According to Oracle (ORCL) CEO Larry Ellison, Sun (JAVA) is already losing $100 million a month as it waits for regulatory approval, and judging from the price of the company’s stock today, it may be losing even more than that. Shares in Sun slid to $8.11–about 15 percent below Oracle’s offer price and a far cry from the $9.18 they hit in mid-October.

Clearly, investors are alarmed by this latest turn of events, though industry observers say there’s little reason for them to be. Morgan Stanley, for example, believes Oracle’s acquisition of Sun will win EU approval with few, if any, modifications to the MySQL database software about which regulators are so concerned.

“Based on our diligence, we believe the EC is likely to approve the deal with no remedies or remedies pertaining to MySQL’s licensing,” the research house said in a note to clients today. “It is highly unlikely that Oracle restructures the deal (e.g. spins MySQL) or walks away.”

Morgan Stanley’s call: The deal will go through and at $9.50 per share. As the firm notes, the EU hasn’t blocked a U.S.-based transaction since GE/Honeywell in 2001.

On November 9, 2009, the European Commission issued a statement of objections relating to the acquisition of Sun by Oracle Corporation. The Statement of Objections sets out the Commission’s preliminary assessment regarding, and is limited to, the combination of Sun’s open source MySQL database product with Oracle’s enterprise database products and its potential negative effects on competition in the market for database products. The issuing of a Statement of Objections allows addressees to present arguments in response to the Commission’s preliminary assessment of the competitive effects of a notified transaction. A Statement of Objections is a preparatory document that does not prejudge the European Commission’s final decision. Any final decision by the European Commission is subject to appeal to the European Court of First Instance.

Indignant that the EC would dare to bring the $7 billion deal into question, Oracle vowed to take it to the mat in a harshly worded rebuttal:

Oracle’s acquisition of Sun is essential for competition in the high end server market, for revitalizing Sparc and Solaris and for strengthening the Java development platform. The transaction does not threaten to reduce competition in the slightest, including in the database market. The Commission’s Statement of Objections reveals a profound misunderstanding of both database competition and open source dynamics. It is well understood by those knowledgeable about open source software that because MySQL is open source, it cannot be controlled by anyone. That is the whole point of open source.

The database market is intensely competitive with at least eight strong players, including IBM, Microsoft, Sybase and three distinct open source vendors. Oracle and MySQL are very different database products. There is no basis in European law for objecting to a merger of two among eight firms selling differentiated products. Mergers like this occur regularly and have not been prohibited by United States or European regulators in decades.

The U.S. Department of Justice carefully reviewed the proposed acquisition during the normal Hart-Scott-Rodino review and considered it again when the European Commission initiated a second phase review. On both occasions the Justice Department came to the conclusion that there is nothing anticompetitive about the deal, including specifically Oracle’s acquisition of the MySQL database product. The U.S. Department of Justice approved the acquisition without conditions and terminated the waiting period under the Hart-Scott-Rodino Act on August 20, 2009.

Sun’s customers universally support this merger and do not benefit from the continued uncertainty and delay. Oracle plans to vigorously oppose the Commission’s Statement of Objections as the evidence against the Commission’s position is overwhelming. Given the lack of any credible theory or evidence of competitive harm, we are confident we will ultimately obtain unconditional clearance of the transaction.

And Oracle will evidently pursue its case with help from the U.S. Department of Justice’s Antitrust Division, which also issued a statement on the EC’s move today:

After conducting a careful investigation of the proposed transaction between Oracle and Sun, the Department’s Antitrust Division concluded that the merger is unlikely to be anticompetitive. This conclusion was based on the particular facts of the transaction and the Division’s prior investigations in the relevant industries. The investigation included gathering statements from a variety of industry participants and a review of the parties’ internal business documents. At this point in its process, it appears that the EC holds a different view. We remain hopeful that the parties and the EC will reach a speedy resolution that benefits consumers in the Commission’s jurisdiction.

Several factors led the Division to conclude that the proposed transaction is unlikely to be anticompetitive. There are many open-source and proprietary database competitors. The Division concluded, based on the specific facts at issue in the transaction, that consumer harm is unlikely because customers would continue to have choices from a variety of well established and widely accepted database products. The Department also concluded that there is a large community of developers and users of Sun’s open source database with significant expertise in maintaining and improving the software, and who could support a derivative version of it.

