July 8, 2020

Earnouts: Structuring Considerations for the Covid-19 Environment

This Sidley memo (pg. 2) discusses how the implications of the Covid-19 crisis may require buyers & sellers to scrutinize earnout provisions with a “new lens,” whether they are negotiating new deals or potentially renegotiating existing ones.  This excerpt addresses some of the considerations associated with using a “sliding scale” earnout instead of the more customary all or nothing arrangement:

Earnouts are often structured with all-or-nothing payment terms such that seller receives nothing if the earnout threshold is not met. It is difficult to forecast appropriate earnout benchmarks, and, when a company is performing well or creating value but these all-or-nothing terms are still unattainable, a seller (or former equity holders of seller who are current key employees of the target) may lose motivation to drive company performance.

Further, key employees of seller may terminate their employment with buyer in the absence of other significant retention mechanisms. Thus, when a company is performing well, but below an earnout threshold, value is lost when both parties would have continued to perform if a lower payout than was previously negotiated were available. In these scenarios, making a reduced earnout payment may be less costly to buyer than the loss of aligned incentives to drive future company performance or the loss of key employees. Similarly, if a threshold for performance is set too low, for example, because the longer-term impacts of COVID-19 are overestimated, seller may take its foot off the gas when it is clear that an earnout will be achieved, even if better performance is achievable.

Given the unexpected downturn in the economy caused by the COVID-19 pandemic, earnouts that were negotiated in 2018 and 2019 assuming in-line 2020 performance may be unachievable now and, without renegotiation, can result in value loss to both buyers and sellers. In some of these situations, buyer may still want seller’s ongoing assistance to navigate the current conditions and may be willing to pay an earnout, albeit in a lesser amount than originally negotiated, or amend the earnout metrics to incentivize continued assistance driving future value.

When earnouts are structured with a sliding scale payout (i.e., setting a floor for minimum performance and a ceiling for a maximum payment, with the payment based on a performance formula) or multiple payment thresholds (i.e., setting multiple payout levels in steps based on performance), this can help preserve some of the value that would have been lost in all-or-nothing payout structures.

The memo notes that if the buyer selects an appropriate floor and ceiling for its earnout obligations, a sliding scale or multiple payment structure may increase the likelihood that the parties’ objectives remain aligned.

John Jenkins

July 7, 2020

M&A “Common Interest” Privilege Doesn’t Cover Commercial Interests

The “common interest” privilege protects privileged information that is exchanged by two parties represented by counsel concerning a legal matter in which they share a common interest. The privilege has often been asserted to protect communications between buyers & sellers during the course of a acquisition.  This Morris James blog discusses the Delaware Superior Court’s recent decision in  American Bottling Co. v. Repole, (Del. Super.; 5/20), in which the Court declined to apply the privilege to communications that it determined were predominantly commercial, not legal, in nature.

The case involved a dispute over whether a merger involving the plaintiff had terminated a distribution contract.  The plaintiff inadvertently produced materials relating to the contract that it had shared with a third party that subsequently merged with the plaintiff’s parent, and sought to claw them back based on a claim that the common interest privilege applied.  This excerpt reviews the Court’s analysis of the privilege claim:

The documents were a series of charts and other work product that described the nature of the distribution agreement between Plaintiff and Defendant and described how best to “capitalize on” it in the context of the merger. The documents were drafted and shared by the Third Party Entity’s counsel with Plaintiff’s parent after the merger agreement was executed but before the merger closed. For the documents to remain privileged, Plaintiff needed to show that a common interest applied to protect the shared documents.

The Court found that the Plaintiff and the Third Party Entity did not share a common legal interest sufficient to protect the documents from production on the basis of privilege. Following an in camera review, the Court found that the documents were shared with the Plaintiff for predominantly commercial purposes rather than to facilitate rendering legal advice.

Applicable Delaware precedent established that if the primary focus of the interest was commercial, “[i]t is of no moment that the parties may have been developing a business deal that included as a component the desire to avoid litigation,” regardless of whether legal counsel provided input on the documents. Accordingly, the Court concluded that the common interest privilege did not apply.

