M & A Law Prof Blog

Editor: Brian JM Quinn
Boston College Law School

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Saturday, November 28, 2009

BAC Derivative Litigation

Wow.  Just got around to watching the arguments before Vice Chancellor Strine in In re Bank of America Shareholders Litigation.    On a motion to dismiss, Vice Chancellor Strine didn't appear easily convinced.  If you haven't seen it, yet, drop by in between football games.  It's available on demand at CourtRoom View here and worth watching.

Among other things, the directors' attorney (Portnoy) argues that the suit should be dismissed because the shareholders refused to make demand and the board is sufficiently disinterested.  Strine accepts that and takes one step further - so your argument is that the board was sufficiently ignorant of what was going on that they would be impartial in determining whether or not to pursue the litigation.  "A turnip truck I did not fall off of..." Ouch.

-bjmq

November 28, 2009 | Permalink | Comments (0) | TrackBack (0)

Wednesday, November 25, 2009

Shareholder Meeting

Unlike any shareholder meeting I've ever been to...  Happy Thanksgiving!

November 25, 2009 | Permalink | Comments (0) | TrackBack (0)

Monday, November 23, 2009

Constituency Provisions and Intermediate Scrutiny Outside of Delaware

I have been giving some thought to how jurisdictions other than Delaware deal with the question of intermediate scrutiny.  Although Delaware leads the way in the M&A jurisprudence, other states have gone their own way in important respects.  One of them is the hesitance of other states to adopt the Unocal, or intermediate scrutiny, doctrine in the context of board responses to takeovers.

I think I understand why and how things developed this way.  It's an old story.  The 1980s LBO boom was a scourge for management.  They used whatever tools at their disposal to prevent an acquisition, lest they be shown the door by new management.  The Delaware courts stepped in to put a limit on unreasonable and draconian defenses.  In short, the message from the courts was that boards did not have a free hand to put off all takeover attempts. There were limits, albeit not always binding.  

Politically, I suppose it was okay for Delaware to take that position.  Other states, particularly in the Rust Belt, took another view.  For them the LBO meant nothing but massive unemployment and dislocation.  They responded by providing management tools to keep potential acquirors at bay, including writing fiduciary standards into their codes.  This is something Delaware has never done.  These standards often include constituency language: a director's actions to consider the impact of a board's actions on the corporation's various constituencies won't be inconsistent with a director's fiduciary obligations to the corporation.  Of course, nothing really prevents a director in a Delaware corporation from making the same considerations, but I'll come back to that later.

In any event, Ohio has what I think is a pretty typical constituency provision (GCL 1701.59):  

(E) For purposes of this section, a director, in determining what the director reasonably believes to be in the best interests of the corporation, shall consider the interests of the corporation’s shareholders and, in the director’s discretion, may consider any of the following:

(1) The interests of the corporation’s employees, suppliers, creditors, and customers;
(2) The economy of the state and nation;
(3) Community and societal considerations;
(4) The long-term as well as short-term interests of the corporation and its shareholders, including the possibility that these interests may be best served by the continued independence of the corporation.

Now, that's pretty management friendly language.    The interests of shareholders always have to be considered and in the director's discretion other interests can be weighed against that, just in case the interests of the shareholders and other constituencies don't entirely mesh. This isn't inconsistent with the liberty that a Delaware director is given to consider all sorts of factors before the corporation undertakes an action. That's the value of the business judgment presumption. 

Oregon takes the constituency language a step further and is more explicit in its application (60.357):

(5) When evaluating any offer of another party to make a tender or exchange offer for any equity security of the corporation, or any proposal to merge or consolidate the corporation with another corporation or to purchase or otherwise acquire all or substantially all the properties and assets of the corporation, the directors of the corporation may, in determining what they believe to be in the best interests of the corporation, give due consideration to the social, legal and economic effects on employees, customers and suppliers of the corporation and on the communities and geographical areas in which the corporation and its subsidiaries operate, the economy of the state and nation, the long-term as well as short-term interests of the corporation and its shareholders, including the possibility that these interests may be best served by the continued independence of the corporation, and other relevant factors. 

Message to directors:  don't be afraid to say no to an unfriendly offer and rationalize that by saying the offer would be bad for the local community or environment.  This kind of language makes a poison pill unnecessary.  This is very management friendly language.  I wonder why there aren't more Oregon corporations?