The Department and the European Commission have a strong and positive relationship on competition policy matters. The two competition authorities have enjoyed close and cooperative relations. The Antitrust Division will continue to work constructively with the EC and competition authorities in other jurisdictions to preserve sound antitrust enforcement policies that benefit consumers around the world.

• A delayed EC review process of the current proposed acquisition, which may end in a rejection left unchallenged by Oracle
• A renegotiated deal with Oracle, which would likely exclude MySQL and therefore involve a renegotiated deal price
• An offer by IBM (IBM) to buy Sun at a discount to the Oracle offer following a rejection by the EC of the current Oracle deal
• A scrapping of the deal by Oracle

Interestingly, Reid feels this last possibility isn’t as disastrous as it might sound. Sun has $1.8 billion in cash, and while its latest results weren’t at all pretty, they did feature improving gross margins.

“Our current thesis on [Sun] assumes the announced [Oracle] acquisition will close, but risks have increased,” Reid wrote. “There remains a risk that the European Commission will provide a ’statement of objections’ to [Oracle’s] planned acquisition of [Sun] based on concerns regarding [Oracle’s] plans for the MySQL database which [Sun] currently owns. The deadline for such a decision is January 19, 2010 but it is possible that the EC will state objections before the end of the year.”

Elaborating, Reid notes that “Although [Oracle] could likely reduce the risk of a statement of objection–and thus of a delayed or perhaps failed bid for [Sun]–by supplying to the EC an argument to explain why the [Oracle-Sun] deal will not adversely impact competition in the database market, our assumptions around [Sun’s] valuation include increased risk regarding the completion of the [Oracle-Sun] transaction at $9.50….While we believe the currently proposed acquisition by [Oracle] is the most likely outcome for [Sun], we believe other scenarios remain possible, although each is made more difficult by the continued uncertainty around Sun’s fate, and the resulting erosion in customer confidence in Sun.”

Under terms of the deal, EA (ERTS) will initially pay $300 million for the developer of such social games as Pet Society, Who Has the Biggest Brain and Restaurant City, including a $25 million retention agreement with Playfish employees. It will subsequently pay $100 million more if the company meets undisclosed profit targets.

By acquiring Playfish, EA is not only validating the social gaming market, but perhaps setting the valuation benchmark for Mafia Wars creators Zynga, which is expected to go public next year. It also tempers–to some extent, anyway–concerns that the lead-generation scam controversy that recently blew up around Zynga and Playfish might harm their perceived value in the market.

“This deal came about very quickly, but let me say that Playfish was never ‘up for sale’,” de Halleux told PaidContent. “We were focused on building our business, because we believed—and still do—that the game industry is changing. EA approached, and we realized that we could be in a better position to act as an agent of change, through them. We could build games and attract users on our own, but this deal accelerates that to a degree that wouldn’t have been possible.”

“Social gaming, with its emphasis on friends and community, is seeing tremendous growth and this is the right time to invest to strengthen our participation in this space,” said Barry Cottle, senior vice president and general manager of EA Interactive. “With the addition of proven expertise from Playfish, their broad consumer base and strong game brands, we’re moving ahead aggressively in our plans to lead in the category of cross-platform social entertainment.”

If there was ever a doubt that social networks might be a viable gaming platform, this acquisition pretty much obliterates it.

The fight for Skype has ended. After weeks of nasty legal sparring, the Internet telephony service’s founders agreed to join the investor group purchasing it from EBay (EBAY) and dropped the lawsuit that had threatened to bollocks the deal.

“Skype will be well positioned to move forward under new owners with ownership and control over its core technology,” said eBay chief executive John Donahoe in a statement. “We look forward to closing the deal and focusing on growing our core e-commerce and payments businesses.”

Under the terms of the agreement, Skype founders Niklas Zennström and Janus Friis will take a 14 percent stake in the company they founded and then sold to eBay, which will include an investment by them.

BoomTown’s Kara Swisher reported yesterday that the total was 13 percent–10 percent for the rights to key Skype technology held by the founders and the option to invest $83 million for three percent more.

