On June 14 and 15, 2007, the Delaware Court of Chancery handed down opinions in two similar cases addressing the fiduciary duties of directors in the context of the sale of a public company to a private equity purchaser. Each case focused on whether appropriate proxy disclosures had been made and whether each company's respective board of directors had taken reasonable steps to maximize value to stockholders. Although the Court generally supported the actions taken by the board in each case, Vice Chancellor Strine, author of both opinions, issued limited injunctions requiring, in both cases, additional proxy disclosures and, in one case, other action necessary to allow a bidder to pursue a competitive bid.

In re The Topps Company Stockholders Litigation

Background

Topps Company, Inc. ("Topps") is a well-known maker of sports and other trading cards whose primary competitor is The Upper Deck Company ("Upper Deck"). In April 2005, Topps was threatened with a proxy contest, which management settled by assuring the insurgent hedge fund that it would intensify efforts to explore strategic alternatives for the company, including a potential sale of its confectionary business, and by signing a letter agreement with the hedge fund agreeing not to adopt a poison pill prior to June 30, 2006, without stockholder approval. The following year, Topps failed to sell the confectionary business through a public auction process. Thereafter, the insurgent re-emerged and stood poised to win three of the nine director's seats up for election at the August 2006 annual meeting, including that of Chairman and CEO Arthur Shorin. To forestall the insurgent's victory in the election to be held at the annual meeting, management agreed to expand the board by one director, and to elect Shorin and three insurgent nominees. Following the annual meeting, the board formed an Ad Hoc Committee, consisting of two directors who were incumbent at the time of the annual meeting and two directors who were nominated by the insurgent for election at the annual meeting, for the purpose of determining whether and how Topps should be sold. The Ad Hoc Committee immediately became divided, with the two insurgent nominees becoming dissident directors insisting on pursuing a public auction and the previously incumbent directors refusing as a result of their experience with the earlier, failed auction.

In the midst of the second proxy contest, former Disney CEO Michael Eisner contacted Shorin and asked whether Eisner could be "helpful." Shorin understood this contact to mean that Eisner proposed that Topps enter into a going-private transaction with Eisner's group, consisting of The Tornante Company LLC and Madison Dearborn Partners, LLC. Eisner remained in communication with Topps and, in December 2006, Eisner's group submitted a formal indication of interest to acquire Topps for $9.24 per share. The Eisner group's proposal provided for retaining existing management and made clear that it would withdraw its proposal if Topps commenced an auction. On March 3, 2007, after having negotiated the terms of the merger, Eisner delivered the executed merger agreement with a price of $9.75 per share. On March 5, the board received an opinion from Lehman Brothers, Topps' financial advisor, that the merger consideration was fair from a financial point of view based on an analysis Lehman Brothers conducted using discounted cash-flow values that were calculated on March 1. On March 5, the board approved the merger in a split vote, with all previously incumbent directors in favor of the merger and all dissident directors against the merger.

The merger agreement contained, among other provisions, a "go-shop" provision, pursuant to which Topps could actively solicit alternative bids for 40 days; a match right, which allowed the Eisner group to match any superior third party proposals; and a termination fee, including expense reimbursements, to the Eisner group of $8 million plus a $3.5 million expense reimbursement that amounted to 3.0% of the transaction value during the go-shop period, and $12 million plus a $4.5 million expense reimbursement that amounted to 4.3% of total deal value after the go-shop period. The go-shop provision required Topps to cease all talks with potential bidders at the expiration of the 40-day period unless a bidder already had submitted a superior proposal or the Topps board determined that the bidder was an "Excluded Party," which was defined as a potential bidder that the board considered reasonably likely to make a superior proposal. If the bidder had submitted a superior proposal or was an Excluded Party, Topps was permitted to continue talks with it after the expiration of the go-shop period.

