DealLawyers.com Blog

Great inside baseball from Francis Pileggi in his “Delaware Corporate & Commercial Litigation Blog” about interviews happening this week for the open slot on the Delaware Court of Chancery. Francis notes 7 leading contenders as reported in “The Delaware Law Weekly.” During our upcoming webcast – “Deals: The Latest Delaware Developments” – we’ll spend a few minutes talking about the basics of filling an open seat…

As noted in this press release, Delaware Chancellor William Chandler announced he’s headed to Wilson Sonsini to open a Georgetown, Delaware office (as well as work in NYC). This WSJ blog captures the essence of the story – and here is more from Francis Pileggi…

Here’s news – and analysis – from Tom Bayliss of Abrams & Bayliss:

Recently, the Delaware Court of Chancery issued a decision in In re Orchid Cellmark Inc. Shareholder Litigation. The 37-page letter opinion authored by Vice Chancellor John Noble articulates the basis for an order denying an application to enjoin Laboratory Corporation of America Holdings, Inc.’s proposed $85.4 million acquisition of Orchid Cellmark Inc. by first step tender offer and second step merger. The Orchid Cellmark decision provides helpful guidance on the impact of disagreements among board members about the advisability of a transaction, the materiality of projections prepared by management but revised downward by a financial advisor, the disclosure of investment banker work product regarding alternatives that the company declines to pursue and merger agreement provisions that prevent a target from exempting other bidders from its poison pill.

Notable Facts

Four notable facts colored the parties’ dispute over the LabCorp transaction. First, the process leading to the transaction involved dissention among Orchid’s directors. The Company’s CEO and another director voted against continued negotiations with LabCorp at a January 21, 2011 board meeting (they were out-voted by the Company’s four other directors). The Company’s CEO also voted against a binding agreement to provide LabCorp a thirty-day exclusivity period on February 3, 2011. When the board finally approved the LabCorp transaction on April 5, 2011, the CEO abstained from the vote. The Company’s public filings later confirmed that the CEO did not intend to tender his shares in the deal.

Second, the Company’s public filings disclosed that Oppenheimer & Co., Orchid’s financial advisor, had advised the board that “no third party would likely propose a bid for the [C]ompany that would yield a result for the stockholders that would be higher than LabCorp’s … $2.80 per share indication of interest.” But a consortium of private equity firms had verbally expressed interest in purchasing Orchid’s U.K. operations for amounts that implied a value of between $2.74 and $3.04 per share for the Company. Oppenheimer had reduced this range to “approximately $2.93” per share and concluded that the figure was “comparable” to LabCorp’s $2.80 offer, but it had emphasized that the expression of interest remained “preliminary and entaile[d] significant uncertainties.”

Third, Oppenheimer did not adopt, and the Company’s public filings did not disclose, the financial projections prepared by Orchid’s CEO and CFO. Instead, Oppenheimer treated these projections as an “upside case,” contrasted them with lower “base case” and “downside case” projections and ultimately used the “base case” projections when rendering its fairness opinion.

Fourth, Orchid maintained a poison pill, and the merger agreement governing the transaction provided that the Company would exempt only LabCorp from its operation. Section 5.2(a)(v) of the merger agreement expressly prohibited Orchid from exempting other bidders from the pill without first terminating the merger agreement and paying LabCorp a termination fee.

The Rulings

The Court found that the plaintiffs failed to demonstrate a reasonable likelihood of success on their claim that the directors had violated their Revlon duties by failing to consider the CEO’s dissenting views. Vice Chancellor Noble held that the “[b]oard simply disagreed with his optimism toward Orchid’s remaining as a stand-alone company.” The Court determined that the Company’s public filings adequately disclosed dissention at the board level by noting the CEO’s opposition to the transaction and his decision to abstain from the vote to approve the deal. The Court concluded that the split board vote over continuing negotiations with LabCorp was not material and its disclosure would not have altered “the total mix of information available to shareholders.”

