Thursday, October 16, 2014
VC Laster handed down an opinion on damages in the Rural Metro case. You'll remember in Rural Metro, RBC was found liable for aiding and abetting director violations of their fiduciary duties in connection with the sale of the corporation to Warburg Pincus. RBC worked hard to structure the deal so that it might be able to benefit from providing financing to eventual buyer. Worst case for RBC - it didn't get the financing business and its shenanigans later came to light in a courtroom. Not a good look.
The recent opinion set damages at $91 million and assigned $76 million in damages to RBC. The opinion is interesting for those of us who have forgotten that remedies class all those years ago. RBC sought to reduce its potential liability by arguing that others should bear more of the cots of the damages and that RBC should be liable for only its pro rata share. The opinion reminds us that tort feasors are jointly and severally liable for damages.
In this case that means that RBC is on the hook for the entire damages amount with the right to seek contribution from other co-defendants. However, that's not enough. Merely being jointly culpable as other defendant directors were is not sufficient, in order to seek contribution, those co-defendants must also be joint liable.
That's where section 102(b)(7) wreaked havoc on RBC's argument. The exculpated directors were not jointly liable, so damages cannot be reduced by the amount of their potential liability. That left the damages to be shared among RBC and the three non-exculpated directors.
For advisors who might be held liable for aiding and abetting director violations of their fiduciary duties, this point about joint liability and the right to contribution is important because where 102(b)(7) is in the mix, advisers may find themselves all alone when it's time to pay.
Wednesday, October 15, 2014
Another high profile inversion deal may be heading towards termination. The AbbVie board is apparently reconsidering whether to continue its inversion deal with Shire now that Treasury has reduced the economic incentives to do the deal. That's good news for Treasury. This is precisely what Treasury hoped would happen when they announced their new rules. Of course, it's not over, yet. Shire is urging the AbbVie board not to give up. From their statement:
The Board of Shire believes that AbbVie should proceed with the recommended offer on the agreed terms in accordance with the Cooperation Agreement.
The Board will meet to consider the current situation and a further announcement will be made in due course.
The Board of Shire notes that, in the event that the AbbVie Board adversely changes its recommendation and AbbVie stockholder approval is not obtained (or another triggering event occurs), a break fee of approximately $1.635 billion would be payable by AbbVie to Shire.
Wednesday, October 8, 2014
Delaware's state senate is scheduled to convene this afternoon to confirm the nomination of James Vaughn to the Supreme Court. My guess is that - if it's anything like other recent confirmation hearings - it will be a quick affair with perfunctory questions followed by a rapid confirmation vote.
Tuesday, October 7, 2014
The EU Competition Commission approved Facebook's acquisition of WhatsApp last week,m and yesterday Facebook closed the deal:
On October 6, 2014, Facebook, Inc. (the "Company") completed its previously announced acquisition of WhatsApp Inc., a Delaware corporation ("WhatsApp"), pursuant to the terms of an Agreement and Plan of Merger and Reorganization (as amended, the "Merger Agreement") dated as of February 19, 2014, with Rhodium Acquisition Sub II, Inc., a Delaware corporation and wholly owned (in part directly and in part indirectly) subsidiary of the Company ("Acquirer"), Rhodium Merger Sub, Inc., a Delaware corporation, a direct wholly owned subsidiary of Acquirer ("Merger Sub"), WhatsApp, and Fortis Advisors LLC, as the stockholders' agent.The acquisition was accomplished by the merger of Merger Sub with and into WhatsApp (the "First Merger"), and upon consummation of the First Merger, Merger Sub ceased to exist and WhatsApp became a wholly owned subsidiary of Acquirer. The surviving corporation of the First Merger then merged with and into Acquirer, which will continue to exist as a wholly owned (in part directly and in part indirectly) subsidiary of the Company. At the closing, all outstanding shares of WhatsApp capital stock and options to purchase WhatsApp capital stock were cancelled in exchange for an aggregate of 177,760,669 shares of the Company's Class A common stock and approximately $4.59 billion in cash to existing WhatsApp securityholders. A portion of the aggregate consideration is being held in escrow to secure the indemnification obligations of the WhatsApp securityholders. In addition, the Company awarded 45,941,775 restricted stock units ("RSUs") to WhatsApp employees. On the closing date, Jan Koum, WhatsApp's co-founder and CEO, became a member of the Company's Board of Directors (the "Board").
