Rock M&A 2007 - I

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Rock M&A 2007 - I ...

    Urkevich M&A Outline


    I. Duties and Risks of Sellers

    a. Ways to acquire control:

    i. Tender offerSH level transaction. Two ways to do this:

    1. Can do a TO for 60%, gain control, and elect directors; but then owe certain

    duties to public SH. May decide to do another TO to get above 90% and follow

    with a ? 253 short form merger.

    2. Can form a merger under ? 251.

    ii. ?? 251 and 253 are corporate level transactions.

    1. ? 251: each company‘s board has to recommend it AND you need SH

    approvalmajority of OS shares for it to take place.

    2. Get appraisal under ? 262 if cash is the merger consideration.

    3. ? 253: short from mergerparent with more than 90% of the sub can acquire

    the remaining shares w/o a meeting or w/o a vote, just by doing itby sending

    a notification to DE SHs notifying them.

    4. If parent does a ? 251, applicable case is Weinberger. Need independent

    negotiating structure to look after minority SHs. Raises question whether there

    is a similar sort of 253 obligation; no, b/c the board of the sub is not acting

    unilateral action by the parent. (Glassman). Can you avoid Weinberger and get

    into Glassman by doing a TO to get to 90% to do a short form Pure Resources

    type of case. Not entire fairness obligation with a TO, nor is there one with a

    short form in Glassman.

    5. ? 271: sale of all or substantially all assets. B/c the company is selling itself,

    there needs to be a recommendation of the BoD and a resolution adopted by the

    majority of outstanding SHs.

    6. Triangular mergerset up a merger subsidiary and have the sub merge with,

    or into, the target company. Consideration can be cash or shares of the

    parentor even of a third company. Typically still 251 transactions. iii. In DE, if board is behaving properly, the DE will side with the board. iv. Three repeat scenarios to focus on and keep separate when reading:

    1. Company A is minding its own business. Company B says they want to buy A

    (i.e. Unocal).

    2. Company C is being sold (to Company D) and Company E comes in and says

    they want to buy C (Revlon).

    3. Somewhere between case A and B. Company A and B decide they want to

    merge and now Company C comes in and says they are a better fit (Time


    b. Loyalty Duties of Directors

    i. Three kinds of self dealing in most of corporate law:

    1. Basic self dealing

    2. Executive compensation

    3. Corporate opportunity

    a. In each of these the conflict is very different.

    ii. Kors v. Carey (p. 67)

    1. United Whelan becomes a SH of Lehn & Frank, eventually acquiring up to

    16%. UW is also a customer of L&F. L&F is worried UW will acquire some

    intermediate level of control and throw its weight around.


    Urkevich M&A Outline


    2. MGMT buys back the shares of UW at a premium of few dollrs—―greenmail‖

    iii. Cheff v. Mathes (p. 67) (1964)

    1. Family owned directors bought out insurgent SHgreenmail.

    2. Court took intermediate positiongave directors discretion because their

    decision was made ―in good faith after reasonable investigation.‖

    3. Court held that good faith belief that they were pursuing a ―business purpose‖

    that would benefit the corporation was sufficient to rebut any inference of

    conflict of interest and to return plaintiffs to the position of producing sufficient

    evidence to overcome the strong presumption of BJR.

    4. Directors may not act solely or primarily out of a desire to perpetuate

    themselves in office; court held that here, the board‘s actions were purely to

    entrench Cheff.

    5. In both cases, allowing the greenmail payment means that some SHs get to sell

    their stock back at a premium when other SHs are not offered the same

    opportunity. Can be viewed as differential treatment of SH of the same class. 6. These cases stand in the background when Unocal comes along. thiv. Panter v. Marshall Field & Co (7 Cir. 1981)--―arguably taken for the benefit of

    the corporation.‖

    v. Is Unocal a response to the above two cases?

    vi. Unocal Corporation v. Mesa Petroleum (p 73) (Del. 1985)

    1. Issue: validity of a corporation‘s self-tender for its own shares which excludes

    from participation a stockholder making a hostile TO for the company‘s

    stockselective exchange offer.

    a. Mesa commences a two tier front loaded offer at $54 for 37% of Unocal‘s

    stockwould be highly subordinated and change Unocal‘s cap structure.

    i. Remember this two tier TO solves the collection action problem the

    bidder for control faces and prevents SHs from free riding on

    bidderhave to get rid of possibility that SHs will want to stay

    around to get the $60 value that Pickens may ultimately bring to the

    table by his mgmt skills; if no one tenders so they can wait, then he

    will never get control.

    b. Bd meets for 9.5 hours and concludes that the offer is wholly inadequate;

    $60 minimum value. Conclude threat to Unocal.

    i. When Ibanker decided that $60 was minimum value, he was looking

    at the third party sales standard, not intrinsic value. So why a threat?