Indiana takes it to the extreme.  Indiana makes it clear that the Delaware approach -- that places limits on director discretion in certain circumstances goes too far.  Indiana disclaim intermediate scrutiny entirely and in a rather straightforward manner (IC 23-135-1):

Certain judicial decisions in Delaware and other jurisdictions, which might otherwise be looked to for guidance in interpreting Indiana corporate law, including decisions relating to potential change of control transactions that impose a different or higher degree of scrutiny on actions taken by directors in response to a proposed acquisition of control of the corporation, are inconsistent with the proper application of the business judgment rule under this article. Therefore, the general assembly intends:

 (1) to reaffirm that this section allows directors the full discretion to weigh the factors enumerated in subsection (d) as they deem appropriate; and
        (2) to protect both directors and the validity of corporate action taken by them in the good faith exercise of their business judgment after reasonable investigation.

Business judgment forever!

One thing is clear, I think.  These constituency statutes don't exactly do the work that legislators probably hoped they'd do when they were originally passed.  While such provisions might protect some constituencies, they leave discretion with management and, consequently, add to the tools management can rely on to resist offers in the event management wishes to entrench itself.  

Worse, from the point of view of constituencies, what if management simply uses the constituency provision to negotiate a better deal for itself without regard to the constituency at issue.  For example, if a rust belt company is approached with an offer to go private at $21, it could well respond, "I'm sorry, but at $21, this deal is not good for our employees, the local community or the environment."  Imagine the surprise of constituencies when at $25, the board changes its mind, and takes the offer.  In the end, the only constituency with standing is the shareholder community.  Consequently, one shouldn't be surprised if/when directors use these statutes as little more than bargaining levers at the expense of the communities they were meant to protect.  

Of course, if legislators were to give the various constituencies the same standing in courts as shareholders, I might come to a different conclusion.

Taking a break for the Thanksgiving holiday.  Be back early next week.

-bjmq


November 23, 2009 in State Takeover Laws | Permalink | Comments (0) | TrackBack (0)

Friday, November 20, 2009

eBay/Skype: RIP

eBay announced on Thursday that it closed its sale of Skype.  

The buyer, who will control an approximately 70 percent stake, is an investor group led by Silver Lake and includes Joltid Limited and certain affiliated parties, the Canada Pension Plan Investment Board and Andreessen Horowitz.

eBay received approximately $1.9 billion in cash and a note from the buyer in the principal amount of $125 million [valuing the business at 2.75 billion]. The company retained an approximately 30 percent equity investment in Skype. The company also purchased senior debt securities with a face value of $50 million as part of a Skype debt financing.

eBay purchased Skype in September 2005 for $2.6 billion in cash and stock plus the mother-of-all-earnouts (up to $1.5billion). In the end, Skype was a dud for Bay - though personally, I'm a big fan of the technology.  It just wasn't right for eBay.  Why would you want to talk to people selling stuff on eBay anyway?  Also, more generically, the earnout didn't live up to its potential as an incentive device and only about a third of it was reportedly paid out. As we've noted here in the past, earnouts seem like an elegant way to bridge a valuation gap, but they're really, really hard. 

As this deal moves quickly into everyone's rear-view mirror, there remain two lingering questions from this deal:  1) why earnouts?; and  2) why her

-bjmq 

November 20, 2009 in Transactions | Permalink | Comments (1) | TrackBack (0)

Insider Trading in India

Here's a relatively recent empirical study of insider trading in India in advance of merger announcements, Merger Announcements and Insider Trading in India: An Empirical Investigation.  Shorter version:  insider trading is rampant.  Don't be surprised.  It's apparently rampant here.  Why shouldn't it be in India as well? 

Abstract: Insider trading activity is investigated prior to merger announcement in Indian capital market. An attempt is made to check it out whether trading takes place on the basis of asymmetric and private information. For examining the behaviour of stock prices a modified market model is used to estimate the parameters for the estimation window. These estimates are used to compute average return and cumulative average returns for the event window, which are measures of abnormal returns. Besides price run-ups, it is also common to see unusually high levels of share trading volume before public announcement of merger. Daily trading volume pattern of the target companies is also investigated. The analysis carried out in this study is based on a sample of 42 companies for which merger announcement date was announced during the period of 1996-1999. Based on the analysis for each company individually, we recommend investigation in six companies for existence of possible insider trading.

-bjmq

November 20, 2009 in Asia, Insider Trading | Permalink | Comments (1) | TrackBack (0)

Thursday, November 19, 2009

B&N's Pill

On Tuesday the board of Barnes and Noble adopted a shareholder rights plan -- or a poison pill.  From the board's announcement:

 The Board adopted the Rights Plan in response to the recent rapid accumulation of a significant portion of Barnes & Noble’s outstanding common stock. The Rights Plan is intended to protect the Company and its stockholders from efforts to obtain control of the Company that are inconsistent with the best interests of the Company and its stockholders.