For purposes of administering the go-shop process, the board formed an executive committee composed entirely of incumbent directors, thereby excluding the insurgent directors from the process. As part of the go-shop process, Topps' investment banker contacted 107 potential strategic and financial bidders. Only one serious bidder emerged from the process: Upper Deck, which had indicated interest a year and a half earlier and which had expressed a willingness to make a bid shortly before the merger agreement with the Eisner group was signed. The parties moved forward with Topps requiring Upper Deck to sign a confidentiality agreement that contained a standstill provision, as Topps did with all other potential bidders. By its terms, the confidentiality agreement prohibited Upper Deck from disclosing publicly any proposed transaction between Topps and Upper Deck or acquiring or offering to acquire any of Topps' common stock without Topps' consent for a period of two years. The Eisner merger agreement accorded Topps the undisputed right to release Upper Deck from the standstill provision of its confidentiality agreement to enable Topps' board to satisfy its fiduciary duties.

Upper Deck proceeded to make two successive offers at $10.75 per share, the first two days before the expiration of the go-shop period and the second after the expiration of the go-shop period. The latter offer included a letter from CIBC World Markets, Upper Deck's financial advisor and potential lender, which stated that CIBC was "highly confident" that it could deliver financing for the proposed transaction. Topps rejected both offers and, by a vote of its board with one dissident director dissenting, one abstaining and one absent, declined to make the finding that Upper Deck's interest was likely to result in a superior proposal and thereby be deemed an Excluded Party. In its May 24 updated proxy statement in which it disclosed information on the second proposal from Upper Deck, Topps indicated that there were material outstanding issues associated with Upper Deck's offer, including Upper Deck's ability to obtain committed financing for the acquisition (stating that the CIBC "highly confident" letter was highly conditional), Upper Deck's unwillingness to assume the antitrust risks inherent in the transaction, and Upper Deck's insistence on limiting its liability in the event of its breach of a merger agreement.

Court of Chancery Decision

The Court agreed with the plaintiffs' allegations that the proxy statement failed to disclose material facts surrounding the merger agreement with the Eisner group and Topps' negotiations with Upper Deck. The Court also concluded that the Topps board was in violation of its Revlon fiduciary duties by favoring the Eisner group bid through its misuse of the standstill agreement to prevent Topps' stockholders from considering a bid that they could find materially more favorable than the Eisner group bid.

It is important to note that the Court perceived no unreasonable flaw in the approach that the Topps board took in negotiating the merger agreement with Eisner and that the substantive terms of the merger agreement did not suggest an unreasonable approach to value maximization. Specifically, the Court noted that the termination fee and expense reimbursement Eisner was to receive if Topps terminated and accepted another deal - an eventuality more likely to occur after the go-shop period expired than during it - was around 4.3% of the total deal value. And while the Court noted that this was a bit high in percentage terms, the Court pointed out that this included Eisner's expenses and, therefore, could be explained by the relatively small size of the deal. At 42 cents a share, the termination fee (including expenses) was not of the magnitude that the Court believed was likely to have deterred a bidder with an interest in materially outbidding Eisner.

With respect to the proxy disclosures, the Court explained that "[w]hen directors of a Delaware corporation seek approval for a merger, they have a duty to provide the stockholders with the material facts relevant to making an informed decision [and to] avoid making materially misleading disclosures, which tell a distorted rendition of events or obscure material facts." The Court found that the Topps board violated this duty by omitting several material facts that the Court concluded should have been disclosed, and enjoined the stockholder vote until such disclosures were made and stockholders had a chance to consider them.

Specifically, the Court found that the proxy statement disclosure indicating that no discussions regarding post-merger employment arrangements took place prior to the execution of the merger agreement was misleading. Although the disclosure was true literally, the Court found that it created a misleading impression that Topps' managers had been given no assurances about their future, despite Eisner's explicitly premising his bid all along as one that was friendly to management and depended on retention of management. The Court further found that, although the proxy statement disclosed the Lehman Brothers' March 1 financial analysis, it should have disclosed an earlier analysis performed on January 25 that resulted in a higher per share price because there was no evidence that the earlier analysis was no longer reliable, therefore making the later analysis appear to have been done solely for the purpose of making the Eisner bid look more attractive. The Court considered the January 25 presentation as more than simply a selling document, stating that a diligent sell-side advisor is responsible for presenting an aggressive set of future assumptions to buyers to extract high bids and therefore should have included the findings in the proxy statement.

