ATLANTA — UBS Securities wants out of its commitment to finance The Finish Line’s $1.5 billion acquisition of Genesco, citing deception.
The global financial services company filed a request last week in U.S.District Court for the Southern District of New York to declare the merger agreement between Genesco Inc. and The Finish Line null and void, citing Genesco’s “disastrous financial condition” and Finish Line’s own earnings difficulties.
Finish Line is supposed to be acquiring Genesco in a deal that would be almost exclusively through debt financing. Just last month, UBS, which The Finish Line engaged to provide the financing, extended the termination date of the commitment to April 30, 2008, from Dec. 31, 2007.
UBS expressed concern about Genesco’s financial health in September after Genesco reported a loss in its second quarter. Genesco filed suit against Finish Line a week later, accusing the retailer of cold feet.
UBS maintained in its filing on Nov. 15 that a combined Genesco-Finish Line entity would be insolvent under applicable law and under the merger agreement, and therefore Finish Line cannot deliver a valid solvency certificate. In a separate counterclaim, also on Nov. 15, UBS said that Genesco’s senior officers “intentionally misrepresented and failed to disclose material facts to The Finish Line, UBS and Genesco’s shareholders. “Those same senior officers stand to gain millions of dollars should they succeed in their fraud.”
For example, the counterclaim said that Genesco provided projections in late May that “reflected Genesco’s expected profitability in the second, third and fourth quarters of fiscal 2008, knowing that it would fail to meet its projections and that something was seriously wrong with the company.”
In earlier claims this fall, The Finish Line and UBS have accused Genesco of not providing requested financial data and access to personnel.
Hal N. Pennington, Genesco’s chairman and CEO, responded by accusing UBS of mudslinging in the most recent exchange of lawsuits and comments between Genesco and the two other companies. In a statement, Pennington said, “Today, my management team and I have been accused of defrauding UBS. On behalf of our company, our management team and our employees, I categorically deny those claims.
“It is sad when a major international financial institution resorts to this ort of mudslinging in an attempt to get out of its contractual obligations and survive the meltdown in the credit markets,” Pennington continued.