John Jenkins

July 6, 2020

Global M&A Had a Grim First Half of 2020

Pretty ugly numbers on global M&A for the 1st half of 2020 from this Axios Pro Rata newsletter:

– Global M&A value for the first half of the year is down 41% from 2019, while the number of deals is down 16%. In the U.S., value is down 68.8% but deal volume is up 10.6%.

– Global deal value fell 25% between Q1 2020 and Q2 2020, while U.S. deal value fell 57%.

– There were over 3,100 global private equity deals valued at around $200 billion in the first half of 2020, representing a deal number decline of 7.9% and a deal value drop of 23.6% over the same period in 2019.

Sigh.  At least baseball’s coming back. Maybe.

John Jenkins

July 2, 2020

Antitrust: FTC & DOJ Issue Vertical Merger Guidelines

The FTC & DOJ just issued the final version of their Vertical Merger Guidelines.  As I mentioned when I blogged about the draft guidelines issued last January, this represents the first update to these guidelines in nearly 40 years. Here’s an excerpt from Wachtell’s memo on the final version:

The new Guidelines clarify the agencies’ analytical practices and en-forcement policies, and provide illustrative examples of transactions that may raise competitive concerns. The Guidelines primarily focus on unilateral theories of harm that the agencies commonly investigate in their review of vertical mergers, including the ability and incentive of a combined firm to raise its rivals’ costs or foreclose their access to essential inputs, distribution channels, or complementary products.

Vertical mergers may also raise unilateral concerns when they provide the combined firm with access to competitively sensitive information about its upstream or downstream rivals, or make entry by a potential competitor more difficult by requiring entry at different levels of the supply chain or by foreclosing access to a necessary asset. Similarly, non-horizontal mergers may eliminate nascent competition by combining complementary products or an established firm with an emerging player in an adjacent market.

The inclusion of these theories of harm in the Guidelines signals a convergence with other jurisdictions, such as the EU, where they are often considered by antitrust regulators. In addition, the Guidelines discuss the ways in which a vertical merger may make coordinated interaction among firms more likely.

Although the guidelines say that “vertical mergers are not invariably innocuous,” they acknowledge that these transactions create efficiencies that are beneficial to consumer, and indicate that efficiencies are an important part of the merger review process.

One potentially important change from the draft guidelines is that the final guidelines eliminate a proposed “quasi-safe harbor” for vertical mergers in which the parties have less than a 20% share of upstream and downstream markets.  The memo says that this aspect of the draft guidelines had apparently drawn criticism from the FTC’s Democratic commissioners, but in any event, it’s elimination wasn’t sufficient to sway them – both voted against the final guidelines.

We’re posting memos in our “Antitrust” Practice Area.

John Jenkins

July 1, 2020

Conflicts of Interest: Undisclosed Comp Discussions Rebut BJR

Yesterday, in Fort Myers Gen. Emp. Pension Fund v. Haley, (Del. 6/20), the Delaware Supreme Court overruled an earlier Chancery Court decision and held that a seller CEO’s failure to disclose discussions with the buyer about his post-closing comp during the negotiation process was sufficient to rebut the business judgment presumption and subject the transaction to review under the entire fairness standard.

In her opinion, Justice Valihura acknowledged that since the allegations focused on the conduct of a single officer & director, in order to rebut the presumption of the business judgment rule, the plaintiffs must adequately allege that (i) the director was “materially self-interested” in the transaction, (ii) the director failed to disclose his “interest in the transaction to the board,”  and (iii) “a reasonable board member would have regarded the existence of [the director’s]  material interest as a significant fact in the evaluation of the proposed transaction.”

The Supreme Court, with Justice Vaughn dissenting, concluded that the plaintiffs’ allegations met this threshold, despite the fact that the Chancery Court had determined otherwise.  In that earlier decision, Vice Chancellor McCormick held that the business judgment rule applied for three reasons. First, she concluded that the board knew the CEO would likely receive a larger salary when running the combined entity, and therefore was fully informed of the conflict when it appointed him as lead negotiator. Second, the board was generally kept apprised of the negotiations. Finally, the compensation discussion in question only concerned a proposal, and the CEO’s actual compensation was not negotiated until after the merger closed.