The Court found that the plaintiffs failed to demonstrate a reasonable likelihood of success on their claim that the directors had violated their Revlon duties by failing to inform themselves or pursue the private equity firms’ interest in a transaction involving Orchid’s U.K. operations. The Court credited evidence indicating that the board deliberated over the likelihood that the expression of interest would materialize into a superior transaction and discussed the risks associated with pursuing an alternative transaction where no offer had yet been made. The Court ultimately concluded that, while it was possible to “hypothesize a complex, multi-part transaction involving the sale of Orchid’s U.K. business to a private equity firm,” there was “no reason to second guess this [b]oard’s decision.”

The Court rejected the contention that the Company’s public disclosures regarding the potential sale of its U.K. operations were materially misleading. Because of the execution and consummation risk associated with the expression of interest, Oppenheimer’s conclusion that the private equity firms’ proposal regarding the U.K. operations implied a value of $2.93 per share was “not necessarily incompatible” with its publicly disclosed advice that “no third party would likely propose a bid for the Company that would yield a result for the stockholders that would be higher than LabCorp.’s current $2.80 indication of interest.” Moreover, the Court determined that “disclosing the $2.93 per share price, without an accompanying and perhaps confusing modification for the potential negative value in the U.S. or the transaction costs associated with splitting up the Company would have been misleading.”

The Court found that the plaintiffs lacked a reasonable likelihood of success on their claim that the board violated its Revlon duties by “massaging” the projections provided by the CEO and CFO so it could sign-off on the transaction. The Court found no basis to question the motivation of the independent directors or to doubt the independence and credentials of Oppenheimer. By contrast, the CEO (a) held a large number of underwater options and (b) had prepared the projections in response to LabCorp’s acquisition offer. Vice Chancellor Noble emphasized that “[i]n evaluating the fairness and advisability of th[e] tender offer, the Special Committee and its financial advisor [were] not precluded from considering various sets of financial projections before determining that one set reflect[ed] the best estimate of future performance.” The board’s determination that the “‘base case’ most accurately captured Orchid’s future performance” was not “an unreasonable conclusion.”

The Court rejected the contention that the projections prepared by the CEO and CFO should have been disclosed (alongside the base case projections prepared by Oppenheimer), despite the plaintiffs’ characterization of the CEO as “the most knowledgeable person concerning the Company’s operations” and his strong belief that the “management projections were more accurate and reliable than the ‘base case’ developed by Oppenheimer.” The Court noted that the ultimate responsibility for managing the affairs of the Company rested with the board, which had deemed the base case projections more reliable than the projections advocated by the CEO.

The Court found that the plaintiffs failed to demonstrate a reasonable likelihood of success on their claim that Section 5.2(a)(v) of the merger agreement was an unreasonable defensive measure. Although it prevented Orchid from exempting any competing bidder from its poison pill, the board retained its right to terminate the merger agreement (and the limitation on its ability to exempt other suitors from the pill) upon a determination that a competing bid constituted a superior proposal. The applicable termination fee made this option costly, but no more costly than terminating the merger agreement for any other reason.

Take-Aways and Further Thoughts

1. The opinion is a helpful reminder that Revlon does not require consensus at the board level (or even the support of the corporation’s CEO).

2. The opinion provides critical guidance on a difficult disclosure question that arises frequently: if a company and its advisors develop multiple sets of projections and determine to disclose at least one set, must the others be disclosed? The decision in Orchid Cellmark suggests that only the board-endorsed projections relied upon by the financial advisor need to be disclosed. This apparently remains true even when the company’s principal officers provide more optimistic projections and continue to believe that their projections are more reliable than the projections endorsed by the board.

3. Interestingly, the opinion does not appear to accord the CEO’s views on projections disproportionate weight. Presumably the board appointed the CEO after determining that he was the individual best suited to run the Company. It is unclear how the CEO could lose the board’s confidence with respect to forecasting but nevertheless retain the board’s confidence as an operator. The opinion also highlights a potential question: what constitutes so-called “management projections” under Delaware law: (a) projections prepared by officers of the corporation, or (b) projections endorsed by the directors charged with a duty to “manage” the corporation under Section 141(a) of the DGCL?

4. In a footnote, the Court emphasizes that the CEO’s underwater options and the preparation of the projections in response to the LabCorp offer justified “a deviation from the general principle, set forth in such cases as Maric Capital Master Fund, Ltd. … that management’s estimate of cash flow for purposes of assessing a cash merger is clearly material information.” Since target management frequently prepares its projections after the commencement of a sales process, the importance of the CEO’s underwater options in the Court’s calculus may become the focus of future debate. Regardless, Maric is distinguishable when there is “obvious tension” between the CEO and the board and the board makes a “collective decision to move forward” using projections prepared by others.