Consistent with Barnes & Noble’s commitment to good corporate governance, the rights will expire in three years and the Company intends to submit the Rights Plan for stockholder ratification within 12 months.

Under the terms of the Rights Plan, the rights will expire on November 17, 2012. The rights will be exercisable if a person or group, without Board approval, acquires 20% or more of Barnes & Noble’s common stock or announces a tender offer which results in the ownership of 20% or more of Barnes & Noble’s common stock.  The rights also will be exercisable if a person or group that already owns 20% or more of Barnes & Noble common stock, without Board approval, acquires any additional shares (other than pursuant to Barnes & Noble’s compensation or benefit plans). If the rights become exercisable, all rights holders (other than the person triggering the rights) will be entitled to acquire Barnes & Noble’s common stock at a 50% discount.
The pill here is notable for a couple of reasons.  First, the pill is time-limited.  Unlike pills of years ago, this rights associated with this plan will expire of their own accord in three year's time.  That's good.  The plan is being adopted for a particular purpose and that purpose is temporally limited.   In years past shareholder rights plans were not written so as to expire.  Second,  the board will seek shareholder ratification for the plan within 12 months.  That's also good.  If the plan is perceived by shareholders to be adding value, they'll endorse it.  If it's simply entrenching management, then shareholders will have a chance to say no to management's adoption of the pill.  

Finally, this plan was adopted quickly by the board in response to a rapid accumulation of stock by an unidentified buyer in the marketplace. (The WSJ thinks it's Ron Burkle of Yucaipa.)  The fact that it was adopted quickly by board resolution in response to changes in the marketplace makes its clear why so many of those finance papers out there that attempt to place a value/cost on a shareholder rights plan are off-base.  In too many of them, the researchers download a database and then run regressions on poison pill dummy without realizing that any company can have a pill in place in a few minutes time.  The data is therefore meaningless.  To top it off, to the extent ISS' corporate governance quotient dings boards for having pills in place, there's a disincentive to keep a shareholder rights plan lying on the books if you don't need it.  Consequently, we're left with Just-In-Time pills like the one adopted by Barnes.  OK, off my soap-box.

-bjmq

 

November 19, 2009 | Permalink | Comments (0) | TrackBack (0)

Wednesday, November 18, 2009

Google Scholar (Legal)

Google Scholar has just gotten better.  It now includes legal opinions and law review articles.  

 -bjmq

November 18, 2009 | Permalink | Comments (0) | TrackBack (0)

Tuesday, November 17, 2009

Internal Poison Pills

Geis has an article, Internal Poison Pills, appearing in the current NYU Law Review that thinks about the relationship between majority and minority shareholders.  The article argues that a version of the shareholder rights plan can be used to constrain majority incentives for opportunism.  Presumably this is because fiduciary obligations of majorities aren't powerful enough ex ante to do the same work.

Abstract:  This Article offers a novel idea for governing the tension between majority and minority shareholders: an “internal poison pill.” Borrowing conceptually from the famous shareholder rights plans created in the 1980s to address bullying external bidders, I show how an analogous (though economically distinct) financial instrument might be used by shareholders to navigate the twin internal governance tensions of holdout and expropriation. Two key features of this proposal distinguish it from alternative reforms: (1) It focuses on a privately enacted solution with room for contextual customization; and (2) it uses embedded option theory to construct an intermediate legal entitlement (as opposed to an extreme property or liability rule) for both majority and minority shareholders. If successfully scoped and swallowed, these internal poison pills could facilitate efficient freezeouts, chill coercive ones, supplant the awkward remedy of appraisal, and, ultimately, increase the ex ante value of firms by mitigating agency problems between majority and minority shareholders.

-bjmq



November 17, 2009 | Permalink | Comments (0) | TrackBack (0)

AOL Spinoff Approved, Set for Dec 9

Our long, national deal-nightmare is over.  AOL amended its Form 10 again, inserting dates into all the agreements.  The record date for the spin off is now set for November 27, 2009.   Here's the letter to Time Warner shareholders:

We are pleased to inform you that on November 16, 2009, the board of directors of Time Warner Inc. approved the spin-off of AOL Holdings LLC, a wholly owned subsidiary of Time Warner, which will be converted into a corporation and renamed AOL Inc. prior to the spin-off. Upon completion of the spin-off, Time Warner shareholders will own 100% of the outstanding shares of common stock of AOL. We believe that this separation into two independent, publicly-traded companies is in the best interests of both Time Warner and AOL.

