I started practicing law in 1986, but so much has changed since then that I often feel like I’m a complete relic. For instance, it boggles my mind when I think about the fact that there’s an entire generation of lawyers out there who’ve never hand-marked an SEC filing, never dealt with trying to clear Blue Sky merit review, and never hand-delivered a filing package to the SEC reviewer and then raced to the bank of pay phones next to the file room to let the rest of the team know that the deal was effective.
Those events were rites of passage for generations of young deal lawyers, and I think that today’s lawyers have actually missed out on something by not being able to take part in them. Sitting bleary-eyed in the Judiciary Plaza Roy Rogers forcing down another cup of coffee while waiting for the SEC’s file desk to open – along with a bunch of other sleepy junior associates toting overstuffed deal bags – was a shared experience that built a kind of camaraderie among young deal lawyers. Regardless of where you worked, misery loved company, and after a couple of all nighters at the printer, those early mornings at Judiciary Plaza were definitely miserable!
But I think the biggest thing that most young lawyers miss out on today is what an epic event a deal closing used to be. Today, it seems every closing is done by e-mail and overnight delivery. I can’t tell you the last time that I went to a closing or sent someone to physically attend a closing. Closings with actual people signing actual documents are increasingly rare events. Things were sure different back in the day.
Closing a public offering wasn’t a big deal — the closing was over in a couple of hours at most, and was pretty anti-climactic in light of everything that came before it. However, there was nothing anticlimactic about the closing of a big M&A transaction. These closings were elaborate, multi-day, round-the-clock affairs that involved lots of paper, little sleep, all the boredom, stress, caffeine, and nicotine that you could handle, and all the cold pizza and warm deli trays you could eat.
Oh yeah, I almost forgot – this drama usually played itself out across a bunch of dreary conference rooms that featured fluorescent lighting that sometimes looked like it came straight out of the office scene in Joe Versus the Volcano (okay, maybe it just seemed that way at the time). The M&A people were in one room, the Bank people were in another, then there were often war rooms and usually a much nicer room where the client’s executives were ensconced. This last room was definitely for the grownups. Aside from the client’s senior people, nobody who wasn’t a senior investment banker or partner spent much time in this sanctuary. You only went into this room to get signature pages signed, and you rarely spoke above a whisper.
Today, closing a deal still involves a tremendous amount of work, but most of the time is spent writing and responding to e-mails, revising closing documents at your desk and generally staring at a computer screen. Sure, there may be cold pizza and caffeine involved, but there’s definitely no nicotine unless it’s contained in a stick of gum. What’s more, there’s just not the commotion. No conference rooms full of people, nobody rushing around calling back to their office to find out what happened to the tax clearance certificate from Massachusetts, no big shot partners arguing face-to-face over last minute changes to somebody’s legal opinion (or an eleventh hour request for a new opinion).
Of course, all of those things still happen; it’s just that they happen in cyberspace or on conference calls. In many respects, that’s a real benefit. Don’t get me wrong; 99% of everything I’ve just described stunk worse than Battlefield Earth, but the other one percent represents the kind of shared experience that helps lawyers develop a little empathy for one another. Personally, I think we could use more of those kinds of experiences.
A few weeks ago, the Tulane Corporate Law Institute was held and it’s still the most well-covered annual M&A event, despite a dearth of deals these days (as well a declining number of lawyers practicing this type of law these days).
Below are links to pieces that covered specific panels during the Conference:
It’s also notable that DealBook tweeted during the Conference – the problem is they picked the tag of “#tulane” to follow their tweets and that hash tag is already being used for other matters related to the school (note here is a compilation of DealBook’s full coverage, although it’s missing the musings on Huntsman that I link to above).
Recently, Ira Millstein of Weil Gotshal blogged about his firm’s 3rd annual survey of sponsor-backed going private transactions. The survey analyzes and summarizes the material transaction terms of going private transactions involving a private equity sponsor in the United States, Europe and Asia-Pacific.
The survey’s key conclusions for the US transactions include the following:
– 2008 witnessed a 97% collapse in aggregate transaction value for sponsor-backed going private transactions when compared to 2007. The largest transaction announced in 2008 had a transaction value of approximately $2.1 billion, a 95% decline from the largest transaction announced in 2007. There was also a 76% decline in transaction volume when compared to 2007.
– The percentage of club deals involving two or more private equity sponsors declined significantly in all transaction sizes in 2008. Only 7% of the 2008 transactions constituted a club deal whereas 37% of the 2007 transactions did so.
