In order for a proposed merger not to trigger Revlon duties, control of the company must reside in “the market” before & after the deal and there must be a significant stock component to the consideration. As usual in Delaware, the fun part is deciding where to draw the line – how much stock is enough? That involves a case-by-case analysis.
It’s pretty clear that a deal that isn’t mostly stock won’t cut it, and the Chancery Court has held that a 50/50 cash & stock deal won’t either. On the other hand, in In re Santa Fe Pacific Corp, (Del. 11/95), the Delaware Supreme Court held that a deal with 66% stock consideration wouldn’t trigger Revlon. Just to make matters a little more complicated, there’s even case law out there suggesting that it isn’t just the percentage of stock in the consideration, but the percentage of the surviving entity that the target’s shareholders will own post-closing, that needs to be taken into account.
Anyway, this is a long-winded introduction to the fact that the Chancery Court just weighed in on this issue again, in Flannery v. Genomic Health Inc., et al., (Del. Ch. 8/21). In that case, Vice Chancellor Slights held that a deal in which 58% of the consideration was in the form of stock didn’t trigger Revlon:
[T]he consideration mix agreed to in the Merger Agreement dictates that 58% of each Genomic stockholder’s shares would be converted into Exact stock. Ultimately, it cannot be said that Genomic abandoned its long-term strategy, triggering a duty to maximize short-term gain, where 100% of Genomic’s stockholders received Exact stock in exchange for 58% of their shares. Because Plaintiff has failed to plead that Exact does not trade in a “a large, fluid, changeable and changing market” such that Genomic’s stockholders were prevented from obtaining a control premium for their shares in future transactions following the Merger, there is no reason to apply Revlon under the Court’s holding in Santa Fe.
There’s also an interesting Section 203 issue addressed in the case – check out this blog from Steve Quinlivan for a discussion of that aspect of the decision.
The CII recently published this report on poison pills adopted since January 1, 2020. Nearly 100 pills were adopted during this period, and not surprisingly, the vast majority of them were put in place following the onset of the pandemic in March 2020. But their terms were less uniform than you might expect. Here are some of the highlights from the CII’s analysis:
– Of pills adopted in January to May 2020, 37 of 46 (80%) expired in one year or less. Of all pills adopted between January 2020 and June 2021, 63 of the 97 (65%) set expiration dates of about one year or less. This dip may reflect the fact that a number of companies later extended pills that were originally adopted during the pandemic, as well as the fact that later in the pandemic companies extended existing pills that were adopted for reasons unrelated to pandemic issues.
– In total, about 40% of the pills that last more than one year will be or have been put up for a shareholder vote. There are, however, three pills that were adopted in late 2020 that will not expire for 10 years and will not be put up for a shareholder vote.
– Trigger thresholds in a significant number of 2020 and 1H 2021 poison pills have been set at low levels. A total of 28 pills would be triggered at 5% beneficial ownership or less (21 of these pills are NOL pills). Another 39 pills set their triggers at 10% beneficial ownership.
– Remarkably, four pills include “dead hand” provisions.
– 17 pills had “acting in concert” or “Wolf Pack” provisions, although the survey notes that many of these were amended in response to the Chancery Court’s Williams Companies decision.
– A dozen pills adopted during the period were “chewable pills,” which included provisions that would make them inapplicable to “qualifying offers.”
I recently blogged about the challenges of obtaining RWI coverage for non-standard deals in the current environment. This Goodwin memo provides some additional insight into current market terms for RWI policies. Here’s an excerpt:
Pricing. The premium for R&W insurance has increased significantly in the last 12 months. While the “rate on line” (premium divided by the policy limit) has been declining in the last few years (reaching as low as 2.5% and infrequently exceeding 3.5%), a more common range initially quoted recently has been around 3-4.5% depending on the industry, and sometimes exceeding 5%. Carriers cite their claims experience and deal volume for reasons for the pricing increase.
