普通株式と優先株式の利益相反—In re Trados Inc. Shareholder Litigation, 2013 Del. Ch. LEXIS 207 (Del. Ch. Aug. 16, 2013) (2)

Tradosに関して,一週間前に紹介したのですが,続々とメモが出ておりますので,紹介しておきます。

MFWも1つだけ追加しておきます。

via S&C, PWRW&G, M&A Law Prof Blog, Corporate & Securities Law Blog, WSG&R, C&B, DLA Piper, WF&G

SEC v. Garber, 2013 WL 1732571 (S.D.N.Y. Apr. 22, 2013)

本件では,連邦証券法規則144の適用,Janus判決に基づく“make”への該当性および欺罔の意図の有無が争われました。規則144が争われる事例は珍しいので,紹介します。

  • 規則144について

Defendants did not satisfy Rule 144 because the original debt was not a security but rather was “akin to an ‘IOU’ for services rendered or compensation owed to a current or former affiliate of the issuer.” FN16 The SEC alleges that the “Individual Defendants, who were experienced securities professionals and sophisticated investors, knew or were reckless in not knowing that the debts were not securities.”

  • 欺罔の意図の有無について

The SEC alleges that the “Individual Defendants, who were experienced securities professionals and sophisticated investors, knew or were reckless in not knowing that the debts were not securities.” … The fact that the attorney letters were a precondition to the success of the scheme does not undermine the allegations of opportunity to commit fraud―rather, the fact of obtaining said letters, the sole purpose of which was to further the alleged scheme, supports the allegations of fraudulent intent.

  • Janus判決に基づく“make”の該当性

Drawing all reasonable inferences in favor of the SEC, the attorneys appear analogous to the investment advisors in Janus and Defendants to the client, whom Janus suggests was the maker of the statement. Defendants solicited the advisory opinion and had “ultimate authority … over whether and how to communicate it,” at least in the context of the alleged scheme. The issuance of the advisory opinion at Defendants’ behest did not further the scheme, it was only when Defendants presented the information in support of their ability to sell the penny stocks without registration that they had the intended effect.FN54 Even under Janus, the “making” of these statements could be attributed to Defendants.

via Race to the Bottom

NASDAQのプレスリリース

2013年8月22日の出来事に関する,NASDAQのプレスリリースです。

As with any technology system, the SIP has finite capacity. The SIP’s governing committee plans for capacity based on the needs of its member exchanges, adding an appropriate cushion of extra capacity to handle heavier than expected volume. In January 2013, a regularly scheduled systems capacity test showed the SIP system was capable of handling approximately 500,000 messages per second across 50 of the SIP system’s ports, for an average peak of approximately 10,000 messages per-port, per second. The tests are conducted in a controlled environment – performance in real-life scenarios will typically be lower.

On the morning of August 22, however, a sequence of events combined to create an unprecedented volume of message traffic into the SIP; well beyond the system’s tested capacity of 10,000 messages per-port, per second.

On August 22, the SIP received more than 20 connect and disconnect sequences from NYSE Arca, each of which consumed significant resources. Available capacity was further eroded as the SIP received a stream of quotes for inaccurate symbols from NYSE Arca, and generated quote rejects. Both of these actions served to degrade the system below the tested capacity of 10,000 messages per per-port, per second. During this period, NYSE Arca sent multiple bursts with each connect and disconnect, topping more than 26,000 quote updates per-port, per second as it attempted to reconnect. By comparison, a typical August day for NYSE Arca would peak at less than 1000 messages per-port, per second. The events of August 22 were 26 times greater than the average per-port, per-second activity.

The confluence of these events vastly exceeded the SIP’s planned capacity, which caused its failure and then revealed a latent flaw in the SIP’s software code.

This latent flaw prevented the system’s built-in redundancy capabilities from failing over cleanly, and delayed the return of system messages. The combination of large system inputs and delayed outputs ultimately degraded the ability of the SIP system to process quotes to an extent that a shutdown of the system was in the broader public interest, to prevent information asymmetry and ensure fair conditions for all market participants.