Additionally, the Court found that the proxy statement was materially misleading for failing to disclose statements made by Shorin, after having engaged in preliminary discussions with Eisner, that a "quick fix" sale of Topps was not in the interests of Topps' stockholders, thereby giving the market the impression that the company was not for sale and potentially deterring potential bidders, in violation of its Revlon duties. Lastly, the Court found that the proxy statement did not fairly reflect the chronology of the Upper Deck bid for several reasons, including failing to disclose that (i) Upper Deck's bid was not subject to a financing contingency, even though Topps was allegedly concerned with Upper Deck's failure to provide a firm debt financing commitment; (ii) many of the conditions in the CIBC letter that Topps expressed concern as causing the Upper Deck bid to be "highly-conditioned" related to information that Topps refused to provide to Upper Deck or CIBC; and (iii) Upper Deck had agreed to a "hell or high water" provision in the proposed merger agreement, offering to divest itself of any and all assets necessary to obtain antitrust regulatory approval, had provided an opinion from a reputable antitrust expert that there was no material antitrust risk and was prohibited from beginning the antitrust clearance process according to the terms of the standstill agreement.

With respect to the board's Revlon duties, the Court explained: 

The so-called Revlon standard is equally familiar. When directors propose to sell a company for cash or engage in a change of control transaction, they must take reasonable measures to ensure that the stockholders receive the highest value reasonably attainable. Of particular pertinence to this case, when directors have made the decision to sell the company, any favoritism they display toward particular bidders must be justified solely by reference to the objective of maximizing the price the stockholders receive for their shares. When directors bias the process against one bidder and toward another not in a reasoned effort to maximize advantage for the stockholders, but to tilt the process toward the bidder more likely to continue current management, they commit a breach of fiduciary duty. [Emphasis added.]

The Court found that the Topps board violated these duties by seeking to have the stockholders approve the Eisner group bid without "hearing the full story," specifically by refusing to release Upper Deck from its standstill agreement. Accordingly, the Court enjoined the stockholder vote until Topps granted Upper Deck a waiver of its standstill agreement to permit Upper Deck to make a tender offer for Topps' shares on conditions no less favorable than those in Upper Deck's most recent offer to Topps and to communicate with the stockholders about its version of the events.

By no means did the Court imply that standstill agreements could not be used in general. To the contrary, the Court observed that "standstills serve legitimate purposes" such as "to ensure that confidential information is not misused by bidders and advisors whose interests are not aligned with the corporation, to establish rules of the game that promote an orderly auction, and ... to extract concessions from the parties who seek to make a bid." By contrast, the Court concluded, the Topps board was not using the standstill to unlock higher value for the stockholders. Topps' actions, the Court observed, did not support a sincere desire by Topps' board to satisfy its Revlon duties by: (i) not raising legitimate concerns to Upper Deck about its proposal; (ii) not declaring Upper Deck an Excluded Party so that the board could continue negotiations with Upper Deck in a situation where it would have cost Topps nothing to do so, and; (iii) making misrepresentations in the proxy statement disparaging Upper Deck's proposals, knowing that Topps had the protection of the standstill agreement.. By keeping the stockholders from having the chance to accept a potentially more attractive, higher-priced deal, keeping the stockholders ill-informed about important events, and preventing Upper Deck from moving forward to present an offer to stockholders, the board forced stockholders to make an important decision on an uninformed basis, thereby "threaten[ing] irreparable injury" to the stockholders.

With the exception of the standstill agreement, the Court found all of the board's actions to be consistent with the Revlon standard. The Court found that the decisions by the board not to conduct a public auction and not to delay signing the merger agreement despite having received a proposal from Upper Deck were reasonable in light of the board's prior experience, i.e., the failed attempt to auction its confectionary business in 2005 and Upper Deck's prior proposals that were not serious. Most notably, the Court endorsed the use of go-shop provisions in lieu of pre-signing market checks, provided that the period is long enough to leave reasonable room for an effective post-signing market check. The Court also indicated that the match right and termination fee (which the Court notably considered in relation to transaction value rather than equity value, as often is the case) that Topps accorded Eisner in combination with the go-shop provision worked to enhance potential offers because these provisions enabled Topps to obtain a "proverbial bird in hand" in the form of an experienced buyer, thereby providing other bidders with "sucker's insurance" to consider a higher bid.