    The SHs own shares in Unocal under current mgmtSachs says if

    you sold it to a third party you might get $60. Couldn‘t you just say

    that the company is NOT being soldyou want to keep the same

    people running it? What reason do SHs have for believing that the

    current mgmt is going to get the price up to $60/share?!

    ii. Supposedly the 2 threats are:

    1. Coercion of two-tier bid

    2. Notion of ―substantive coercion‖—danger that SHs will be

    confused and won‘t know that the company is really worth more

    than $54/share even though it‘s never traded above $45/share.


    Urkevich M&A Outline


    2. Court upholds validity of defensive device, board exercised sound business

    judgment—will not substitute court‘s view with boards if board‘s contained

    ―any rational business purpose.‖

    3. Authority from:

    a. 141(a): business and affairs and

    b. 160(a): authority to deal in its own stock

    4. To get presumption of BJR, directors have to show that they had ―reasonable

    grounds for believing that a danger to corporate policy and effectiveness existed

    because of another person‘s stock ownership.‖ Proof is further enhanced by the

    approval of a board comprised of a majority of outside independent directors. 5. Response must be reasonable in relation to threat posed.

    6. Draconianpreclusive or coercive?

    a. Court doesn‘t think so, but arguably, Unocal‘s self-tender was more


    7. Bottom linelearn from Unocal that the company went through the right


    a. Majority independent, outside directors.

    b. Processlong meetings, eminent advisors

    c. Surest guide to understanding DE law is that DE as a system believes in

    board governance. Essence of DE jurisprudence seems to center around

    ensuring that the board acts well and when it doesprotecting it.

    8. After Unocal, SEC enacted Rule 14d-10, the ―all holders rule‖ giving all

    stockholders a right to the highest price in a TO.

    vii. Mills Acquisition Co. v. MacMillan (p 84) (Del. 1989)

    1. Court held that the trial‘s court failure to enjoin the lockup provision b/t

    Macmillan and KKR had the effect of prematurely ending the auction before

    the board had achieved the highest price reasonably available for the company. 2. Doesn‘t meet Revlon standards.

    3. DE‘s concept of fairness includes both:

    a. Fair dealing

    i. Actual conduct of corporate fiduciaries in effecting a transaction

    ii. Duty of candor owed by corporate fiduciaries to disclose all material

    information relevant to corporate decisions from which they may

    derive a personal benefit

    b. Fair price

    i. In an auction for corporate control must commit themselves

    ―inexorably, to obtaining the highest value reasonably available to the

    SHs under all the circumstances.‖

    4. When issues of corporate control are at stake, there exists ―the omnipresent

    specter that a board may be acting primarily in its own interests, rather than

    those of the corporation and its shareholders.‖ (Unocal). Because of this, an

    ―enhanced duty‖ must be met at the threshold before the board receives the

    normal protections of the BJR. Directors may not act out of a sole or primary

    desire to ―perpetuate themselves in office.‖ (Mathes).

    5. Facts:


    Urkevich M&A Outline


    a. Bass group comes along as potential bidder. Board enters into an ESOP

    and adopts a poison pill, golden parachute and splits company in two to

    give management effective control of information.

    b. Gets litigated in MacMillan Idifferent than Unocal because mgmt is self

    interested in this transaction because they are going to end up with control.

