgrove of the Washington Post reports that the Activision-Vivendi merger is now official, following a vote by 92% of Activision shareholders to approve the deal.

The new company will be known as Activision Blizzard. We hope to see a new logo unveiled, as opposed to mock-ups, like the one at left, which can found around the web.

Referring to EA's now-former status as the biggest kid on the game industry block, Wedbush-Morgan analyst Michael Pachter told Musgrove:

It's good to have a duopoly instead of a monopoly. This just makes the industry that much more interesting.

An attempt to block Activision's merger with Vivendi has ended with a ruling issued by William B. Chandler III (left), chief judge of the Delaware Court of Chancery.

As reported by the Wall Street Journal Law Blog, the judge has apparently taken notice of what World of Warcraft - one of the leading assets in the merger - is all about.

In denying a municipal pension plan's request for a preliminary injunction which would have put the Activision-Vivendi marriage on hold, Judge Chandler wrote:

In some ways, perhaps, the world of Mergers and Acquisitions is a massively multiplayer role playing game as well. Like in World of Warcraft... the participants in the M&A field take on certain roles, interact in their own community, hone specialized skills, and even develop a unique, somewhat curious vernacular.

 

One particular quest in the world of M&A is disclosure litigation. In the instance of disclosure litigation presently pending before this Court, the world of M&A meets the World of Warcraft.

 

In the role-playing game that is this disclosure litigation, both sides have played their respective roles well. Like any game, this one has rules, and the most essential rule of disclosure is materiality. Because the plaintiff could not establish the materiality of its final three disclosure claims, the motion for a preliminary injunction is denied. . . .GAME OVER.

GP: Very cool, indeed, your honor. Read the full decision here (31-page pdf).

Did anyone notice that Take-Two (NASDAQ: TTWO) closed today at $25.14, or sixty cents under EA's current (and apparently endlessly renewable) $25.74 tender offer?

By our count it's at least the second time that TTWO has closed below the tender price in the past week, admittedly a rocky one for Wall Street. It seems kind of strange, since EA will buy all the TTWO you care to sell them at 25.74. Why would anyone sell below that price?

For interpretation, GamePolitics turns to Wedbush-Morgan super-analyst Michael Pachter:

GP: Mike, what do you make of TTWO closing well below the EA tender price of 25.74? That would seem to be a natural floor…

Pachter: The daily [share] price is the probability-weighted price of a [T2-EA] deal happening. [The expectation of] no deal is [priced] around $17-20, a deal at $28 has a relatively high probability. Before, the arbs placed a higher chance of a deal, and a higher [share] price.

GP: So are you saying that today's close $.60 under the [EA] tender price reflects a sense that the deal is now less likely?

Pachter: A combination of less likely or a lower expected deal price.  Probably more of the latter, as a tribute to EA's discipline.  Still very likely that a deal happens at $27-28.

Financial website The Motley Fool mocks Electronic Arts today.

Rick Aristotle Munarriz delivers the slap in a column recounting EA's seemingly endless campaign to acquire Grand Theft Auto publicher Take-Two Interactive:

What if you threw a wedding and nobody came? That's becoming the embarrassing reality... EA's latest tender offer to buy the Grand Theft Auto IV software hotshot expired on Monday, so what did EA do? It repeated the offer. Again.

 

For those scoring at home, this is the third time that EA has seen its tender offer... expire sorely undersubscribed. It gets worse with every passing month. EA had 6.4 million shares -- or less than 8% of the outstanding shares -- submitted during the first tender. EA now has just 6.1 million shares on board.

 

EA needs to step up and either raise its bid, dare Take-Two to seek out a better deal elsewhere, or just walk away. Anything else is just delusional.

Things are beginning to get ugly between Take-Two Interactive and the Federal Trade Commission.

Attorneys for Take-Two have strongly disputed the FTC's contention that the Grand Theft Auto publisher is stonewalling the government agency's investigation into antitrust aspects of the potential EA merger (see: FTC Hauls Take-Two Into Court Over EA Takeover Bid).

In a document filed yesterday with the U.S. District Court in Washington, D.C., Take-Two fires back at the FTC:

No one at Take-Two Interactive Software, Inc. (“Take-Two”) is seeking to thwart the proper investigation by the Federal Trade Commission (“FTC”) staff of Electronic Arts, Inc.’s (“EA”) tender offer. On the contrary, from the outset, Take-Two has fully cooperated with these efforts, already having produced more than 479,000 pages of responsive documents through the date of this Opposition.

 

The issue before the Court is how the seemingly boundless desire of a government agency for information can be contained in order to save a company from the ruinous costs of compliance with a subpoena that requires it to search virtually every electronic and paper document in its possession, and to make available most of its senior executives for investigational hearings (pre-complaint depositions) in a situation where the company is not even a willing party to any transaction being investigated and where it is quite possible that no such transaction will ever occur.

 In the lengthy filing, Take-Two claims that it has been bending over backwards to meet the FTC's demands, including keeping a team of attorneys working over the recent Memorial Day weekend in an effort to supply requested internal documents. Referring to the FTC's conduct as an "abuse" at one point, T2 goes on to assert:

The FTC fails to engage in any meaningful analysis, in either its negotiations or motion papers, of its specific requests. It refuses to acknowledge that compliance with all of its requests would require a comprehensive, company-wide review of Take-Two’s data and documents, which encompass a huge universe of information...

A seperate declaration from a Take-Two attorney claims that it costing the company $50,000 per day in legal bills to meet the FTC's requirements.

Take-Two also submitted a slew of exhibits to the Court. Although no trade secrets are revealed in the publicly-viewable documents, it's clear from their context that the FTC is probing the workings of the "pipeline" by which T2 gets its sports games to market. The company also provided data on its exclusive licensing arrangement with Major League Baseball (MLB 2K8 screen at left) as well as NPD sales data for its sports games from 2001-2007.

