M&A in 2014: Recent Developments in M&A Mark Stachiw, NxGen Partners, LLC Glen Hettinger, Fulbright & Jaworski LLP (Norton Rose Fulbright) Scarlet McNellie, Fulbright & Jaworski LLP (Norton Rose Fulbright) Fulbright & Jaworski LLP March 6, 2014

Speaker Glen Hettinger

M&A Practice Group, United States – Partner Fulbright & Jaworski LLP (Norton Rose Fulbright) Glen Hettinger is head of the Securities/M&A in the Dallas office and Co-Chair of the USA M&A practice group.

Glen has a broad range of experience including representing public and private companies in accessing capital and effecting mergers and acquisitions. He has served on the board and audit committee of a public corporation and has counseled boards of directors on corporate governance and fiduciary duties.

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Speaker Scarlet McNellie

Partner Fulbright & Jaworski LLP (Norton Rose Fulbright) Scarlet McNellie is a partner in the Dallas office. Scarlet has experience representing public and private companies in merger and acquisition transactions, equity and debt security offerings, securities compliance work, corporate governance matters, private equity transactions and venture capital investments.

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Speaker Mark Stachiw

Managing Partner, General Counsel & Secretary NxGen Partners, LLC Mark Stachiw has practiced law for twenty eight years – primarily as the chief legal officer of publicly traded Fortune 500 companies, or of divisions of publicly traded companies, in the communications industry.

Mr. Stachiw is currently a Managing Partner, General Counsel and Secretary of NxGen Partners, a private equity fund focused on investing in small to medium size technology and communications focused businesses. Prior to joining NxGen Partners, Mr. Stachiw was the Vice Chairman, General Counsel and Secretary for MetroPCS Communications, Inc. (NYSE:PCS), a $6 billion dollar Fortune 500 public wireless telecommunications company headquartered in Richardson, Texas.

Mr. Stachiw also serves on the board of the Metroplex Technology Business Council, where he is a Vice Chairman, the Chairman of the Advocacy Committee, Nominating Committee and on the Executive Committee. Mr. Stachiw also previously served on the board of SkyTitan International, a private aircraft manufacturing company headquartered in St. Louis, where he was an outside director and Chair of the Compensation Committee; and the Competitive Carrier Association, where he also served on the Executive Committee, Nominating Committee and the Compensation Committee. Mr. Stachiw also was elected to, and served on the Parker, Texas City Council and as a member of its Planning and Zoning Commission. Finally, Mr. Stachiw founded several start-up companies, including an engineering services and software businesses.

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No Shop Provisions

No Shop Provisions Deal protection device that generally prohibits a seller or target company

from: –Soliciting competing bids –Providing information to competing bidders –Encouraging or negotiating a competing transaction Covenant is often mutual in a “merger of equals” Primary reasons for no-shops:

–Protects buyer’s investment (time and money spent on due diligence and negotiation)

–Minimizes risk of competing bids (particularly important in public deals) –Protects buyer’s reputation as a strong bidder for other transactions No shop provisions in transactions involving a publicly held target

company generally also restrict the target board from changing its recommendation in favor of the buyer’s deal, subject to several exceptions

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No Shop Provisions Common Exceptions to No Shop Restrictions Window-shop: Target company can discuss and negotiate unsolicited

bids and provide information to potential bidders, subject to certain conditions: –Board determination that the competing bid could lead to a “Superior

Proposal” –Failure to participate in the negotiations or provide information would

result in a breach of the board’s fiduciary duties –Notice to buyer regarding competing bidder, the terms of the offer, and

the status of any negotiations –Confidentiality agreement with competing bidder

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No Shop Provisions Common Exceptions to No Shop Restrictions Fiduciary out: Target board can negotiate and complete a transaction

with a competing bidder or change its recommendation if failing to do so would breach its fiduciary duties, subject to: –Board determination that the competing bid is or could lead to a

Superior Proposal –Failure to exercise the fiduciary out would result in a breach of the

board’s fiduciary duties –Notice to buyer before exercising fiduciary out –Buyer’s right to match or top a third-party offer –Break-up fee before termination of the merger agreement