    In Unocal they just want to keep managing the company. In MacMillan

    you have mgmt competing for control in MacMillan Ihave an auction

    going on and someone takes control in either case. Court enjoys it in

    MacMillan I claiming the Bass offer is clearly superior.

    c. Now, directors look to sell the company. Maxwell shows up again. Rock

    says now have ―torpid‖ failures in the process—complete procedural

    failurehow not to sell a company. Still cited to this day b/c it represents

    such a vivid example of board governance gone awry.

    i. Ct focuses on role of Lazardbanker. Not clear that they were

    working for special committeelooks like they were working for

    mgmt; mgmt picked bankers and spent 500 hours talking with

    them—looks like they‘re working for mgmt, NOT the special


    ii. Mgmt accepts KKR bid and decides not to shop for a potentially

    higher bid from Maxwell.

    viii. Williams v. Geier (p 83)

    1. Doesn‘t trigger Unocal because approved by SHs. Unocal only triggered when

    approved by board. If approved by SHs, either BJR or less than that. 2. Why give this sort of deference to a SH vote? Why would SH adopt a voting

    structure that assured a controlling family group sufficient votes to ensure

    defeat of any takeover attempt? ; Maybe think interests are aligned with


    c. Contractual Approaches to Loyalty Issues

    i. Controlling Mgmt Opportunism in Market for Corporate Control (p118) 1. Hypo: Client (Chairman) owns 45% of Cline stock and 100% of Major Corp;

    transaction at issue is a prospective merger between Major Corp and Cline. 2. Four directors:

    a. Chairman owns 45%

    b. President, $5 million

    c. Dr. X, $1 million

    d. Mr. Consultant, $800k (all in annual compensation)

    3. Who is least interested of the group?

    a. Consultant? Worried that consultant‘s head will be turned by the stream

    of earnings he receives which is controlled by the chairman. He‘s worried

    about future payments.

    b. Difference between interest in company and expectation of future

    earningsinterests may change depending on expected value from

    negotiations. Say max negotiator could get $60/share and minimum

    negotiator $50/share. Difference is $400k. if can only get price at $52,

    then someone who doesn‘t have a large stake in the company may be more


    Urkevich M&A Outline


    independent. But, if can get it at $80/share then the stock interests look

    more significant.

    c. If these individualsdoctors and consultantsservices are unique to the

    company, then may have more control over the negotiations. But, if

    they‘re not that important and contain a non-compete clause then the BoD

    may have more control over him.

    d. Rock says point here is that the conflict of interest cases are very fact

    intensive. The chairman is easy b/c he has a positional conflictstands

    on both sides of the transaction. The other two examples have a

    relationship conflicttheir relation to the chairman can compromise their


    4. Stock ownership can go a long way towards aligning the interests of managers and stockholders. Now, want to flip the question and start in a moment of calm in the company. The compensation committee says to look at mgmt‘s compensation to determine how to structure is to that if there is a potential change of control transaction the mangers will enthusiastically look at interest of SHs and moreover, will stock around through thick and thin. How do you structure this?

    a. Normal: maximize SH value

    b. ―Abnormal:‖ change of control transactions

    i. Transactions close or transactions don‘t close

    ii. Third party bidnice and high or too low

    iii. Company bid for a third partytoo high or nice and low

    iv. Mergers of equals

    c. What are your concerns given this set of scenarios?

    i. Want managers not to sell for too low.

    ii. Mgrs not to buy for too high.

    iii. Mgrs to agree to sell when price is high.

    iv. Mgrs to agree when acquisition price is low

    v. Mgmt team intact if transaction close; don‘t want them running off

    to another company. Also want them to stay up until change of

    control if deal does close.

    d. How would you structure a compensation plan to address these concerns?

    i. Going to be agency costs no matter what you do

    ii. Cash

    iii. Options

    iv. Stock

    v. Timing

    1. Want performance based compensation to give a rough

    alignmentcan be cash and options

    2. If give it all to them at once, they can leave

    3. Have vesting at options to keep them around (x % vests every x

    years) ; but, can cause another problem—don‘t want mgrs to not

    agree to sell when they should just so their options vestso could

    put in an accelerated vesting provision that says if there is a change


    Urkevich M&A Outline


    of control, all unvested options will immediately vest, but again,

    may cause the managers to sell so they can vest early.

    vi. Golden parachutepayment of three times salary and bonus on

    change of control. This is std compensation agreement right now.

    1. Contractually, good chance mgrs will agree to sell when price is

    high with the standard compensation contract. Also goes a long

    way towards keeping the management team intact. Between

    accelerated vesting and golden parachute would be stupid to leave

    on the eve of a change of control.

    vii. What about other problems?