5. The Court explains that it was “not for this Court to question that decision or to determine which set of projections better captures the Company’s financial condition where the [b]oard’s decision appears to be reasonable.” Of course, one could argue that the disagreement militated in favor of disclosing both sets of projections so the stockholders could assess those provided by management and compare them to the projections endorsed by the board. For similar reasons, one could argue that the existence of the disagreement over the projections was a material fact warranting disclosure and explanation.

6. The opinion acknowledges that the ruling on the materiality of the expression of interest in the Company’s U.K. operations and Oppenheimer’s analysis suggesting that the transaction implied a value of $2.93 per share was a “close call.” The Court appears to have been persuaded in part by the suggestion that it might be “misleading to disclose the $2.93 per share price without … accompanying and perhaps confusing” details. But it is unclear why the directors could not be charged with an obligation to disclose the analysis to their stockholders in the same plain English used describe complicated financial analyses routinely conducted by their financial advisors.

7. The Court’s endorsement of merger agreement provisions limiting the ability of a target to exempt competing bidders from its poison pill is a helpful guidepost. The Court notes that “a sophisticated and serious bidder would understand that the [b]oard would likely eventually be required by Delaware law to pull the pill in response to a [s]uperior [o]ffer.” The Court stops short of addressing the potential impact of such a pill on the post-announcement aggregation of significant positions by arbitrageurs potentially interested in exercising bargaining leverage based on their accumulated stakes.

8. The opinion is the second instance in which the Court of Chancery has assessed the preclusive effect of a termination fee based on its percentage of the target’s aggregate equity value, despite the target’s significant cash reserves. Commentators have noted that enterprise value may be a better metric for assessing the impact of a termination fee on an acquirer because it often provides a better estimate of the aggregate consideration required from the acquirer and its financing sources to complete the transaction. In Orchid’s case, the $2.5 million termination fee represented less than 3% of the Company’s equity value but 4.6% of the Company’s enterprise value because of its $19.8 million in cash on hand.

Here’s news from Ted Allen of ISS’s Governance Institute:

So far this U.S. proxy season, investors have given greater support for shareholder proposals seeking declassified boards, majority voting in uncontested board elections, or independent board chairs. As of May 9, nine out of 12 shareholder proposals seeking to repeal staggered board terms had won majority approval (based on votes cast “for” and against”), according to ISS data. Among the recent votes are 95 percent at MEMC Electronic Materials, 81 percent at Alcoa, 66.8 percent at TECO Energy, and 66.3 percent at Webster Financial. Declassification proposals are averaging 69.3 percent support so far (if one excludes a 20.5 percent result at Ames National, which has significant insider ownership), according to ISS data. This topic averaged 61 percent support in 2010.

Majority voting proposals also are faring better this season, winning majority approval at eight companies. Among the recent votes are 77.6 percent support at SkyWest, 68.9 percent at CBL & Associates, and 64.6 percent at NV Energy. These resolutions are averaging 57 percent support at 14 companies, if a 20 percent result at Selectica, which previously adopted majority voting, is excluded. In 2010, this topic averaged 56.2 percent approval. There also has been overwhelming investor support for management proposals on these two topics. Seventeen declassification resolutions and six majority voting proposals have won more than 96 percent approval this year, according to ISS data.

Meanwhile, there have been four majority votes for special meeting proposals filed by shareholders, including a 60.7 percent result at NV Energy. Investors also have given majority support for four written consent resolutions, including a 59 percent vote at Alcoa and 52 percent at International Paper, according to proponents. Independent chair proposals have garnered majority support at two firms (Cedar Fair and Moody’s). So far, these resolutions are averaging 42.2 percent support at seven companies, up significantly from 28.5 percent in 2010. Among the recent votes are 35.3 percent support at Boeing and a 29.9 percent vote at Wells Fargo.

