March 28, 2011

Lawsuit Alleges Sellside Financial Advisor Providing Stapled Finance Aided and Abetted Board’s Breach

In what may reflect a new trend following the Del Monte hearing and decision, plaintiffs in this recent complaint allege that a financial advisor aided and abetted breaches of fiduciary duties by their client’s board. Specifically, plaintiffs allege that BofA Merrill Lynch “knew that the Emergency Medical Services Board actually disregarded its fiduciary duty to evaluate what is in the best interest of the company and its shareholders, and determined to pursue a singular strategy – to sell the Company” and that BofA Merrill Lynch aided and abetted the directors’ breach of fiduciary duty by “persuading the Board to accept the negative premium Proposed Transaction, to ensure BAML’s receipt of lucrative advisory and financing fees.”

In the EMS transaction, BofA Merrill Lynch and Goldman Sachs were co-financial advisors. BofA Merrill Lynch, which, at the Board’s request, was offering to provide buyer financing, did not render a fairness opinion. Goldman Sachs, which was not offering to provide buyer financing, rendered a fairness opinion.

Note that the complaint merely reflects plaintiffs’ allegations and not a judicial determination of fact. The disclosure in the proxy statement give some indication of some of the defenses likely to be raised, such as these extracts:

Background of the Merger

In order to enhance the confidentiality of the process by reducing the number of financial institutions involved before the board of directors determined whether to proceed with a formal sale process, the board of directors determined not to allow potential purchasers to disclose information to possible equity or debt financing sources. Rather, the board of directors requested that BofA Merrill Lynch provide potential purchasers with its preliminary views as to the possible financing for an acquisition and, if requested by qualified purchasers, to arrange and/or provide for such financing (however, potential purchasers were advised that they would not be required to use BofA Merrill Lynch financing for any transaction). Subsequent to this meeting, the Company provided its written consent to BofA Merrill Lynch and its affiliates serving as a potential source of debt financing, if requested by qualified purchasers, which consent outlined certain information and communication barriers that would be put in place between BofA Merrill Lynch’s financial advisory team providing services to the Company and the bank’s financing teams that would be established in connection with potential financing to qualified purchasers.

[. . . ]

On December 1 and 2, 2010, a first round process letter with invitations for submission of indications of interest was sent to potential purchasers. The letter instructed potential purchasers to base their indications of interest on a financing structure proposed by BofA Merrill Lynch. The letter stated that potential purchasers were not required to use BofA Merrill Lynch financing for an acquisition of the Company and would have the opportunity to work with other sources of financing in preparing final bids.

[. . . ]

On February 4, 2011, bids were received from CD&R and Party B. The CD&R bid proposed a purchase price of $63.00 per share and was accompanied by specific proposed changes to the merger agreement and unitholders agreement, and proposed forms of limited guarantee, equity commitment letter and debt financing commitments. As anticipated and authorized by the board of directors, CD&R’s debt financing commitment letter contemplated the participation of BofA Merrill Lynch and certain of its affiliates in the proposed debt financing for the merger as one of six potential debt financing sources.

Engagement of Merrill Lynch, Pierce, Fenner & Smith Incorporated

As further discussed above (see “–Background of the Merger”), the Company retained BofA Merrill Lynch as one of its financial advisors in connection with the merger. In addition, BofA Merrill Lynch and certain of its affiliates will provide a portion of the debt financing for the merger, subject to specified conditions as set forth under “–Financing of the Merger–Debt Financing.” Given that BofA Merrill Lynch and certain of its affiliates had been requested by the Company to arrange and/or provide, and ultimately participated in, the debt financing for the merger, BofA Merrill Lynch was not requested to, and it did not, deliver an opinion in connection with the merger.

In connection with BofA Merrill Lynch’s services as the Company’s financial advisor, the Company has agreed to pay BofA Merrill Lynch an aggregate fee currently estimated to be approximately $12.95 million, $500,000 of which was payable upon execution of the merger agreement and the balance of which is payable upon completion of the merger. The Company also has agreed to reimburse BofA Merrill Lynch for its reasonable expenses, including fees and disbursements of BofA Merrill Lynch’s counsel, incurred in connection with BofA Merrill Lynch’s engagement and to indemnify BofA Merrill Lynch, any controlling person of BofA Merrill Lynch and each of their respective directors, officers, employees, agents and affiliates against certain liabilities, including liabilities under the federal securities laws, arising out of BofA Merrill Lynch’s engagement. BofA Merrill Lynch and its affiliates comprise a full service securities firm and commercial bank engaged in securities, commodities and derivatives trading, foreign exchange and other brokerage activities, and principal investing as well as providing investment, corporate and private banking, asset and investment management, financing and financial advisory services and other commercial services and products to a wide range of companies, governments and individuals.

In the ordinary course of business, BofA Merrill Lynch and its affiliates may invest on a principal basis or on behalf of customers or manage funds that invest, make or hold long or short positions, finance positions or trade or otherwise effect transactions in equity, debt or other securities or financial instruments (including derivatives, bank loans or other obligations) of the Company, CD&R, Onex and certain of their respective affiliates and/or portfolio companies. BofA Merrill Lynch and its affiliates in the past have provided, currently are providing, and in the future may provide, investment banking, commercial banking and other financial services to the Company, CD&R, Onex and/or certain of their respective affiliates and portfolio companies and have received or in the future may receive compensation for the rendering of these services.