In Kerbawy v. McDonnell, the Delaware Court of Chancery affirmed the validity of a solicitation of written consents that removed certain directors and appointed new directors. A key theme of the opinion is that stockholders are free to act unilaterally by written consent and an incumbent board is not entitled... Read More
Gore, et al., v. Al Jazeera America Holdings I, Inc. emphasizes not only the necessity to carefully draft indemnification claim provisions in merger agreements but the need to carefully draft indemnification claims as well. Here plaintiffs were the sellers of the business and were contesting indemnification claims. The case was... Read More
In Fox v. CDX Holdings, Inc., the Delaware Court of Chancery held that option holders could not be burdened by an escrow imposed on equity holders in a merger transaction when the terms of the option plan did not permit the escrow to be imposed. The option conversion provision of... Read More
Tiny deals can bring large complications. Mannix v. PlasmaNet, Inc. involved appraisal rights in a merger where the merger consideration, after adjustments, amounted to $114,000, to be split amongst 19,307,715 shares, or roughly six-tenths of a penny per share. Under Section 262(e) of the DGCL, there need be only one... Read More
Everyone knew the SEC would pursue a marquee-name private equity sponsor for misallocating expenses. It finally happened, with KKR settling charges for misallocating “broken deal” expenses. Charges against others are likely to follow over time. According to the SEC an investigation found that during a six-year period ending in 2011,... Read More
The stockholders of Cyveillance, Inc., sold their company for $40 million up-front and a $40 million earn-out if the company’s revenues reached a certain level. Section 5.4 of the merger agreement prohibited the buyer from “tak[ing] any action to divert or defer [revenue] with the intent of reducing or limiting... Read More
In 2006, the media conglomerate News Corporation, referred to as Old News Corp, entered into a Settlement Agreement to settle stockholder litigation filed in Delaware in 2005. Subject to certain exceptions, the Settlement Agreement prevents Old News Corp during a period of twenty years from maintaining a stockholder rights plan... Read More
The Board of Governors of the Federal Reserve Board has modified its Small Bank Holding Company Policy Statement to facilitate the sale of smaller community banks. Under the final rule, a holding company with less than $1 billion in total consolidated assets may qualify under the policy statement, provided it... Read More
In remarks at a conference attended by M&A professionals, SEC Chair White gave her views on fee shifting bylaws. Currently the SEC staff is focused on making sure the disclosures in company filings about its fee shifting provision — and the implications of such provisions — are clear. If a... Read More
It’s well known that Federal securities laws require beneficial owners to promptly file an amendment when there is a material change in the facts previously reported by them on Schedule 13D, commonly referred to as a “beneficial ownership report.” It sounds easy to comply with, but the 13Ds can be... Read More