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No Shop Provisions Common Exceptions to No Shop Restrictions Go-shops: Allow a target company to actively solicit and negotiate

competing bids and provide confidential information for a specified period of time following execution of the merger agreement Often used when a target company has:

–Not conducted an auction –Conducted a limited pre-signing market check –Gone exclusive at some point in the sales process

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No Shop Provisions Common Exceptions to No Shop Restrictions Key terms for go-shops:

–Duration: generally ranges from 25 – 50 days from the date of signing –Grandfather clauses: permit target company to continue negotiations

with competing bidders from the go-shop period after expiration –Matching rights: allows initial bidder to match a “Superior Proposal”

received during the go-shop period –Two-tiered break-up fees: lower break-up fee payable by target

company if it terminates the merger agreement due to a “Superior Proposal” received during the go-shop period

Notes: –Consider if time period is sufficient to allow market check –Extension should be considered –Take into account time constraints under matching rights

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M&A Privilege

M&A Privilege What is attorney-client privilege? Encourages full and frank communications Protects communications between an attorney and a client (or potential

client) for the purpose of seeking legal advice M&A transactions are susceptible to litigation

–Broad scope of discovery – In litigation, evidence (not facts) rule – In M&A negotiations people communicate freely, thinking NDAs cover

them –There are frequently third parties present in discussions

• Advisors • Financing sources

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M&A Privilege What is attorney-client privilege? Only covers legal advice

–Not business advice or personal advice May only be asserted by holder of privilege

–Privilege belongs to and remains with the client/corporation Asset purchase

–Sale of assets, without more, generally does not transfer attorney-client privilege

–Fact specific determination Stock sale

–Privilege remains with sold entity despite new ownership

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M&A Privilege How is privilege lost? Disclosure to third party

–Those not necessary for rendering of legal advice –Emails: CCs and BCCs –Accountants, investment bankers, consultants, etc. –Communications with the other side

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M&A Privilege Exceptions to third-party disclosure Common Interest Doctrine

–Parties sharing a common legal interest • Identical interest, not similar • Legal interest, not commercial • Co-defendants; anticipating joint litigation

Business-Strategy Immunity (Glassman v. Crossfit) –Stems from court’s inherent power to enter protective orders as justice

requires to shield parties from prejudice –Addresses fear that information disclosed may not be used for proper

legal purposes, but rather for practical business advantages – Inapplicable to Crossfit as transaction information sought to be

protected already publicly known

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M&A Privilege How to protect privilege “Deleting” emails

–Remember emails remain after “deleting” –Some courts have found a transfer of servers storing privileged

communication in asset sale waived privilege –Spoilation? Limited disclosure – who is necessary?

–Courts consider how scrupulous parties have been in limiting access to privileged information and in offering assurance to maintain confidentiality of the communications

– If information that is subject to privilege must also be shared, the risk of waiver diminishes to the extent that any disclosure limited to as few documents and as few persons as possible.

–Helpful to note specifically the documents exchanged and the theories supporting non-waiver

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M&A Privilege How to protect privilege How will this look to the court?

–Take efforts to prevent disclosure Put it in writing

–Contractual provisions in APA/SPA –NDA –Joint Defense Agreement?

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Applying Revlon

Applying Revlon Background – Revlon Duties in Public Markets Revlon duties apply to the “sale of control” of a company Once Revlon duties triggered, board’s sole obligation is to act as

auctioneer and get the best reasonably available deal for stockholders More complex in a sale where both target and acquirer are public and the

consideration to shareholders includes public stock

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Applying Revlon Background – Revlon Duties in Public Markets Paramount Communications, Inc. v. Time Inc. (Del. Supreme Court 1990)

–No change of control and Revlon duties not triggered in all-stock merger of equals if control of the combined company post-merger remains in a “large, fluid, changeable and changing market”

Paramount Communications, Inc. v. QVC Network, Inc. (Del. Supreme Court 1993) –Revlon duties triggered even in all-stock deal where change of control

leaves a dominant, controlling shareholder

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Applying Revlon Previous Case Developments In re Santa Fe Pacific Corp. Shareholder Litigation (Del. Supreme Court