    1. Don‘t want them to sell for too low. However, the accelerated

    vesting provides a strong incentive to do some deal. If you want to

    know what company is likely to be taken overlook to companies

    where CEO is between 59 and 60 years of age.

    2. If problem is a Revlon problemtwo bids, one high, one low

    managers will clearly prefer high to low.

    3. If question is selling today vs. selling in three years, this does

    nothing at all to solve that problem.

    4. Getting managers not to buy when the price of an acquisition is too

    high is a very hard problem to solve.

    viii. This is a contractual solution to an agency problem. Different ways to

    solve this problem; can do so by legally prohibiting certain defenses

    in the face of a bid. Or, may approach it contractually.

    ii. Gaillard v. Natomas Company (p 125)

    1. Hadn‘t written the optimal compensation agreement yet and a bid came along.

    2. Board realizes that hadn‘t engaged in enough advanced planning and are afraid

    that managers won‘t sell or won‘t stick around because of the stress.

    3. Problem of negotiating the golden parachute t the same time they are

    negotiating the acquisition pricelook like self dealinggive an extra $10m to

    officers and sell company for $1/share less.

    4. Flom handles this by negotiating the golden parachute after they negotiate the

    price. Can you negotiate this simultaneously with the deal? 5. Have two contrasting casesin Gaillard the court says no and in Campbell the

    court says yes.

    6. It looks like managers are being bribed to act in the best way for SHs. 7. If there is any problem today similar to the problem in the 1980s it is that

    managers are willing to sell companies. Managers get a huge payout at a sale

    of control. Who is willing to say no? Outside directors; in a mid-cap company

    costs about $150 to hire an outside director. People really like the money and

    have usually worked hard to get there. Outside directors are arguably the ones

    who have the financial incentives to ask hard question about whether right time

    to sell the company.

    iii. Campbell v. Potash Corp of Saskatchewan, Inc (supp 9)

    d. Informational Duties of Directors


    Urkevich M&A Outline


    i. Problem, page 156: Great bid on the table. Issue is whether the board can accept an offer that precludes further shopping? If they wait a week to think about it, they lose the bid.

    1. Offer to buy at 66x earnings; clearly the three-day deadline on the offer is to

    force acceptance and to preclude any significant shopping.

    2. How do you advise the board?

    a. Not sure if they are really out of there in 3 days. You like the price, but

    maybe you can get a better price from them or someone else.

    b. If S v. VG stands for the proposition that as a matter of law, cannot sell a

    company in three days then little pharm says to big pharm that they just

    can‘t legally do it.

    c. BUT, if VG stands for something else then you can‘t make this claim to

    the bidder b/c the bidder‘s lawyers will call you out.

    d. Matters a lot to negotiations how one understands S v. VG.

    3. When looking at the deal, look to the amount of deliberation, presence and

    analysis of investment bankers and lawyers.

    a. Has there been enough process? In 72 hours you can come up to speed if

    you know what you‘re doing.

    4. Existence of 33% SHs also adds to the analysis

    a. If this SH thinks 66x earnings is a great price, interests are aligned. 5. Can the board accept an offer that says ―no shopping?‖

    a. This provision says you cannot cooperate with any other bid. Sometimes

    can‘t solicit competing bids, but you can cooperate with any bids that


    6. Within the three days a competing offer comes in. Does the company have to

    issue a press release?

    a. Suppose that big pharm says another condition is that they do not want to

    publicize it. Not interested in getting into a bidding war. If issue a press

    release, offer is void. Want to know if they have to issue a press release

    and if they can accept the offer.

    b. The bid won‘t always be a secret b/c will have to get SH approval—and

    will have to issue a press release. Have obligations to disclose material

    developments. At point there is a merger agreement there will be a press

    release. When signing on to big pharmdoes there have to be one?

    i. No, probably not if sufficiently go through the process. Don‘t know

    for sure if anyone else is willing to buy it; if they think it‘s a good

    price and have a basis for it, then they should be able to accept the

    deal, the no shop, and not publicize it.

    ii. Smith v. Van Gorkom (p 142) (Del. 1985)

    1. Facts: Merger of TU into Marmon. 45% premium over recent mkt price;

    investment tax credits were unusable to TU, but valuable to an acquirer. 2. Quick holdings: Ct of Chancery applies BJR and says defendant wins. Said no

    director liability unless: director conflicting interests, bad faith, action not on an

    ―informed basis,‖ and action is irrational.

    a. Issue on appeal was whether BoD decision was informed; DE SC said

    NO. Articulated the ―gross negligence‖ standard.