– The tender offer again made an appearance in 2008, continuing a trend that started in 2006. The same cannot be said for stub equity. There was no transaction in 2008 in which the sponsor offered stub equity to the target’s public shareholders.
– Not surprisingly, the credit crisis continued to adversely impact the debt-to-equity ratios of sponsor-backed going private transactions. Equity accounted for an average of 64% of acquiror capitalization for transactions between $100 million and $1 billion in value and 51% of acquiror capitalization for transactions greater than $1 billion in value.
– The go-shop provision continued to be a common feature of going private transactions in 2008 with 53% of surveyed transactions including this form of post-signing market check. Interestingly, sponsors were more resistant this year to giving a significantly reduced go-shop break-up fee (only one transaction had a go-shop break-up fee of less than 50% of the normal break-up fee).
– Although far from the norm, there was an increase in 2008 in sponsor-backed going private transactions with a financing out (20% in 2008 compared to 3% in 2007).
– When compared to pre-credit crunch transactions, the 2008 transactions reveal a material decrease in the number of MAE exceptions.
– Reverse break-up fees were again the norm in 2008, appearing in 87% of all surveyed transactions (a slight increase from 84% in 2007). In an effort to limit the optionality built-in to the reverse break-up fee structure and incentivize sponsors to consummate the transaction, target boards in a significant minority of surveyed transactions negotiated for a higher second-tier reverse break-up fee or a higher cap on monetary damages.
– Interestingly, specific performance provisions enforceable against the buyer were very rare in 2008. Only 7% of the 2008 transactions permitted the seller to seek specific performance against the buyer rather than be limited to a reverse break-up fee or monetary damages (whereas 33% of the surveyed transactions in 2007 allowed the seller to seek specific performance).
A few weeks ago, I blogged about the FASB agreeing to issue a Staff Position that modifies FAS 141R on the accounting for business combinations (essentially leaving the FAS 5 regime in place for asset and loss contingencies acquired in business combimations). Yesterday, the FASB finally posted FSP 141(R)-1.
Recently, Carl Icahn and Eastbourne Capital Management each sent a similar no-action request to Corp Fin that is quite interesting. I can’t recall seeing anything quite like it before. Summarizing the gist of the Staff’s no-action response given on Monday, Icahn not only will be able to solicit votes for his own minority slate at Amylin Pharmaceuticals – but he can seek authority to vote for another minority slate offered by Eastbourne. Eastbourne also received it’s own response permitting them to do the same.
As I understand it, here is how the “rounding out process works. Either shareholder can seek general authority to vote for the other shareholder’s nominees, as well as the company’s nominees. Technically, the shareholder does not include the names of the other shareholder’s or the company’s nominees on its ballot. Instead, they just seek to vote for the other nominees generally and only list the names of the persons for whom the shareholder will not vote.
Under the Staff’s responses, each shareholder will be able to “round out” a short slate as long as the two shareholders are not forming a group and not agreeing to act together. The Staff’s relief includes other controls limiting the activities of the shareholders, including that each will not recommend the election of the other’s nominees.
As noted in Icahn’s incoming request (here is Eastbourne’s incoming request), Rule 14a-4(d) doesn’t deal with a situation where there are two separate shareholder-proposed minority slates. On a policy basis, Icahn argued that there is no evidence from past SEC actions that shareholders offering a short-slate must “round out” their nominees from management’s candidates.
I imagine this unique scenario might become a little more common going forward as shareholders turn increasingly active…
Here is analysis of a new case from Wachtell Lipton: Long after Sam Zell’s decision to sell Equity Office Properties (EOP) at the market top in an all-cash deal was followed by a near-complete collapse of the market for REITs and commercial office space, shareholder plaintiffs continued to pursue litigation claiming that they were ill-served by the transaction.
In a decision of the United States Court of Appeals for the Seventh Circuit issued recently, Judge Richard Posner decisively rejected these claims. The opinion, which primarily affirms the dismissal of claims that EOP’s proxy solicitation was misleading, also touches on the appropriate role that break-up fee arrangements play in merger transactions as a matter of economic logic and fiduciary duty, and reaffirms the limited scope of the judicial process in supervising both the federal proxy rules and state-law fiduciary matters, correctly categorizing the plaintiff’s purpose as seeking to “sink[] the process of corporate acquisition into a sea of molasses.” Beck v. Dobrowski, et al., 2009 WL723172 (7th Cir. March 20, 2009).
