Earlier this month, I blogged about Chancellor McCormick’s decision in Coster v. UIP, (Del. Ch.; 5/22), in which she held that a board satisfied the Blasius standard by demonstrating a “compelling justification” to issue shares in order to resolve a shareholder deadlock. Weil’s Glenn West recently blogged about the same case, and he closed with a point that’s worth remembering:
How much easier would this have been if there had been a stockholders’ agreement in place that dictated a process for a buyout in the case of the death or divorce of a stockholder or otherwise provided for a buy-sell arrangement in the case of a deadlock. In the private equity world, the idea that there was no pre-agreed exit mechanic or a specific means of resolving deadlocks is almost inconceivable. But it does happen. Planning for death, divorce or changed business plans of your founder, who is retaining significant ownership in a portfolio company, should always be front of mind.
That’s good advice, and in hindsight, I think the parties to this lawsuit, who have been litigating the share issuance since 2018, would agree.
I’ve blogged a couple of times about some of the potential implications of the SEC’s proposed SPAC rules on the investment banks involved in SPAC IPOs & de-SPACs. Now Bloomberg Law’s Preston Brewer has published an analysis indicating that although the rule proposal hasn’t yet been acted upon by the SEC, it’s already driving many banks out of the SPAC business:
Of the many proposed rules addressing special purpose acquisition companies, Securities Act Rule 140a may prove the most problematic for SPACs. It would make an underwriter for a SPAC’s IPO also liable as an underwriter for the de-SPAC transaction if certain conditions are met—generally, if the underwriter does anything that might be construed as facilitating the de-SPAC transaction or any related financing transaction.
The proposal is causing investment banks such as Goldman Sachs, Bank of America, and Citigroup, which underwrite securities offerings, to rethink their SPAC business. Those underwriters are balking at the prospect of their potential liability—already significant—being extended beyond a SPAC’s initial IPO to subsequent financings conducted by a SPAC, including the de-SPAC merger, even if their later involvement was minimal.
Preston goes on to observe that this reticence on the part of investment banks to sign-up for the new liability scheme isn’t a bug, but likely a feature of the SEC’s SPAC proposal. That conclusion won’t come as a surprise to anyone who’s been keeping an eye on the SEC’s increasingly skeptical view of SPAC deals over the past couple of years.
In Wong v. Restoration Robotics, (Cal. App.; 4/22), a California appellate court upheld a federal forum provision in a company’s certificate of incorporation that required Securities Act claims to be filed in federal court. Although other California courts have previously upheld exclusive forum provisions, this is the first California appellate court case addressing the issue. This excerpt from a DLA Piper memo on the case reviews the Court’s reasoning:
The Court of Appeal first addressed whether federal forum provisions as a category are impermissible under the concurrent jurisdiction provision of the Securities Act or under various sections of the United States Constitution. The court ruled for defendants across the board on those issues. It held that such corporate provisions do not implicate the Securities Act’s prohibition on removal because they do not themselves remove cases to federal court; the Securities Act does not create an unwaivable right for plaintiffs to have claims adjudicated in state court; and the Delaware statutes authorizing corporations to adopt federal forum provisions do not purport to shut the doors of any state court to Securities Act cases.
The Court of Appeal then found the trial court did not abuse its discretion in finding that the federal forum provision adopted by Restoration Robotics was valid and enforceable. Applying Delaware law, the court concluded that Salzberg had settled the question of validity in the defendants’ favor. It found that plaintiff had not shown that the enforcement of the provision would be outside the reasonable expectations of the company’s stockholders, due in part to the fact that the provision “was made public in an amendment to the registration statement several weeks before the IPO, when it became effective.” For the same reasons, the federal forum provision was neither substantively unconscionable nor a contract of adhesion.
The memo goes on to point out that the most important aspect of the Court’s decision is that it has been certified for publication, and thus may be cited as precedent in other cases in California courts.
Harvard Law School profs Caley Petrucci & Guhan Subramanian recently posted an article in which they suggest some updating of the ground rules governing pills to address the challenges of sophisticated shareholder activism and the broader set of constituencies corporate boards are being asked to consider. As law review articles go, this one’s pretty short at 21 pages, and it’s definitely worth reading. Some specific recommendations include:
– Giving larger companies more tolerance on the trigger percentage for poison pills because the toehold stake is so much larger; in today’s world, what is relevant is the dollar stake an activist can acquire, not the threshold percentage (e.g., a 5% trigger in a $30 billion market cap company is probably more activist-friendly than a 10% threshold at a $5 billion market cap company).