The spin-off will be completed by way of a pro rata dividend of AOL shares held by Time Warner to our shareholders of record as of 5:00 p.m., New York City time, on November 27, 2009, the spin-off record date. Time Warner shareholders will be entitled to receive one share of AOL common stock for every eleven shares of Time Warner common stock they hold on the record date. The dividend will be issued in book-entry form only, which means that no physical stock certificates will be issued. No fractional shares of AOL common stock will be issued. If you would have been entitled to a fractional share of AOL common stock in the distribution, you will receive the net cash proceeds of such fractional share instead. 

The distribution date for the shareholders of record will be on December 9, 2009 according to the Time Warner press release:

Shares of Time Warner common stock will continue to trade "regular way" on the New York Stock Exchange ("NYSE") under the symbol "TWX" through the distribution date of December 9, 2009, and thereafter. Any holders of shares of Time Warner common stock who sell Time Warner shares regular way on or before December 9, 2009, will also be selling their right to receive shares of AOL common stock. Investors are encouraged to consult with their financial advisers regarding the specific implications of buying or selling Time Warner common stock on or before the distribution date.

AOL common stock will begin trading on a "when-issued" basis on the NYSE under the symbol "AOL WI" beginning on November 24, 2009. On December 10, 2009, when-issued trading of AOL common stock will end and "regular-way" trading under the symbol "AOL" will begin. The CUSIP number for the AOL common stock will be 00184X 105 when regular-way trading begins.

-bjmq


November 17, 2009 | Permalink | Comments (1) | TrackBack (0)

3Com-HP Lawsuit

You know what they say ... it's not a real deal unless there's a lawsuit.  Well, the 3Com/HP deal has its first lawsuit.  The $2.7 billion all cash deal was announced last week.  Here's the merger agreement.  Given that it's an all cash deal, the complaint alleges that the board failed to meet its fiduciary duties by not getting the highest price reasonably available to shareholders when it agreed to sell the company to HP.  That's a Revlon complaint.  I used to think that meant something, but following Lyondell, I now know that unless there's a claim of fraud or misrepresentation, short of an "utter failure" by the board to attempt to meet its duties, this kind of complaint is going nowhere.  Since the only question is price, then it appears the only available remedy for those who think the company got sold for less than its fair value is appraisal under Sec 262 of the DGCL.

Here's the appraisal language from the merger agreement (Section 2.7(c)): 

(c) Statutory Rights of Appraisal.

 
(i) Notwithstanding anything to the contrary set forth in this Agreement, all shares of Company Common Stock that are issued and outstanding immediately prior to the Effective Time and held by Company Stockholders who shall have neither voted in favor of the Merger nor consented thereto in writing and who shall have properly and validly perfected their statutory rights of appraisal in respect of such shares of Company Common Stock in accordance with Section 262 of the DGCL (collectively, “Dissenting Company Shares”) shall not be converted into, or represent the right to receive, the Per Share Price pursuant to Section 2.7(a). Such Company Stockholders shall be entitled to receive payment of the consideration that is deemed to be due for such Dissenting Company Shares in accordance with the provisions of Section 262 of the DGCL, except that all Dissenting Company Shares held by Company Stockholders who shall have failed to perfect or who shall have effectively withdrawn or lost their rights to appraisal of such Dissenting Company Shares under such Section 262 of the DGCL shall no longer be considered to be Dissenting Shares and shall thereupon be deemed to have been converted into, and to have become exchangeable for, as of the Effective Time, the right to receive the Per Share Price, without interest thereon, upon surrender of the certificate or certificates that formerly evidenced such shares of Company Common Stock in the manner provided in Section 2.8.
 
(ii) The Company shall give Parent (A) prompt notice of any demands for appraisal received by the Company, withdrawals of such demands, and any other instruments received by the Company in respect of Dissenting Company Shares and (B) the opportunity to control all negotiations and proceedings with respect to demands for appraisal in respect of Dissenting Company Shares. The Company shall not, except with the prior written consent of Parent, voluntarily make any payment with respect to any demands for appraisal, or settle or offer to settle any such demands for payment, in respect of Dissenting Company Shares.
I wonder if this lawsuit even has a nuisance value.