In re Lear Corporation Stockholder Litigation

Background

In early 2006, Carl Icahn took a large public position in Lear Corporation ("Lear") at $16 to $17 per share and increased his holdings to 24% later in the year by participating in a secondary offering from Lear at $23 per share. Two of Lear's other largest stockholders declined to participate in the same offering, citing the price as too high. Immediately following Icahn's investment, the price of Lear stock rose to approximately $30, where it remained throughout the pre-merger period.

Subsequently, in late 2006, Lear's CEO, Robert Rossiter, sought to secure his personal financial position by requesting to have the Lear board's compensation committee consider accelerating his retirement benefits while continuing to serve as CEO. Under his existing plan, Rossiter would have been required to retire in order to access his benefits and would have incurred a substantial penalty for accessing his benefits prior to age 65. In response, the compensation committee obtained an analysis from a compensation consulting firm, which presented several options to allow Rossiter to liquidate his retirement assets quickly while keeping his job and avoiding the financial penalties of early retirement. The firm cautioned that selecting any of the options might trigger adverse reactions from institutional investors and an influential proxy advisory firm. In light of the potential negative publicity, Rossiter elected not to pursue any of the options.

In January 2006, Icahn discussed with Rossiter the possibility of Icahn acquiring Lear, which would allow the company to take a more long-term focus as a private company. Icahn also indicated that he would be interested in retaining the company's current management. The two held discussions for a week, after which Rossiter informed the other members of the board of the ongoing merger discussions. The board subsequently formed a special committee to oversee the merger process. The special committee was empowered to evaluate and negotiate proposals from Icahn and to consider alternatives, but it did not insert itself or its advisors into the merger negotiations with Icahn. Because the special committee did not view the Icahn proposal as presenting a conflict situation for Rossiter or current management, it allowed Rossiter to lead the negotiations. After additional meetings with Lear, Icahn expressed his interest in moving forward with the transaction and confirmed his intention to retain Lear's senior management.

Shortly thereafter, the special committee met to review revised financial projections for the company prepared by Lear's financial advisor, JPMorgan. Drafts of the forecasts were prepared during the early morning hours of the day of the special committee meeting, but only the final version was presented to the special committee for consideration.

After extensive negotiations on February 2, Icahn proposed to buy the company for $36 per share. The board met to consider the proposal and discussed alternatives, including engaging in a formal auction, but decided that an auction would disrupt business and customer relationships and might cause Icahn to withdraw his bid, which Icahn had stated he would do if the board conducted a pre-signing auction. In lieu of an auction, the board decided to move forward with a "go-shop" approach, which it believed would maximize stockholder value. Immediately thereafter, the special committee engaged JPMorgan to solicit expressions of interest from a limited number of third parties that might have an interest in acquiring Lear. None of the third parties contacted expressed serious interest.

On February 9, Icahn and Lear signed the merger agreement. The merger agreement contained, among other provisions, a go-shop provision pursuant to which Lear could actively solicit bids for 45 days; a "window-shop" period after the close of the 45-day go-shop period, during which the Lear board retained the right to accept an unsolicited superior proposal; a match right that allowed Icahn to match any superior third party proposal; a termination fee favoring Icahn during the go-shop period of $79.5 million, including a $6 million expense reimbursement, amounting to 2.79% of the equity value of the transaction or 1.9% of the total $4.1 billion enterprise value of the deal; a termination fee after the go-shop period ended of $100 million, including a $15 million expense reimbursement that amounted to 3.52% of the equity value of the transaction or 2.4 % of the enterprise value; and a reverse termination fee if Icahn breached the merger agreement. The merger agreement also contained a "fiduciary out" provision that permitted the board to accept an unsolicited superior third-party bid after the go-shop period ended and a voting agreement that required Icahn to vote his shares in favor of any superior proposal that Icahn did not match. Separate from the merger agreement, Icahn also reached accord with key Lear managers to continue their employment with Lear. JPMorgan conducted the go-shop by contacting 41 financial sponsors and strategic acquirers, but only eight firms took initial steps and none made even a preliminary bid.

