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TABLE OF CASES
(click on a case for summary)
Carmody v. Toll Bros., Inc., Del. Ch., C.A. No. 15983, Jacobs, V.C. (Aug. 4, 1998)
Elliott Associates, L.P. v. Avatex Corp., Del. Supr., 715 A.2d 843 (1998)
Gotham Partners, LP v. Hallwood Realty Partners, LP, Del. Ch., C.A. No. 15754, Steele, V.C. (Nov. 10, 1998)
Malone v. Brincat, Del. Supr., No. 459, 1997, 1998 WL 919123 (Dec. 18, 1998)
Mariner LDC v. Stone Container Corporation, Del. Ch., C.A. No. 16724-NC, Lamb, V.C. (Nov. 17, 1998)
Quadrangle Offshore (Cayman) LLC v. Kenetech Corporation, Del. Ch., C.A. No. 16362, Steele, V.C. (Octo ber 21, 1998)
Quickturn Design Systems Inc. v. Shapiro, Del. Supr., Nos. 511, 1998 & 512, 1998, 1998 Del. LEXIS 496 (Dec. 31, 1998)
VonFeldt v. Stifel Financial Corp., Del. Supr., 714 A.2d 79 (1998)
RECENT DEVELOPMENTS IN
DELAWARE CORPORATE LAW
TULANE CASE SUMMARIES
1:Carmody v. Toll Bros., Inc., Del. Ch., C.A. No. 15983, Jacobs, V.C. (Aug. 4, 1998).
HIGHLIGHT: "Dead hand" or "continuing director" provision of poison pill rights plan is subject to legal challenge on both statutory and fiduciary grounds under Delaware law.
Plaintiff, a shareholder of defendant Toll Brothers, Inc. ("Toll Brothers"), brought suit challenging the "continuing director" or "dead hand" feature of the company’s shareholder rights plan. In substance, the dead hand provision operated to prevent any directors, other than those in office as of the date of the plan’s adoption, or their designated successors, from redeeming the rights until they expired. Plaintiff contended that the dead hand feature: (1) made an unsolicited offer for the company more unlikely by eliminating a proxy contest as a useful way for a hostile acquiror to gain control, because assuming the acquiror won the contest, the newly elected directors could not redeem the rights; and (2) disenfranchised, in a proxy contest, all shareholders that would want directors in office to have the power to redeem the rights, by depriving those shareholders of any practical choice but to vote for the incumbent directors. Defendants moved to dismiss the complaint pursuant to Chancery Rule 12(b)(6) for failure to state a claim.
The Court of Chancery concluded that the complaint stated legally sufficient claims that the dead hand provision of the rights plan violated 8 Del. C. §§ 141(a) and (d). First, under Section 141(d), if any group of directors is given distinctive voting rights not shared by other directors, the corporate charter must so provide. That requirement was not met here. Second, the court found that because Section 141(d) reserves to the shareholders the right to elect one or more directors with greater voting rights, the board of directors could not unilaterally do so absent express language in the charter. Third, the court found that the dead hand feature impermissibly interfered with the directors’ statutory power to manage the business and affairs of the corporation conferred by Section 141(a). The court reasoned that a newly elected future board of directors could not redeem the pill without obtaining the consent of the continuing directors, who presumably would constitute a minority of the board of directors. Therefore, the dead hand provision interfered with the board’s power to fully protect the corporation’s and its shareholders’ interests in connection with possible future business combinations.
In addition, the court found that the complaint stated legally cognizable claims for breach of fiduciary duty. The Chancery Court found that the complaint stated a claim under Blasius Indus. v. Atlas Corp.,[2] which requires that a board of directors demonstrate a compelling justification for instituting defensive measures that purposefully disenfranchise shareholders. Plaintiff’s complaint adequately alleged that the rights plan would preclude a hostile bidder from waging a proxy contest altogether, or, if there were a contest, that the rights plan would coerce those shareholders who favored the hostile offer to vote for the continuing directors, because they would be the only directors with the power to redeem the rights. Furthermore, the Chancery Court found that the complaint adequately alleged that the dead hand feature was both coercive and preclusive, thereby stating a claim that the dead hand feature was an unreasonable defensive measure under Unocal Corp. v. Mesa Petroleum Co.,[3] and Unitrin, Inc. v. American General Corp.[4]
2.Quickturn Design Systems Inc. v. Shapiro, Del. Supr., Nos. 511, 1998 & 512, 1998, 1998 Del. LEXIS 496 (Dec. 31, 1998).
