Former Chesapeake CEO May Revive Old Conflicts in New VentureBradley Olson and Leslie Picker
Wildcatter Aubrey McClendon, ousted from Chesapeake Energy Corp. amid investigations into possible conflicts of interest, is seeking investors for a new oil and gas venture that may present some of the same kind of potential conflicts.
American Energy Capital Partners LP is pursuing as much as $2 billion in a blind pool investment, a speculative vehicle with no assets or profits that gives investors a chance to help fund potential oil and gas developments, according to a Dec. 13 prospectus. Blind pools attract investors with an appetite for risk who are eager to put their money behind a well-known personality such as McClendon, who built Chesapeake into what was once the most prolific natural gas driller in the nation.
McClendon will have free reign to make his own investments in ways that resemble the latitude he enjoyed at his former company, according to eight pages of potential conflicts of interest outlined in the prospectus. He can make energy investments for himself that may not be in the best interest of American Energy Capital investors, and he won’t have to buy assets from or sell to the new partnership at a market price, according to the filing.
“This seems to be saying that he has a limited duty of loyalty to the company and its investors, and therefore, be warned,” Charles Elson, director of the John L. Weinberg Center for Corporate Governance at the University of Delaware. “He tells you upfront that I may compete with you and you may not get the best deal.”
McClendon, who is credited as one of the architects of the U.S. energy renaissance, raised about $1.7 billion in October from private-equity firms such as First Reserve Corp. to create American Energy Partners LP, an Oklahoma City-based company that will explore Ohio’s Utica formation.
Through a spokesman for American Energy Partners, McClendon declined to comment.
The outspoken proponent of hydraulic fracturing and natural gas left Chesapeake after questions were raised about his personal borrowing. McClendon used personal stakes in thousands of Chesapeake-owned wells to obtain more than $800 million in private loans, including some from among the company’s biggest financiers.
Activist investors including billionaire Carl Icahn criticized him for reckless management. More than half of Chesapeake’s directors were replaced after a shareholder revolt that led the company to announce in January that McClendon would resign.
A board investigation into McClendon’s personal finances and potential conflicts of interest with his executive responsibilities found no intentional misconduct, Chesapeake said in February.
The possible conflicts detailed in the American Energy Capital Partners filing allow McClendon to make decisions about his personal investments that are not in the “best interests” of its investors, such as consenting to other deals without having to consider its impact on the company, the prospectus shows.
McClendon agrees to identify properties American Energy Capital can acquire, but the partnership doesn’t have the right of first refusal. It may be in McClendon’s economic interests to keep or acquire a property for his own personal account or present the property to independent third parties, the filing says. McClendon may also disagree with American Energy Capital on the value of the assets they jointly own, and he doesn’t have to offer to buy or sell assets at “a fair or market price,” according to the prospectus.
The potential conflicts listed bear a resemblance to McClendon’s “outrageous behavior” at Chesapeake, said Robert Mittelstaedt, dean emeritus of the W.P. Carey School of Business at Arizona State University. That behavior made it possible for McClendon to make decisions about his personal investments that may not have been in the best interests of Chesapeake, Mittelstaedt said.
“It appears to me that he is trying to disclose every possible thing that would allow him to do anything he wants so that investors that believe in him personally will never be able to complain,” said Mittelstaedt, who specializes in management strategy and serves on several corporate boards. “When the list gets as unusual as this one, it certainly raises eyebrows.”
American Energy Capital is offering as much as 100 million units, priced at $20 each, to fund the acquisition of oil and natural gas properties located onshore in the U.S., according to the prospectus. The units won’t be listed on any exchange, and will be sold through Realty Capital Securities LLC, the prospectus showed.
The partnership is targeting a 6 percent annual distribution and a payout to investors in about five to seven years when American Energy Capital plans to sell the properties or list the units on a national exchange, according to the filing.
This type of offering is known as a “blind pool” because there are no assets to evaluate before investing. Therefore, the risks are larger than a standard initial public offering because there is no operating history or current revenue source.
Realty Capital Securities is also a unit of American Realty Capital, a real-estate investment trust. ARC serves as the partnership’s sponsor, and has never done an oil and gas-related deal, according to the filing.
Principals Nicholas Schorsch and William Kahane have historically invested in commercial properties. That may be why they tapped McClendon, who has three decades of experience in the energy industry, according to Darrell Taylor, a partner at Jones Day.
“It’s a little unusual that you’d take people who aren’t oil and gas operators and give them the money to invest in these properties,” Taylor, who works in the capital markets and energy practice at Jones Day in Houston, said by phone. “They certainly must be selling the management team because there’s nothing else to sell here.”
Relying on name brands is common for similar investment vehicles. This week, former Barclays Plc Chief Executive Officer Bob Diamond raised $325 million for Atlas Mara Co-Nvest Ltd., which was formed with no current assets, to use these funds to make acquisitions in Africa.
In October, Fantex Inc. provided a chance to bet on the future on- and off-field earnings of Arian Foster, a running back with the National Football League’s Houston Texans. This share sale was postponed when Foster needed to undergo season-ending back surgery. Fantex has a similar arrangement with San Francisco 49ers tight end Vernon Davis.