    Urkevich M&A Outline


    b. The majority thought the BoD was just nodding along to the will of the

    CEO/chair who promoted deal and set the price. Casual decision making;

    didn‘t even have the merger agreement when voted. Approved in 2 hours

    and relied only on VG presentation. Failure to obtain valuation study.

    Merger agreement drafting failure. Discrepancies b/t what some directors

    thought the agmt included and what was in actual agmt.

    c. No duty of loyalty problemsno conflict of interests; were independent


    d. Duty of careaftermath was an outrageDGCL ? 102(b)(7): charter

    provisions preclude director monetary liability for duty of care... 3. Why can‘t the board obtain protections from reports or officers under 141(e) of


    a. There wasn‘t a ―report‖ here—just VG‘s oral presentation which doesn‘t

    arise to the requisite detail to count as a report.

    4. Here, Pritzker is offering $55 and TU trading at $38. Not a big premium and

    moreover, thought the premium was meaningless b/c knew that stock was

    trading low b/c investment credits were not valued.

    5. Why wouldn‘t the opportunity to consider other offers for 90 days not satisfy

    the requirements for the board to inform itself about value.

    6. Also applies to problem: Once a competing bid came along or the bd decided to

    no longer recommend it, the court held that under ? 251 the board had but two


    a. To proceed with the merger and the stockholder meeting, with the board‘s

    recommendation of approval; or

    b. To rescind its agreement with Pritzker, withdraw its approval of the

    merger, and notify SHs that the proposed SH meeting was cancelled. 7. Why can‘t they just let SH decide? Why can‘t they change their

    recommendation after they have already submitted it to SHs?

    8. In VG, why wasn‘t the market test sufficient to inform the directors whether it

    was a good bid? No one else came through w/ a better offer.

    9. In original merger agreement, the board acknowledges that it may have

    competing duties to SHs. Why wasn‘t that enough? Or, in the future, is there

    an explicit fiduciary out? Generally cannot contract out of your fiduciary duties.

    iii. Problem:

    1. Client who is the largest franchisee of a franchise that has been experiencing

    difficulties. Client possibly interested in buy all of it, but b/c doesn‘t have its

    finances lined up, doesn‘t want to trigger the franchisor‘s Revlon duties. But,

    needs access to confidential records. What would you say in a letter to the

    franchisor‘s board proposing such access?

    a. Maybe even though you‘re thinking about a cash bid, you‘re vague or you

    say maybe a joint venture...or just interested in investing. The idea is that

    the fast food company will know what you‘re saying but that there‘s

    nothing in there to trigger Revlon, is this right?

    iv. Revlon, Inc. v. MacAndrews & Forbes Holdings, Inc. (p 157) (Del. 1985)

    1. Know that once in Revlon mode have to act as an auctioneer.


    Urkevich M&A Outline


    2. This shift in fiduciary duty occurs when it becomes clear that SH are going to be cashed out.

    3. Revlon made the mistake when they sought out Forstmann Little.

    4. Rock says a better reading of this case is that Bergerac didn‘t want to sell. This was pre poison pill, before it was invented.

    5. Granted Forstmann special privileges:

    a. No shop

    b. Lock upgive ability to purchase major assets of target company if

    another acquirer gets X%

    i. Can be structured as asset lock ups, straight up cancellation fees,

    stock lockups. Ct ultimately invalidates it.

    c. Break up fee.

    6. A well incentivized board may in good faith grant a lock up or termination fee in order to encourage a bid by covering the sunk costs of bidding. But here, the lockup isn‘t encouraging Forstmann to bid because he‘s already incurred whatever the costs of bidding are. The concern here is that by paying a breakup fee to mgmt‘s favored bidder it will tilt the outcome of the auction in favor of mgmt‘s favored bidder b/c it raises the cost of bidding for other bidders. Rock says it’s a plausible argument, but it’s wrongexactly what the intuition of

    the court has, but doesn‘t work:

    a. Assume the current market capitalization is $600 million.

    b. There are three potential bidders, A, B, and C. Bidder A thinks the

    company would be worth $800 million to it, Bidder B thinks $810 million,

    Bidder C thinks $790 million.

    c. From a matter of social policy, the socially optimal outcome is for Bidder

    B to end up with the assets--they're worth the most in Bidder B's hands.

