The Evolution of Delaware Freezeout Law

  • From UOP to MFW: The Evolution of Delaware Freezeout Law

 Kahan先生の講義や指導教授のゼミでGuhan Subramanian, Fixing Freezeouts, 115 Yale L.J. 2 (2005)を購読したときのことを思い出しました。この分野は、判例法理の紹介が進んでいますし、ある程度研究も進んでいるように思いますが、ただ、その理論的な根拠はそれほど強固ではないように思います。ただ、理論的な研究を進めるためのとっかかりも簡単には思いつきません。2年以内にこの分野かMBOで論文を1つ書きたい(願望)なのですが、どうでしょうか。

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Cede v. Technicolor

  • The Foundations of Delaware Corporate Law: Cede v. Technicolor

 大変興味深く拝見しました。

  • Cede & Co. v. Technicolor, Inc., 542 A.2d 1182 (Del. 1988) (“Technicolor I”)
  • Cede & Co. v. Technicolor, Inc., 634 A.2d 345 (Del. 1993), modified, 636 A.2d 956 (Del. 1994) (“Technicolor II”)
  • Cinerama, Inc. v. Technicolor, Inc., 663 A.2d 1156 (Del. 1995) (“Technicolor III”)
  • Cede & Co. v. Technicolor, Inc., 684 A.2d 289 (Del. 1996) (“Technicolor IV”)
  • Cede & Co. v. Technicolor, Inc., 758 A.2d 485 (Del. 2000) (“Technicolor V”)
  • Cede & Co. v. Technicolor, Inc., 884 A.2d 26 (Del. 2005) (“Technicolor VI”)

For Whom is the Corporation Managed?

  • Moderator
    • Edward Rock, Martin Lipton Professor of Law; Director, Institute for Corporate Governance & Finance, NYU School of Law
  • Panelists:
    • Martin Lipton ’55, Partner, Wachtell, Lipton, Rosen & Katz; Trustee and Adjunct Professor, NYU School of Law
    • Kathryn King Sudol ’98, Partner, Simpson Thacher & Bartlett; Trustee, NYU School of Law
    • Anthony Welters ’77, Executive Chairman, BlackIvy Group; Chairman Emeritus, NYU Law Board of Trustees

California Bill Requires Companies to Include Directors From Underrepresented Communities on their Boards

On August 30, 2020, the California State Legislature passed a new and unprecedented bill intended to promote greater diversity in corporate boardrooms. If signed into law by the governor, California’s Assembly Bill (AB) 979 would require each publicly held corporation whose principal executive offices are located in California to have a minimum number of directors from an “underrepresented community” on its board of directors.

via Wall St. J., Davis Polk

Manichaean Capital v. SourceHOV Holdings, 2020 Del. Ch. LEXIS 38 (Del. Ch. Jan. 30, 2020)

In fulfilling the statutory mandate to account for “all relevant factors” bearing on “fair value,” Delaware courts consider a range of evidence that often includes (i) “market evidence,” such as a company’s unaffected trading price or the “deal price” following an appropriate “market check” and (ii) “traditional valuation techniques,” such as a comparable company, comparable transaction or DCF analysis. In this case, however, the parties and their experts agree that the circumstances surrounding the Business Combination disqualify market evidence as reliable inputs for a fair value analysis. Accordingly, the valuation presentation from both sides focused on DCF. In my view, that focus was well placed.

SourceHOV’s deal process (or lack thereof) undermines any reliance on deal price as an indicator of fair value. Moreover, as a private company, SourceHOV’s equity was not traded in an efficient market, so its unaffected market price is also an unreliable indicator of fair value. Without reliable market evidence of fair value, the parties were left to focus on “traditional valuation methods” to appraise SourceHOV. This, of course, places the spotlight squarely on their competing valuation experts. In other words, as I see it, this case has played out as the quintessential “battle of the experts.”

Both experts agree there are no sufficiently comparable companies or transactions with which to perform either a trading multiples or a transaction multiples analysis. Given that other valuation techniques do not fit here, both experts also agree that a DCF analysis is the only reliable method to calculate SourceHOV’s fair value. In light of the experts’ agreement, and seeing no reason to disagree, I am satisfied that a DCF analysis is the only reliable indicator of SourceHOV’s fair value. (footnotes omitted)

via Lowenstein Sandler, DealLawyers

In re Appraisal of Panera Bread Company

In re Appraisal of Panera Bread Company, 2020 Del. Ch. LEXIS 42 (Jan. 31, 2020) (Zurn, V.C.)

In this appraisal action, I must determine the fair value of each share of the subject company on the closing date of its acquisition. I find that the process by which the company was sold bore several objective indicia of reliability, which were not undermined by flaws in that process. I therefore find that the deal price is persuasive evidence of fair value, and give no weight to other valuation metrics. I deduct some synergies, but find others were not adequately proven. I undergo that synergies analysis solely to fulfill my statutory mandate, rather than to effectuate any transfer of funds between the parties, because the company prepaid the entire deal price and has no recourse for a refund under the appraisal statute.

via Columbia, S&C,

Business Roundtable, Statement on the Purpose of a Corporation (Aug. 2019)

See also WLRK, WLRK