The case arose out of Blackstone’s all-cash deal to acquire EOP for $55.50 per share in early 2007. Blackstone clinched the deal only after a protracted bidding battle, and with the protection of a termination fee that was negotiated upwards to $720 million by the time the Blackstone’s prevailing bid was ultimately accepted. The shareholder plaintiff brought suit under §14(a) of the Securities Exchange Act, alleging that the merger proxy should have included additional back-up valuation information and details on the benefits that top EOP executives were to receive in the Blackstone transaction, and complaining generally about the terms of the transaction and the conduct of the sale process. The complaint tacked on supplemental state law claims alleging that EOP’s directors breached their fiduciary duties, notwithstanding that fiduciary duty litigation was already pending in the courts of Maryland, the state of EOP’s incorporation.
The appeals court rejected the plaintiff’s claims. As to the §14(a) claim, Judge Posner confirmed that “the antifraud provisions of the federal securities laws are not a general charter of shareholder protection, which, the court made clear, remains the proper province of state fiduciary duty law. (The court went out of its way, however, to note that the termination fees about which plaintiff complained are “not … generally improper under any body of law with which we are familiar.”)
Then, applying the Supreme Court’s 2007 decision in Bell Atlantic v. Twombly with full force to the merger litigation context, the panel rules that plaintiff’s merger proxy claims “were too feeble to allow the suit to go forward.” The court noted that “there is nothing in the complaint to suggest that any shareholder was misled or was likely to misled,” and no suggestion that any “shareholder drew a wrong inference” from any of the alleged factual omissions. Under Twombly, defendants should not be burdened with the heavy costs of pretrial discovery … unless the complaint indicates that the plaintiff’s case is a substantial one.”
Turning to plaintiff’s supplemental state law claims, the panel struck a blow for judicial efficiency by affirming the district court’s determination to stay the Maryland fiduciary claims. To permit such claims to proceed in federal court while identical claims were pending in state court would allow “different members of what should be a single class [to] file identical suits in federal and state courts to increase their chances of a favorable settlement.”
As Judge Posner observed, “[t]he state-law issues that our plaintiff has presented to the federal court will be definitively resolved by the courts of the state whose law governs these issues, and our court would be required to defer to that resolution because state courts are the authoritative expositors of their own state’s laws.” The court thus resolved the increasingly frequent problem of multi-jurisdiction merger litigation with a bright-line ruling in favor of the courts of the incorporating state.
The Beck decision constitutes a decisive affirmation of the business judgment rule. The complaint failed because “any evidence that the plaintiff would have presented … concerning the optimal strategy for EOP to have pursued would have been heavy on hindsight and speculation, light on verifiable fact.” Such second-guessing of directors remains impermissible in the courts, state or federal, and insufficient to state a claim challenging a merger agreement entered into in good faith.
On Wednesday, the Delaware Supreme Court issued this decision reversing Vice Chancellor Noble’s denial of summary judgment in Lyondell. I expect much will be written about this case, because it is a game changer.
In my view, the decision goes a long way towards eliminating the possibility of a loyalty claim for failure to act in good faith where the claim is the directors allegedly “knew” that their fiduciary duties required particular action. It also goes a long way towards eliminating any possibility of a post-closing damages remedy in a Revlon scenario involving independent directors. The major short-term impact of the decision, I believe, will be to shift the focus of parties challenging mergers to the injunction phase, because post-closing challenges will no longer be viable in most instances. It remains to be seen whether Lyondell’s approach to review of a sale process will also permeate the pre-closing world of injunction practice.
Analysis of the Reversed Chancery Court’s Decision
The process in Lyondell was the type of CEO-driven affair that Delaware courts have cautioned against since the 1980s. Here is my description on Vice Chancellor Noble’s decision:
“[A] stockholder plaintiff challenged the cash sale of a chemical company to a strategic acquirer at a 45% premium to the unaffected market price. The deal was approved by a board comprised of 10 indisputably independent outsiders and the CEO. Prior to the acquirer filing a 13D, the target was healthy and not in financial distress. It was also not for sale, and the board had not run any type of process or engaged in recent efforts to determine the sale value of the company. The CEO fielded the inquiry and led the negotiations, getting well out in front before bringing the board in, setting the acquirer’s price expectation at $48 per share without board input, and then going to the board for approval and a fairness opinion.
