In this action for breach of contract, Plaintiff institutional investors held cumulative preferred stock of Spanish Broadcasting System (“SBS”), a Delaware corporation, with dividends payable quarterly if so declared by the board of directors. If the dividends were unpaid for four consecutive quarters, a voting rights trigger in the shares’ Certificate of Designation (“Certificate”) allowed the holders of the preferred stock to call a special meeting and elect two additional directors to SBS’s board. In addition, the Certificate prohibited SBS from incurring additional debt after such a triggering event.
By Nick Froio
In this opinion, Vice Chancellor Noble considered a dispute involving a minority investor, Caspian Select Credit Master Fund Ltd. (“Caspian”), in a closely-held portfolio company, Key Plastics Corporation (“Key Plastics”), seeking to obtain certain books and records of Key Plastics pursuant to 8 Del. Code § 220. The Court found in favor of Caspian, holding that Caspian had stated proper purposes under Section 220, and that Key Plastics failed to demonstrate that those purposes were false or a pretense.
In initiating this Section 220 action, Caspian argued that the proper purposes for its books and records requests were to investigate the value of its interest and the potential waste, mismanagement, self-dealing, and other improper transactions related to a loan transaction between Key Plastics and an affiliate of Key Plastics’ controlling stockholders (the “Affiliated Loan”). Key Plastics argued that Caspian’s alleged purposes were not its primary motive and that they were a false pretense: Caspian already had the information needed to investigate any potential wrongdoing and was litigating solely to pressure the controlling stockholders to purchase its interest.
By Ashley Galston
In this opinion, Vice Chancellor Glasscock considered Defendants’ motion to dismiss on ripeness grounds in a DGCL Section 225 action. In 2013, certain stockholders of CardioVascular BioTherapeutics, Inc. (the “Company”) executed written consents purporting to remove the Defendant directors, including Daniel Montano, from the Company’s board of directors. A Status Quo Order, typical in a Section 225 action, put in place an interim board, of which Daniel Montano and the other individual Defendant directors were not members. The written consent was found to be invalid, the Plaintiff appealed, and the parties agreed to maintain the interim board pending appeal. However, before the Supreme Court heard the appeal, certain stockholders initiated a second written consent action, again, seeking to remove the Defendant directors. The Plaintiff then filed this Section 225 action seeking to confirm the second written consent. The Defendants moved to dismiss the second action for “lack of ripeness and other grounds”.
Section 225 provides that “upon application of any stockholder or director, or any officer whose title to office is contested, the Court of Chancery may hear and determine the validity of any election, appointment, removal or resignation of any director or officer of any corporation, and the right of any person to hold or continue to hold such office….” 8 Del. C. § 225(a). V.C. Glasscock noted that “the statute imposes no explicit requirement that a director must hold office before this Court may determine her right to a seat.” And, further, he held that “even under a quo warranto analysis, the action is ripe…as Montano and the other Defendants remained on the de jure board.” Therefore, V.C. Glasscock found that the action was ripe. V.C. Glasscock declined to address the question raised by the Defendants of the “procedural efficacy of a written consent purporting to remove a director who is not a member of an interim board created by a status quo order.” V.C. Glasscock invited the Defendants to make that argument, along with other procedural challenges they raised in this motion, at a future evidentiary hearing related to the effectiveness of the second written consent.
In re Answers Corporation involves an allegation that the board of a publicly-traded Delaware corporation, Answers Corporation (the “Company”), breached its fiduciary duties in negotiating and approving a sale of the Company. The plaintiffs alleged that the three conflicted directors controlled the Board, that the four remaining directors breached their duty of loyalty and acted in bad faith, and that the buyer of the Company (“AFCV”) aided and abetted the directors’ breach of fiduciary duty.
In March 2010, the Company received an unsolicited expression of interest from AFCV concerning a possible transaction. Shortly thereafter, the Board discussed the possibility of exploring strategic alternatives, including the recent expression of interest, ultimately deciding to explore potential transactions and engage a financial advisor to assist in the process. As part of this process, the Board’s financial advisor continued discussions with AFCV regarding a potential transaction, in addition to conducting a market check where it approached ten other potential buyers. Despite discussions with at least seven other possible buyers, no potential buyer other than AFCV made an offer. During this time, the Board rejected multiple requests for exclusivity from AFCV in order to preserve the Board’s opportunity to negotiate with other potential purchasers. The Board also rejected several offers from AFCV, deeming them to be inadequate, and pressured AFCV to increase the price offered until the transaction was finally approved. The Board’s financial advisor discussed with the Board the relative merits of pursuing various sales processes, advising the Board that additional bidders were unlikely to come forward, and ultimately provided a fairness opinion with respect to the final price offered by AFCV. During the final stages of negotiation with AFCV, after several quarters of declining revenues, the Company received quarterly results reflecting significant improvements in performance and record revenues. Despite the improved results, the Board was concerned about the future stability and performance of the Company, primarily due to its significant reliance on Google-directed traffic (which was entirely dependent on Google algorithms, subject to change at any time in Google’s discretion) and increasing competitive pressures, and ultimately approved the sale of the Company to AFCV.
