In many respects, the case presented a worst case scenario – it involved a minority squeeze-out of a private company at a price of approximately $0.43 per share with no market check or competitive sales process. Both parties pointed to valuation analyses prepared by their competing experts, which resulted in wildly divergent valuations. The petitioner’s expert opined that each Synapse share was worth $4.1876 at the time of transaction, while Synapse’s expert provided a valuation range of $0.06 to $0.11 per share. Vice Chancellor Slights acknowledged that this left him in a bind:
… As a result, with the exception of relatively minor adjustments to Synapse’s expert’s conclusions about the amount of its debt and available cash, the Vice Chancellor adopted that expert’s approach to the DCF analysis and concluded that the fair market value of the company’s shares was approximately $0.23 per share – nearly 50% below the purchase price.
The Delaware Court of Chancery recently confirmed in Salladay v. Lev that conditioning a conflicted (but non-controller) transaction upon approval by a fully empowered, disinterested and independent special committee can restore the business judgment standard of review for the transaction (rather than the more burdensome entire fairness standard that would otherwise apply). However, the court (in an opinion by Vice Chancellor Glasscock) found that such special committee “cleansing” works only if the special committee protections are put in place prior to the commencement of discussions about what might constitute an acceptable price. In Salladay, the court held that the company chairman’s discussions with the acquirer regarding price created a price collar before the special committee was formed that set the tone for future negotiations, and therefore, the special committee’s approval of the transaction did not restore the business judgment standard of review.
私にとって、Allen教授は、とてもチャーミングな方で、いかめしそうな大法官という役職とは無縁な方でした。演習で、Lucian Arye Bebchuk, The Case Against Board Veto in Corporate Takeovers, 69 U. Chi. L. Rev. 973 (2002)を報告した際に、同論文の中に出てきたAllen大法官の「Human nature may incline even one acting in subjective good faith to rationalize as right that which is merely personally beneficial」という一文を紹介したのですが、Allen先生は、鼻のしたをこすり、また、胸を張って誇らしげでした。そのコミカルなリアクションのおかげで報告の場がなごみました。また、卒業式のセレモニーで、会社法専攻の学生は、Allen教授に名前を呼ばれるのですが、演習に参加していた私の名前を呼ぶ際に、ウインクしてくれたことを覚えています。卒業後は、ニューヨーク大学のLL.M.を受験する学生を推薦するメールを送るくらいしか関係がありませんでしたが、いつも丁寧なメールを返してくれました。教職についたあとは、そのことを祝福し、「Congratulations This is a wonderful job as you know!」というメッセージを送ってくださいました。
By a July 19, 2019 ruling, Vice Chancellor Slights set the fair value of Jarden Corporation at its unaffected market price of $48.31, below the $59.21 per share value of cash and stock that Newell Rubbermaid had paid to acquire it. The court also performed a DCF analysis that corroborated its valuation. The court was critical of the merger process leading up to this deal and questioned the reliability of a merger-price-less-synergies approach given that factor as well as its findings that there was no pre-signing or post-signing market check and the evidence regarding deal synergies and how much, if at all, was received by Jarden, was conflicting and especially difficult to measure.
The Delaware Court of Chancery, in Sciabacucchi v. Salzberg, C.A. No. 2017-0931-JTL (Del. Ch. Dec. 19, 2018), has declared “ineffective and invalid” provisions in three corporations’ certificates of incorporation that purported “to require any claim under the Securities Act of 1933 to be brought in federal court” (the “Federal Forum Provisions”).
Ruling on cross-motions for summary judgment, the Court, by Vice Chancellor Laster, ruled that “[t]he constitutive documents of a Delaware corporation cannot bind a plaintiff to a particular forum when the claim does not involve rights or relationships that were established by or under Delaware’s corporate law. In this case, the Federal Forum Provisions attempt to accomplish that feat. They are therefore ineffective and invalid.”
This massive decision is a primer on Delaware director fiduciary duty. It covers just about all the important issues, with an enormous amount of citations and explanation. It is particularly helpful in showing how directors must meet their disclosure obligations, both to their other directors and to stockholders. It is, of course, very much a product of its unique facts.
What may be its most lasting impact is its conclusion that the deal price in a merger established fair value and that yet again a DCF analysis was defective. At least for publicly traded and well shopped companies, we may be seeing the end of DCF as the preferred measure of value in Delaware. (emphasis added)