Retention. The retention for the policy has not changed. A typical retention is 1% of the enterprise value (EV) initially, dropping down to 0.5% (usually on the first anniversary of the closing). As before, the initial retention for larger deals (close to or above $500 million) is often 0.75% of the EV. For smaller deals, minimum retention may apply (around $200,000, depending on the insurer and the type of transaction).
Term Sheets and Policies. The number and types of proposed coverage limitations in quotes have become more extensive and technical, including comments on the representations, interplay with other insurance, and cap on multiple damages (for some insurers). This trend has accentuated the need for experienced R&W insurance coverage counsel to be involved early and negotiate the terms at the quote stage because it would become difficult to do so later in the process.
Despite the more challenging market conditions, the blog says that claims continue to be processed and paid, although large claims exceeding the retention are relatively infrequent, and that only a handful of R&W insurance claims have resulted in litigation so far.
In order for a squeeze-out merger to qualify for business judgment review under Delaware’s MFW doctrine, the transaction must be conditioned from the outset upon the approval of both an independent special committee and a majority of the minority stockholders. But what happens when there’s a time limit on those commitments?
In her recent transcript ruling in The MH Haberkorn 2006 Trust v. Empire Resorts, (Del. Ch. 7/21), Chancellor McCormick determined that the looming expiration of a controller’s commitment to these procedural requirements was a deficiency that resulted in the inapplicability of MFW to the deal. Here’s an excerpt from this Shearman blog on the case:
Here, the controller and the Company entered into a letter agreement in 2016, which provided that the controller would not engage in a going-private transaction unless the transaction was subject to approval of both (i) a majority of disinterested board members or a special committee and (ii) a majority of shares entitled to vote that were unaffiliated with the controller. At the time the Company agreed to the transaction in August 2019, the term of the letter agreement was set to expire in February 2020.
The Court held that this impending expiration constituted a deficiency as to the timing requirements of MFW, even though the conditions were in place prior to the commencement of negotiations. The Court also noted that, according to the complaint, the controller signaled to the special committee that it would not commit to the MFW conditions beyond the contractual term. The Court explained that “for the ab initio requirement to mean anything and to accomplish the goal of eliminating otherwise-present bargaining pressures, the condition must be irrevocable.”
The blog goes on to explain that the Chancellor found other deficiencies in the process, including the failure to satisfy the majority of the minority requirement due to the inclusion of shares held by the company’s joint venture partner in the calculation, as well as potentially coercive actions by the controlling stockholder.
As I’ve previously blogged, Delaware is not regarded as the most hospitable of jurisdictions by D&O insurance carriers, but this recent guest post by Frank Reynolds over on Frances Pileggi’s blog says that the carriers recently won one over in Delaware Superior Court. Here’s an excerpt, which highlights the significant role that the Delaware Supreme Court’s 2020 Solera decision played in the decision:
The Delaware Superior Court recently dismissed Jarden LLC’s bid for D&O insurance coverage for an appraisal suit that was not “for” redress of a “wrongful act” – and even if it was, the act couldn’t have occurred before the sale to Jewel Rubbermaid Inc. closed, ending the coverage period, in Jarden LLC v. Ace American Insurance Co., et al., No. N20C-03-112 AML CCLD opinion issued (Del. Super. July 30, 2021).
In her July 30 opinion, Judge Abigail LeGrow, guided by a recent milestone Delaware Supreme Court opinion, said the underlying shareholder challenge to the price Jarden investors received in 2016 was by nature, a “statutory proceeding”, even if the deal negotiation was “flawed” and the appraisal petitioners won a $177.4 million judgment.
Judge LeGrow wrote that in keeping with the high court’s ruling in a coverage action for an appraisal suit in In Re Solera Insur. Coverage Appeals, 240 A.3d 1121, 1135-36 (Del. 2020), “the only issue before the appraising court is the value of the dissenting stockholder’s shares on the date of the merger,” and no claims of wrongdoing are considered.