On February 5, Vice Chancellor Laster issued an opinion regarding the Morgans Hotel Group case. OTK Associates, LLC, directly and derivatively on behalf of Morgans Hotel Group Co., alleged that the Board of Directors of Morgans had breached its fiduciary duties and violated Morgan’s operating documents in connection with a two-part recapitalization transaction with Yucaipa Companies, LLC that VC Laster had previously enjoined. The defendants argued that because the Yucaipa Transaction was not consummated and the related Board actions were blocked by a preliminary injunction, any claims based on these facts would be moot. Citing a Delaware Supreme Court decision, VC Laster said that even though the Yucaipa transactions did not take place, Morgans could have been injured by the breaches of fiduciary duty, such as by incurring uneccessary expenses, and therefore denied the motion to dismiss based on mootness.
The defendants also said the case should be dismissed because between the time the case was originally brought and the time OTK filed an amended complaint, new directors had been elected, and the plaintiff had failed to make a demand upon them as required by Delaware Rule 23.1. VC Laster said that almost all the claims in the amended complaint related to the same facts that were the subject of the original complaint, and because demand would have been futile at the time of the original complaint, there was no need to make a demand on the new Board to assert claims regarding the facts that were the subject of the original complaint, even if the amended complaint raised new theories of liability. He did dismiss a claim based on a subsequent Yucaipa repudiation of the agreements relating to the transactions, because that did not happen until after the original complaint had been filed, and demand on the Board was required with regard to a claim based on new facts.
The principal issue raised by the defendants was an assertion that there was an action pending in the New York courts and, because the transaction documents said they were governed by New York law, the Delaware courts should defer to the New York courts. VC Laster said that the Delaware courts would have honored the choice of law provision if the suit had involved the contract. However, the suit involved claimed breaches of fiduciary duty regarding the way the contract was approved, not the contract itself, and therefore, under the internal affairs doctrine, would be governed by Delaware law. Therefore, he refused to stay the Delaware proceeding. Finally, the Court refused to dismiss claims against two individual directors despite the fact that the Morgans Certificate of Incorporation contained an exculpation clause of the type permitted by Section 102(b)(7) of the General Corporation Law, because the claims raised in the complaint alleged breaches of the directors’ duties of loyalty, which cannot be protected under Section 102(b)(7).
In 2011, LPL Holdings, Inc. (“LPL”) acquired Concord Capital Partners, Inc. (“Concord”) from American Capital Acquisition Partners, LLC (“American Capital”) under a purchase agreement (the “Purchase Agreement”) that provided for a contingent addition to the purchase price that could be as much as $15 million based upon the 2013 gross margin of Concord (which was renamed “Concord-LPL”). Conford-LPL also entered into employment contracts with senior executives of Concord, which provided for bonuses based upon Concord-LPL’s reaching specified revenue targets in 2011, 2012 and 2013. At the time of the acquisition, LPL discussed with American Capital and Concord’s senior executives the synergies that could be achieved by using LPL’s computerized custody system to provide custody services for Concord-LPL trust accounts. In fact, the LPL computer system could not process those accounts, and LPL did not modify the system to enable it to process them. As a result, Concord-LPL did not generate gross margins sufficient to entitle American Capital to the contingent additional payments and did not generate sufficient revenues to reach the specified targets in the employment contracts. American Capital and the former Concord senior executives sued LPL, alleging that LPL had committed fraud in stating that LPL could, or would become able to, process Concord-LPL’s trust accounts, and had breached the implied covenant of good faith and fair dealing in (a) not doing what was necessary to enable the LPL computer system to be used to process those accounts and (b) diverting business away from Concord-LPL to another company to avoid having to make additional payments to American Capital under the Purchase Agreement and provide bonuses to Concord’s senior executives under the employment contracts.