Monday, October 6, 2014
Facebook announced its acquisition of WhatsApp last February. After a lengthy review process in the EU Competition Commission approved the transaction late last week. In approving the deal, the Commission came to the following conclusion:
The Commission found that Facebook Messenger and WhatsApp are not close competitors. Indeed, despite the fact that Facebook Messenger is a standalone app, the user experience is specific given its integration with the Facebook social network. For WhatsApp, access to the service is provided through phone numbers while for Facebook Messenger, a Facebook profile is required. Users seem to use the two apps in different ways and many of them use the two apps simultaneously on the same mobile handset. Furthermore, this is a very dynamic market with several competing apps available on the market, such as Line, Viber, iMessage, Telegram, WeChat and Google Hangouts.
Interesting how they decided that WhatsApp and Facebook Messenger are in different markets.
In this most recent look at the merger agreement, Rick Climan and Keith Flaum think about the "Key Employee" closing condition. These simulated negotiations are always a great way to think about approaching the merger agreement and Keith and Rick do a great job:
Friday, October 3, 2014
Most of the recent tax inversion deals announced over the past summer include closing conditions that permit parties to walk away - often without paying a termination fee - in the event laws or rules are changed to impede the economic value of the inversion structure. Recently, Treasury adopted rules to reduce the economic incentives to pursue inversion transactions. And now, at least one deal has cratered as a result of that change. According to CNBC:
A planned $2.7 billion deal between pharma companies Salix and Cosmo, motivated in part by the opportunity to do a tax inversion, has fallen through.
"There has been a change in the environment after we struck the deal," Alessandro Della Cha, chief executive of Cosmo, told CNBC in a phone call.
"The (U.S.) administration has taken steps to make inversions more difficult and to make it harder to extract the benefits."
In this case, Salix will pay Cosmo a $25 million termination fee to walk away. All is not lost for Salix, of course. You'll remember that in the Allergan/Valeant saga, Allergan is pursuing Salix in hopes that by acquiring Salix, Allergan can deter Valeant from attempting to acquire the combined corporation.
Wednesday, October 1, 2014
Some insider-ish analysis on what led to the nomination of Jim Vaughn to the Delaware Supreme Court from the Delaware Grapevine and the Delaware Law Weekely. Both sources suggest some old-school geographic politics might be at least partly responsible. Vaughn, you see, is from Kent County and getting a representative from Kent County on the court was apparently important. What's interesting about Delaware and its judiciary, if this bit of Kremlinology is true is just how hard Delaware works to create a representative court -- constitutionally mandated political balance and at least implicit geographic balancing. With a nod to now retired Justice Berger, it's worth noting that the court is still not exactly representative. Lots of work to do, still.
Friday, September 26, 2014
I'm a big fan of sports metaphors. With that, I present Samuel Thompson's New Inversions, the 'Joe Frazier Left Hook,' the IRS Notice, and Pfizer:
Abstract: This article discusses the “New Inversions” many U.S. firms are engaging in, as illustrated by the acquisition by a newly formed Irish holding company of the stock of (1) Endo, a U.S. firm and the real acquirer, and (2) Paladin, a Canadian firm and the real target. The article shows how these transactions are rendering a “Joe Frazier Left Hook” to the Treasury’s “Killer B” regulations even after the issuance by the IRS of Notice 2014-32 on April 25, 2014. The article then explores how “Ali” (a.k.a. Treasury) and the Congress can punch back against these transactions.