As expected, Electronic Arts has extended its tender offer for outstanding shares of Take-Two Interactive.

EA issued a press release this morning announcing that yesterday's deadline has been extended to July 18th. EA exec Owen Mahoney is quoted in the press release:

Our offer price remains unchanged at $25.74 per share, which is a substantial premium to where Take-Two's stock was trading prior to our offer. We congratulate Rockstar on the successful launch of GTA IV but believe our offer reflects a full and fair price based on the long-term value of Take-Two's entire operation.

EA also noted that extending the deadline will permit the Federal Trade Commission's review of the proposed merger to continue. Based on the number of shares reported tendered, EA has made no progress since the last extension.

UPDATE: Not unexpectedly, Take-Two has issued a press release urging sharholders to reject EA's offer.

GamePolitics readers may recall that Electronic Arts' latest tender offer for outstanding Take-Two shares expires today.

Will EA extend its deadline? Raise its offer price? Drop out?

An extension seems likely, given that the Federal Trade Commission has not completed an evaluation of whether an EA takeover of T2 would have antitrust implications. As we've reported, Take-Two is dragging its heels on that process, and an annoyed FTC is dragging T2 into court over the matter next week. And, of course, EA has placed the acquisition on hold, pending the FTC's findings.

Over at Level Up, Newsweek's N'Gai Croal has insightful analysis from former FTC attorney Justin Blankenship on the government agency's current dust-up with Take-Two.

Meanwhile, Forbes speculates that EA wants to close the deal ASAP in order to lock down Rockstar's Sam and Dan Houser before their contract with T2 expires next February:

Once that contract expires in 2009, the Housers will hit the open market. Despite the high price their services will command (mostly in the form of extensive royalties), game publishers may well enter into a heated bidding war for the Houser brothers in the hopes of seizing the next Grand Theft Auto phenomenon.

If Electronic Arts wants the minds behind Grand Theft Auto, it's going to have to move quickly. To gain the upper hand, Electronic Arts may be forced to pull the trigger and raise its $25.74 per share bid to around $30 per share--a move most analysts believe essential if Electronic Arts is serious about the Take-Two acquisition. Control of Take-Two would grant EA the rights to the Grand Theft Auto series, which the Redwood City-based publisher could then use to sweeten negotiations with the Housers. Otherwise, there's nothing stopping the brothers from setting up a rival series at a new studio.

 

A pair of gamers have filed a class-action lawsuit against Electronic Arts over its exclusive licensing deal with the NFL.

Madden owners Geoffrey Pecover of Washington, D.C. and Jeffrey Lawrence of California are the named plaintiffs in the class-action, which was filed in U.S. District Court in Northern California.

The suit, which essentially follows a line of reasoning laid out by GP, describes how EA, faced with competition from Take-Two's excellent NFL 2K5, reduced the price of Madden from $49.99 to $29.99 in order to stay competitive with NFL 2K5, which was aggressively priced at $19.99. From the lawsuit:

By signing the exclusive agreement with the NFL, Electronic Arts immediately killed off Take Two's NFL 2K5 software, the only competing interactive football product of comparable quality to its Madden franchise...

 

Once again without a competitor Electronic Arts raised its prices dramatically... nearly seventy percent to $49.95

The suit also notes EA's ongoing campaign to acquire Take-Two:

A successful takeover of Take-Two Interactive by Electronic Arts would remove one of the few companies with the ability  and expertise to compete in the market for interactive football software in the event that the Electronic Arts exclusive agreements were terminated or voided by a court.

Two law firms appear to be involved on the plaintiffs' side at this point: Hagens Berman Sobol Shapiro and The Paynter Law Firm. Both are experienced in class action suits.

Read the complaint here...

Via: Gamespot

In our previous GamePolitics story we described how the Federal Trade Commission went to U.S. District Court in an attempt to force Grand Theft Auto IV publisher Take-Two Interactive to cooperate in an anti-trust investigation related to Electronic Arts' potential takeover of T2.

So, why would Take-Two thumb its nose in the government's face, even to the point of reneging on previously agreed-upon conditions?

We asked financial analyst Michael Pachter (left), who covers the video game sector for Wedbush-Morgan:

I think that the reasons range from A) being incredibly savvy and holding off the FTC as a tactic to slow the process to Z) being incredibly arrogant.

 

It's hard to know where Take-Two fits on the scale from A to Z.  Their general counsel is pretty experienced, and it surprised me that he would allow the company to deal with a subpoena this way.  The FTC's action of seeking a court order is pretty severe, and shows how seriously the FTC takes this slight.

 

I'm not sure what Take-Two hopes to gain from this, other than the obvious delay to the process.  However, the process won't be delayed if Take-Two's failure to comply with the subpoena results in the FTC granting approval without looking at these documents. There is NOT a presumption of anti-competitiveness, and if EA demonstrates that the combination would not be anti-competitive, Take-Two would be better served to provide evidence to the contrary if it wishes to remain independent.

 

It seems to me that they would be best served by cooperating fully with the FTC, and by pointing to records that show how competitive their business is with EA's business.  Apparently, they have reached a different conclusion.

 

 

UPDATE: So, what's to be gained by delaying? We put that question to Pachter as well:

I think it's always in their best interest to buy more time.  Management has an incremental 720,000 shares of restricted stock that vest if the takeover happens after March 31, 2009.  More time buys them a greater ability to prove the impact that they've had on the company, and they appear sincere in their belief that they have turned Take-Two around.  More time allows Activision to close its Vivendi deal and give Take-Two a look.  Ubisoft might be interested...