1995) –Court addressed whether a mixed cash and stock transaction could

result in a change of control that triggered Revlon duties –Each shareholder of the target was to receive 33% cash and 67% stock –A shareholder challenged the merger of equals transaction, claiming

the board failed to live up to their Revlon duties, which were triggered because a change of control was to take place

–Court looked at the stock component, which was a trade of the target’s publicly traded stock for the acquirer’s publicly traded stock

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Applying Revlon Previous Case Developments In re Santa Fe (cont’d)

–Court held that control of the combined company would actually remain in a “large, fluid, changeable and changing market,” so a change of control triggering Revlon duties would not occur

–Control after the merger was still held by holders of the combined company’s shares in the open market, so nothing had really changed

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Applying Revlon Subsequent Confusion Later Chancery Court cases in Delaware, arguably, focused on the

consideration mix The critical element in Santa Fe was the fact that control remained in a

fluid, changing market. Later cases (e.g., In re Lukens, Smurfit-Stone) focused on the

composition of the compensation The Court of Chancery first announced that a 62% cash component

probably triggered Revlon duties, because control was primarily being acquired in return for cash (In re Lukens) Later, a 50% cash/stock deal implicated Revlon, as the shareholders

would be deprived of their chance for continued growth due to losing half of their control

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Applying Revlon Recent Case Development In re Synthes, Inc. Shareholder Litigation (Del. Chancery Court 2012)

–A shareholder challenged a transaction where a buyer acquired Synthes, Inc. for 65% stock and 35% cash, claiming the board had failed to live up to their Revlon duties during the bidding process that ultimately lead to the acquisition

–The Court of Chancery did not focus on the consideration mix, but instead focused on the holding from Santa Fe

–Rather than say the 65% stock consideration was sufficient to not trigger Revlon duties, the Court of Chancery held simply that because the stock component of the consideration would be held in a large, fluid market, no change of control triggering Revlon had occurred

–The Court of Chancery’s decision announced that there was no set script the board needed to follow, and no magic number for the mixed consideration that had to be achieved

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Applying Revlon Outcome: Still Uncertain? While the decision in Synthes initially brought the Court of Chancery

back in line with the Supreme Court’s holding in Santa Fe, subsequent Court of Chancery decisions reveal that the rule in not consistent across the board For example, the Court of Chancery last year again focused on the size

of the cash component in the total consideration to determine whether Revlon duties were triggered. (In re Plains Exploration & Production Company Stockholder Litigation, C.A. 8090-VCN (May 2013)) Where do we go from here? Hard to say, but the best route to follow is to

pay attention to both the cash component and whether the stock component will be held in a large, fluid market in any hybrid consideration deals

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Controlling Stockholders

Controlling Stockholders While fiduciary duties of directors are fairly well settled, fiduciary duties

of controlling stockholders are less clear – “To my mind, which has pondered the relevant cases for many years,

there remains confusion.” – Chancellor Leo E. Strine, In re Southern Peru Copper Corporation Shareholder Derivative Litigation (2011)

Unclear which fiduciary duties applicable to controlling stockholders Recent case law has helped to clarify duties of controlling stockholders in

the context of M&A transactions with controlling stockholders

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Controlling Stockholders Recent Case Development In re MFW Shareholders Litigation (Del. Chancery Court 2013)

–Facts: • M&F, controlling shareholder owning 43% of NYSE listed public

company MFW, desired to take MFW private by acquiring remaining stock for $24 per share, which represented a 47% premium to the closing price before M&F’s offer

• M&F’s offer contingent on approval by a special committee and approval of a majority of the minority stockholders

• Special committee hired legal and financial advisors to evaluate and negotiate the proposal with M&F and countered with $30 per share

• M&F’s final offer was $25 per share • Special committee and board approved the revised offer and 65% of

minority stockholders voted to approve the transaction

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Controlling Stockholders Recent Case Development In re MFW Shareholders Litigation (cont’d)