Judge LeGrow’s opinion may be of interest to corporate and insurance specialists–-at least for the reason that it was a win of sorts for corporate insurers in what they have complained has been a long, dry season for them in Delaware D&O insurance coverage litigation.
The Judge acknowledged that while evidence of potential flaws in the negotiation process may be considered in an appraisal action, that evidence is relevant only in determining the weight to be given to the deal price. So, if any act forms the basis for an appraisal claim, it isn’t the wrongful conduct associated with the merger process, but the execution of the merger itself.
Last month, I blogged about the Chancery Court’s decision in Bardy Diagnostics v. Hill-Rom, (Del. Ch.; 7/21), in which Vice Chancellor Slights declined to find that a contractual MAE had occurred despite Medicare’s decision to impose an 86% reduction in the price it would pay for the seller’s only product.
This recent Sidley blog focuses on some of the lessons to be drawn from that decision. Here’s an excerpt that offers up some drafting tips based on how the Court approached the issue of determining the appropriate peer group by which to assess whether the target had been “disproportionately affected” by the price reduction:
Bardy suggests that MAE clause drafters should pay careful attention to defining the target’s peer group of companies for purposes of expanding the MAE definition to include disproportionate effects on the target. In Bardy, the parties used the term “similarly situated” to define the universe of comparable companies. By contrast, other litigated MAE cases involved broader language, such as “comparable entities operating in the same industry.”
As the Bardy Court emphasized, the specific language chosen by the parties is critical, and the use of the limiting phrase “similarly situated” here called for a “more granular parsing of a company’s situation than mere participation in the [relevant] market.” That meant, as a practical matter, the impact of the regulatory changes on Bardy would be measured against only one other company that, unsurprisingly, was also significantly impacted by those changes. Narrowly defining the peer group means that many adverse effects, particularly regulatory changes, may never be disproportionate enough to qualify for an MAE disproportionately clause.
Yesterday, the world’s largest SPAC, Pershing Square Tontine Holdings, was named as a defendant in a shareholder derivative lawsuit filed by, among others, former SEC Commissioner Robert Jackson and Yale Law Prof. John Morley. In a nutshell, the complaint alleges that PSTH is an unregistered investment company, and that as a result, the goodies that flow to insiders under the typical SPAC structure – specifically, sponsor & director warrants – represent unlawful compensation under the Investment Company Act.
Much of the media appears to be reporting the story like its hair is on fire. Here’s an excerpt from the NY Times DealBook that makes it sound like this lawsuit could, if successful, result in “SPACmageddon”:
If the suit succeeds, it could make professional investors who have found SPACs attractive wary of potential legal challenges, chilling the market. Proving damages will be difficult because the Universal Music deal was scrapped. But more important, perhaps, the case attempts to address underlying issues about the motivations of some SPAC sponsors. And its analysis of the meaning of investing in securities — part of any M.&A. deal — raises existential questions about the purpose and treatment of SPACs in general.
I think that DealBook has a point about the difficulty of proving damages, but although I’m no 1940 Act guru, it seems to me that the plaintiff may have bigger problems than that. Here’s why – all of the allegations in the complaint seem to depend upon the court concluding that PSTH should be registered under the Investment Company Act. But the problem is that there’s an exemption from that statute that this SPAC & every other one has been structured to fit into. This Mayer Brown memo explains:
The structure of a SPAC’s trust account is designed to avoid the SPAC being classified as an “investment company” under the Investment Company Act of 1940, as amended (the “Investment Company Act”). Following its IPO, a SPAC is typically required to invest the IPO proceeds held in trust in either government securities or in money market funds that invest only in government securities.
By doing so, a SPAC may rely on Rule 3a-1 under the Investment Company Act, which excludes companies with no more than 45% of the value of its total assets consisting of, and no more than 45% of the issuer’s net income after taxes deriving from, securities (excluding government securities). There are also no-action letters in which the SEC Staff concurs with the view that securities in certain money market funds also can be excluded from these calculations.