Although the problem was quickly identified and data feeds were operational within 30 minutes of the halt, additional time was required for NASDAQ to consult UTP SIP committee members and market participants, and to test and evaluate scenarios to re-open the market to ensure that trading could be resumed in a fair and orderly manner. As soon as that process was completed, connectivity to the SIP was made available to UTP participants. The markets reopened without incident.

via NASDAQ, N.Y. Times Dealbook, Economist

NASDAQの取引停止の理由(?)

Nanex Image

Digging into market data before the Nasdaq blackout at 12:20 EDT on August 22, 2013, we came across several significant periods of extremely high quote bursts. …[T]he 3 quote bursts at 11:48, 11:50 and 11:54 – which were just minutes before Nasdaq decided to shut down the SIP – were each comprised of a loop of the last 50 minutes worth of quotes. Basically, the previous 50 minutes worth of quotes in hundreds of stocks were blasted, with fresh new timestamps, to millions of subscribers, over a 3 second period. …

via The Big Picture, Nanex

アクティビスト・ヘッジ・ファンドの影響

最近は,こればかりという感じですが,Bebchuk教授が書いた論文について,Wachtell Lipton Rosen & KatzのLipton弁護士が反論しています。

この話題も興味深いのですが,Schedule 13Dの提出期限に関するBebchuk教授とLipton弁護士の議論がより面白いので紹介します。

via The Conference Board, The Conference Board, N.Y. Times Dealbook

Carsanaro v. Bloodhound Technologies, Inc., 65 A.3d 618 (Del. Ch. 2013)

色々と論点がある判決ですが,新株発行による希釈化に関する論点があります。既存の規範を変えていることはないので,事例判決ということだと思います。間違っていたら,誰かお知らせください。3月の判決なので,時季を逸しておりますが,紹介しておきます。

[*655] To determine whether a claim is derivative or direct, this Court must consider ‘‘(1) who suffered the alleged harm (the corporation or the suing stockholders, individually); and (2) who would receive the benefit of any recovery or other remedy (the corporation or the stockholders, individually)?’’ Tooley v. Donaldson, Lufkin & Jenrette, Inc., 845 A.2d 1031, 1033 (Del.2004). Although each question is framed in terms of exclusive alternatives (either the corporation or the stockholders), some injuries affect both the corporation and the stockholders. If this dual aspect is present, a plaintiff can choose to sue individually.

[*657] In Gentile, the Delaware Supreme Court acknowledged the dual character of dilutive issuances and held that ‘‘[t]here is TTT at least one transactional paradigm―a species of corporate overpayment claim― that Delaware case law recognizes as being both derivative and direct in character.’’ 906 A.2d at 99 (footnote omitted). A breach of fiduciary duty claim having this dual character arises where: (1) a stockholder having majority or effective control causes the corporation to issue ‘‘excessive’’ shares of its stock in exchange for assets of the controlling stockholder that have a lesser value; and (2) the exchange causes an increase in the percentage of the outstanding shares owned by the controlling stockholder, and a corresponding decrease in the share percentage owned by the public (minority) shareholders. Because the means used to achieve that result is an overpayment (or ‘‘over-issuance’’) of shares to the controlling stockholder, the corporation is harmed and has a claim to compel the restoration of the value of the overpayment. That claim, by definition, is derivative. But, the public (or minority) stockholders also have a separate, and direct, claim arising out of that same transaction. Because the shares representing the ‘‘overpayment’’ embody both economic value and voting power, the end result of this type of transaction is an improper transfer―or expropriation―of economic value and voting power from the public shareholders to the majority or controlling stockholder. For that reason, the harm resulting from the overpayment is not confined to an equal dilution of the economic value and voting power of each of the corporation’s outstanding shares. A separate harm also results: an extraction from the public shareholders, and a redistribution to the controlling shareholder, of a portion of the economic value and voting power embodied in the minority interest. As a consequence, the public shareholders are harmed, uniquely and individually, to the same extent that the controlling shareholder is (correspondingly) benefited. In such circumstances, the public shareholders are entitled to recover the value represented by that overpayment―an entitlement that may be claimed by the public shareholders directly and without regard to any claim the corporation may have. Id. at 99–100 (footnotes omitted).