-bjmq

November 17, 2009 in Delaware, Litigation | Permalink | Comments (0) | TrackBack (0)

Monday, November 16, 2009

Reimbursement Policies for Shareholder Proxy Nominations

HealthSouth Corp. recently announced a policy to reimburse shareholder initiatives relating to shareholder nominations for the election of directors:

Board of Directors has authorized the Company to amend its bylaws to adopt procedures relating to shareholder nominations for the election of directors. At its October 22, 2009 regular meeting, the Board approved the general terms of an amendment to the Company's Bylaws that will provide for reimbursement of shareholder expenses in connection with a proxy solicitation campaign, subject to certain conditions including the Board's determination that reimbursement is consistent with its fiduciary duties. The Board expects to adopt the final form of this Bylaw amendment this week. The final amendment will be included in a Form 8-K to be filed with the Securities and Exchange Commission when approved.

HealthSouth's move is one of the first following Delaware's adoption of the new section 113 that permits bylaws to be amended to provide for reimbursement a successful shareholder proxy with respect to the election of directors.   Movement in this area, combined with Delaware's new section 112 relating to shareholder proxy access shows how Delaware is highly sensitive to Federal competition.  

-bjmq


November 16, 2009 in Delaware, Proxy Rules | Permalink | Comments (0) | TrackBack (0)

Saturday, November 14, 2009

Merck Stock Swap Confusion

As you'll remember, Merck structured its recent acquisition of Schering-Plough as a ‘reverse merger’ in order to prevent a change of control provisions in Schering’s joint venture with J&J from being triggered and thereby lose control over the venture’s hit drug Remicade.  A ‘reverse merger’ is a merger in which the acquirer disappears and the target is the surviving corporation.  Steve Davidoff over at the Deal Professor had a couple of good posts at the time about the likelihood of succeeding on the theory that the reverse merger wasn’t really a change in control for purposes of the Remicade joint venture.  Anyway, the whole question of whether the reverse merger constituted a change of control for the purposes of the Remicade agreement is now in arbitration, so it will resolve itself one way or the other. 

 On November 3rd, Merck completed its acquisition of Schering.  After the reverse merger, Schering changed its name to Merck and the old Merck changed its name to Merck Sharp & Dohme Corp.  Confused? See Schering’s ... I mean ... Merck’s explanation of the name change here.  And how about this for confusion – old Merck shareholders traded in the Merck shares and got … well … they got Merck shares.  That wouldn’t be so bad, except for most of them they also incurred brokers fees for the privilege!  Now they’re complaining. (HT: Aaron)

 -bjmq

November 14, 2009 | Permalink | Comments (1) | TrackBack (0)

Friday, November 13, 2009

Bad Faith, Not in Good Faith...Tomato, Tomahto

In Amirsaleh v. Board of Trade of The City of New York, Inc, Chancellor Chandler takes up the heavy burden of politely explaining the Delaware corporate law to the Supreme Court.  I apologize for posting such a long quotation, but it's well worth reading.  The issue here is whether in "bad faith" is the same as "not in good faith."  The Supreme Court thinks the two are different.  The Chancery Court begs to disagree.   

According to plaintiff, all that need be shown is an absence of good faith. I must note that, in support of plaintiff’s argument, there are two known instances where the Delaware Supreme Court has suggested that there may be a difference between “bad faith” and “conduct not in good faith” in the context of the implied covenant [of good faith].

 The first suggestion was made in Dunlap v. State Farm Fire and Casualty Insurance Co.when the Supreme Court stated “the case law frequently (and unfortunately) equates a lack of good faith with the presence of bad faith . . . .”  But in the same case the Supreme Court explains that “[d]espite its evolution, the term ‘good faith’ has no set meaning, serving only to exclude a wide range of heterogeneous forms of bad faith.” This latter statement teaches that a party fulfills its obligation to act in “good faith” when it does not engage in any of the heterogeneous forms of “bad faith.” Put another way, “good faith” conduct can only be understood by reference to “bad faith” conduct. If no stand-alone definition of “good faith” exists, I admit my inability to understand how the phrase “a lack of good faith” has any ascertainable meaning. How can the plaintiff prove the absence of something that is undefined? In the Dunlap opinion the Supreme Court does not develop its suggestion that there might be a substantive difference between “a lack of good faith” and “bad faith.” Moreover, it does not appear to base its decision in Dunlap on that distinction (i.e., it did not find that the defendant’s actions “lacked good faith” without rising to the level of “bad faith”).  Accordingly, I conclude that the Dunlap opinion did not hold that a breach of the implied covenant can be established by “a lack of good faith.”