The complaint says that “an Investment Company is an entity whose primary business is investing in securities. And investing in securities is basically the only thing that PSTH has ever done. From the time of its formation, PSTH has invested all of its assets in securities.” What kind of securities has it invested in? Again, here’s what the complaint says: “The Company’s agreement with its trustee specified the money was to be “invested only in U.S. Treasury obligations with a maturity of 180 days or less or in money market funds . . . which invest only in U.S. Treasury obligations.”
So, the complaint appears to allege that PSTH is an investment company because it – like every other SPAC – has invested the proceeds of IPO in exactly the type of securities that would permit it to rely on the exemption provided by Rule 3a-1 of the Investment Company Act. This excerpt from a CNBC article on the lawsuit makes it clear that this point wasn’t lost on Pershing Square:
A spokesperson at Pershing Square said the complaint bases its allegations, among other things, on the fact that PSTH owns or has owned U.S. Treasurys and money market funds that own Treasurys, as do all other SPACs while they are in the process of seeking an initial business combination. “PSTH has never held investment securities that would require it to be registered under the Act, and does not intend to do so in the future. We believe this litigation is totally without merit,” the spokesperson said.
Like I said, this isn’t my area of expertise, so there may well be depths to this complaint that I haven’t fathomed. After all, this just can’t be that simple, right? I mean, there are some pretty serious folks on the pleadings. Maybe this case will turn out to have some traction. If so, then it may well toss a rather large monkey wrench in the works of the increasingly troubled SPAC boom. But at this stage, I think the media should stop hyperventilating.
This recent Weil blog is titled “Stuff You Might Need to Know: What Assignments Do Broad Anti-Assignment Clauses Not Prohibit?” I would say a better title might be “Stuff You Definitely Need to Know. . .” Here’s the intro:
A recent federal court decision applying Delaware law, Partner Reinsurance Co. Ltd. v. RPM Mortgage, Inc., 2021 WL 2716307 (S.D.N.Y. July 1, 2021), explores some rare contractual territory—i.e., the question whether, in the absence of consent, a valid assignment may be made by a party of its rights to pursue a claim for damages for breach of a merger agreement, notwithstanding an anti-assignment clause that declared “void” any assignment of “any or all of” such party’s “rights under” that merger agreement.
Surely, some might say, the right to claim damages for a breach of a contact is a “right[] under” that contract and would accordingly be prohibited by such a broad anti-assignment clause. Not so says the United States District Court for the Southern District of New York; and, in case you were wondering, this holding is consistent with long standing law concerning the scope of even the broadest anti-assignment provisions.
The blog goes on to discuss the applicable provisions of the Restatement of Contracts that Delaware courts and the SDNY applied in reaching this conclusion, and points out that that bottom line is that if parties want to restrict assignment of damage claims, the anti-assignment clause needs to include language specifically addressing those claims, and just restricting the assignment of “any or all rights under the contract” won’t cut it.
I’ve always been a fan of “Butch Cassidy & the Sundance Kid,” and I give Vice Chancellor Slights 5 stars for the way he worked the film into his opinion in Online HealthNow v. CIP OCL Investments. (Del. Ch. 8/21). The case involved the enforceability of contractual limitations on post-closing claims that effectively eviscerate all claims, including those that allege the contract itself is an instrument of fraud. Vice Chancellor Slights began his opinion by invoking this famous scene, and concluded that the stock purchase agreement’s liability limitations simply contained “too much dynamite” to be enforceable:
Defendants’ motion to dismiss must be denied. Under Delaware law, a party cannot invoke provisions of a contract it knew to be an instrument of fraud as a means to avoid a claim grounded in that very same contractual fraud. Stated more vividly, while contractual limitations on liability are effective when used in measured doses, the Court cannot sit idly by at the pleading stage while a party alleged to have lied in a contract uses that same contract to detonate the counter-party’s contractual fraud claim. That’s too much dynamite.