Court of Chancery Decision 

The Court agreed with the plaintiffs' allegations that the proxy statement failed to disclose material facts regarding Rossiter's retirement benefits negotiations. However, the Court did not find that the proxy statement was required to disclose information regarding an early draft of a financial analysis prepared by JPMorgan on February 1 or information regarding certain aspects of the pre-signing and post-signing market checks that the parties negotiated. The Court also disagreed with the plaintiffs' allegations that, in allowing Rossiter instead of an independent party to negotiate with Icahn, the board caused Rossiter's conflict due to his interest in securing his retirement benefits to taint the negotiations, thereby causing the board to violate its Revlon duties.

Echoing In re Topps, the Court explained with respect to the proxy disclosures that "directors of a Delaware corporation have a duty to disclose the facts material to their stockholders' decisions to vote on a merger." Focusing on the whether the particular facts were "material," the Court explained:

An omitted fact is material if there is a substantial likelihood that a reasonable shareholder would consider it important in deciding how to vote .... Put another way, there must be a substantial likelihood that the disclosure of the omitted fact would have been viewed by the reasonable investor as having significantly altered the "total mix" of information made available.

The Court quickly dismissed the claim of materiality with respect to the February 1 financial analysis draft, observing that the model was simply the first of eight drafts circulated within JPMorgan, that it had been prepared in the early morning hours by an overworked analyst, and that there was no evidence to suggest that the model was embraced as reliable by JPMorgan or Lear. The Court also quickly dismissed the claim of materiality with respect to Rossiter's predisposition toward financial buyers as opposed to strategic buyers as being "a request for self-flagellation [that] does not suffice as a disclosure claim" because negative characterizations of events are not required to be disclosed. The Court gave more credibility to the claim of materiality with respect to the effect of Icahn's tough negotiating posture on Lear's ability to conduct a pre-signing market check, but the Court implied that stockholders must be able to draw conclusions from facts that are presented to them and, as such, it was clear without having to state it explicitly that Lear would be unable to conduct a thorough pre-signing check because of Icahn's pressures and would instead focus on a post-signing check (via the go-shop provision).

The Court did, however, find a violation of the duty to disclose with respect to Rossiter's request to change his retirement benefits so that he could cash in while continuing to run the company and enjoined the stockholder vote until such disclosures were made. The Court observed that, even though Rossiter did not act in any way inappropriately, the fact remained that the proposed going-private transaction with Icahn provided Rossiter with the means to achieve his desire both to secure his retirement and to continue his employment. The Court found that "a reasonable stockholder would want to know an important economic motivation of the negotiator singularly employed by a board to obtain the best price for the stockholders, when that motivation could rationally lead the negotiator to favor a deal at a less than optimal price, because the procession of a deal was more important to him, given his overall economic interest, than only doing a deal at the right price." In so finding, the Court concluded that stockholders would find it material to know Rossiter's motivations were substantially different from someone who only owned equity in Lear or served as an independent director of Lear.

With respect to the board's Revlon duties, the Court repeated the basic rule recited in In re Topps, but added:

The duty to act reasonably is just that, a duty to take a reasonable course of action under the circumstances presented. Because there can be several reasoned ways to try to maximize value, the Court cannot find fault so long as the directors chose a reasoned course of action.

The Court observed that while he was negotiating the merger, Rossiter had powerful interests to agree to a price and terms that were suboptimal for public investors so long as the resulting deal: (i) allowed him to promptly liquidate his equity holdings; (ii) secured his ability to accelerate and cash-out his retirement benefits; and (iii) gave him the chance to continue in his managerial positions for a reasonable time with a continued equity stake in Lear that would allow him to profit from its future performance. The Court stated, furthermore, that the special committee's "infelicitous decision" to allow Rossiter sole negotiating discretion was not "preferable."1 Nonetheless, the Court explained that, in determining whether the board breached its Revlon duties, the Court must consider the entirety of the board's actions in attempting to secure the highest price reasonably available. As such, "[r]easonableness, not perfection, measured in business terms relevant to value creation, rather than by what creates the most sterile smell, is the metric." The Court found that there was no evidence that that decision adversely affected the overall reasonableness of the board's efforts to secure the highest possible value.