–Holdings: • Standard for judicial review applicable to going private transactions

with controlling stockholders should be the deferential business judgment rule if the following conditions are satisfied: oOffer contingent on approval of special committee and majority of

minority stockholders oSpecial committee is independent oSpecial committee empowered to select own advisors and say no

definitively oSpecial committee meets its duty of care oVote of the minority stockholders is informed oThere is no coercion of the minority stockholders

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Controlling Stockholders Recent Case Development In re MFW Shareholders Litigation (cont’d)

–Holdings: • Entire fairness standard of review no longer applies • Court would be required to dismiss the challenge to the merger unless

the merger’s terms were so disparate that no rational person acting in good faith could have thought the merger was fair to the minority stockholders

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Controlling Stockholders Recent Case Development Southeastern Pennsylvania Transportation Authority v. Ernst Volgenau,

et al (Del. Chancery Court 2013) –Facts:

• SRA International (“SRA”) agreed to be acquired by Providence Equity Partners, with the controlling stockholder to receive interest in merged entity

• SRA conducted a pre-signing market check • After signing the merger agreement, pursuant to the go-shop

provision, SRA contacted approximately 50 potential buyers • Providence’s offer contingent on approval by a special committee and

approval of a majority of the minority stockholders

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Controlling Stockholders Recent Case Development Southeastern Pennsylvania Transportation Authority (cont’d)

–Holdings: • Standard for judicial review applicable to transaction should be the

deferential business judgment rule because: oProvidence was a third party buyer unaffiliated with SRA’s

controlling stockholder oTransaction recommended by disinterested and independent special

committee oTransaction approved by majority (81%) of minority stockholders

• Merger-related decisions of the board of SRA were attributable to a rational business purpose

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Controlling Stockholders Lessons

– If both procedural protections are used (special committee and majority of the minority vote), courts should apply the deferential business judgment rule

–There are risks associated with approval by a majority of the minority –Target companies may still choose to implement only an empowered

and independent special committee, which would shift the burden of proof under the entire fairness standard from the defendant to the plaintiff

–There is still some inconsistent precedent that suggests that a controlling stockholder does not owe the same duties when it seeks to acquire the rest of the capital stock by a tender offer rather than by a statutory merger

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Reverse Triangular Mergers and Assignments

Reverse Triangular Mergers and Assignments Reverse triangular mergers: the acquirer's subsidiary merges with the

target with the target surviving Not typically thought to involve an assignment of the target’s assets Not typically thought to be an assignment by operation of law, triggering

anti-assignment provisions in the contracts –The Delaware Court of Chancery did not address this issue until 2011

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Reverse Triangular Mergers and Assignments Recent Case Developments Meso Scale Diagnostics, LLC v. Roche Diagnostics Gmbh, C.A.

–Background • Meso and Roche were parties to license of patents owned by BioVeris • License prohibited assignment “by operation of law or otherwise”

without Meso’s prior written consent • In 2007, Roche acquired BioVeris via a reverse triangular merger,

acquiring the previously licensed patents • Meso brought a claim for breach of contract • Meso alleged that the reverse triangular merger was an “assignment

by operation of law”

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Reverse Triangular Mergers and Assignments Recent Case Developments Meso Scale Diagnostics, LLC v. Roche Diagnostics Gmbh, C.A.

– Intervening confusion • Court initially refused to dismiss case, ruling there was too much

ambiguity whether the reverse triangular merger was an assignment by operation of law

• Practitioners were confused as Delaware courts have frequently held that a stock purchase does not constitute an assignment of rights that would trigger a similar anti-assignment provision

• Without additional precedent, the law in Delaware in the reverse triangular merger context was unsettled

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Reverse Triangular Mergers and Assignments Recent Case Developments Meso Scale Diagnostics, LLC v. Roche Diagnostics Gmbh, C.A.

–Final Decision • In February 2013, after the initial motion to dismiss decision in 2011,

the Court of Chancery concluded, in its final decision on Meso, that a reverse triangular merger does not qualify as an assignment by operation of law under Delaware law

• “Mergers do not result in an assignment by operation of law of assets that began as property of the surviving entity and continued to be such after the merger”

• The Court based its ruling on § 259(a) of the DGCL –§ 259(a)

• The separate existence of all parties to a merger ceases, except the one into which the others have been merged, and all rights of these parties vest in the surviving corporation.