To the CEO’s credit, there was apparently no discussion of his personal situation, and the CEO rebuffed a competing LBO inquiry as presenting too many conflicts. Nevertheless, he was clearly in the lead, and the entire process of board consideration and approval spanned just one week. The merger agreement had standard deal protections, with a no-shop, matching rights, and a break fee equal to 3% of equity value and 2% of enterprise value. There was no post-agreement go shop, just the inherent market check that accompanies any announced deal with this combination of provisions.”
On these facts, Vice Chancellor Noble denied the defendants’ motion for summary judgment, finding that the lack of involvement by the Board and the CEO-driven process gave rise, at the summary judgment stage, to a permissible inference of bad faith. He therefore denied summary judgment, while signaling strongly that the directors would prevail on the merits at trial.
The Delaware Supreme Court accepted a rare interlocutory appeal from this decision and reversed.
Analysis of the Supreme Court’s Decision
Because Lyondell had a 102(b)(7) provision and a majority-independent board, the Supreme Court held that the directors only could face liability if they acted in bad faith by “knowingly and completely failed to undertake their responsibilities.” (18). Accordingly, the Supreme Court held that “the inquiry should have been whether those directors utterly failed to attempt to obtain the best sale price.” (19). In holding that the directors satisfied this standard, the Court assumed “that the Lyondell directors did absolutely nothing to prepare for Basell’s offer, and that they did not even consider conducting a market check before agreeing to the merger.” (19).
Compare this language with prior Supreme Court decisions, which taught that a “board of directors . . . may not avoid its active and direct duty of oversight in a matter as significant as the sale of corporate control.” Mills Acquisition Co. v. MacMillan, Inc., 559 A.2d 1261, 1281 (Del. 1988). A similar lesson was that “directors cannot be passive instrumentalities during merger proceedings.” Citron v. Fairchild Camera and Instrument Corp., 569 A.2d 53, 66 (Del. 1989). They were told to provide “serious oversight,” Mills, 559 A.2d at 1265, and that their fiduciary duties required that they “take an active and direct role in the context of a sale of a company from beginning to end.” Cede & Co. v. Technicolor, Inc., 634 A.2d 345, 367 (Del. 1993). These obligations were not limited to management buyouts or conflict situations but rather applied to all potential change of control transactions. Paramount Comm., Inc. v. QVC Network, Inc., 637 A.2d 34, 44 (Del. 1994). Ultimately, under QVC, the directors had the burden of proof to establish that they acted reasonably to obtain the best transaction reasonably available. Id.
The language of Lyondell suggests a different approach to judicial review of a sale process. While anything is theoretically possible, it is difficult for me to imagine the case where independent directors will have “utterly failed to attempt to obtain the best price” or “knowingly and completely failed to undertake their responsibilities.” My takeaway from Lyondell is that a majority-outsider board no longer faces post-closing litigation risk for a Revlon sale but rather can rely on summary judgment plus a 102(b)(7) provision to eliminate the case. This in turn has major and readily apparent implications for case strategy and settlement leverage.
Because Lyondell is a post-closing damages case, it is possible to view its language as limited solely to that context. Under that reading, the old learning, burdens of proof, and standard from QVC would continue to apply in the injunction context. If so, then the logical move for plaintiffs is to shift their focus entirely to injunction practice, because post-closing there will not be anything meaningful to litigate. In this regard, Lyondell echoes Chancellor Chandler’s decision grant of summary judgment in In re Transkaryotic Therapies, which implied a similar fate for post-closing damages litigation based on disclosure violations.
But if the lesson for plaintiffs from Lyondell is that the injunction is everything, then even that might not be much. Recent decisions like Netsmart and Lear suggest that plaintiffs will not have much success obtaining deal-process injunctions in the absence of a topping bid. The Court of Chancery has tended towards granting disclosure-based injunctions, including disclosures about the sale process, but otherwise allowing stockholders to decide for themselves whether to accept a premium bid. Plaintiffs thus may not fare any better in the pre-closing injunction context, and the focus will likely be primarily on disclosures.
Opining on a Limited Record
An equally problematic issue for plaintiffs is that the Supreme Court questioned in Lyondell whether the directors so much as breached their duty of care, observing “even on this limited record, we would be inclined to hold otherwise.” (17). In that regard, the facts of Lyondell are worth repeating. The CEO ran the process and was well out in front of the Board. The directors did not gather information about the value of the transaction or probe the market for competing offers. They were, in the Supreme Court’s words, “generally aware of the company’s value and its prospects.”