The Court found that the board appropriately determined not to pursue a public auction not only because it would have caused Icahn to abandon his bid, but also because the market was fully aware that the company clearly was for sale, as was evidenced by its elimination of its poison pill in 2004 and Icahn's purchase of a substantial interest in 2006. Additionally, the Court found that the plaintiffs had not demonstrated a likelihood of success on their argument that the Lear board acted unreasonably in agreeing to the deal protections in the merger agreement rather than holding out for even greater flexibility to look for a higher bid after signing with Icahn.

As part of this finding, the Court gave relatively little weight to the two-tiered nature of the termination fee. Even though the go-shop period was truncated, left a bidder hard-pressed to do adequate due diligence and "essentially required the bidder to get the whole shebang done within the 45-day window," the Court "did not find convincing the plaintiffs' argument that the combination of the fuller termination fee that would be payable for a bid meeting the required conditions after the go-shop period with Icahn's contractual match right were bid-chilling."

It is important to note the Court's analysis of the effect of termination fees as deal protection. The Court noted that:

For purposes of considering the preclusive effect of a termination fee on a rival bidder, it is arguably more important to look at the enterprise value metric because, as is the case with Lear, most acquisitions require the buyer to pay for the company's equity and refinance all of its debt. But regardless of whether that is the case, the percentage of either measure [enterprise or equity value] the termination fee represents here is hardly of the magnitude that should deter a serious rival bid.

Notably, in his analysis for the Court, Vice Chancellor Strine makes a valid argument for consideration of break fees in relation to enterprise value rather than equity value, as often is done, and appears to endorse this metric for assessing the reasonableness of termination fees.

The Court rejected the idea that potential bidders would be scared away by Icahn's sophistication because Icahn had a history of having other bidders submit topping bids over his bids and because Icahn agreed to vote his equity position for any bid superior to his own that was embraced by the board, thus signaling Icahn's own willingness to be a seller at the right price. Finally, the Court rejected the plaintiffs' arguments that the board should have pursued additional bids before locking in the price agreed to with Icahn and that the price was too low. As in In re Topps, the Court endorsed locking in a baseline bid while pursuing additional bids. The Court further explained that the inability to find another bidder in the post-signing market check validated the price.

Conclusions

These two cases are complementary and stand for the same general concepts. First, a board can satisfy its Revlon duties in a sale of the company by engaging in a reasonable course of action to maximize stockholder value, which must consist of steps that are reasoned, but which are not required to be optimal. Specific applications of this rule that can be taken from these cases are as follows:

There is no requirement for the board to engage in a public auction or any particular course of action.

  • Post-signing go-shop market-test provisions are an acceptable means of maximizing stockholder value in lieu of a public auction. It is not clear, however, whether a go-shop provision may be used when there is not a legitimate reason not to use a public auction, or whether a go-shop is required if a public auction is not used. In any event, the board's conclusion that a go-shop, post-signing market check will maximize stockholder value must be reasonable.
  • Match rights, reasonable termination fees and reverse termination fees, among other deal-protection measures, remain acceptable components in a strategy for maximizing stockholder value. The use of enterprise value as a benchmark for assessing the reasonableness of a termination fee can be appropriate in a transaction where the bidder is required to purchase all of the equity and refinance all of the debt of the target.
  • The predisposition of management or a negotiator to a particular buyer is irrelevant, provided that the predisposition does not bias the process in favor of a particular bidder to the detriment of stockholders.

Second, a board is charged with the duty to ensure the corporation discloses all material information to its stockholders, i.e., all information that a reasonable stockholder would want to know to make an informed decision regarding the transaction. Specific applications of this rule that can be taken from these cases are:

  • The board can allow stockholders to draw inferences from facts.
  • If a proxy statement does not misrepresent the actual terms agreed to, minor back-and-forth negotiations, which are not material, need not be disclosed.
  • Information that relates to a potential conflict of interest for stockholders must be disclosed.

Interestingly, in Topps the Court validated a customary deal protection measure regarding the use of a termination fee in merger agreements, finding that even when such fees are high in percentage terms as compared to the relatively small size of the deal, it can easily be explained by the fact that the fees include bidder expense reimbursements. It is also arguably more important, as is the case with Lear, that the Court makes a valid argument for consideration of termination fees in relation to enterprise value as opposed to often used equity value. The Court appears to endorse this alternative for assessing the reasonableness of termination fees.