HIGHLIGHT: A "no hand" poison pill prevents a newly elected board of directors from completely discharging its fiduciary duties making such a pill invalid under 8 Del. C. § 141(a).
This appeal arose out of a decision by the Court of Chancery holding that a rights plan possessing a delayed redemption provision (or a "no hand" feature) was invalid as an unreasonable response to a tender offer under Unocal [5] and its progeny. The original action was filed by Mentor Graphics Corporation ("Mentor"), a hostile bidder for Quickturn Design Systems, Inc. ("Quickturn"), challenging two defensive measures adopted by Quickturn's board of directors in response to Mentor's tender offer.
The first defensive measure adopted by Quickturn's board was to amend the corporation's by-laws to delay the holding of any special stockholders meeting requested by stockholders for ninety (90) to one hundred (100) days after the validity of the request was determined. Second, the board amended its existing rights plan by adopting a no hand feature of limited duration. The no hand feature established that no newly elected board could redeem the rights plan for six (6) months after taking office, if the purpose or effect of the redemption would be to facilitate a transaction with an "interested person." The total effect of the two defensive measures was to delay any acquisition of Quickturn by Mentor for at least nine (9) months.
At issue on appeal was the validity of the no hand feature to the rights plan. The Delaware Supreme Court first reasoned that the rights plan was subject to enhanced judicial scrutiny as a defensive action taken in response to a tender offer. Although the Court ultimately affirmed the Chancery Court's invalidation of the no hand provision, it reached its decision on different grounds. The Delaware Supreme Court held that the delayed redemption provision of the rights plan violated § 141(a) of the DGCL. Section 141(a) confers inherent powers concerning the management of a corporation's business and affairs on the board. The Court reasoned that while the no hand feature would limit the newly elected board's authority in only one respect (the supervision of the rights plan), it nonetheless would restrict the board's power in an area of fundamental importance to the shareholders - - negotiating a possible sale of the corporation. Thus, the no hand feature was invalidated under Section § 141(a), which confers upon any newly elected board of directors the full power to manage and direct the business and affairs of a Delaware corporation.
Further, the Delaware Supreme Court held that the no hand feature prevented a newly elected board from completely discharging its fiduciary duties to protect fully the interests of Quickturn and its shareholders. Under Revlon,[6] the Court held that no defensive measure can be sustained when it represents a breach of the directors' fiduciary duty, and, consequently, no defensive measure can be sustained which would require a new board of directors to breach its fiduciary duty.
3.VonFeldtv. Stifel Financial Corp., Del. Supr., 714 A.2d 79 (1998).
HIGHLIGHT: Election of a director to the board of directors of a wholly owned subsidiary by its 100% stockholder parent constitutes a "request" that the director serve the subsidiary within the meaning of the corporate director indemnification statute, 8 Del. C. § 145(a).
Plaintiff, a former director of Stifel Nicolaus Corp. ("SNC") (a wholly owned subsidiary of defendant, Stifel Financial Corp. ("Stifel")), brought an action in the Court of Chancery for advancement and indemnification of expenses and attorneys’ fees in connection with four separate suits. The underlying suits were brought against plaintiff challenging his conduct as a director, officer and employee of SNC. The Court of Chancery held: (1) that Stifel’s bylaws did not entitle plaintiff to indemnification or advancement of legal fees and expenses; and (2) that no contract existed requiring Stifel to pay for plaintiff’s defense in pending litigation.[7] On appeal, the Delaware Supreme Court reversed, in part, ruling that plaintiff was entitled to indemnification pursuant to the bylaws, which authorized indemnification to the full extent permitted by law, because he was serving as the director of a wholly owned subsidiary at the request of its parent. However, the Delaware Supreme Court did affirm the Chancery Court's holding that plaintiff was not entitled to the advancement of attorneys' fees and expenses and that no contract existed requiring the relief sought.
