MERGER & ACQUISITION LAW UPDATE
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1 MERGER & ACQUISITION LAW UPDATE January 30, 2015 Delaware Court Voids Uncapped Indefinite Indemnity Obligations in a Merger Agreement Typical Scenario: Many deals are structured as mergers rather than stock purchases if, for example, the Target has too many Target stockholders for effective negotiations. In those cases, the Buyer will sign the merger agreement with the principal stockholders and the other non signing stockholders will be bound by the merger agreement pursuant to the merger statute. The Buyer will also negotiate indemnification protections to backup the representations and warranties of the Target stockholders. In many cases, the Fundamental Representations 1 of the Target stockholders will be uncapped (i.e., not subject to a cap or amount limitation) and indefinite (i.e., not subject to a time limitation). According to recent M&A surveys, 27% of 2013 private M&A transactions 2 included an indefinite survival period for Fundamental Representations, and about 10% of 2012 private M&A transactions 3 were silent on caps or limited indemnity obligations to the purchase price. Court Holding: The Delaware Court of Chancery recently held that uncapped indefinite indemnity obligations were unenforceable against the non signing stockholders. 4 The uncapped indefinite indemnity obligations continued to be enforceable against the signing stockholders. In that merger agreement, each stockholder (both signing and non signing) was to have been liable up to its pro rata portion of the merger consideration (so called several liability). 1 In the case in question, the Fundamental Representations related to: corporate organization and good standing, capitalization, authorization to effect the Merger and transactions contemplated thereby, taxes, environmental matters, certain intellectual property items, and brokerage fees SRS Acquiom M&A Deal Terms Study ABA Private Target Mergers & Acquisitions Deal Points Study. 4 Cigna Health and Life Ins. Co. v. Audax Health Sol ns, Inc., C.A. No VCP (Del. Ch. Nov. 26, 2014). 1
2 Rationale: The court determined that uncapped indefinite indemnity obligations violated a specific Delaware statute, Section 251(b) of the Delaware General Corporation Law, which requires that the merger consideration must be ascertainable either from the merger agreement itself or from some document or fact outside the merger agreement. Because the indemnity obligations in question were not subject to limitations as to amount or time, they were not ascertainable and therefore violated Section 251(b). For that reason, the indemnity obligations were unenforceable against the non signing stockholders. Practical Advice: 1. The court was careful to say that its holding was limited to those specific facts and circumstances at issue and was not intended to affect typical escrow arrangements or other post closing price adjustments. 2. The court s rationale shifts potential liability from the non signing Target stockholders to the Buyer. In future deals, Buyers will expect to be compensated for this enhanced risk by: a. Demanding a higher escrow or holdback amount; b. Keeping the escrows and holdback amounts for longer periods; or c. Demanding joint and several stockholder liability rather than several liability, as was the case here. 3. In future deals, Buyers may re evaluate the efficacy of structuring the deal as a stock or asset purchase, rather than as a merger. 4. Buyers also may consider re allocating the merger consideration between signing and non signing Target stockholders. For example, if the merger consideration was $100 per Target share, the Buyer may pay $110 per share to the signing stockholders and only $90 to the non signing stockholders. This would compensate the signing stockholders for the additional indemnity risk. 5. Rather than having indefinite indemnity obligations, Buyers may fix the indemnity obligations to a time certain. Recall that Delaware recently changed its statute to allow for a 20 year statute of limitations. 5 It is unknown whether a 20 year liability period would be enforceable. * * * Del. C. 8106(c) 2
