Monthly Archives: February 2019

February 28, 2019

M&A Special Committees: You May Not Need One

Want to drive a CEO crazy?  Tell them that the board needs to establish a special committee.  Despite the problems they create, some lawyers almost reflexively recommend the creation of a special committee if a company is considering a potential sale.  In many instances, that’s because the lawyers believe that a special committee is legally required.

This recent Wachtell memo addressing the use of special committees in the REIT context is a useful reminder that this frequently is not the case – even if there are some potential board or management conflicts. Here’s an excerpt:

Forming a special committee when not required can needlessly hamper the operations of the company and its ability to transact, create rifts in the board and between the board and management, and burden the company with an inefficient decision-making structure that may be difficult to unwind. It is important, therefore, for REITs to carefully consider – when the specter of a real or potential conflict arises – whether a special committee is in fact the best approach, whether it is required at all, and whether recusal of conflicted directors or other safeguards are perhaps the better approach.

REIT management teams often stay the course through an M&A transaction and remain employed by the successor company after the deal. In such cases, it is not unusual for management to negotiate terms of employment with the transaction counterparty at some point during the deal, preferably towards the end when all material deal terms have been agreed. But while such negotiations can raise conflict issues, they do not necessarily mean that the entire transaction and surrounding process must or should be negotiated by a special committee.

The memo distinguishes between special committees and transaction committees – the latter are frequently used to make it easier for the board to provide oversight of the transaction process, but don’t involve the rigidity associated with special committees created to deal with potential conflicts.

John Jenkins

February 27, 2019

Antitrust: What Would a Hard Brexit Mean for EU/UK Merger Review?

The US government just put us all through a shutdown lasting more than a month – and that’s prompted their colleagues in the UK to respond with something along the lines of “hold my beer.”  Incredibly, Her Majesty’s Government is merely a few weeks of further dithering away from the once unthinkable reality of a hard Brexit. That’s not good news for any business with interests in the UK or the EU, but this Baker Botts memo explains that it’s particularly bad news if you’ve got an M&A deal subject to antitrust review.  Here’s an excerpt:

When it comes to transactions which involve a significant UK aspect (even where the merging parties themselves are not UK-based companies), the parties will need to take Brexit-related developments into account for transaction planning purposes. In concrete terms, not only will the merging parties need to be prepared to accommodate parallel EU and UK merger reviews in their transaction timelines, but they will also need to provide sufficiently for the possibility of parallel EU/UK merger reviews in the conditions precedent in their deal agreements.

The risk of potential issues arising from parallel reviews by the EU and UK will be particularly acute around the time of Exit Day: the UK’s Competition Management Authority effectively confirmed in its Draft Guidance that it fully intends to enforce UK competition law as of Exit Day in respect of mergers which otherwise would be subject only to review by the European Commission under the EUMR.

The UK’s CMA is apparently taking the position that any deal that hasn’t received a formal clearance decision from European Commission by the time the UK leaves the EU will be fair game for review by the CMA.

John Jenkins

February 26, 2019

Go-Shops: Have Dealmakers Gamed the System?

Over the weekend, I came across this blog from Prof. Ann Lipton discussing a recent study suggesting that “go-shops” may not be as effective in smoking out higher priced deals as they once were. The study argues that the reason for this may be that dealmakers have learned how to game the system:

There are a lot of interesting observations in the new paper, with the basic point being that deal attorneys – aware that Delaware courts focus a lot on things like the size of termination fees – instead manipulate aspects of the go-shop that tend to escape judicial notice, and that collectively function to make go-shops less effective. One particular point that stood out: The authors note that PE firms have changed how they compensate CEOs who remain with the company after the buyout.

Today, they pay based on whether the firm achieves certain multiples of invested capital, a metric that CEOs might view as functionally guaranteeing them a healthy payout, and one that incentivizes them to keep the deal price as low as possible. (The authors contrast with earlier IRR-based payouts, which were so difficult to achieve as to render compensation speculative). And even if the CEO does not negotiate compensation with the PE firm until after a deal price is reached, the CEO will know the PE firm’s practices and past history.

The new study follows up the authors’ 2008 study that generally supported the use of go-shops. The blog points out that the new study contains a bombshell quote from an unnamed PE investor to the effect that his firm tries to “corrupt” management – and that the multiple-of-invested-capital compensation structure helps accomplish that contributes to that corruption.

I’m not thinking this quote is going to play real well in Chancery Court.

John Jenkins

February 25, 2019

Transcript: “Controlling Shareholders – The Latest Developments”

We have posted the transcript for our recent webcast: “Controlling Shareholders: The Latest Developments.”

John Jenkins

February 22, 2019

New HSR Thresholds are Here – Can Spring be Far Behind?