One surprise this year is the relatively small number of majority votes on proposals that seek to repeal supermajority voting rules for bylaws, takeovers, and other agenda items. So far this season, six resolutions on this topic have gone to a vote, resulting in majority votes at Ecolab, Eastman Chemical, and eBay. At this point last year, 20 proposals on this subject had gone to a vote, and there had been 16 majority votes. While investors have filed fewer proposals on this topic this year, the main difference is that companies obtained permission from the SEC to exclude 17 resolutions, often after pledging to present their own management proposals. Other majority votes include 67 percent support at Ball Corp. for a proposal seeking a shareholder vote on the company’s poison pill.

Note: Unless otherwise stated, the vote results for the shareholder proposals mentioned in this article and in other ISS reports are based on the votes cast “for” and “against” and don’t include abstentions or broker votes. This method of reporting votes is consistent with SEC Rule 14a-8(i)(12). Many companies use different standards for reporting vote results that are based on state corporate law.

Here’s news culled from this Cleary Gottlieb memo:

On March 21st, the UK Takeover Panel published detailed proposed amendments to the UK Takeover Code. The amendments, which are designed to address concerns that bidders in UK takeovers have achieved a tactical advantage over targets, are expected to be implemented in the second half of 2011. Key proposed amendments include: (i) the banning of break fees, implementation agreements, exclusivity undertakings and other bid related commitments given by target companies; (ii) a requirement for all potential bidders who have approached a target company (and have not been rebuffed) to be publicly identified in possible offer announcements made by a target company at the start of a takeover transaction and (iii) the imposition of a fixed 4 week “put up or shut up” regime to potential bidders who have been publicly identified. The amendments are likely to strengthen the position of target companies in UK takeovers.

Tune in tomorrow for the webcast – “The Nuts & Bolts of Bank M&A” – to hear Bill Hickey of Sandler O’Neill & Partners, Rich Schaberg of Hogan Lovells, Larry Spaccasi of Luse Gorman and Suzanne Walker of Kilpatrick Townsend explore the latest trends and developments in bank mergers and acquisitions.

John Grossbauer of Potter Anderson notes: Recently, the Delaware Court of Chancery delivered this opinion in Fletcher International Ltd. v. ION Geophysical Corporation. In the opinion, Vice Chancellor Strine dismisses a complaint that the sale by a parent of shares of a subsidiary violated consent rights of a parent preferred stock requiring preferred stockholder consent to an issuance or sale of stock by a subsidiary. Vice Chancellor Strine applies well-settled principles of Delaware law that construe preferred stock terms as written and not more broadly where they are clear and unambiguous.

Ken Adams gives us this interesting blog regarding “Commoditizing M&A Law Drafting: Does BigLaw Have the Stomach for It?” Check it out.

Here are the latest rumors from this article in the “Delaware Business Court Insider”:

The Delaware legal community is abuzz with speculation about a replacement for Chancellor William B. Chandler III, who announced his retirement earlier this week. Six possible candidates have emerged, with Samuel Glasscock III and Mary Johnston as the likely favorites, according to sources familiar with the situation. The other credible candidates include Joel Friedlander, Patricia Enerio, Kevin Brady and Elizabeth McGeever, all Wilmington litigators. However, Glasscock, the current Chancery Court master, and Johnston, a Superior Court judge, are seen as the favorites because of the fact that they are both Republicans with ties to Sussex County.

Delaware’s constitution mandates that the position must be filled by a Republican to maintain the state’s political balance requirement for the judiciary. The constitution has no geographic requirement, but it is a respected tradition that the governor usually selects someone from the same county. Glasscock confirmed his interest in Chandler’s seat, telling the DBCI, “Its flattering to be mentioned for this position and I am considering it, but it is still early.” A secretary at Johnston’s chambers said, “She does not speak to the press.”

Two names that have generated buzz, Enerio and McGeever, have denied interest. McGeever, a director at Prickett Jones & Elliott, said, “I am not pursuing this.” Meanwhile, Enerio, a partner at Proctor Heyman, said she was out of the running because she is a Democrat. “I have definitely considered it. I have the utmost respect for the chancellor’s office,” Enerio told the DBCI. “But I would have to switch political parties due to the political balance requirement. I don’t plan on switching parties. It would be an unimaginable honor, but, again, I don’t plan on switching parties.” Brady, a partner at Connolly Bove Lodge & Hutz, has also been rumored.