Their financial advisor, Deutsche Bank, was not hired until after the price was established and was charged only with preparing a fairness opinion. Deutsche Bank thus did not have any significant involvement in the negotiations over price or structure. Nor did Deutsche Bank or any other financial advisor play a role in structuring the process. And although Deutsche Bank compiled a list of potential acquirers, they were instructed not to solicit any competing offers for the company. The Board considered the Basell proposal for about 50 minutes on July 10, then discussed the proposal for approximately 45 minutes on July 11. The Board met again on July 12 and discussed the Basell proposal in executive session without management present. On July 16, the Board approved the transaction.
This was a minimalist process. Yet the Supreme Court indicated that it would not give rise to a care violation. With Lyondell as a guidepost, future plaintiffs will have difficulty establishing a reasonable probability of success on the merits of a care claim that would support the issuance of an injunction. And deal counsel (including Delaware counsel) will have difficulty advising clients that what they want to do is unlikely to pass muster. Director conflicts of interest and conflict transactions will still require careful review and nuanced advice, but Lyondell signals a largely unlimited range of action for independent boards, with market forces as the primary check and fiduciary duty review playing a lesser role.
Although these factors alone would make Lyondell a game-changing case, the decision then goes further in its analysis of good faith by noting that “there are no legally prescribed steps that directors must follow to satisfy their Revlon duties. Thus, the directors’ failure to take any specific steps during the sale process could not have demonstrated a conscious disregard of their duties. More importantly, there is a vast difference between an inadequate or flawed effort to carry of fiduciary duties and a conscious disregard for those duties.” (18)
To my mind, the softness of fiduciary duty analysis is not limited to the Revlon context. Compliance with fiduciary duties is always context-specific. It does not require pre-ordained steps, but rather the exercise of judgment. Lyondell suggests to me that while there remains room for a bad faith breach where clear statutes or regulatory requirements are concerned, there is not much room, if any, under Delaware law for a claim for bad faith breach based on failure to comply with fiduciary duties.
Thoughts on Section 102(b)(7)
A final thought on Lyondell concerns the mid-discovery, pre-trial invocation of Section 102(b)(7). In Emerald Partners v. Berlin, 725 A.2d 1215 (Del. 1999), the Delaware Supreme Court held that a Section 102(b)(7) provision could not be invoked prior to trial in an entire fairness case because the defendants had the burden of proof and it was not possible to determine, prior to trial, whether the directors’ breaches implicated the duty of loyalty or the duty of care. This contrasted with cases asserting only a breach of the duty of care, where a Section 102(b)(7) provision could be invoked routinely at the motion to dismiss stage to result in dismissal.
After Emerald Partners, it was possible that the Supreme Court would apply the same rationale to other scenarios, such as Revlon/QVC and Unocal, where the directors bore the burden of proof and where a fiduciary breach could implicate either loyalty or care. Lyondell makes no mention of Emerald Partners and the Supreme Court had no difficulty entering summary judgment for the defendants. After Lyondell, it seems clear that the Emerald Partners limitation on invoking a Section 102(b)(7) provision prior to trial applies only in cases where entire fairness applies “ab initio,” such as controlling stockholder transactions, and will not have any application in other contexts.
The underlying sense of a retreat from enhanced scrutiny under Revlon/QVC towards business judgment review in Lyondell echoes a similar approach in the recent Gantler decision, in which passages appeared to retreat from Unocal review. Lyondell and Gantler likewise both avoid mentioning any shift in the burden of proof to the director defendants, which traditionally was a hallmark of both the Revlon/QVC and Unocal frameworks.
Together, Gantler and Lyondell underscore Delaware’s continued faith in and deference to decisions made by independent directors. If anything, and consistent with Delaware’s director-centric model, the degree of deference appears to be on the upswing. For independent directors and their counsel, this is a good thing.
Last night, the Delaware Supreme Court delivered the much anticipated decision in Lyondell Chemical Company v. Ryan (No. 401, 2008). The decision reverses last year’s widely-followed opinion of the Court of Chancery declining to grant summary judgment in favor of the defendant directors of Lyondell Chemical Company (“Lyondell”) on Revlon claims.