This Court has struggled with how to interpret Gentile and its potential to undercut the traditional characterization of stock dilution claims as derivative. …

In my view, the Delaware Supreme Court’s decisions preserve stockholder standing to pursue individual challenges to self-interested stock issuances when the facts alleged support an actionable claim for breach of the duty of loyalty. Standing will exist if a controlling stockholder stood on both sides of the transaction. Standing will also exist if the board that effectuated the transaction lacked a disinterested and independent majority. Standing will not exist if there is no reason to infer disloyal expropriation, such as when stock is issued to an unaffiliated third party, as part of an employee compensation plan, or when a majority of disinterested and independent directors approves the terms. The expropriation principle operates only when defendant fiduciaries (i) had the ability to use the levers of corporate control to benefit themselves and (ii) took advantage of the opportunity.

With this understanding, the complaint pleads a direct claim.

Applying Gentile in this fashion does not undermine the distinction between (i) controllers under Kahn v. Lynch Communication Systems, Inc., 638 A.2d 1110 (Del.1994) (‘‘Lynch ’’), and (ii) directors who collectively hold a significant block of common stock and vote in favor of a transaction. ‘‘[T]he Lynch line of jurisprudence [ ] has been premised on the notion that when a controller wants the rest of the shares, the controller’s power is so potent that independent directors and minority stockholders cannot freely exercise their judgment, fearing retribution from the controller.’’ In re PNB Hldg. Co. S’holders Litig., 2006 WL 2403999, at *9 (Del. Ch. Aug. 18, 2006). Because of the controller’s influence, entire fairness has been held to apply ab initio, and the use of a single procedurally protective mechanism, such as a special committee or majority of the minority vote, does not restore the business judgment rule.

Although in a case challenging a dilutive stock issuance the Tooley questions can be answered with ‘‘either’’ or ‘‘both,’’ here the case focuses primarily on injury at the stockholder level and seeks a remedy that will operate at the stockholder level. The claims against the Series D and E Financings are therefore direct.

  • 志谷匡史「株主訴訟とspecial injury概念—Tooley v. Donaldson, Lufkin & Jenrette, Inc., 845 A.2d 1031 (Del. 2004)」商事1753号64–67頁(2005)

  • 宮崎裕介「少数派株主から支配株主への不当な利益移転と直接訴訟提起の可否(米国会社・証取法判例研究No. 243)—Gentile v. Rossette, 906 A.2d 91 (Del.2006)」商事1820号44–49頁(2007)

  • 宮崎裕介「不公正な事業譲渡についての支配株主の責任と直接訴訟提起の可否(米国会社・証取法判例研究No. 251)」商事1841号53–58頁(2008)

  • 村上康司「企業買収における取締役の賠償責任(2)」立命2009年1号45頁,78–84頁(2009)

  • 宮崎裕介「ストック・オプションの発行により生じた既存株主の損害と直接訴訟による救済の可否(米国会社・証取法判例研究No. 291)—Feldman v. Cutaia, 951 A.2d 727 (Del. 2008).」商事1953号58–62頁(2011)

via Delaware Business Litigation Report, Fares v. Lankau, No. 12-1381-SLR (August 15, 2013)

米国におけるベンチャーキャピタル投資の概要

WSG&Rがとても興味深い記事を書いています。

Media Pre-money Valuations

Median Equity

Anti-dilution provisions. There was a small increase in the use of broad-based weighted-average anti-dilution provisions, from 92% of all rounds in 2012 to 94% in 1H 2013.

Median Bridge

Interest Rates. Data for 1H 2013 confirmed the previously reported trend of generally declining interest rates for pre-Series A bridge loans but generally increasing interest rates for post-Series A bridge loans. The percentage of pre-Series A bridges with annual rates under 8% increased markedly, from 64% of all deals in 2012 to 75% in 1H 2013. By contrast, the percentage of post-Series A bridge loans with annual interest rates above 8% increased from 15% of all deals in 2012 to 20% in 1H 2013. The percentage of post-Series A bridges with rates of less than 8% declined from 44% to 39%.

Maturities. Maturities for pre-Series A bridge loans remain substantially longer than for post-Series A ones. The percentage of pre-Series A deals with maturities of 12 months or more increased from 92% in 2012 to 97% in 1H 2013. For post-Series A loans, maturities of one year or more increased from 66% of loans in 2012 to 69% in 1H 2013.

via WSG&R