• The surviving corporation’s rights have not moved at all • Only the disappearing corporation(s) transfer their rights to vest in the

surviving corporation

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Reverse Triangular Mergers and Assignments Lessons

–The initial Meso ruling supports the idea that forward triangular mergers, where the target merges into the acquirer’s subsidiary, may constitute an assignment, but the subsequent Meso decision held that a reverse triangular merger does not qualify as an assignment by operation of law

–Special consideration in California: The Court of Chancery in Meso expressly declined to follow a similar case in California (SQL Solutions, Inc. v. Oracle Corp.), which holds that reverse triangular mergers do result in assignments by operation of law

• Law in the Lone Star State –The Texas Business Organizations Code: Neither a forward nor reverse

triangular merger can be construed as an assignment by operation of law

–See TBOC §10.008(a)(2) and TXO Production Co. v. M.D. Mark, Inc.

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Single Bidder Strategy

Single Bidder Strategy Recent Case Developments In re Plains (Del. Chancery Court 2013)

–Facts: • Plains sought only single bidder in sale of company • CEO led negotiations; no special committee established • Tight deal protections: “no shop” with fiduciary out, 3% breakup fee • 5 month period between signing and closing

–Holding: • Board did not violate Revlon duties • Market knowing of deal for 5 months of “window shopping” was

reasonable market check • CEO’s ownership of stock aligned interest with Plains stockholders • Court noted extensive experience of board in the industry

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Single Bidder Strategy Recent Case Developments Koehler v. NetSpend (Del. Chancery Court 2013)

–Facts: • Single bidder: NetSpend told bidder that company was not for sale • Maintained Don’t Ask / Don’t Waive standstills with interested parties • Fairness opinion “weak” oDeal price was 20% below bottom range in DCF analysis oComparable companies, transactions “of limited utility” because

taken from pre-crash period • Tight deal protections

–Holding: • Board breached Revlon duties (reasonably likely) – flawed process • Don’t Ask / Don’t Waive provisions blinded board to potential bidders • Weak fairness opinion “a poor substitute for a market check” • Board must be “particularly scrupulous” to create a process designed

to get the highest price possible

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Single Bidder Strategy Lessons

–A single-bidder process with no market check can pass muster in Delaware

–Courts will scrutinize the full context of the deal –Don’t Ask / Don’t Waive provisions will likely draw special attention by

courts –Board must be informed if Don’t Ask / Don’t Waive provisions are used

and of the potential effect on the sale process, consider granting exceptions

–A weak fairness opinion may not protect the board –Post-signing market checks and window shops may be significant to

court’s judgment

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Poison Puts

Poison Puts What is a Poison Put? Provision in a credit agreement or indenture that acts as a deterrent to a

takeover attempt or change in a company’s board of directors Works by providing for the acceleration of the company’s debt if a

change in control, a change in the number of continuing directors or other triggering event occurs

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Poison Puts Recent Case Developments Kallick v. SandRidge Energy, Inc. (Del. Chancery Court 2013)

–Key facts: • TPG demanded that SandRidge declassify board, replace CEO and

adopt other corporate governance reforms because of SandRidge’s poor performance

• SandRidge ignored TPG’s demand and adopted a poison pill • TPG solicited written consents from SandRidge stockholders to

declassify the SandRidge board and to replace all of the current SandRidge directors

• SandRidge’s board initiated its own consent revocation statement to defeat TPG nominees

• In its consent revocation statement, SandRidge attempted to convince stockholders to vote against the TPG nominees because if TPG’s slate of directors were elected, it would trigger a poison put in $4.3 billion of SandRidge’s notes

• SandRidge’s incumbent board could have disarmed the poison put by approving the TPG nominees

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Poison Puts Recent Case Developments Kallick v. SandRidge Energy, Inc. (Cont’d)

–Holdings: • Applied the Unocal good faith standard of review • The SandRidge board likely breached its fiduciary duties • It failed to demonstrate a reasonable justification for its refusal to

consider whether to approve the TPG slate of directors in the context of a poison put