Friedlander, a partner at Bouchard Margules & Friedlander, confirmed to the DBCI that he will submit an application for the position. Friedlander and Johnston were the finalists for the last Chancery Court opening in 2009, which ultimately went to Travis Laster. However, both Brady and Friedlander may face obstacles because they have no obvious ties to Sussex County. One lawyer familiar with the region emphasized that Sussex County is a tight-knit legal community. “It would be a mistake to pick someone who is solely associated with Wilmington. Even if a person volunteers to move down there for this position, it would be difficult,” the lawyer said.

Glasscock and Johnston would not face such impediments. Glasscock is already based in Georgetown because of his existing position with the Chancery Court. Meanwhile, Johnston is based in Wilmington, but also has a house in Bethany Beach. Andre Bouchard, a partner at Bouchard Margules & Friedlander, is chairman of the Judicial Nominee Committee, which has the job of providing a candidate list for Gov. Jack Markell. Bouchard confirmed that the official posting for the position will go out later this week with an application deadline of May 13. Although Bouchard declined to name possible applicants, he did say the committee is looking for someone “with first-rate intellect and [who] is knowledgeable and experienced in matters handled by the Chancery Court. We are looking for someone who displays the best attributes of the Delaware bar and the Delaware bench.”

Chandler’s replacement is expected to be named within the next 60 days. After an extensive interview process, the nominee committee is expected to send a short list to Markell, who has the responsibility to pick a replacement. The nomination would then proceed to the Delaware Senate for approval.

One likely scenario that has been rumored is the possibility of Vice Chancellor Leo Strine moving into the chancellor’s role. The new appointee would then move into Strine’s position. When Chandler’s retirement becomes effective, Strine will become the longest tenured member of the Chancery Court, serving since 1988.

Although Chandler’s replacement will not be known until mid-summer, he or she is likely to have several key attributes, including corporate litigation experience. “It is a fair bet that whoever is selected will be a seasoned corporate litigator,” added one lawyer. “Even if they are currently not in private practice, but have previous private practice corporate litigation experience.”

It is also expected that the lead candidate will have the calm judicial temperament as Chandler, who was often praised for fairness and intelligence. “There are plenty of qualified candidates out there,” said the lawyer. “The question is: Who is interested?”

Here is something interesting pulled from this Cooley memo, repeated below:

You might be interested in this recent Wall Street Journal article regarding the trend toward declassifying boards. The author contends that, this year, “an unusually high proportion of companies have accepted activists’ demands that all board members stand for annual elections by shareholders, replacing staggered terms for directors that typically last three years.” Classified boards are typically put in place to deter hostile takeovers because they make it more difficult to quickly change the board’s composition. Annual elections have been promoted by some activist shareholders on the basis that they will increase board accountability.

The article notes that the “Florida State Board of Administration and the Nathan Cummings Foundation, advised by Harvard law professor Lucian Bebchuk [through American Corporate Governance Institute LLC, a new research and advisory group headed by Prof. Bebchuk], recently dropped half of 28 resolutions seeking yearly elections after 14 of the big companies they targeted agreed–ahead of a vote–to support the change at 2011 or 2012 annual meetings….Investors rarely withdraw annual-election resolutions because the company decides to endorse their idea. Fewer than 25% of such proposals offered by stockholders between 2005 and 2010 failed to reach a vote for any reason, including negotiated settlements, according to ISS, a proxy-advisory firm.” According to ISS, nonbinding proposals to implement annual elections “garnered majority support, on average, every year since 2000…. The number of Standard & Poor’s 500 companies with classified boards has fallen to 139 from 303 in 1998, according to research firm FactSet SharkRepellent.”

The author suggests that “now, some companies are embracing annual elections without the impetus of a vote on a shareholder proposal, partly because board members already feel vulnerable: Many major corporations recently adopted rules requiring, for instance, that directors in uncontested elections win a majority of votes cast.” The article reports that, while some companies immediately signed on when presented with the shareholder proposal for annual elections (even after having previously rejected declassification), in other cases, there were lengthy negotiations before endorsing the proposal or ultimately rejection of the proposal.