Tuesday, September 23, 2014
Last week Dollar General started soliciting "Gold" proxies (like golden tickets?) from Family Dollar shareholders in its campaign to vote down to have FDO shareholders vote down the Dollar Tree deal and accept its tender for Family Dollar. Dollar General is seeking proxies to vote against the Dollar Tree merger, against the transaction related compensation for managers, as well as against a proposal to adjourn the meeting.
Why might management's adjournment proposal be important? If it turns out that the merger vote is going against management, the ability of managers to adjourn a meeting and extend the voting gives managers more time to twist arms and convince shareholders to go their way is an extremely powerful tool. Dollar General is seeking to take that tool away by forcing the meeting - and thus the voting - to end on date certain.
Ultimately, the vote on the Dollar Tree merger agreement will be the critical point for Dollar General. No surprise then that they are putting in effort to win a proxy fight.
Sure as Fall has followed Summer, now Treasury is seeking to end the Summer of the Inversion by adopting rules to reduce incentives to pursue such deals. If there is going to be any policy action to shut down inversions, it can only happen through Treasury because Congress has done what Congress does, which is gone home. Treasury is tightening up its treatment of "hopscotch loans". From the FAQ:
Prevent inverted companies from accessing a foreign subsidiary’s earnings while deferring U.S. tax through the use of creative loans, which are known as “hopscotch” loans (Action under section 956(e) of the code)
Applying the anti-avoidance rules to hopscotch loans seems like both the minimum and the maximum that can be done absent some Congressional action on this issue.
Sunday, September 14, 2014
Boston College is looking to hire this year. Here's the announcement:
BOSTON COLLEGE LAW SCHOOL seeks a full-time faculty member interested in establishing and teaching in a transactional clinic that emphasizes entrepreneurship, technology, and the innovation economy. The successful applicant will be expected to expand the offerings of one of our existing clinics or develop a new program, which may include hybrid arrangements with outside institutions such as incubators, corporations or law firms, and may include simulation as a method of instruction. The focus of teaching should be business formation, business transactions, taxation, or intellectual property. The successful applicant will play a major role in determining the clinic’s specific emphasis and operation.
JD or equivalent law degree and significant experience in practice or in a clinical teaching environment are required. Candidates must also possess an entrepreneurial spirit and substantial organizational and management skills. Boston College is an Affirmative Action and Equal Opportunity Employer. We strongly encourage women, minorities and others who would enrich the diversity of our academic community to apply. Boston College, a Jesuit, Catholic university, is located in Newton, Massachusetts, just outside of Boston. Interested applicants should contact: Renée Jones, Chair, Appointments Committee at email@example.com or at Boston College Law School, 885 Centre Street, Newton, MA 02459.
Friday, September 12, 2014
According to the Delaware Law Weekly, Delaware's Judicial Nominating Committee has sent four names to the governor's office to consider as replacements for the now retired Justice Carolyn Berger:
The candidates are said to be Superior Court President Judge James T. Vaughn Jr.; Superior Court Judge Jan R. Jurden; Joseph R. Slights III, former Superior Court judge and current Morris James partner; and Morris, Nichols, Arsht & Tunnell partner Frederick H. Alexander.
Vice Chancellor Laster has posted a 3 page comment titled Evidence Based Corporate Law on SSRN (also appearing in the Del J Corp Law). Here's the abstract:
Abstract: John Maynard Keynes is said to have observed, "When the facts change, I change my mind. What do you do, sir?" In Delaware's Choice, Professor Subramanian argues that the facts underlying the constitutionality of Section 203 have changed. Assuming his facts are correct, and the Professor says that no one has challenged his account to date, then they have implications for more than Section 203. They potentially extend to Delaware's jurisprudence regarding a board's ability to maintain a stockholder rights plan, which becomes a preclusive defense if a bidder cannot wage a proxy contest for control of the target board with a realistic possibility of success. Professor Subramanian's facts may call for rethinking not only the constitutionality of Section 203, but also the extent of a board's ability to maintain a rights plan.