– Third generation “parallel conduct” acting in concert provisions that include a board determination “guardrail” are not just an appropriate response to increasingly sophisticated activist attacks, but a best practice.
– “Daisy chain” language providing that stockholders are acting in concert with one another when they separately act in concert with the same third party. Without such a provision, large shareholders could evade the pill by coordinating their activities through a middleman who holds a trivially small percentage of the company.
– Definitions of beneficial ownership that address synthetic equity positions, because a pill that does not capture synthetic equity (at least with regards to synthetic equity that is morphable into shares with voting rights) would provide a yet another loophole that weakens the pill, if not rendering it virtually illusory.
The authors’ argue that these recommendations reflect an effort to balance concerns about the need to deal with sophisticated activism and multiple constituencies against the need for all shareholders, including activists, to be able to solicit support for their ideas or attempt to gain control of the company. Whatever the motivation, the article offers a spirited defense of many of the same pill features that Chancellor McCormick found objectionable in her decision in The Williams Companies case. (H/T The Activist Investor).
Elon Musk has made a career out of playing with fire and somehow avoiding getting badly burned. I guess it helps to be the richest guy in the world, but from “funding secured” to Solar City to his latest shenanigans with Twitter, Elon has blissfully trolled all comers without a lot of consequences. However, recent Delaware case law suggests that despite the limitations on liability in the Twitter merger agreement, he still might stumble into a world of hurt if he keeps trying to simply troll his way out of his deal to buy Twitter.
As I blogged previously, the Twitter merger agreement contains a fairly typical private equity style limited specific performance clause. While Section 9.9(a) of the agreement imposes full specific performance obligations on the entities Musk formed to acquire Twitter, you can’t get blood from a stone, and the ability of those entities to perform their obligations depends on the availability of the financing that’s been committed to the deal. In order to ensure that’s available, Section 9.9(b) of the agreement imposes a limited specific performance obligation on Musk to fund his equity commitment in the event that, among other things, the debt financing is in place.
Of course, Musk is now publicly angling to renegotiate the purchase price of his deal by challenging the accuracy of Twitter’s public statements concerning its percentage of spam accounts. Most people evaluating the situation seem to have concluded that Musk’s downside is limited to the $1 billion reverse breakup fee, and that may well be the case based on the language of the contract. But he’s a loose cannon, and if he doesn’t exercise a little impulse control, it’s at least possible that he could find himself with a much deeper downside.
That’s because last year, in Snow Phipps Group v. KCake Acquisition, (Del. Ch.; 4/21), the Chancery Court rejected a private equity buyer’s claim that the seller had experienced a MAE and accepted the seller’s contention that the buyer’s conduct breached its obligations under the agreement’s financing covenant, which resulted in the deal’s failure to close. Invoking the “prevention doctrine,” a common law rule that says if a party caused the other side’s failure to perform, it can’t use that failure to excuse its own performance, then-Vice Chancellor McCormick ordered the private equity buyer to close the deal, despite the fact that the contract contained only a limited specific performance clause. In other words, she essentially rewrote the contract and ordered full specific performance based on the buyer’s misconduct.
If Twitter holds the line on Musk’s attempt to renegotiate the purchase price, his next step presumably would be to try to litigate his way out of the deal by alleging that Twitter’s issues with spam accounts represented a breach of its rep in Section 4.6 of the merger agreement concerning the accuracy of information in its SEC filings. In order to avoid closing & ultimately terminate the deal, Section 7.2(b) of the agreement would require Musk to show that the failure of that rep – and any other that he threw into the mix – to be accurate resulted in an MAE.
As everyone reading this knows, proving a MAE is always tough sledding, but it’s likely to be a lot tougher when the smart money already has concluded that his alleged concerns about spambots are just a pretext. It’s also likely not helpful that Musk has been blasting accusations and other negative commentary about the company & its management all over social media with apparent disregard for the non-disparagement obligations he signed up for in Section 6.8 of the merger agreement.