Winter’s been so miserable that Las Vegas needs snow plows & there are flurries in LA – but I promise you that spring is coming.  How do I know?  The FTC just announced its new HSR thresholds, which means that our favorite harbinger of spring – the annual inundation of law firm memos – has commenced.  Davis Polk once again won the prize for “first to my inbox” this year, so here’s an excerpt from their memo with the details:

Today, the Federal Trade Commission (FTC) announced revised Hart-Scott-Rodino Act (HSR) reporting thresholds under which transactions will be reportable only if, as a result of such transaction, the acquiring person will hold voting securities, assets, or non-corporate interests valued above $90 million, compared to $84.4 million in 2018. The newly-adjusted HSR thresholds will apply to all transactions that close on or after the effective date, which is expected to be in mid-March (the exact date will depend on when the changes are published in the Federal Register). The annual revision was delayed this year due to the recent federal government shutdown.

The FTC also announced revised thresholds above which companies are prohibited from having interlocking memberships on their boards of directors under Section 8 of the Clayton Act. The new Interlocking Directors thresholds are $36,564,000 for Section 8(a)(1) and $3,656,400 for Section 8(a)(2)(A). The new Section 8 thresholds become effective upon publication in the Federal Register.

John Jenkins

February 21, 2019

Post-Closing Disputes: Arbitration v. Expert Determination (Again)

Last summer, I blogged about a Delaware case addressing the distinction between a dispute resolution provision that requires a third party to act as an “arbitrator” & one that merely calls for that party to make an “expert determination” with respect to an issue. To make a long story short, if your agreement calls for “arbitration” you’re giving that third party powers equivalent to those of a judge; but if your agreement calls for an “expert determination,” that third party’s powers will be much more limited.

At that time, I cited a blog by Weil’s Glenn West cautioning deal professionals that because of these differences, they needed contractual language “clearly describing the third-party dispute resolution process they are contemplating for any post-closing purchase price adjustments.” Two recent Delaware Chancery cases – Agiliance v. Resolver SOAR (Del. Ch.; 1/19) & Ray Beyond v. Trimaran Fund Management (Del. Ch.; 1/19) suggest that people still aren’t getting Glenn’s message.

In the Agiliance case, the Court refused to countenance arguments that the agreement called for an “expert determination” given the unambiguous use of word “arbitration” in the agreement. Accordingly, the court ordered that a disputed matter be resolved solely by the accounting firm as an arbitration. In contrast, the Ray Beyond case involved a clear designation that the third party would as an “expert,” not an arbitrator – so the court gave effect to that language.

Glenn West is back again with another blog addressing these two cases. His conclusion isn’t surprising:

The distinction between Agiliance and Ray Beyond, then, is the existence, vel non, of a clear designation of the accounting firm as an expert, not an arbitrator, in the agreement. If you call your designated accounting firm a zebra, it will be a zebra (with potentially uncontrollable authority), and if you call your designated accounting firm a horse, even a striped one, it will be a horse (with controllable and limited authority). Say what you mean.

So, are we gonna listen this time or is Glenn going to have to come back again and beat a dead horse – or maybe a dead zebra?

John Jenkins

February 20, 2019

Venture Capital: Director Veto? Put It in the Charter!

Most corporate lawyers know that if you want to confer voting powers on one or more directors that are greater than those provided to other directors, Section 141(d) of the DGCL requires you to do that in your certificate of incorporation. But lawyers tend to view this narrowly, and often think that it only comes into play if you attempt to provide certain directors with more or less than 1 vote on board matters.

This Mintz Levin memo says that isn’t the case – and this excerpt points out that many of the contractual director veto rights typically found in VC investor agreements also involve disproportionate voting:

 When VC funds, their portfolio companies and VC lawyers read or think about DGCL 141(d) and this disproportionate voting, they usually, and narrowly, have in mind only the question of whether certain directors may have more than or less than one vote per Director on matters voted on by the Board, or a committee of the Board.

However, what such funds, companies and practitioners less often recognize and give consideration to is that the financing documents commonly used in venture financings also often contain provisions that confer disproportionate voting rights among Directors, and that this disproportionate voting is not conferred in the COI as required by DGCL 141(d).

For example, the customary “Matters Requiring Director Approval” or “Matters Requiring Investor Director Approval” provisions found in investor rights agreements (IRAs) typically require that the majority of the Board, which majority includes one or more directors representing the holders of preferred stock (Investor Directors) approve certain corporate actions, such as incurring debt, hiring or firing executive officers, entering new lines of business or selling material technology or intellectual property.

The memo says that these and similar provisions requiring affirmative votes by the investor directors also constitute “disproportionate voting”, because they give those directors “veto rights” that are not shared by all directors. That means these rights need to be in the certificate of incorporation – and if they’re not, you’ve got a problem.