The Supreme Court’s decision focused on the meaning of the term “materiality” in this context, and concluded that none of the factors cited by the Chancery Court was sufficient to undermine a conclusion that information about the compensation discussions was material:

The issue here is whether the alleged omissions meet the legal definition of  materiality. We hold that the Plaintiffs have adequately alleged that the Proposal altered the nature of the potential conflict that the Towers Board knew of in a material way.  “Material,” in this context, means that the information is “relevant and of a magnitude to be important to directors in carrying out their fiduciary duty of care in decisionmaking.”

It is elementary that under Delaware law the duty of candor imposes an unremitting duty on fiduciaries, including directors and officers, to “not use superior information or knowledge to mislead others in the performance of their own fiduciary obligations.” Further, “[c]orporate officers and directors are not permitted to use their position of trust  and confidence to further their private interests.”

This doesn’t appear to be a case in which there were significant differences between the Supreme Court and the Chancery Court about what the law required. Instead, it seems that the two courts simply reached different conclusions about the implications of the CEO’s conduct.  That point is underscored by the first sentence of Justice Vaughn’s dissenting opinion, in which he noted his agreement with the legal principles underlying the decision, but dissented “simply because when I apply those principles to the facts as pled in the complaint, I come to a different conclusion.”

John Jenkins

June 30, 2020

M&A Disclosure Claims: Somebody Actually Litigated One!

Post-Trulia, most M&A disclosure lawsuits have been brought in federal court and have alleged violations of Section 14(a) & Rule 14a-9 under the Exchange Act. Those cases usually settle, often for a combination of supplemental disclosures and the payment of a mootness fee.  But this Cleary Gottlieb blog says that somebody recently litigated a case involving federal disclosure claims – and the result was interesting:

In Karp v. SI Financial Group, Inc., No. 3:19-cv-001099 (MPS), 2020 WL 1891629 (D. Conn. Apr. 16, 2020), however, the defendants chose not to follow the usual playbook and actually litigated the plaintiff’s Section 14 claim. And on April 16, 2020, the district court granted the defendants’ motion to dismiss, ruling that the plaintiff had failed to plead that any statement in the proxy was rendered false or misleading by the omissions of facts the plaintiff alleged were material and not disclosed.

In so ruling, the court highlighted a fundamental difficulty plaintiffs in such strike suit merger cases often have in successfully pleading a Section 14 claim: Unless a plaintiff can show that the proxy statement omitted a fact required to be disclosed by SEC regulations (which is often a tall task), the plaintiff must plead that some omitted fact renders a statement in the proxy materially misleading.

Importantly, unlike Delaware duty-of-disclosure claims, the omission of a material fact alone is not enough to state a Section 14 claim. Instead, the plaintiff must plead – with particularity, not merely with conclusory allegations – how the allegedly omitted fact renders the proxy statement disclosures materially misleading. But without knowing the facts that have been omitted – and because of the discovery stay imposed by the Private Securities Litigation Reform Act (“PSLRA”) – plaintiffs will have difficulty obtaining such facts at the pleading stage, particularly since there is no equivalent tool to a Section 220 books and records claim under the federal proxy rules.

Although the case highlights the challenges plaintiffs face in bringing federal disclosure claims, the blog speculates that the decision won’t have much practical impact in the current environment, and that most defendants will continue to opt for settlements.  However, it points out that settling out may not always be the best approach, and that the SI Financial decision may be a useful one for defendants to keep in mind if they’re inclined to fight.

John Jenkins

June 29, 2020

Cross Border: Global Public M&A Guide

Baker McKenzie’s “Global Public M&A Guide” is a helpful resource for anyone involved in an acquisition of a foreign public company. Coming in at a whopping 741 pages, the Guide surveys the key legal requirements for public company acquisitions in 42 jurisdictions, and provides a snapshot of the general legal framework, foreign investment regulation, pre-bid requirements, takeover regulations and transaction alternatives for each jurisdiction surveyed.

John Jenkins

June 26, 2020

National Security: CFIUS Prepares to Drop the Hammer

Earlier this month, the Treasury Department announced the creation of a new website dedicated to CFIUS’ monitoring & enforcement functions. This Wilson Sonsini memo says that the enforcement website is part of a steady increase in CFIUS’ monitoring of foreign investments and enforcement actions aimed at them. With the rules implementing its expanded authority under FIRRMA now in place, CFIUS is engaging in monitoring & enforcement activities “on a previously unprecedented scale.” Here’s an excerpt:

The Committee’s new enforcement and monitoring team has a number of responsibilities. These include searching for unfiled foreign investments (i.e., “non-notified” transactions); requesting filings for non-notified investments; imposing penalties for failing to make mandatory filings; monitoring compliance with CFIUS mitigation agreements; and imposing penalties for noncompliance with mitigation agreements. Given the expansion in CFIUS’s jurisdiction under FIRRMA, a concomitant expansion in the scope of the Committee’s enforcement activities is unsurprising.

