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The M&A Lawyer Single Bidder Transaction Article.PDF July/August 2013 n Volume 17 n Issue 7 LAWYER Legislative Solutions to Practitioner Problems: Important Amendments to the Delaware General Corporation Law B y E D w A r D P . w E l C h , A l l I s on l . l A N D , C l I f f C . G A r dne r and C h r I s top h E r M . D I V I r gi l io Edward P. Welch and Allison L. Land are partners, and Cliff C. Gardner and Christopher M. DiVirgilio are associates, in the Wilmington, Delaware office of Skadden, Arps, Slate, Meagher & Flom LLP. Contact: [email protected], [email protected], [email protected] or christopher.di- [email protected]. The M&A The On June 30, 2013, Delaware Governor Section 251(h): Short- Jack Markell signed into law legislation Form Mergers In Two-Step amending the Delaware General Corpora- tion Law (the “DGCL”) in a number of im- Transactions portant ways. These amendments are ex- Acquisitions often employ a two-step structure in which the acquiror first pected to have a significant impact on the launches a tender or exchange offer for structure of mergers and acquisitions, and any and all outstanding shares. Upon the corporate practice, in Delaware. First, the DGCL has been amended to add § 251(h), CONTINUED ON PAGE 4 which will allow consummation of second- Content HIGHLIGHTS step mergers without stockholder approval following a tender or exchange offer in Managing Litigation Risk in Single-Bidder Transactions certain circumstances.1 Second, the DGCL By David E. Ross and Eric D. Selden, Seitz Ross has been amended to add §§ 204 and 205, Aronstam & Moritz LLP (Wilmington, DE) ............... 9 which will define corporate and judicial The Proxy Put and Fiduciary Duties: A Closer Look procedures for ratifying defective corpo- at Kallick v. SandRidge rate acts.2 The legislation also includes By Frank Aquila, Krishna Veeraraghavan and Mimi Butler, Sullivan & Cromwell LLP (New York) ...18 various other amendments to the DGCL, including the use of formulas for stock is- EU Plans Major Merger Review Expansion suance pricing and restrictions on “shelf” By James Modrall, Cleary Gottlieb Steen & Hamilton LLP (Brussels) ........................................... 21 corporations, which are beyond the scope of this article.3 Complete Table of Contents listed on page 2. 41315218 July/August 2013 n Volume 17 n Issue 7 The M&A Lawyer The Proxy Put and Fiduciary Duties: A Closer Look at Kallick v. SandRidge Table of CONTENTS This case serves as a useful reminder of the scrutiny Delaware courts use to review decisions of the board having the effect of entrenching an incumbent board and highlights the need for directors of Delaware Legislative Solutions to Practitioner Problems: Important corporations to carefully consider the inclusion of Proxy Puts and Amendments to the Delaware General Corporation Law similar provisions in debt and other corporate agreements. Recently-passed legislation that will go into effect this summer By Frank Aquila, Krishna Veeraraghavan and Mimi Butler, will amend the Delaware General Corporation Law in a number of Sullivan & Cromwell LLP (New York) ..........................................18 important ways. These amendments are expected to have a significant impact on the structure of mergers and acquisitions and corporate EU Plans Major Merger Review Expansion practice in Delaware. The European Commission is proposing the most significant expansion By Edward P. Welch, Allison L. Land, Cliff C. Gardner and of EU merger review since the European Union Merger Regulation entered into force in 1989. This article briefly reviews the Commission’s Christopher M. DiVirgilio, Skadden, Arps, Slate, Meagher & proposals and discusses some of the issues they raise. Flom LLP (Wilmington, DE) ...........................................................1 By James Modrall, Cleary Gottlieb Steen & From the Editor Hamilton LLP (Brussels) ................................................................21 By Chris O’Leary, Managing Editor .................................................3 Corporate Governance Feature: 10b5-1 Plans and M&A Transactions Managing Litigation Risk in Single-Bidder Transactions Companies are under pressure to scrutinize 10b5-1 plans in the wake In two recent cases decided less than two weeks apart, the Delaware of recent insider trading enforcement actions. The plans provide Court of Chancery reached opposite conclusions regarding the merits affirmative defenses that can be rebutted, and trading that coincides of Revlon-based challenges to single-bidder transactions. These cases with significant M&A transactions may suggest a basis for such provide helpful guidance for boards of directors and practitioners rebuttals. Companies should be wary of 10b5-1 plan activity that seeking to manage litigation risk when pursuing single-bidder transactions. occurs when they are in the midst of deal talks and some should even By David E. Ross and Eric D. Selden, Seitz Ross consider adopting restrictions on such activities in advance. Aronstam & Moritz