DealLawyers.com Blog

Here’s a blog from Gibson Dunn’s Jim Moloney and Andrew Fabens regarding Corp Fin’s latest interpretive guidance on the JOBS Act:

While most commentary regarding the JOBS Act has focused on capital markets issues and the impact the new rules will have on capital-raising transactions, the JOBS Act can also have significant implications in the merger and acquisition context.

While many of the provisions of the JOBS Act were primarily intended to reduce the costs and risks associated with initial public offerings for “Emerging Growth Companies” (“EGCs”), the SEC has confirmed that certain provisions can extend benefits to parties to a merger or acquisition when one of the parties to the transaction does not qualify as an EGC. In this regard we note that on September 28, 2012, the Division of Corporation Finance released 13 additional FAQs, a number of which address this point.

For example, the FAQs clarify that where a target company that does not qualify as a smaller reporting company will be acquired by an EGC (that is not a shell company) presenting only two years of its financial statements in a registration statement for an exchange offer or merger, then the target company need only present two years of financial statements, as well. The Staff’s FAQs also detail how the various disqualification provisions from being an EGC can apply in the context of forward acquisitions and reverse mergers between various types of companies. Questions 42 through 47 relate to the merger and acquisition context.

Section 106 of the JOBS Act is another provision with significant implications in the merger and acquisition context. Pursuant to Section 106, an EGC may submit a confidential draft registration statement to the SEC for confidential, non-public review, provided that the initial confidential submission and all amendments are filed publicly 21 days before the EGC’s roadshow. We discussed the new process for submitting draft registration statements in a prior post.

This provision may benefit late stage private companies pursuing a “dual-track” strategy, where the company files an IPO registration statement while simultaneously holding discussions with prospective acquirors. Companies typically undertake a dual-track approach when they wish to (i) put pressure on potential buyers by introducing the threat of a viable IPO process and (ii) retain flexibility regarding their exit options. This approach is particularly common among private equity-backed companies.

An EGC pursuing a dual-track could use the confidential submission process to its advantage in negotiations with potential acquirors. For instance, the EGC could inform potential acquirors that it has confidentially submitted a draft registration statement to the SEC and that it considers an IPO a viable alternative without those acquirors knowing how far along the company is in the IPO process. An EGC could respond to all comments from the Staff and be a mere 21 days from a road show without the public knowing. This makes the threat of a quick IPO much more credible.

Additionally, if a deal falls apart, the confidential submission process will allow an EGC to pull its registration statement without the public knowing, thus avoiding the stigma associated with a failed transaction or IPO. This process also allows EGCs to keep sensitive information, such as financial statement information, trade secrets and names of key customers, out of the public eye until 21 days before the company conducts a road show. If the EGC is ultimately acquired and does not go public, this information will never need to be disclosed to the public.

Of course, EGCs must weigh the benefits of confidential submission against the potential advantages of filing publicly. A publicly-filed registration statement can send a strong signal to potential acquirors. In addition, it can have a positive impact on customers and employee recruiting.

Tune in tomorrow for the webcast – “Evolution of M&A Executive Pay Arrangements” – to hear Sullivan & Cromwell’s Matt Friestedt, Wachtell Lipton’s Jeremy Goldstein and Simpson Thacher’s Andrea Wahlquist cover the latest in executive compensation arrangements in deals.

Here’s news from this Wachtell Lipton memo:

Last week, the Federal Trade Commission announced that Biglari Holdings, Inc. has agreed to pay an $850,000 civil penalty to resolve allegations that it violated the premerger notification and waiting period requirements of the Hart-Scott-Rodino Act in connection with its 2011 acquisition of stock of Cracker Barrel Old Country Store, Inc.

The HSR Act and its rules require that parties to certain mergers and acquisitions notify the federal antitrust agencies of their proposed transactions and observe a waiting period before consummation. Acquisitions of up to 10% of the stock of a company are exempt from the notification and waiting requirements, but only if they are made solely for the purpose of investment and “the person holding or acquiring such voting securities has no intention of participating in the formulation, determination, or direction of the basic business decisions of the issuer.” Buyers who intend to be involved in the management of the target company or to seek representation on its board of directors are not eligible for the passive investment exemption. Failure to comply with the HSR Act’s requirements may result in civil penalties of up to $16,000 for each day during which a person is in violation.