Having taken the rare action of granting defendants’ interlocutory appeal from a decision denying summary judgment, the Delaware Supreme Court took the even rarer action of not only reversing the Court of Chancery but also entering summary judgment in favor of the defendant directors. In so doing, the Supreme Court with surprising terseness decided what apparently is a novel issue of Delaware law: precisely when Revlon duties arise.
As set forth by the Supreme Court, Revlon duties arise not when a company is put in play (such as in the case of Ryan when a Schedule 13D puts a company in play), but “when a company embarks on a transaction – on its own initiative or in response to an unsolicited offer – that will result in a change of control.” Here, the Supreme Court held that Revlon duties did not arise until the target directors actually began negotiating the sale of Lyondell. Rather, the decision to “wait and see” was subject to the deferential business judgment rule.
The Supreme Court moreover directed the focus of any relevant inquiry on the affirmative actions of the directions (i.e., what the directors did do), as opposed to what they did not do. Ultimately, the Supreme Court admonished: “[t]he trial court approached the record from the wrong perspective. Instead of questioning whether disinterested, independent directors did everything that they (arguably) should have done to obtain the best sale price, the inquiry should have been whether those directors utterly failed to attempt to obtain the best sale price.”
The particular factual allegations underlying this decision bear emphasis and provide transparency into where the Supreme Court was coming from: the consideration paid to Lyondell stockholders represented a 45% premium over the closing stock price of Lyondell immediately before the market learned of the would-be acquirer’s interest in Lyondell from the above referenced Schedule 13D; the transaction was approved by an independent and disinterested board; and the merger was additionally approved by 99.33% of the shares voting in favor of the transaction (equal to 65.80% of the total outstanding shares).
The merger transaction thus represented a substantial premium, lacked any of the hallmark conflicted director/shareholder suitors that typically predominate these types of challenged transactions, and garnered the resounding endorsement of the Lyondell shareholders.
At the end of the day, the Court’s outcome is not altogether surprising given this confluence of unusual facts and the decision to grant interlocutory appeal in the first place. The short 20-page opinion is a “must read” for M&A practitioners and surely will serve as fodder for much discussion and debate in the months to come.
A member recently asked in the DealLawyers.com “Q&A Forum” about the rationale for including “flip-in” and “flip-over” provisions in shareholder rights plans, or “poison pills.” When a company adopts a rights plan, it typically issues of a right to purchase a fraction of a share of preferred stock as a dividend to all of the issuing company’s shareholders. The exercise price of the rights is usually based on an assessment of the price that it would be reasonable to expect the stock to achieve over the life of the rights plan. Frequently, the board receives input from a financial advisor in setting the exercise price of the rights at the time they are issued.
These rights do not become exercisable until a raider acquires beneficial ownership of a specified percentage of the target’s outstanding shares. (That percentage is usually between 10% and 20% of the outstanding shares, but in the case of NOL pills, it is typically set at 4.9 %.). When a raider crosses that threshold, the rights detach and become exercisable — except for those rights that are held by the raider, which when you get right down to it is what makes pills work in the first place.
Rights plans typically include both “flip-in” and “flip-over” features. The plan’s “flip-in” feature comes into play when a raider triggers the rights plan by acquiring the percentage of the target’s common stock specified in the plan. When this happens, each right then outstanding (other than those held by the buyer) “flips-in” and gives each holder the right to purchase shares of the target’s common stock with a market value equal to twice the exercise price of the right.
What a flip-in provision does is deter the buyer from crossing the ownership threshold that will trigger the rights plan by confronting it with the prospect of substantial dilution. Since every holder except the buyer will be able to purchase new shares at a 50% discount to current market, the buyer’s ownership interest will be diluted if the flip-in provision of the rights plan kicks in. The actual amount of that dilution will depend on the exercise price of the rights, but it is almost invariably going to be quite substantial – substantial enough to make triggering the rights economically unviable.
A “flip-over” feature is intended to protect against a second step transaction. The flip-over provision would come into play if, after the rights have been triggered, the target was sold or engaged in some other change in control transaction. Under those circumstances, each right then outstanding would “flip over” and become a right to buy shares of the raider’s common stock with a market value equal to twice the exercise price of the right.
Like the flip-in provision, the deterrent effect of the flip-over provision depends on its dilutive effect on ownership interests. However, in contrast to the flip-in provision, which dilutes the buyer’s interest in the target company, the flip-over provision dilutes the interest of the buyer’s shareholders in the buyer itself.