LLP (Wilmington, DE) ....................................9 By Melissa Sawyer, Sullivan & Cromwell LLP (New York) ...........25 Editorial Board CHAIRMAn: MAnaginG EDIToR: Paul T. SCHnELL CHRIS o’LEARy Skadden, Arps, Slate, Meagher & Flom LLP New York, NY BOARD OF EDITORS: STEPHEn I. GLovER PHILLIP A. PRoGER CARoLE SCHIFFMAn Gibson, Dunn & Crutcher LLP Jones Day Davis Polk & Wardwell BERnARD S. Black Washington, DC Washington, DC New York, NY University of Texas Law School Austin, TX EDwARD D. HERLIHy PHILIP RICHTER Robert E. Spatt Wachtell, Lipton, Rosen & Katz Fried Frank Harris Shriver & Jacobson Simpson Thacher & Bartlett FRAnCI J. BLASSBERG New York, NY New York, NY New York, NY Debevoise & Plimpton New York, NY vICToR I. LEwkow MICHAEL S. RInGLER ECkart wILCkE Cleary Gottlieb Steen & Hamilton LLP Wilson Sonsini Goodrich & Rosati Hogan Lovells DEnnIS J. BLoCk New York, NY San Francisco, CA Frankfurt, Germany Cadwalader, Wickersham & Taft New York, NY PETER D. LyonS Paul S. RykowSkI GREGoRy P. wILLIAMS Shearman & Sterling Ernst & Young Richards, Layton & Finger AnDREw E. BoGEn New York, NY New York, NY Wilmington, DE Gibson, Dunn & Crutcher LLP Los Angeles, CA DIDIER Martin FAIzA J. SAEED wILLIAM F. wynnE, JR Bredin Prat Cravath, Swaine & Moore LLP White & Case H. RoDGIn CoHEn Paris, France New York, NY New York, NY Sullivan & Cromwell New York, NY FRAnCISCo AnTUnES Maciel MUSSnICH Barbosa, Mussnich & Aragão Advogados, Rio de Janeiro, Brasil The M&A Lawyer For authorization to photocopy, please contact the Copyright Clearance Center at 222 Rosewood Drive, Danvers, MA 01923, USA (978) 750-8400; fax (978) West LegalEdcenter 646-8600 or West’s Copyright Services at 610 Opperman Drive, Eagan, MN 55123, fax (651) 687-7551. Please outline the specific material involved, the 610 Opperman Drive number of copies you wish to distribute and the purpose or format of the use. Eagan, MN 55123 This publication was created to provide you with accurate and authoritative information concerning the subject matter covered. However, this publication was not necessarily prepared by persons licensed to practice law in a particular jurisdication. The publisher is not engaged in rendering legal or other profes- © 2013 Thomson Reuters sional advice, and this publication is not a substitute for the advice of an attorney. If you require legal or other expert advice, you should seek the services of a competent attorney or other professional. One Year Subscription n 10 Issues n $644.73 (ISSN#: 1093-3255) Copyright is not claimed as to any part of the original work prepared by a United States Government officer or employee as part of the person’s official duties. 2 © 2013 Thomson ReuTeRs The M&A Lawyer July/August 2013 n Volume 17 n Issue 7 12. 8 Del. C. § 204(h)(1). 13. 79 Del. Laws, c. 72, § 4. 14. 588 A.2d 1130, 1136 (Del. 1991) (“stock issued without authority of law is void and a nullity.”). Managing Litigation 15. C.A. no. 5317-VCs, 2010 WL 4638603, at *10 (Del. Ch. nov. 17, 2010) (explaining that “scrupulous adherence to corporate formalities Risk in Single-Bidder are germane to a board’s adoption of a stock split because both board actions involve a Transactions change in the corporation’s capital structure”). 16. For purposes of §§ 204 and 205, overissued B y D avid E . r O s s and shares are those issued in excess of the number E r ic D . s E l den permitted by section 161 at the time the shares in question are issued. David E. Ross and Eric D. Selden practice corporate and 17. See Noe v. Kropf, C.A. no. 4050-CC, trans. at commercial litigation in the Delaware Court of Chancery 13 (Del. Ch. Jan. 15, 2009) (explaining that at Seitz Ross Aronstam & Moritz LLP in Wilmington, Dela- shares were void when issued, and “any action ware. The views expressed herein are those of the authors taken where authority is lacking will constitute alone and do not necessarily represent the views of their more than a mere defect as contemplated by firm or clients. Contact: [email protected] or eselden@ § 8-202(b)(1). [Purchaser] purchased shares that seitzross.com. in effect never existed. Therefore, [Purchaser] is not entitled to any protection under the As readers of this publication know, once direc- Delaware uniform Commercial Code.”). tors of a Delaware corporation decide to pursue 18. If such defective corporate act involved the a change-of-control transaction, Revlon1 requires issuance of shares of putative stock (i.e., shares of stock that but for a failure of authorization that they “undertake reasonable efforts to secure would have been validly issued and any other the highest price realistically achievable.”2 When shares that the board of directors cannot a company decides to pursue that strategy with a determine to be valid stock), the resolution single bidder, however, designing a process that must also state the number and type of shares satisfies the Revlon standard takes on added im- of putative stock issued and the date or dates upon which such putative shares were portance and complexity.
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