According to the FTC’s complaint, on June 8, 2011, Biglari Holdings acquired voting securities of Cracker Barrel in excess of the HSR Act’s notification threshold, and it continued to acquire voting securities through June 13, 2011, when it filed a Form 13D with the SEC. The 13D disclosed a 9.7% stake in Cracker Barrel valued at $100 million. Biglari Holdings did not file and observe the waiting period under the HSR Act prior to making those acquisitions, apparently maintaining that, at the time the acquisitions occurred, they were made “solely for the purpose of investment.” One day after the last purchase, however, Sardar Biglari, the Chairman and CEO of Biglari Holdings, contacted Cracker Barrel’s CEO to request a meeting at which he and Biglari Holdings’ Vice Chairman asked to be appointed immediately to Cracker Barrel’s board of directors. The FTC’s complaint and press release allege that Biglari Holdings’ actions, including the request for two board seats, were inconsistent with investment-only intent, and that Biglari Holdings “intended to actively participate in the management of Cracker Barrel” at the time it purchased the stock. As a result, the FTC maintained that Biglari Holdings was not eligible for the passive investor exemption and failed to observe the notification and waiting period requirements in violation of the HSR Act.

While some activist investors may perceive tactical advantages in not reporting their acquisitions under the HSR Act, to claim an “overnight” change of intent is neither credible nor consistent with decades of FTC enforcement. As indicated by the FTC’s Chairman in its press release, “the passive investment exemption is a narrow one,” and the agency “will not hesitate to seek civil penalties against companies that try to abuse it.”

In this podcast, Chuck Nathan of RLM Finsbury discusses an interesting – and potentially novel – situation in a proxy contest in which The Clinton Group (led by Greg Taxin, formerly a Glass Lewis founder) is seeking to remove 6 out of 7 directors through a written consent campaign and replace them with five new directors of Clinton’s choosing. Clinton seems to be day trading Wet Seal stock, which may be the first instance in which an activist investor day traded the stock of a company during a proxy contest it was sponsoring.

In this podcast, Chuck Nathan of RLM Finsbury discusses his big life change, including:

– Why did you make the move?
– What will you be doing?
– How has the practice of law in M&A evolved over the years?

As noted in this WSJ article – entitled “Chinese-Owned Firm Sues Obama Over Wind-Farm Project” – President Obama signed an executive order last week blocking Ralls Corp.’s acquisition of four wind-farm projects in Oregon – and Ralls Corp. has mounted a legal challenge to the Executive Branch’s national security review of the transaction. Here’s a Wilmer Hale memo on the original development.

Here’s recent news culled from this Davis Polk memo:

Recently, the Department of Justice reaffirmed its guidance as to what it views as the proper Foreign Corrupt Practices Act compliance procedures in the context of mergers and acquisitions. On July 17, 2012, the Department announced a Non-Prosecution Agreement with The NORDAM Group Inc., an Oklahoma-based company that provides aircraft maintenance, repair, and overhaul services.

On August 7, 2012, the Department announced a Deferred Prosecution Agreement with Pfizer H.C.P. Corp., an indirect wholly owned subsidiary of the global pharmaceutical company, Pfizer Inc. Both agreements incorporate FCPA compliance guidelines that contain elements related to mergers and acquisitions. The same elements have appeared in other agreements reached in 2012, including with Data Systems & Solutions LLC and with BizJet International Sales and Support, Inc., and can be expected to appear in future resolutions.

The NORDAM and Pfizer resolutions are also noteworthy for reflecting the Department’s continued focus on industry-wide investigations and bribery in China.

Tune in today for the webcast – “M&A Deal Protections: The Latest Developments and Techniques” – to hear Greenberg Traurig’s Cliff Neimeth; Potter Anderson’s John Grossbauer; and Richards Layton’s Ray DiCamillo discuss the latest in “deal protection” techniques.

John Grossbauer of Potter Anderson notes: In Septa v. Volgenau, Delaware Vice Chancellor Noble granted a motion to dismiss a claim that a completed going private merger violated the terms of a charter provision requiring equal treatment of 2 classes of common stock by allowing the rollover of equity of the target company’s alleged controlling stockholder, but permitting a breach of fiduciary duty claim based on that alleged invalidity to survive. The Court cited DGCL Section 124 in finding that the stockholders lost the right to challenge the validity of the merger. Section 124 limits the ultra vires doctrine, providing that no corporate act will be invalid by reason of the lack of corporate power to do the act. Section 124 (1) permits such a challenge to be made “by a stockholder against the corporation to enjoin the act.” (The corporation itself may have standing to challenge certain acts for the purpose of obtaining recovery form responsible directors or officers, and the Delaware Attorney General may assert the lack of power in an action to enjoin the transaction or to dissolve the corporation.)

Because the plaintiff did not seek to enjoin the merger, it lost standing to challenge the validity of the merger when it closed. However, the plaintiff was permitted to pursue a damages claim against the individual directors for allegedly causing the corporation to violate its certificate of incorporation. The Court could not rule out, at this stage, the possibility that a non-exculpated breach of duty occurred in connection with the approval of a merger that allegedly violated the certificate of incorporation.

Interesting news from this Reuters article about how Goldman Sachs was not paid the $20 million fee it billed for advising El Paso Corp on its more than $20 billion sale to Kinder Morgan after the investment bank was accused of a conflict of interest in the sale.