In its Opinion, the Delaware Supreme Court stated that the appeal from the Court of Chancery had been reduced to "a narrow legal question — whether the election of a director to the board of a wholly owned subsidiary by the 100% stockholder parent constitutes a ‘request’ that the director serve the subsidiary, within the meaning of 8 Del. C. § 145(a)."[8] The court answered this question in the affirmative holding that a director of a wholly owned subsidiary who is elected by the subsidiary’s parent serves "at the request of" the parent. Accordingly, pursuant to Section 145(a), the plaintiff was entitled to indemnification for expenses incurred in the four underlying suits. The Supreme Court further held "that, as a matter of law, the request to serve as an officer and employee of a wholly owned subsidiary is inferred from the director’s election to the subsidiary’s board."[9] Thus, although one of the underlying actions implicated the plaintiff's conduct only as an officer and employee of SNC, he was entitled to indemnification for costs incurred defending that action.
4.Elliott Associates, L.P. v. Avatex Corp., Del. Supr., 715 A.2d 843 (1998).
HIGHLIGHT: Where a charter provision grants preferred stockholders a class vote in the event of any "amendment, alteration or repeal" of the charter "by merger, consolidation or otherwise," a class vote of such stockholders will be required in a downstream merger because the charter is repealed as aconsequence of the merger and the preferred stockholders are adversely affected thereby.
Avatex Corporation planned to merge with and into its wholly owned subsidiary for the purpose of converting its preferred shareholders into common stockholders of the surviving company. One class of preferred stockholders of Avatex filed suit to enjoin the proposed merger, arguing, among other things, that the transaction required their consent. Defendants moved for judgment on the pleadings as to the class vote issue, which the Chancery Court granted, finding that the charter provisions governing the rights of the preferred stockholders did not require a class vote.[10]
On appeal, the Delaware Supreme Court reversed, finding that the proposed merger required the approval of such preferred stockholders. The Supreme Court rejected the Chancery Court's heavy reliance on Warner Communications Inc. v. Chris-Craft Indus., Inc.,[11] finding that Warner was distinguishable on its facts. In Warner, a charter provision conferring the right to a class vote on preferred stockholders was held not to encompass mergers, in part because the language of the provision there at issue tracked Section 242(b)(2) of the DGCL, which mandates a class vote for classes of stock that are adversely affected by amendments to a corporate charter, but does not create a class voting right in the event of a merger.[12] Warner was thus thought to stand for the proposition that when preferred stock is affected (or converted) by merger, as opposed to a charter amendment, no voting rights are implicated, since the DGCL provision governing mergers (§ 251) does not require a class vote on a merger. Therefore, in Warner, under the doctrine of independent legal significance, consummation of the merger (and therefore the conversion) pursuant to Section 251 meant that the voting rights of Section 242 (and the Warner charter governing the rights of the Warner preferred stockholders) were not implicated.
Significantly, unlike the Warner charter, the Avatex charter included language calling for a class vote in the event of any "amendment, alteration or repeal, whether by merger, consolidation or otherwise" of any provisions of the charter which had an adverse affect on the preferred stockholders. For purposes of the appeal, the parties stipulated that any amendment, alteration or repeal of the charter would have an adverse affect on the preferred stockholders. Thus, the Court held that the narrow issue before the court was whether the proposed downstream merger would result in the "amendment, alteration or repeal" of the charter "by merger, consolidation or otherwise." The court held that a vote of the preferred stockholders was required due to the fact that the proposed merger would result in an "amendment alteration or repeal," thus causing an adverse effect on the corporation, because the merger would render the Avatex charter a legal nullity.
Moreover, the Delaware Supreme Court rejected the argument that the charter should be construed to grant a class vote only in the case where Avatex was the surviving corporation and its charter was amended, altered or repealed, as contemplated by Section 251(b)(3) of the DGCL. The Court reasoned that limiting the charter provision to such a reading would render the word "consolidation" (as used in the phrase "whether by merger, consolidation or otherwise") surplusage, since a "consolidation" cannot occur pursuant to Section 251(b)(3), there being no surviving corporation whose preexisting charter is subject to amendment.
In conclusion, the Delaware Supreme Court stated that the holding in Warner was inapplicable to the facts in Avatex because the Warner charter did not include the "by-merger, consolidation or otherwise" language found in the Avatex charter. Since a repeal of the Avatex charter would result from the proposed downstream merger, the preferred stockholders were entitled to a class vote.
5.Quadrangle Offshore (Cayman) LLC v. Kenetech Corporation, Del. Ch., C.A. No. 16362, Steele, V.C. (October 21, 1998).