• A board that is acting in good faith must seek to protect its stockholders’ ability to make uncoerced choices of directors

• In the context of a poison put, a board may only fail to approve a dissident slate if the board determines that passing control to the dissident slate posed a specific and substantial risk to the corporation

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Poison Puts Lessons

–An incumbent board generally has a duty to approve a dissident slate of directors in order to neutralize a proxy put as long as the incumbent slate does not pose a specific and substantial risk to the corporation or its creditors

–The Delaware courts will apply Unocal scrutiny to any board action that restricts or affects the ability of stockholders to choose directors

–Boards should try to exclude poison puts in debt instruments unless difficult negotiations or where there is a clear economic advantage

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DGCL Amendments Regarding Ratification of Defective Corporate Acts

DGCL Amendments Regarding Ratification of Defective Corporate Acts How should Delaware corporations (or attorneys issuing opinions)

address actions that are of questionable validity due to defective corporate authorization? –Elections or appointments of directors –Stock and option issuances –Any other past act within the corporation’s power 2013 DGCL Amendments:

–DGCL § 204 – Safe harbor procedure for ratifying corporate acts or transactions and stock that would otherwise be void or voidable due to a failure of authorization

–DGCL § 205 – Confers jurisdiction on the Delaware Court of Chancery to hear actions brought under DGCL § 204

–Effective April 1, 2014

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DGCL Amendments Regarding Ratification of Defective Corporate Acts DGCL § 204: Self-Help Safe Harbor Procedures Requirements

–Board resolutions –Stockholder notice and approval (usually) Board Resolutions

–Must include (among other things): • Time of the act • Nature of the failure of the authorization • Board ratification of the defective act

– In the resolutions, board may reserve the right to abandon the resolutions prior to the validation effective time

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DGCL Amendments Regarding Ratification of Defective Corporate Acts DGCL § 204: Self-Help Safe Harbor Procedures Stockholder approval required unless:

–Stockholder approval of the act is not otherwise required by DGCL, certificate of incorporation, bylaws or other agreement

–Defective corporate act did not result in a failure to comply with DGCL § 203 (Delaware’s anti-takeover statute)

Quorum and voting requirements are the same as those that would apply to the defective corporate act to be ratified (subject to certain exceptions) Notice generally must be provided to (i) stockholders of record at the time

of adoption of the resolution and (ii) stockholders of record at the time of the defective act (if determinable) Effect of DGCL § 204

–Each defective act that is ratified, and each share of putative stock issued under a ratified defective corporate act, is no longer void or voidable (effective retroactive to the time of the original defective act)

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DGCL Amendments Regarding Ratification of Defective Corporate Acts DGCL § 205: Delaware Court of Chancery Proceedings Determine validity and effectiveness of:

–Any defective corporate act ratified under DGCL § 204 –Any ratification of any defective corporate act under DGCL § 204 –Any corporate act not ratified (or not ratified effectively) under DGCL §

204 –Any corporate act or transaction and any stock rights or options to

acquire stock

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DGCL Amendments Regarding Ratification of Defective Corporate Acts DGCL § 205: Delaware Court of Chancery Proceedings The Court can take a wide variety of actions in furtherance of its authority

under § 205 (e.g., ability to “make such other orders regarding such matters as it deems proper under the circumstances”) The Court has broad discretion in deciding how to act (e.g., may consider

“any other factors or considerations that the Court deems just or equitable”) Modify or waive any procedures set forth in DGCL § 204 to ratify a

defective act

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DGCL Amendments Regarding Ratification of Defective Corporate Acts DGCL § 205: Delaware Court of Chancery Proceedings Procedure

–Corporations may seek a determination of the validity of acts that are not susceptible to cure under § 204.

–A claim to challenge the validity of ratifications under § 204 or to challenge a defective corporate act may be brought by (i) the corporation (or successor entity), (ii) a director, (iii) any record or beneficial stockholder or (iv) any other person claiming to be substantially and adversely affective by a ratification under DGCL § 204

–Claim generally must be asserted within 120 days of validation effective time

Delaware Court of Chancery Actions

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