In exchange, the pair will give Skype software essential to its operation and drop their various lawsuits against eBay and Skype buyers.

Interestingly, Index Ventures, which helped orchestrate the deal, is leaving the consortium of investors taking a majority stake in the company–as BoomTown reported earlier this week. Index partner Michelangelo Volpi, a former employee of Skype’s founders, had been at the center of one the suits that threatened to ruin the deal. Said Index partner Danny Rimer: “The deal terms changed for Index such that it no longer matches our investment criteria and thus we have decided not to participate in the transaction.”

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That’s the word from Broadpoint AmTech analyst Brian Marshall, who believes Apple (AAPL) will bring the iPhone to Verizon (VZ) in the second half of 2010 and forfeit AT&T’s “sweetheart” carrier subsidy as a result.

“While [Apple] started off with exclusive arrangements in 2007 with the original iPhone launch, the company has since migrated towards multiple carriers per region,” Marshall wrote in a note to investors. “In our view, diverse carrier support is a key element to driving global penetration of the iPhone. Therefore, we believe the chances are high the iPhone will find its way onto the [Verizon] network in 2H10.”

Of course, should things play out that way, the iPhone will no longer be the powerful subscriber-retention tool it is today. And Marshall believes that will lower the subsidy it commands from an estimated $450 to around $300.

This might seem to imply a nasty hit to Apple’s bottom line, but Marshall figures any losses Apple might suffer would be more than made up in volume. He sees Verizon selling roughly 14 million iPhones in the 2011 calendar year. And with an average selling price of $500, that’s another $7 billion in revenue for Apple.

Why? As research house Jefferies & Co. explains in a research note to clients today, if Twitter hasn’t yet managed to transform its popularity into significant revenue, how will Microsoft (MSFT) or Google (GOOG)?

“While we believe Microsoft pulled off a little bit of a media/PR coup by announcing the Twitter deal and forcing Google to rush into a similar deal, we do not believe Microsoft will be able to capitalize on its first mover advantage in the short run since neither search engines nor Twitter have figured out how to monetize the data streams from Twitters (affectionately known as Tweets),” Jefferies analysts wrote.

“We believe that users focused on real-time data would be less tolerant to advertising,” the research note adds. “That said, we can see new business models emerging down the line where the realtime tweets blended with local information (traffic conditions, flight arrivals, etc.) could be more easily monetized and where ‘premium’ tweets from celebrities could be included for a premium subscription. For now, the real-time data integration would mean more refreshes from the users to get up to the minute updates, which should translate into higher query volume, all else equal.”
 

How nonexclusive is Microsoft’s deal with Twitter?

So nonexclusive that just hours after Microsoft (MSFT) announced it, rival Google (GOOG) lurched forward to say that it has entered into a similar partnership with the San Francisco-based microblogging service.

The search giant may be second to this party, but it’s not going to be late. But make no mistake–this is very clearly a rush job.

Some proof? Microsoft has code running. Google does not.

Twitter and Google announced the deal in posts to their respective company blogs.

“Our friends down in Mountain View want to organize the world’s information and make it universally accessible and useful,” Twitter co-founder Evan Williams wrote. “A fast growing amount of information is coursing through Twitter very quickly, and we want there to be many ways to access that information. As part of that effort, we’ve partnered with Google to index the entire world of public tweets as fast as possible and present them to their users in an organized and relevant fashion.”

Marissa Mayer, Google’s vice president of search, was similarly enthusiastic about the deal.

“We believe that our search results and user experience will greatly benefit from the inclusion of this up-to-the-minute data, and we look forward to having a product that showcases how tweets can make search better in the coming months,” Mayer wrote. “That way, the next time you search for something that can be aided by a real-time observation, say, snow conditions at your favorite ski resort, you’ll find tweets from other users who are there and sharing the latest and greatest information.”

Once Google gets around to indexing Twitter’s real-time data.

That’s the argument put forth by Piper Jaffray analyst Chris Larsen in a research note to investors Monday. Larsen feels that the cost to Apple (AAPL) of developing a CDMA version of the iPhone for Verizon’s (VZ) network and the subsidies the company might lose by ending its exclusivity deal with AT&T (T) would be a small price to pay for the spike in iPhone sales they would create.