What’s more, Section 6.3 of the agreement imposes an obligation on the parties to use their reasonable best efforts to consummate the deal, and Section 6.10 of the agreement is a financing covenant that imposes plenty of obligations on Musk and his entities, including an obligation to take or cause to be taken “all actions and to do, or cause to be done, all things necessary, proper or advisable to arrange, obtain and consummate” the financing arrangements for the deal.
Navigating these contractual obligations is by no means impossible, and even if Musk isn’t able to wiggle his way out of the deal or persuade Twitter to renegotiate, the most likely outcome under the contract would appear to be his payment of a $1 billion reverse termination fee to exit the deal. But Elon Musk is a guy who has demonstrated a propensity to play stupid games. If he plays stupid games with his obligations under the merger agreement, then despite what the contract says, there’s a chance that he could win some very stupid prizes in the Delaware Chancery Court.
Earlier this month, Spirit Airlines’ board rejected JetBlue’s efforts to persuade it to abandon its deal with Frontier in favor of JetBlue’s competing proposal. Yesterday, JetBlue announced that it had launched a tender offer for Spirit’s outstanding shares. Most media reports characterized the offer as “hostile,” and in a sense that’s true, because the offer certainly wasn’t welcomed by Spirit’s board. But as Ann Lipton noted on her Twitter feed, like most other unsolicited tender offers announced in recent years, this one isn’t really all that hostile. Why? Here’s an excerpt from JetBlue’s Offer to Purchase, which discusses one of the conditions to its offer:
Consummation of the Offer is conditioned upon, among other things . . . JetBlue, the Purchaser and Spirit having entered into a definitive merger agreement (in form and substance satisfactory to JetBlue in its reasonable discretion) with respect to the acquisition of Spirit by JetBlue providing for a second-step merger pursuant to Section 251(h) of the General Corporation Law of the State of Delaware (the “DGCL”), with Spirit surviving as a wholly-owned subsidiary of JetBlue, without the requirement for approval of any stockholder of Spirit. . .
That language indicates that JetBlue’s tender offer is contingent on the Spirit board authorizing it to enter into a merger agreement with Jet Blue. Legally, that’s a big deal, because while Delaware would ordinarily subject a board’s decision to resist a tender offer to heightened scrutiny under the Unocal standard, that isn’t necessarily the case when a deal is conditioned upon a merger agreement.
As we’ve discussed before, when a bidder conditions its offer on a merger agreement, the board’s decision as to whether or not to enter into that agreement generally is subject to business judgment review. Here’s an excerpt from Chancellor Allen’s opinion in TW Services, Inc. v. SWT Acquisition Corp., (Del. Ch.; 3/89):
“The offer of SWT involves both a proposal to negotiate a merger and a conditional tender offer precluded by a poison pill. Insofar as it constitutes a proposal to negotiate a merger, I understand the law to permit the board to decline it, with no threat of judicial sanction providing it functions on the question in good faith pursuit of legitimate corporate interests and advisedly.”
So, from a purely legal perspective, this offer doesn’t put a lot of pressure on Spirit’s board – its decision not to enter into a merger agreement with JetBlue will likely be evaluated under the lenient business judgment rule standard. But the legal issues are ultimately secondary here. By launching a tender offer, JetBlue may help demonstrate its bona fides to Spirit’s investors, which may in turn increase the likelihood that Spirit’s shareholders will vote against the Frontier deal and increase the pressure on Spirit’s board to consider its competing proposal.
SRS Acquiom recently released its annual M&A Deal Terms Study, which reviews the financial & other terms of 1,900 private-target acquisitions valued at more than $425 billion that closed between 2016 and 2021. Here are some of the key findings about trends in last year’s deal terms:
– The market appears to be settling on how to deal with COVID-19 or pandemic-related matters. Some data trends, such as earnouts and termination fees, are returning to pre-COVID directions, but certain effects remain. Examples include carveouts to the definition of Material Adverse Effect for COVID-related items, COVID related seller representations, and a carveout for COVID to the covenant to conduct business in the ordinary course.
– The presence of RWI can materially affect certain deal terms, including use of a separate purchase price adjustment escrow, certain seller representations, survival, sandbagging, materiality scrapes, baskets, caps, and escrows.
– A higher number of U.S. public buyers in the SRS Acquiom data set for 2021 & a dramatic increase in M&A deals using buyer stock as consideration.
– A slight decrease in the number of deals with earnouts and a larger decrease in the percentage of consideration tied to earnouts. Earnout periods also trended shorter, with the median down to 22.5 months.