 The second suggestion was made in 25 Massachusetts Avenue Property L.L.C. v. Liberty Property Ltd. Partnership when the Supreme Court stated “[a]lthough the Vice Chancellor determined that Republic did not act in bad faith, he did not expressly address [defendant’s] liability for breach of the implied duty of good faith and fair dealing . . . . The two concepts—bad faith and conduct not in good faith are not necessarily identical. Accordingly, we must remand for the Court of Chancery to consider this claimed breach . . . .” On remand, Vice Chancellor Strine could not find a meaningful distinction between the two concepts and declined to reverse his previous ruling because he had already found that the defendant did not act in bad. Analyzing whether there was any meaningful distinction between the concepts, the Vice Chancellor observed: “Given the longstanding  use of the concept of good faith to articulate the state of mind appropriate for various actors . . . and the use of the concept of bad faith to label someone whose state of mind is violative of the appropriate standard, one would think this concept of ‘neutral faith’ would have been embraced in American law before now if it had any logic or utility. I do note that in our corporate law, this court has firmly rejected the notion that the words ‘not in good faith’ means something different than ‘bad faith,’ and has done so on sensible policy, logical, and linguistic grounds.”

Based on all of the foregoing, I agree with Vice Chancellor Strine that there is no meaningful difference between “a lack of good faith” and “bad faith.” Accordingly, to prove a breach of the implied covenant plaintiff must demonstrate that defendants acted in “bad faith.” 

-bjmq


November 13, 2009 in Delaware | Permalink | Comments (1) | TrackBack (0)

Thursday, November 12, 2009

Board Connections and M&A

I like this paper, Board Connections and M&A Transactions. It lets me explore my inner Glenn Beck.  I mean, it shouldn't be all that surprising that in transactions where the target and the acquirer share board members that there should be higher post-announcement returns. Presumably, the board member has had time to get to know the target and its business.   Even if the negotiations are at arm's length and fair to the target, the market probably realizes that the inside directors have knowledge about the target's operations that continue to make it a valuable investment notwithstanding an arm's length deal negotiated by a special committee.  

Abstract: This paper examines M&A transactions between firms with current board connections and shows that such transactions generate better merger performance. We find that acquirers obtain significantly higher announcement returns in transactions between connected firms. This result is striking considering such deals involve larger acquirers, public targets, and are more likely to be diversifying acquisitions, three factors shown by earlier research to affect acquirer returns negatively. We also find that acquirers pay significantly lower takeover premiums in connected transactions, consistent with the view that board connections help acquirers avoid overpaying for target firms. In addition, financial advisory fees paid to investment banks are lower in connected acquisitions. Board connections are also positively related to the operating performance of the new firm and negatively related to the probability of forced CEO turnover, suggesting that connected transactions generate better performance in the long run. Finally, we present evidence that the existence of a board connection between two firms has a positive impact on the probability of a subsequent M&A transaction between them. Overall, our results are consistent with the hypotheses that board connections are related to higher quality M&A transactions and that they reduce the degree of asymmetric information between the acquirer and the target about the other’s value.


-bjmq

November 12, 2009 | Permalink | Comments (0) | TrackBack (0)

Wednesday, November 11, 2009

3Com Options Trading...More Insider Trading?

OK, it's almost too much to bear.  Someone stop the madness.  Bloomberg is reporting that 3Com options were trading at records volumes and a 26-month high just prior to today's announcement of 3Com's acquisition by HP.  

Almost 4,000 of the November $5 calls and 3,300 December $5 calls traded today, with almost all of the transactions occurring at noon. That compares with a total of six puts giving the right to sell 3Com shares. Hewlett-Packard, the world’s largest personal-computer maker, agreed to pay $7.90 a share in cash for 3Com, a 39 percent premium to today’s closing price.

You'd think people weren't paying attention to Perot Systems/Dell deal of just a few weeks ago.  As Zvi Goffer might say, trading short-term call options just before the announcement of a transaction is a ticket to the [expletive] big house. 

-bjmq


Update:  Bloomberg is not letting go of this story.  Good for them.

“I don’t believe in that much luck,” said Steve Claussen, chief investment strategist at OptionsHouse LLC, the Chicago- based online brokerage unit of options trading firm PEAK6 Investments LP, and a former market maker at the Chicago Board Options Exchange. “If you’re on the other side of someone buying calls and a takeover is announced, it’s like someone held you up at gunpoint. It’s like you’ve been robbed and you feel violated.

...

More than 8,000 3Com calls changed hands yesterday, 17 times the four-week average. The most active were contracts conveying the right to purchase 3Com for $5 through Nov. 20, followed by December $5 calls. The shares rose 5.2 percent, the most since Sept. 28, to $5.68 in Nasdaq Stock Market composite trading prior to the announcement.