This increased emphasis on enforcement may ultimately be the most important result of FIRRMA. The Committee has always had elective jurisdiction over a wide range of transactions; while FIRRMA expanded that jurisdiction slightly, the key limitation on CFIUS activity has always been limited resources and attention.

Now, however, the one to two persons formerly charged with seeking out non-notified transactions in the pre-FIRRMA era has become a full-time team, and its activity levels are intensifying. Ultimately, we expect that for venture investments or acquisitions involving more sensitive investors—e.g., Chinese or Russian acquirers—and/or more sensitive industries—e.g., semiconductors, advanced battery technologies, gene sequencing technologies, etc.—the calculus on not filing with CFIUS voluntarily may be about to change substantially.

The memo says that CFIUS is increasing its outreach to parties involved in non-notified transactions, particularly those involving unfiled Chinese investments in sensitive U.S. industries. While this outreach has not yet been accompanied by the imposition of penalties for failing to make mandatory filings, the memo says that CFIUS staff have indicated that such penalties “will be forthcoming in appropriate cases.”

The new website also includes a tipline feature, which the memo points out may further ramp-up enforcement activity due to the ability of competitors to “drop a dime” on a pending deal.

John Jenkins 

June 25, 2020

Fiduciary Duties: Can a Target Aid & Abet a Buyer’s Breach?

Aiding & abetting can be a squishy concept, which – along with the potential for the occasional jackpot – has made it an appealing claim for plaintiffs to assert against M&A advisors and other collateral deal participants.  But what about a claim that the target aided & abetted the breach of fiduciary duties by the officers & directors of the buyer?

That may seem like a stretch, but the Chancery Court was recently confronted with that claim in In re Oracle Corp. Derivative Litigation, (Del. Ch.; 6/22), a lawsuit that arose out of Oracle’s acquisition of NetSuite.  This excerpt from Steve Quinlivan’s recent blog on the case summarizes the plaintiffs’ allegations:

Among other things, absent a fiduciary or contractual relationship, Delaware law generally does not impose a duty to speak. Here the lead plaintiff claimed the NetSuite defendants undertook action to provide substantial aid to two Oracle defendants breach of their own duties to Oracle—the alleged substantial aid was silence on the history of key transactional negotiations.

To that end, the lead plaintiff pointed out that the NetSuite defendants owed fiduciary duties to make disclosures to NetSuite stockholders about the acquisition of NetSuite. The lead plaintiff posited that the NetSuite defendants breached those duties in aid of the secrecy necessary to further the Oracle defendants’ corrupt scheme.

That is, the disclosures required of the NetSuite defendants to NetSuite’s stockholders would, if made, result in disclosure to the public, which would in turn result in disclosure to Oracle’s special committee. The lead plaintiff alleged that such disclosures would have put Oracle’s directors on alert to the allegedly lopsided transaction terms, and would have led Oracle to scuttle the deal.

While Vice Chancellor Glasscock acknowledged that, in theory, a target could aid & abet a buyer’s breach of fiduciary duty, he made quick work of the plaintiffs’ elaborate house of cards by determining that the substance of the allegedly clandestine discussions between the parties was in fact publicly disclosed by NetSuite in 8-K & 14D-9 filings.

You know who I really feel for here? The poor law students who are going to have to deal with their professors running amok with this case over the next several years.

John Jenkins

June 24, 2020

Tomorrow’s Webcast: “M&A Litigation in the Covid-19 Era”

Tune in tomorrow for the webcast – “M&A Litigation in the Covid-19 Era” – to hear Hunton Andrews Kurth’s Steve Haas, Wilson Sonsini’s Katherine Henderson and Alston & Bird’s Kevin Miller review the high-stakes battles being waged over deal terminations and other M&A litigation issues arising out of the Covid-19 crisis.

John Jenkins