HIGHLIGHT: Corporation that was in the process of selling its assets while not engaging in any new business was in liquidation, thus permitting preferred stockholders to the rights attendant to such a liquidation.
At issue in this Chancery Rule 12(b)(6) motion to dismiss was whether plaintiffs' complaint pleaded sufficient facts to support its claims that: (1) the defendant corporation was in liquidation prior to the mandatory conversion of plaintiffs' preferred stock into common stock; (2) the Certificate of Designations accompanying plaintiffs' preferred stock therefore entitled plaintiffs to receive a liquidation preference in the distribution of the defendants' assets; and (3) the defendant breached its covenant of good faith and fair dealing in the Certificate of Designations by extending its liquidation process beyond the mandatory conversion period of the preferred stock in order to avoid paying plaintiffs a liquidation preference. The Court held that plaintiffs' complaint stated cognizable claims permitting it to withstand defendant's motion to dismiss.
The backdrop serving as the basis for plaintiffs' complaint was the economic downfall of the defendant, Kenetech Corporation ("Kenetech"), beginning in 1996. Kenetech's problems included delisting of its stock from the NASDAQ National Market, selling a significant portion of its assets, not paying interest on its senior secured notes, and not paying dividends on its preferred stock. In addition, Kenetech had pursued no new business since 1997 and was, at the time of the filing of this action, in the process of disposing of its remaining assets to pay its creditors and other lenders. Plaintiffs' alleged that these facts supported the claim that Kenetech had been winding up its affairs and thus was in liquidation prior to the date of the mandatory conversion date contained in the Certificate of Designations. Accordingly, the plaintiffs argued that they were entitled to a liquidation in the event that a distribution of assets thereafter occurred.
The Chancery Court held that facts in the complaint alleging that the corporation: (1) had not been pursuing any new business; (2) had pre-paid its severance obligation to its CEO; and (3) planned to use the proceeds of asset sales to pay outstanding debts, were sufficient to overcome the Certificate of Designations' definition of "liquidation" that "a sale, lease, or exchange of all or substantially all of the assets of the Corporation shall not be deemed to be a voluntary or involuntary liquidation." Accordingly, the Court found that the corporation was in liquidation.
Regarding the claim for breach of the implied duty to act in good faith, the Court held that there was an implied obligation to avoid arbitrary or unreasonable conduct preventing the preferred shareholders from receiving a liquidation preference. Thus, because the Certificate of Designations did not address the process for liquidation, by alleging that the defendant delayed the distribution until the mandatory conversion date passed, a claim for breach of the implied covenant of good faith was successfully pleaded. Here, the complaint alleged that, one day after the conversion date, the defendant signed a contract for the sale of substantially all of its assets permitting the inference that the corporation intentionally delayed to deny preferred shareholders a liquidation preference. As such, the claim for breach of the implied obligation of good faith and fair dealing also survived the motion to dismiss.
6.Gotham Partners, L.P. v. Hallwood Realty Partners, L.P., Del. Ch., C.A. No. 15754, Steele, V.C. (Nov. 10, 1998).
HIGHLIGHT: Where a limited partner brings derivative claims on behalf of the partnership, whether a presuit demand is excused depends on the independence of the corporate general partner itself, not the general partner's board of directors.
Plaintiff, Gotham Partners, L.P. ("Gotham"), brought this action as the owner of 15% of the outstanding limited partnership units in defendant Hallwood Realty Partners, L.P. ("Hallwood"). By their claims, plaintiff alleged that Hallwood's general partner, Hallwood Realty Corp. ("HRC"), executed a series of unit purchases whereby it acquired enough Hallwood units to block the outside unit holders from ousting HRC as Hallwood's general partner. Hallwood moved to dismiss the action pursuant to Section 1003 of the Delaware Revised Uniform Limited Partnership Act ("DRULPA"), arguing that: (1) Gotham's claims were entirely derivative in nature; and (2) Gotham had failed to plead facts excusing presuit demand to HRC's board of directors.
With respect to Hallwood's first contention, the Court held that Gotham stated a prime facie individual claim that outside unit holders' voting rights in Hallwood were adversely effected by the challenged transactions. The Court determined that sufficient particularized facts were present in Gotham's complaint to state an individual claim that it had been injured by a scheme to entrench HRC as Hallwood's general partner.