“Although the iPhone is a strong player in the smartphone market, expanding its multi-vendor strategy could allow it to dominate the industry, as it does with the iPod,” Larsen writes. “The U.S. market is the world’s largest smartphone market, but we believe there is a land grab in the U.S. for smartphone share.”

Expanding his argument, Larson adds, “Apple’s exclusivity with AT&T has left the door open for strong competition from competitors, such as Research In Motion’s Blackberries, Palm’s webOS smartphones and Google’s Android operating system on multiple smartphones from OEMs such as Motorola, HTC, Samsung, LG, and others. Making the iPhone available to the other 150+ million subscribers (~2/3s of subscribers) not on AT&T’s network could result in iPod like adoption.”

Keeping the iPhone exclusive–while it might enable Apple to do more innovative things, as COO Tim Cook noted yesterday during the company’s quarterly earnings call–would also give those rival devices and platforms more time to catch up. If Apple really hopes to keep its lead in the U.S. market, it must do away with exclusivity deals, the same way it’s doing away with them abroad.

That’s bad news for AT&T. Because, as I’ve noted here before, a move to nonexclusivity in the U.S. would brutalize the carrier’s subscriber base. Analysts have long said that a material number of AT&T iPhone users would flock to Verizon’s superior network given the chance.

Larsen agrees. “A move to non-exclusivity in the U.S. could have a material impact on the U.S. wireless carriers,” he writes. “AT&T could lose meaningful smartphone share, while we think all the other carriers would gain share. We believe Verizon would be the largest beneficiary of non-exclusivity and the development of a CDMA iPhone.”

Continuing, Larson explains, “With 35% of AT&T’s iPhone sales coming from new customers, we feel it is reasonable to assume the company’s total iPhone sales could decline by 30% or more and that Verizon could pick up the bulk of this lost share (why switch to AT&T for iPhone if you haven’t left by now and the device is now available through your carrier; Verizon’s network quality could be a reason to switch from AT&T).”

“You will see us be reasonably active,” he said. “We have a talented team of people that includes people who have been at Dell a long time and understand the Dell culture in the transactions that we’ve done and know why those have succeeded or not. We are rapidly developing that, and we’ve added some talent to help us do that.”

And what sectors is Dell (DELL) most interested in? Health-care information technology, as the Perot acquisition clearly suggests. “When you look at the health-care space, it’s the one sector of the economy that has the least amount of IT, and we see it as very promising for growth,” Dell said. “There’s usually more technology at the grocery store than there is at your doctor’s office.”

This time it’s going to be different. That’s because Microsoft (MSFT) is paying to make it so. The company has teamed up with Fox to sponsor a “Family Guy” special built around Windows 7. The show, dubbed “Family Guy Presents: Seth & Alex’s Almost Live Comedy Show,” after creator Seth MacFarlane and voice talent Alex Borstein, will air Sunday, Nov. 8, at 8:30 pm, EST and PST.

The new episode will be free of commercial breaks but presumably rife with “clever” references to Windows. Microsoft agencies Universal McCann and Crispin, Porter and Bogusky, which were tapped to weave the company’s marketing messages into the program, will make sure of that.

“You’ll see us deeply integrated into the content,” Gayle Troberman, general manager of consumer engagement and advertising at Microsoft, told Ad Age. “You’ll hear a lot about how Windows 7 can help you simplify your PC–it’s simple, fast and easy to use.”

Sounds…hysterical.

Incidentally, it’s worth noting that this isn’t the first time MacFarlane has inked an advertising deal with a tech company. He’s currently working with Google (GOOG) on a project called “Seth MacFarlane’s Cavalcade of Cartoon Comedy,” which involves humorous animated shorts with built-in advertisements syndicated through the search giant’s AdSense advertising system.

Earlier this week, people familiar with the matter claimed that Brocade (BRCD) is seeking a buyer and that both Hewlett-Packard (HPQ) and Oracle (ORCL) are among its potential suitors. They said no deal is imminent, but rumor that one might be coming drove Brocade’s shares up some 15 percent.

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