The Chancery Court’s 2006 decision in ABRY Partners v. F&W Acquisition, (Del. Ch. 2/06) played a central role in Vice Chancellor Slights’ opinion. In ABRY Partners, then Vice Chancellor Strine held that Delaware law permits “sophisticated commercial parties to craft contracts that insulate a seller from a rescission claim for a contractual false statement of fact that was not intentionally made.” However, he went on to say that the contractual freedom to immunize a seller from liability for a false contractual statement of fact ends there. When a seller intentionally lies, a contractual provision limiting the remedy of the buyer to a capped damage claim would not be enforceable.
In arguing that contractual fraud claims against the target & its owner should be dismissed, the Online HealthNow defendants in pointed to the stock purchase agreement’s survival clause, which stated that the reps and warranties of the target and its private equity owner “shall not survive the Closing for any purpose.” The defendants contended that, unlike the situation in ABRY Partners, this survival clause didn’t limit the buyer’s claim to a remedy, but simply limited the time during which it could pursue that remedy.
The defendants cited the Delaware Superior Court’s decision in Sterling Network Exchange v. Digital Phoenix Van Buren, (Del. Super. 3/08), which held that a survival clause limiting the time during which claims could be asserted did not run afoul of ABRY Partners. However, the Vice Chancellor rejected that argument, noting that the Court’s conclusion was contingent upon the existence of “a reasonable period of opportunity to unearth possible misrepresentations.” He was somewhat skeptical of the decision in that case, but decided that in any event the reasonableness of the discovery period was not something that was suited for resolution on a motion to dismiss.
In arguing that fraud claims could not be asserted against the target’s owner, the defendants also pointed to the stock purchase agreement’s non-recourse provision. That said, among other things, that claims arising out of the SPA may only be asserted against “the Persons that are expressly identified as Parties and their respective successors and permitted assigns”; that “no officer, director, partner, manager, equityholder, employee or Affiliate of any Party . . . will have any liability or obligation with respect to [the SPA] or with respect to any claim or cause of action (whether in contract, tort or otherwise)” arising out of it.
The defendants cited language in ABRY Partners to the effect that “it [is] difficult to fathom how it would be immoral for the Seller and Buyer to allocate the risk of intentional lies by the Company’s managers to the Buyer” in support of their position that the non-recourse clause was enforceable. But Vice Chancellor Slights summarily dismissed that argument, noting that the quoted language arose during the Court’s discussion of a situation where the seller did not have actual knowledge of the fraud. He concluded that the language cited by the defendants didn’t abridge ABRY Partners’ central holding – that public policy won’t permit a seller to avoid liability for contractual representations and warranties that it knew were false.
This Mayer Brown blog summarizes the results of a survey of global venture financing trends during the second quarter of 2021. Here’s an excerpt:
According to CB Insights’ latest State of Venture Report, global startup financing in Q2’21 reached $156.2 billion, a 157% year-over-year increase and a record quarter high. U.S. startup funding accounted for the largest portion of the global quarter total, raising $70.4 billion, followed by Asia raising $42.2 billion. Meanwhile, funding to China-based companies continued to decline with an 18% drop from its peak in Q4’20.
As a result of increased funding, global unicorn births saw a record quarter high with 136 new unicorns, an increase of 491% year-over-year. In the first half of 2021, the average unicorn valuation rose to $1.6 billion, up from the 2016 average of $1.2 billion. Mega-round deals (capital raises over $100 million) almost tripled compared to Q2’20, totaling 390 deals. Global M&A exits rebounded from pandemic lows to reach new records with 2,613 M&A exits and 280 IPOs.
The blog says that halfway through 2021, U.S. venture funding is approaching 2020’s yearly total despite fewer deals. The U.S. also reached a record quarter high of 76 unicorn births, including (Stripe valued at $95 billion), SpaceX ($74 billion), and Instacart ($39 billion).