Regarding Gotham's remaining derivative claims, the Court also held that they withstood the motion to dismiss. Section 1003 of the DRULPA codifies a plaintiff partner's particularized pleading requirement for bringing a derivative suit against a Delaware limited partnership. Delaware courts have held that this standard is substantially the same as the standard for shareholder plaintiffs.[13] Thus, because there was no presuit demand, the Court was required to determine if Gotham pleaded facts sufficient to excuse such a demand. Hallwood argued that a presuit demand is not to be made on the partnership's corporate general partner, but rather, upon the individual decision makers of the corporate general partner, which in this case was HRC's board of directors.
The Chancery Court rejected this argument and held that a presuit demand must be made upon the general partner, whatever form that partner takes. Otherwise, the board of directors of the corporation acting as general partner would become the de facto general partner. The Court found that in limited partnership cases involving a presuit demand against a corporate general partner, the demand issue should be viewed in relation to the corporation itself, not its internal decision making apparatus. Therefore, because Gotham's complaint contained particularized facts explaining why HRC was incapable of impartially addressing its claims, a presuit demand was excused.
7.Mariner LDC v. Stone Container Corporation, Del. Ch., C.A. No. 16724-NC, Lamb, V.C. (Nov. 17, 1998).
HIGHLIGHT: Anti-dilution clause in target company’s certificate required that terms of target’s convertible preferred stock that survived a merger be amended to provide for conversion into common stock of acquiror.
Mariner LDC ("Mariner") and Caspian Capital Partners, L.P. ("Caspian") (collectively "plaintiffs"), holders of Series E Cumulative Convertible Exchangeable Preferred Stock ("Preferred Stock") of defendant Stone Container Corporation ("Stone"), filed this action for injunctive relief for alleged violations of their rights under Stone's Certificate of Incorporation ("Certificate"). As part of a proposed merger, the Preferred Stock was to remain outstanding. However, after the merger, the Certificate was to be amended to change the Preferred Stock's conversion feature, making it convertible into common stock of Stone's new parent, Smurfit-Stone Container Corporation ("SSCC"), following the merger. The Preferred Stockholders possessed no voting rights regarding the merger or the related amendment to the Certificate. Plaintiffs argued, however, that because the Preferred Stock would become voting stock prior to the effective date of the merger (but after the vote was taken to approve the merger) they should be permitted to vote on the merger proposal. The Court rejected this argument, citing Sections 212 and 213 of the DGCL, which require that the record date govern for purposes of voting on a merger. Here, the record date was prior to the conversion of the Preferred Stock.
Plaintiffs also argued that the proposed amendment to the Certificate making Preferred Stock convertible into Common Stock of SSCC was not required by the anti-dilution provision in Stone's Certificate. The Court held that the amendment converting the Preferred Stock into the securities to be received by holders of Stone common stock was required. The Certificate provided for such a conversion in connection with any merger other than one in which the corporation (Stone) was the continuing corporation, and there was no "change" in the outstanding shares of common stock. Here, Stone was the surviving corporation. Therefore, the issue regarding the amendment to the certificate centered on whether the outstanding common stock of Stone was considered "changed" as a result of the proposed merger.
The Court of Chancery held that the merger would result in a change, thus requiring an amendment to the Certificate. The Court applied a broad reading of the term "change," reasoning that the contemplated cancellation of Stone common stock and substitution of such stock with common stock of SSCC following the merger, was indeed a "change." Such a result furthers the general purpose of anti-dilution clauses of the type that was contained in Stone's Certificate — to protect the value of the conversion feature of a security. By permitting a corporation to freely engage in mergers in which all of its outstanding common stock is exchanged for some other type of property without adjusting the conversion feature to permit such a conversion, the purpose of an anti-dilution clause would fail. Thus, plaintiffs’ claims seeking to enjoin the merger were denied.
8.Malone v. Brincat, Del. Supr., No. 459, 1997, 1998 WL 919123 (Dec. 18, 1998).
HIGHLIGHT: Directors who knowingly disseminate false information about the business of a corporation that results in corporate injury or damage to an individual stockholder violate their fiduciary duty even when the directors do not seek shareholder action in connection with such disclosure.