I know a lot of people who would be very interested in the prospect of the Delaware Supreme Court actually revisiting the question of the viability of the poison pill under Unocal.
Wednesday, September 10, 2014
After warning yesterday that they might do it, Dollar General has gone hostile this morning with a tender offer at $80/share subject to the following conditions:
(i) at least a majority of the outstanding shares tender,
(ii) termination of the Amended Dollar Tree merger agreement and the voting support agreements,
(iii) entry into a merger agreement with Dollar General (in form and substance satisfactory to Dollar General in its reasonable discretion), including a second step 251(h) short form merger,
(iv) entry into definitive tender and support agreements by certain Family Dollar shareholders,
(v) approval of the transaction under Section 203,
(vi) redemption of the Family Dollar Board poison pill, and
(vii) approval by antitrust authorities.
All those reasonable questions that the Faily Dollar board has about the Dollar General bid are still out there. Only now, Dollar General is going straight to the shareholders and asking them to make the decision. Family Dollar does not have a staggered board so, in effect, the scheduled Family Dollar shareholder meeting that will be called this fall to vote yes/no on the Dollar Tree offer should be the referendum on the pair of transactions. Between now and then, expect quite a bit of noise on both sides as they each make their case.
The AALS Section on Business Associations is pleased to announce that it is sponsoring a Call for Papers for its program on Sunday, January 4th at the AALS 2015 Annual Meeting in Washington, DC.
The topic of the program and call for papers is “The Future of the Corporate Board.”
How will boards adapt to recent changes and challenges in the business, legal, and social environment in which corporations operate? The recent global financial crisis and the continuing need for many corporations to compete internationally mean that today’s boards face economic pressures that their predecessors did not. This pressure is heightened by the rise of activist investors, many of whom aggressively push for changes to corporate management and governance. On the legal front, new regulations, such as Dodd-Frank, impose heightened compliance and other burdens on many companies and boards. And on the social front, pressures for socially responsible corporate behavior and greater racial and gender diversity on boards continues. Our program seeks to examine the ways in which boards have, and will in the future, respond to these challenges.
Form and length of submission
Eligible law faculty are invited to submit manuscripts or abstracts that address any of the foregoing topics. Abstracts should be comprehensive enough to allow the review committee to meaningfully evaluate the aims and likely content of papers they propose. Papers may be accepted for publication but must not be published prior to the Annual Meeting. Untenured faculty members are particularly encouraged to submit manuscripts or abstracts.
The initial review of the papers will be blind. Accordingly the author should submit a cover letter with the paper. However, the paper itself, including the title page and footnotes must not contain any references identifying the author or the author’s school. The submitting author is responsible for taking any steps necessary to redact self-identifying text or footnotes.
Deadline and submission method
To be considered, papers must be submitted electronically to Kim Krawiec at firstname.lastname@example.org. The deadline for submission is SEPTEMBER 12, 2014.
Papers will be selected after review by members of the section’s Executive Committee. The authors of the selected papers will be notified by September 28, 2014.
The Call for Paper participants will be responsible for paying their annual meeting registration fee and travel expenses.
Full-time faculty members of AALS member law schools are eligible to submit papers. The following are ineligible to submit: foreign, visiting (without a full-time position at an AALS member law school) and adjunct faculty members, graduate students, fellows, non-law school faculty, and faculty at fee-paid non-member schools. Papers co-authored with a person ineligible to submit on their own may be submitted by the eligible co-author.
Please forward this Call for Papers to any eligible faculty who might be interested.
Tuesday, September 9, 2014
Last week Family Dollar received and then rejected an offering from Dollar General opting, rather, to stick with its deal with Dollar Tree. There is, of course, litigation. The stockholders bringing suit are arguing that the FDO board violated its fiduciary duties to the corporation by agreeing to the deal with Dollar Tree and also when they rejected Dollar Genera's competitive bid. Here's the amended complaint.