The memo points out that the good news for VC investors is that if you’re using the latest NVCA form certificate of incorporation, there’s language in there stipulating that ‘matters listed in ‘Matters Requiring Director Approval’ or ‘Matters Requiring Investor Director Approval’ provisions of the IRA require the affirmative votes by Investor Directors.”

John Jenkins

February 19, 2019

Due Diligence: Privacy Risks Front & Center in M&A

This Bloomberg Law article says that dealmakers have made privacy issues a high priority in M&A due diligence and in negotiations. Here’s an excerpt about how privacy concerns are finding their way into deal terms:

Buyers will often assume the liabilities, including pending lawsuits and enforcement actions stemming from privacy laws, attorneys said. Data-driven companies could be a risky purchase because EU and U.S. regulatory authorities are focusing on businesses being transparent in their data collection practices, they said.

How well an acquisition target follows the GDPR and other privacy laws plays an increasingly important role in deal negotiations, attorneys said. Buyers are incorporating privacy issues in contract language, including representations and warranties, and changing deal prices to account for possible enforcement actions or lawsuits.

The article says that privacy concerns are particularly acute for data-driven businesses, and that buyers are digging into how well prepared those companies are not only to comply with existing regulations, but with those – such as California’s consumer privacy legislation – that will be coming online in the near future. Companies that haven’t taken steps to establish their right to the customer information essential to their businesses can expect to pay a steep price in terms of valuation.

John Jenkins

February 15, 2019

Activism: More Competition for Private Equity?

PE funds and activists have had a mutually beneficial relationship for years – activists with event-based strategies have pushed companies to do a deal, and PE funds have been more than happy to provide one. But in recent years, some major activists have looked to sponsor their own deals, and according to this recent report from Axios, that strategy is growing in popularity:

Both private equity and activist investor funds are considered alternative asset classes, but the latter is becoming an increasingly popular alternative to the former.

Starboard Value today agreed to invest $200 million into Papa John’s, after the troubled pizza chain failed to secure attractive enough private equity offers during a four-month auction process. The deal also includes another $50 million infusion by the end of March, with Starboard’s Jeffrey Smith being named chairman. Company namesake John Schnatter reportedly voted against the deal, thus extending his recent losing streak.

Elliott Associates, after failing to successfully work with Apollo Global Management on an Arconic takeover, is seeking to raise $2 billion for an actual takeover fund — not so much evolving into private equity but seeking to co-opt it.

The bottom line: Activists for years have helped to create private equity opportunities, by agitating for sales. Now they are beginning to take some of those opportunities themselves.

John Jenkins

February 14, 2019

Earnouts: “Commercially Reasonable Efforts” Standard Keeps Claim Alive

Our old pal the earnout – everybody’s favorite way to bridge valuation gaps – found itself back in the Delaware Chancery Court again late last year.  In Himawan v. Cephalon,  (Del. Ch.; 12/18), the Court refused to dismiss claims premised on allegations that the buyer breached its obligations under an earnout provision in a merger agreement.

The seller was a biotech company & the earnout payments were tied to the buyer’s commercialization of two antibody-based disease treatments in development at the time of the deal. The buyer was obligated to use “commercially reasonable efforts” to develop the treatments – which the agreement defined to mean “the exercise of such efforts and commitment of such resources by a company with substantially the same resources and expertise as [Cephalon], with due regard to the nature of efforts and cost required for the undertaking at stake.”

While the buyer made milestone payments of $200 million for one of the treatments, it ultimately abandoned the other.  The plaintiffs sued, and the defendant moved to dismiss their breach of contract claim. This K&L Gates blog summarizes the Court’s decision to deny that motion. Here’s an excerpt:

Vice Chancellor Glasscock denied Cephalon’s motion to dismiss the breach of contract claim, recognizing in the decision that the merger agreement’s “commercially reasonable efforts” provision created an objective standard for evaluating Cephalon’s conduct. While indicating that potential alternative reasonable interpretations may be considered in construing Cephalon’s specific obligations under this standard, the court determined that this provision should not be held to be meaningless for purposes of ruling on a motion to dismiss for failure to state a claim.

The Court found that Ception’s former shareholders had sufficiently pled that Cephalon failed to comply with its obligations under this provision by alleging that similarly situated companies were pursuing treatments for the other identified condition. On the basis of this finding, the Court held that dismissing the breach of contract claim would be inappropriate.

The Vice Chancellor dismissed the plaintiffs allegations of breach of the implied covenant of good faith – reasoning that since the implied covenant was essentially a “gap filler,” its use was inappropriate when a contract contained an objective standard defining the nature of the obligations at issue.

Speaking of the implied covenant, the Delaware Supreme Court recently addressed it in its opinion in Oxbow Carbon & Minerals Holdings. v. Crestview-Oxbow Acquisition  (Del.; 1/19). Check out Francis PIleggi’s blog.on the decision.

John Jenkins