Plaintiffs, individual shareholders of Mercury Finance Company ("Mercury"), filed an individual and class action complaint alleging that the directors of Mercury had breached their fiduciary duty of disclosure. The complaint also alleged that KPMG Peat Marwick LLP ("KPMG") aided and abetted the Mercury directors' breaches of fiduciary duty. The complaint alleged that the directors intentionally overstated the financial condition of Mercury on repeated occasions throughout a four-year period in disclosures to Mercury's shareholders. According to the complaint, the directors of Mercury "knowingly and intentionally breached their fiduciary duty of disclosure because the SEC filings made by the directors and every communication from the company to the shareholders since 1994 was [sic] materially false."[14] Moreover, the complaint alleged that "as a direct result of the false disclosures … the company has lost all or virtually all of its value (about $2 billion)."[15]
Defendants moved for dismissal pursuant to Chancery Rule 12(b)(6) for failure to state a claim. In an Opinion dated October 30, 1997, the Court of Chancery dismissed the complaint with prejudice, holding that directors have no fiduciary duty of disclosure in the absence of a request for shareholder action. On appeal, the Delaware Supreme Court reframed the issue to focus not on whether the defendants breached their duty of disclosure, but whether incorrect disclosure implicates a director's fiduciary duty in the absence of a request for shareholder action. Thus, the Court stated that the issue was whether the defendants breached their more general fiduciary duty of loyalty and good faith by knowingly disseminating false information about the financial condition of the company.
The Delaware Supreme Court held that the complaint as drafted should have been dismissed without prejudice to allow an amendment. The complaint was deficient as written because it failed to assert a derivative claim. The Supreme Court reasoned that directors who knowingly disseminate false information that results in corporate injury or damage to an individual stockholder violate their fiduciary duty, and may be accountable in a manner appropriate to the circumstances.
The Court noted that information can be disseminated to stockholders in one of three ways: (1) public statements made to the market; (2) statements informing shareholders about the affairs of the corporation without a request for shareholder action; and (3) statements to shareholders in conjunction with a request for shareholder action. The Court drew an important distinction between the mere dissemination of information, and information given to shareholders when their action is requested. In the later situation, directors fiduciary duties require accurate disclosure of all material information. By contrast, when information is disseminated without seeking shareholder action, the only standard is that what is disclosed must be truthful. Thus, although a board of directors is not required to disseminate any information absent a request for shareholder action, if the board chooses to disseminate information to its shareholders, either directly or by a public statement, it cannot deliberately misinform the shareholders about the business of the corporation. In short, when directors disseminate information to stockholders when no stockholder action is sought, the fiduciary duties of care, loyalty and good faith apply, thus requiring honest disclosure.
Notes:
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Michael D. Goldman is a partner in the law firm of Potter Anderson & Corroon LLP, Wilmington, Delaware. Gregory M. Johnson is an associate of that firm. The views and opinions expressed herein are those of the authors and do not necessarily represent those of Potter Anderson & Corroon LLP or its clients. Portions of this article have been, or may be used in other materials published by the authors or their colleagues.
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Del. Ch., 564 A.2d 651, 662-63 (1988).
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Del. Supr., 493 A.2d 946 (1985).
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Del. Supr., 651 A.2d 1361 (1995).
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Unocal Corp. V. Mesa Petroleum Co., Del. Supr., 493 A.2d 946, 958 (1985).
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Revlon, Inc., v. MacAndrews & Forbes Holdings, Inc., 506 A.2d 173 (1986).
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See VonFeldt v. Stifel Financial Corp., Del. Ch., C.A. No. 15688, Chandler, V. C. (Aug. 18, 1997).
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Vonfeldt, 714 A.2d at 83-84.
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Id. at 85.
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Harbor Finance Partners Ltd. v. Butler, Del. Ch., C.A. Nos. 16334, 16336, Lamb, V.C. (June 3, 1998).
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Del. Ch., 583 A.2d 962 (1989), aff’d, Del. Supr., 567 A.2d 419 (1989).
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See 8 Del. C.§ 242(b)(2).
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See Litman v. Prudential-Bache Properties, Inc., Del. Ch., C.A. No. 12137, Chandler, V.C. (Jan. 4, 1993).
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Malone v. Brincat, Del. Supr., No. 459, 1997, 1998 WL 919123, at *1 (Dec. 18, 1998).
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