– The number of “no survival” deals (both with and without RWI identified) continuds to increase, up to 26% of all deals.
As always, the study contains plenty of interesting information about closing conditions, indemnification terms, dispute resolution and termination fees.
I recently blogged about some of the implications of the proposed SPAC rules for investment banks that underwrite SPAC IPOs. Under the terms of the proposed rules, these banks could also find themselves subject to underwriter liability in connection with the de-SPAC transaction. Now, this Barnes & Thornburg memo says that it isn’t just the IPO underwriters that might face underwriter liability for the de-SPAC. As this excerpt explains, hedge funds that provide PIPE offering may find themselves in a similar position:
Of course, hedge funds do not underwrite SPAC IPOs. Nonetheless, hedge funds that provide de-SPAC PIPE financing should be deeply concerned by the aggressive SEC attitude toward participation-based underwriter status that underlies proposed Rule 140a. That attitude is on full display in the proposal’s discussion that follows its description of the proposed rule.
The proposal cautions that Rule 140a and the accompanying list of activities potentially indicating de-SPAC underwriter status pursuant thereto are “not intended to provide an exhaustive assessment of underwriter status in the SPAC context.” In particular, the proposal states that federal courts or the SEC “may find” that a party other than a SPAC IPO underwriter has de-SPAC underwriter status due to “perform[ing] activities necessary to the successful completion” of a de-SPAC transaction. In this connection, the proposal says that a de-SPAC PIPE investor, depending on circumstances, could be deemed an underwriter due to “‘participating’ in a distribution” relating to the de-SPAC transaction.
The memo points out that the provision of PIPE financing is often “necessary to the successful completion” of a de-SPAC transaction. When considered along with the SEC’s view that the de-SPAC involves a “distribution” of securities, the memo says this language suggests that the SEC may be open to “pushing the ‘underwriter’ envelope to ensnare hedge funds whose only connection to a de-SPAC transaction is investing the PIPE capital needed for its consummation.”
The May-June issue of the Deal Lawyers newsletter was just posted and sent to the printer. This month’s issue contains the following articles:
– SEC Proposed New Rules to More Tightly Regulate SPAC Activity
– Let’s Talk About Tender Offers
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A new regulatory regime that would limit certain US outbound investments in other countries has been kicked around in Congress and by national security officials in the Biden administration. This Morgan Lewis memo describes recent proposed legislation providing for the review of certain outbound investments and possible action the President might authorize independent of any action by Congress. This excerpt summarizes the proposed legislation and its status:
The House of Representatives passed the America COMPETES Act on February 4 as a counterproposal to the Senate’s US Innovation and Competition Act (USICA); it contains a provision, the National Critical Capabilities Defense Act, that would establish a National Critical Capabilities Committee (NCCC) headed by the Office of the US Trade Representative (USTR). The NCCC would be an interagency committee, somewhat similar to the Committee on Foreign Investment in the United States (CFIUS), that would review, and be empowered to block, outbound investment by a wide range of US businesses engaged in manufacturing or otherwise developing identified critical national capabilities. The reviews would be specifically focused on investment in a “country of concern,” which would include “foreign adversary” nations as well as “non-market economy” nations. Although China was certainly top of mind for the legislative sponsors, it seems Russia would likely now also be a focus.
The House bill defines “covered transactions” to include any transaction by a US business that “shifts or relocates to a country of concern, or transfers to an entity of concern, the design, development, production, manufacture, fabrication, supply, servicing, testing, management, operation, investment, ownership, or any other essential elements involving one or more critical capabilities” identified by the legislation, as well as any transaction that “could result in an unacceptable risk to a national critical capability.”
The bill further defines national critical capabilities as “systems and assets, whether physical or virtual, so vital to the United States that the inability to develop such systems and assets or the incapacity or destruction of such systems or assets would have a debilitating impact on national security or crisis preparedness.” In a nonexhaustive list of such capabilities, the bill includes such items as medical supplies and equipment related to critical infrastructure, as well as services and supply chains related to such items.
The memo reviews some of the implications of the implementation of outbound investment reviews, either legislatively or by executive action, and suggests that the most significant impact might well be the decision of other nations to implement a review regime of their own. In order to avoid disadvantaging U.S. businesses, the memo says that a coordinated approach to implementing such a system with other nations is essential.