3 Contacting Kutak Rock LLP This publication is provided by Kutak Rock LLP as a service to clients and colleagues. The information contained in this publication should not be construed as legal, business, financial or tax advice. Questions regarding the matters discussed in this publication may be directed to Mitch Woolery (mitch.woolery@kutakrock.com) or any Kutak Rock LLP lawyer listed herein or with whom you have consulted in the past on similar matters. If you have not received this publication directly from us, you may obtain a copy of any past or future related publications from Jodi L. Kopke ( ; jodi.kopke@kutakrock.com) in our Denver office. Disclaimer per Missouri Rules of Professional Conduct: The choice of a lawyer is an important decision and should not be based solely upon advertisements. This communication may be considered advertising in some jurisdictions. About Kutak Rock LLP Kutak Rock LLP is a national law firm of more than 500 lawyers in 17 locations from coast to coast. Our M&A team consists of more than 50 attorneys. While our M&A representations span from Fortune 100 companies to smaller transactions, we have developed a significant niche practice in Middle Market M&A, especially those with an enterprise value of $25-$750 million. Kutak Rock LLP Contacts Name Office Phone Number Michael W. Alvano Omaha (402) Steven P. Amen Omaha (402) Paul E. Belitz Denver (303) Glenn E. Borkowski Little Rock (501) Jennifer S. Brown Kansas City (816) Michael K. Bydalek Omaha (402) Brian V. Caid Denver (303) Robert L. Cohen Omaha (402) James C. Creigh Omaha (402) David C. Cripe Denver (303) Mark A. Ellis Omaha (402) Edward P. Gonzales Omaha (402) Rayburn W. Green Fayetteville (479)
4 H. Watt Gregory, III Little Rock (501) Arkan Haile Denver (303) L. Keith Harvey Little Rock (501) Daniel L. Heard Little Rock (501) Christopher S. Heroux Denver (303) Nathan P. Humphrey Denver (303) Stephen J. Ismert Denver (303) Jeremy T. Johnson Washington (202) Joseph O. Kavan Omaha (402) Jeffrey S. Makovicka Omaha (402) Christopher C. May Fayetteville (479) C. David McDaniel Little Rock (501) Matthew S. McElhiney Denver (303) Emily A. McProud Kansas City (816) Carol J. Mihalic Denver (303) Neil M. Miller Kansas City (816) Jolyn J. Moses Denver (303) Debby Thetford Nye Fayetteville (479) Peggy A. Richter Denver (303) William E. Roberts Kansas City (816) Gil B. Rosenthal Denver (303) Robert C. Roth, Jr. Denver (303) Lee F. Sachnoff Denver (303) Lisa A. Sarver Omaha (402) Anthony D. Scioli Omaha (402) Jennifer K. Sewell Omaha (402) David A. Smith Little Rock (501) Mitch Woolery Kansas City (816)
5 Atlanta 225 Peachtree Street, NE Suite 2750 Atlanta, GA Chicago One South Wacker Drive Suite 2050 Chicago, IL Denver 1801 California Street, Suite 3000 Denver, CO Fayetteville 234 East Millsap Road, Suite 200 Fayetteville, AR Irvine 5 Park Plaza, Suite 1500 Irvine, CA Kansas City Two Pershing Square 2300 Main Street Suite 800 Kansas City, MO Little Rock 124 West Capitol Avenue Suite 2000 Little Rock, AR Los Angeles 777 South Figueroa Street Suite 4550 Los Angeles, CA Minneapolis 220 South Sixth Street, Suite 1750 Minneapolis, MN Oklahoma City 6305 Waterford Boulevard Suite 475 Oklahoma City, OK Omaha The Omaha Building 1650 Farnam Street Omaha, NE Philadelphia Two Liberty Place, Suite 28B 50 South Sixteenth Street Philadelphia, PA Richmond Bank of America Center, Suite East Main Street Richmond, VA Scottsdale 8601 North Scottsdale Road Suite 300 Scottsdale, AZ Spokane Bank of America Financial Center 601 West Riverside Avenue Suite 1700 Spokane, WA Washington 1101 Connecticut Avenue, NW Suite 1000 Washington, DC Wichita 1650 North Waterfront Parkway, Suite 150 Wichita, KS Copyright 2015 by Kutak Rock LLP. All rights reserved.
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