    But you're worried management might have some preference for Bidder A. d. If there are no lockups, then up until $790 all three bidders will be bidding

    against each other. At that point Bidder C drops out, until it caps $800,

    when Bidder A drops out. Bidder B gets the company for $801 million,

    even though up to $810 million it's still a valuable acquisition for Bidder B. e. Assume that Bidder B makes a bid at Time One for $650. Management

    then turns to Bidder A and says if you bid $675 million, we'll promise you

    a $20 million breakup fee. B now knows that if it acquires the company,

    it's going to have to write a check for $20 million to A. Now, Bidder B

    will only be willing to go up to $790. What's the maximum price that

    Bidder A will be willing to pay?

    f. Will Bidder A go up to $800 million? If it does, it gets zero profit, but if it

    lets Bidder B prevail, it gets $20 million.

    g. Bidder A therefore won't go higher than $780. Who wins the auction?

    Bidder B. In other words, the $20 million breakup fee is a guaranteed

    payment to Bidder A.

    h. Once that's in place, it becomes an alternative scenario or an opportunity

    cost for both Bidder A and Bidder B. It therefore reduces the reservation

    price equally for both, and thus won't affect who wins the auction.


    Urkevich M&A Outline


    i. If what you're worried about is the highest valuing bidder acquiring the

    assets, it's not obvious that the second argument should convince you that

    there's something wrong with the lockup.

    7. But, if breakup fee were $300m it would shift the outcome in favor of mgmt‘s

    preferred bidder. So long as the breakup fee is bigger than the difference b/t the

    bid and the reservation price, it will be preclusive.

    8. When the mgmt offers a break up fee to entice another bidder to come in, it cuts

    into the profits that the bidder who identified the company in the first place will

    make. By reducing his profits, you reduce his incentives to research.

    v. Barkan v. Amsted Industries, Inc. (p 167) (Del. 1989)

    1. What did they do in Barkan that they didn‘t do in Revlon? Why is Barkan good

    but Revlon bad?

    2. In Barkan, not only went with the first offer, but the mgmt offer. Didn‘t do a

    market test. Mgmt came in and said it wanted to buy the company. If you‘re a

    director with a lot of your money in the company this makes you nervous

    because managers have an incentive to buy the company for the lowest possible

    price they can; they also have access to absolutely all the information in the


    a. If mgrs are trying to buy the company at X + 10, real concern that this is

    not what the company is worth.

    3. Given our concern about MBOs, what‘s the argument that the board can sell to

    management without doing a full auction?

    a. Because of tax benefits connected to the ESP nobody will be able to top


    b. How do they know no one is willing to top it?

    i. Could argue that it‘s been in play for 10 months and no bid has come

    forward, ergo nobody‘s willing to pay a higher price.

    ii. But, there‘s a poison pill in place. Is that going to drive away bidders?

    1. Ct says lots of cases where the pill is in place and still get bids.

    People bid all the time making them conditional on the board‘s


    4. What about no-shop? Ct approves it, but with skepticism. The court approves

    the entire settlement, but with intense skepticism about the way it was actually

    approved. If you‘re running the next MBO and you‘re making sure it doesn‘t

    get enjoinedthese are the sort of things you pay close attention to; they are

    the warning shots of the DE courts.

    vi. For the next three cases, focus on the style and detail of their rulings. Consider this scenario:

    1. Have two publicly traded companies, A and B.

    2. A is willing to enter into a merger agreement with B for an exchange of stock. 3. Neither A nor B has a controlling SH.

    4. Willing to do a stock for stock deal and call it a ―merger of equals.‖

    5. Would also like to put in a ―no talk provision.‖—operates to prohibit the

    corporation from soliciting, initiating, encouraging, or taking any action that

    knowingly encourages offers from another; even providing information to a

    third party.


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