So, is the board required to chase the nominally higher Dollar General offer? What do their fiduciary duties require? Remember, in QVC, which is probably the best case for laying out how board actions in the context of a sale of control will be reviewed, the Delaware Supreme Court said:
Although an enhanced scrutiny test involves a review of the reasonableness of the substantive merits of a board's actions, a court should not ignore the complexity of the directors' task in a sale of control. There are many business and financial considerations implicated in investigating and selecting the best value reasonably available. The board of directors is the corporate decisionmaking body best equipped to make these judgments. Accordingly, a court applying enhanced judicial scrutiny should be deciding whether the directors made a reasonable decision, not a perfect decision. If a board selected one of several reasonable alternatives, a court should not second-guess that choice even though it might have decided otherwise or subsequent events may have cast doubt on the board's determination. Thus, courts will not substitute their business judgment for that of the directors, but will determine if the directors' decision was, on balance, within a range of reasonableness.
So, if the board has two reasonable alternatives and it chooses one, the court will not second guess. That leaves a lot of discretion in the hands of the board, even when we are in "Revlon mode". So, in the FDO sale, what are the board's choices? And, are they reasonable ones?
The basic outlines of Dollar General's most recent offer are as follows:
- $80 in cash;
- $500 million reverse termination fee payable if the transaction is block by regulators;
- a commitment to divest itself of up to 1,500 stores should the government so require.
OK, that seems pretty good. Against that FDO has a signed amended merger agreement with the following offer:
-$74.50 in cash and stock
- a 'hell or high water' provision that requires Dollar Tree to "propose ... the sale, divestiture, license, holding separate, and other disposition of ... any and all retail stores and any and all assets ... of Parent and its Subsidiaries ... " as required to secure antitrust approval.
Hmm. Not so cut and dry. On the one hand, you have an offer in hand with near on 100% certainty of closing at this point. Sure, it will face regulatory review, but the buyer has taken all that risk. On the other, you have a nominally higher bid, but a lot of the residual risk that antitrust authorities will stop or significantly hamper the deal is left on the shoulders of the FDO stockholders. Sure, the FDO stockholders get compensated for that risk through the higher price and a reverse termination fee, but is that enough? That depends on your estimates of the probabilty of antitrust authorities putting up a stink if you do the Dollar General deal. And here, reasonable people can disagree.
If people can have a reasonable disagreement about the estimate of probabilities of antitrust enforcement against a deal that has not been accepted, well, then any court reviewing the board's decision will give the board plenty of latitude.
Absent other facts, suggesting other motivations to favor Dollar Tree, the FDO board looks on solid ground. Of course, if Dollar General were to offer up a similar 'hell or high water' provision -- and why not? It says it doesn't believe there is any significant antitrust issue -- well, then that might make it difficult for the FDO board to justify its decision to go with the lower offer as reasonable.
Friday, September 5, 2014
Gauntlet thrown, this morning Family Dollar responded to Dollar General's increased offer in the only way it could (if it wants to say no):
Ed Garden, a Family Dollar director and co-founder and Chief Investment Officer at Trian Fund Management, L.P., a large shareholder of the Company, stated, “We are focused on delivering to Family Dollar shareholders the highest value with certainty, and the Dollar Tree transaction does just that. Dollar Tree has taken the antitrust risk off the table by committing to divest as many stores as necessary to obtain antitrust clearance. We remain fully committed to the Dollar Tree transaction.”
Mr. Garden continued, “Dollar General’s revised proposal, on the other hand, does not eliminate regulatory risk for Family Dollar shareholders. Dollar General has repeatedly stated that antitrust is not a risk, yet they have put forth proposals that require Family Dollar shareholders to bear the ultimate risk. Receiving a reverse breakup fee with an after-tax value of less than $3 a share does virtually nothing to compensate the Family Dollar shareholders for assuming that risk.”