November 11, 2009 in Insider Trading | Permalink | Comments (0) | TrackBack (0)

Tuesday, November 10, 2009

Simple Theory of Takovers

Continuing the theme of comparative takeover regulation: here's a new paper, A Simple Theory of Takeover Regulation in the United States and Europe, from Ferrarini and Miller forthcoming in the Cornell International Law Journal investigating a federal approach to takeover regulation in teh US and Europe.    

AbstractThis paper presents a simple model of takeover regulation in a federal system. The theory has two parts. First, the model predicts that the rules applicable at more general political levels will be more favorable to takeover bids than will the rules applicable at local levels. The reason is that unlike bidders, who do not know ex ante where they will find targets, targets can concentrate their political activities knowing that the law of their jurisdiction will apply to any attempt to take them over. On the other hand, at more general political levels this advantage for target firms disappears, so the rules are expected to be less target-friendly. This is in fact the pattern we observe both in the United States and the European Union. Second, the model predicts that rules on takeovers will reflect the degree of concern that targets have about potential hostile bids. Where firms are well-protected against unfriendly takeovers – for example, in jurisdictions where companies are under family control – takeover regulation is likely to be less target-friendly than in jurisdictions where potential targets are more exposed to a hostile acquisition. This pattern is also observed in takeover regulation.

-bjmq


November 10, 2009 in Delaware, Europe, Takeovers | Permalink | Comments (0) | TrackBack (0)

Valero adopts Say-on-Pay Policy

It's officially a trend!  In response to a say-on-pay campaign Valero announced yesterday that it was adopting a 'say-on-pay' policy joining Pfizer.  Apparently shareholders at more than 110 companies are considering say-on-pay resolutions this proxy season.

The say on pay proposals, which have increased in number and support since they were first introduced in 2006, are fueled by public outrage over executives who got big bonuses “at the same time their companies were losing lots of money,” said Tim Brennan, chief financial officer of the Boston-based Unitarian Universalist Association, which sponsored the say on pay resolution that Valero shareholders approved in April.

“Valero wasn't selected because we thought there was something egregious about their structure,” Brennan said. “But as a big, visible company, it's a company that could set an example in best practices in corporate governance.”

-bjmq

November 10, 2009 in Executive Compensation, Proxy | Permalink | Comments (0) | TrackBack (0)

Monday, November 9, 2009

Mandatory Rules in the Takeover Market, A Lesson from Down Under

The UK-styled approach to takeover regulation relies heavily (although not exclusively) on brightline rules for delimiting what is permitted in the context of an offer and a response to an offer.   The upside of this structure is that it leaves the decision whether to accept or reject an offer in the hands of the shareholders. 

Contrast this approach with Delaware where the corporate code and the courts leave directors with a high degree of discretion whether to accept or reject offers.  To the sometimes chagrin of academics (myself included) Delaware courts are loathe to set out brightline rules governing the takeover process.   One of the selling points of the Delaware approach is that the fact-intensive approach allows for directors and courts reviewing directors actions to recognize that there may not be a one-size-fits-all solution and to take into account the specific issues in every case.

In Australia today we have an example why Delaware might be right to eschew many mandatory rules.  Australia's Takeovers Panel is modeled on the UK Takeover Panel.  EWC, a private Australian company in the process of going public, announced a bid for NewSat, publicly-traded Australian company.  The details of the back-and-forth between the two companies can by found here care of The Brisbane Times newspaper.   In any event, the talk of a take-over triggered a required Bidder's Statement to be filed by EWC.  After some delay, EWC just filed its statement along with a surprising recommendation: 

On behalf of the directors of EWC Payments Pty Ltd (EWC), I am pleased to enclose an offer by EWC to acquire all of your shares in NewSat Ltd (NewSat). 

However, in light of unexpected action taken by the Commonwealth Bank AFTER the Takeover Offer was made, and which the Commonwealth Bank set aside prior to a Court Hearing, I very sadly recommend that your do NOT accept this offer from EWC ...
The details of the bidder's dispute with the Commonwealth Bank are laid out in Section 10.8 (or, reasons why you should not accept the offer I just made you).  It's kind of odd.  The offer itself is bookended with exhortations by the offerer for shareholders not to make the mistake of taking the offerer up on his own offer.   For their part, management of NewSat called the offer a "sham" and dug the knife in a bit further:  

While this is certainly a very good reason for NewSat shareholders to reject the EWC offer, there are many other equally good reasons...

This episode points out a shortcoming, though not disabling, of the mandatory rules approach to takeover regulation. When facts on the ground change such that it makes no sense for an offer to go forward, why should parties -- a reluctant seller and a now-incapable buyer --be forced to go forward with the offer once its clear to both sides that it's a bad idea.  It seems an unnecessary expense at that point.   