It is true that Dollar General went very far to reduce the real risk of antitrust being a block to getting the deal done, but FDO apparently believes it didn't go far enough. Turns out, absent other evidence, that a determination that Dollar General's improved bid and commitment with respect to antitrust isn't enough is still completely within the purview of the Family Dollar board. They looked at the remaining antitrust risk and figured it wasn't worth the $3/share offered in the reverse break up fee. You may disagree. I may disagree. But, it's not for you or I to say. Consistent with their obligations under Revlon, it's for the FDO board to determine. Of course, it's a very close call and the motivations of the board really matter, but the FDO - by sticking to its message that antitrust risk is critical to them - is hoping to be able to either stave off a Dollar General acquisition or maneuver Dollar General into giving up yet more concessions to alleviate the antitrust risk. You may disagree with the decision, but is the decision unreasonable? Probably not.
If Dollar General isn't willing to revisit its offer, I suppose the next step for Dollar General is to head off to court to try to get an injunction to prevent FDO shareholders from voting on the Dollar Tree deal. That's a tough road to hoe, but absent going all in on antitrust or another price increase, it's probably one of the few cards left for Dollar General to play here.
Tuesday, September 2, 2014
The Family Dollar board may have boxed itself in. In July it agreed to a transaction with Dollar Tree for $74.50 in cash and stock. Dollar General - having previously expressed an interest in acquiring Family Dollar - lobbed in a bid for the company for $78.50 in cash and a committment to divest itself of up to 700 stores. At this point, Family Dollar's board actions are all going to be reviewed under Revlon, so it had to be careful in how it treated Dollar General's bid. The board rejected the bid and explained that it did so because of antitrust risk:
In negotiating the merger agreement with Dollar Tree, the Family Dollar Board ensured that the agreement permits the Board, consistent with its fiduciary duties, to negotiate with, provide due diligence materials to, and even terminate the merger agreement to enter into a new agreement with, a competing bidder. However, as is customary, the Board may commence negotiations and due diligence access only if, among other factors, the Board determines that a proposal from a competing bidder is reasonably expected to lead to a superior proposal that “is reasonably likely to be completed on the terms proposed.” The Family Dollar Board, after consultation with its financial and legal advisors who have conducted an extensive antitrust analysis, determined that the Dollar General proposal fails to satisfy this requirement. The Board’s decision follows the unanimous recommendation of a committee of four non-management independent directors that has been overseeing the Company’s consideration and exploration of strategic alternatives since January 2014. This committee consists of Glenn A. Eisenberg; Ed Garden; George R. Mahoney, Jr.; and Harvey Morgan.
Howard R. Levine, Chairman and CEO of Family Dollar, stated, “Our Board of Directors, with the assistance of outside advisors and consultants, has been carefully analyzing the antitrust issues in a potential combination with Dollar General since the beginning of this year, as detailed in the Company’s preliminary proxy statement that was filed by Dollar Tree with the SEC on August 11. Our Board reviewed, with our advisors, all aspects of Dollar General’s proposal and unanimously concluded that it is not reasonably likely to be completed on the terms proposed. Accordingly, our Board rejects Dollar General’s proposal and reaffirms its support for the pending merger with Dollar Tree.”
Mr. Levine continued, “I would also like to note that Dollar General’s letter, sent late last night, contained blatant mischaracterizations and did nothing to address the antitrust issues in Dollar General’s proposal.”
Ball in Dollar General's court. Well, Dollar General just hit the ball back. It raised it's bid to $80 in cash plus a $500 million reverse termination fee payable if the transaction is block by regulators and a commitment to divest itself of up to 1,500 stores should the government so require. In structuring its bid this way, Dollar General appear intent on taking away arguments from the Family Dollar board.
Observers have suggested that the Family Dollar arguments about antitrust were just a pretext and that the real reason for preferring the Dollar Tree offer over any deal with Dollar General was that Family Dollar management wanted to remain in place. Of course, when Revlon is the standard, such considerations are not permissible. So, we shall see what's up as Dollar General tries to smoke out the Family Dollar board.