-bjmq


November 9, 2009 in Delaware, Takeovers | Permalink | Comments (0) | TrackBack (0)

Subramanian, et al on Delaware's Antitakeover Statute

Some of you might have been recently been on the receiving end of a surprisingly caustic "Marty-gram" attacking an academic paper.  Let's see, if I remember correctly, it started something like this: 

Academic empirical legal analysis, when not coupled with a clear understanding of both fundamental corporate law principles and practical takeover market dynamics, can lead to meaningless data and misleading conclusions.

Hmm.  That certainly caught my attention when it landed in my inbox.  But then again, it's nice to know that attorneys are Wachtell are reading academic papers.  At least we're not just writing them for ourselves.  Anyway, the authors, Subramanian, Hersocvici, and Barbetta, have now posted their paper, Is Delaware's Antitakeover Statute Unconstitutional: Evidence from 1988-2008so you can read it and judge for yourselves.  Here's the abstract:

Abstract: Delaware’s antitakeover statute, codified at Section 203 of the Delaware corporate code, is by far the most important antitakeover statute in the United States. When it was first enacted in 1988, three bidders challenged its constitutionality under the Commerce Clause and the Supremacy Clause of the U.S. Constitution. All three federal district court decisions upheld the constitutionality of Section 203 at the time, relying on empirical evidence indicating that Section 203 gave bidders a “meaningful opportunity for success,” but leaving open the possibility that future empirical evidence might change this constitutional conclusion. This Article presents the first systematic empirical evidence since 1988 on whether Section 203 gives bidders a meaningful opportunity for success. The question has become more important in recent years because Section 203’s substantive bite has increased, as Exelon’s recent hostile bid for NRG illustrates. Using a new sample of all hostile takeover bids against Delaware targets that were announced between 1988 and 2008 that were subject to Section 203 (n=60), we find that no hostile bidder in the past nineteen years has been able to avoid the restrictions imposed by Section 203 by going from less than 15% to more than 85% in its tender offer. At the very least, this finding indicates that the empirical proposition that the federal courts relied upon to uphold Section 203’s constitutionality is no longer valid. While it remains possible that courts would nevertheless uphold Section 203’s constitutionality on different grounds, the evidence would seem to suggest that the constitutionality of Section 203 is up for grabs. This Article offers specific changes to the Delaware statute that would preempt the constitutional challenge. If instead Section 203 were to fall on constitutional grounds, as Delaware’s prior antitakeover statute did in 1986, it would also have implications for similar antitakeover statutes in thirty-two other U.S. states, which along with Delaware collectively cover 92% of all U.S. corporations.

-bjmq


November 9, 2009 in Delaware | Permalink | Comments (0) | TrackBack (0)

Choice of Forum and State Competition

Prof. Faith Stevelman's paper, Regulatory Competition, Choice of Forum and Delaware's Stake in Corporate Law, now appearing in the Delaware Journal of Corporate Law takes on a version of the state competition argument.  Her take on it is focuses on the role of choice of forum for disputes.  Interesting argument. 

Abstract:  As Delaware corporate law confronts the twenty-first-century global economy, the state's legislators and jurists are becoming sensitive to increased threats to the law's sustained preeminence. The increased presence of federal laws and regulations in areas of corporate governance traditionally allocated to the states has been widely noted. The growth of federal corporate law standards may be undermining Delaware's confidence in the sustained prosperity of its chartering business - which has been a vital source of revenues and prestige for Delaware, its equity courts, and especially its corporate bar. The Delaware Court of Chancery appears to be concerned about the emigration of corporate law cases to other states' courtrooms, and is exercising its discretionary jurisdiction more expansively in parallel proceedings to deny defendants' motions to stay. There are even more aggressive measures that Delaware companies and lawmakers could take to restrict Delaware shareholders' choice of forum and keep these cases in Delaware. But Delaware has much to lose from trying to gain monopoly power over the adjudication of its corporate law. Indeed, in a system where corporate managers (or founders/controlling shareholders) select the state of incorporation - and hence effectuate the choice of Delaware corporate law - it is likely that allowing shareholder-plaintiffs freedom in forum selection has a salutary, modulating effect on Delaware corporate law. The ability of Delaware shareholder-plaintiffs to litigate elsewhere most likely plays a key role in preventing Delaware corporate law from becoming hostage to corporate defendants' interests.


-bjmq

November 9, 2009 in Delaware | Permalink | Comments (0) | TrackBack (0)