Topic: Majority-of-the-Minority

DELAWARE CHANCERY COURT APPLIES MFW FRAMEWORK TO DISMISS SUIT BY MINORITY STOCKHOLDERS IN CONNECTION WITH SQUEEZE-OUT MERGER

By Annette Becker and Joseph Phelps

In In re Books-A-Million, Inc. Stockholders Litigation, No. 11343-VCL (Del. Ch. Oct. 10, 2016), the plaintiffs, minority stockholders of Books-A-Million, Inc. (the “Company”), alleged that the Company’s directors, controlling stockholders and several of its officers breached their fiduciary duties in connection with a squeeze-out merger effected by the controlling stockholders in 2015 to take the Company private.  The Court of Chancery held that the plaintiffs failed to plead facts to take the transaction outside the six-pronged framework approved by the Delaware Supreme Court in Kahn v. M&F Worldwide Corp., 88 A.3d 635 (2014) (“MFW”), and, consequently, the business judgment rule, rather than the entire fairness test, applied in reviewing the merger.  Upon application of the business judgment rule, the Court dismissed the case.

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I​​​​n re Zhongpin Inc. Stockholders Litig., C.A. No. 7393-VCN (November 26, 2014) (V.C. Noble)

By Elise Gabriel and David Bernstein

In In re Zhongpin, shareholders of Zhongpin Inc. (“Zhongpin” or the “Company”) brought a class action complaint for breach of fiduciary duty against Xianfu Zhu (“Zhu”), Zhongpin’s CEO and chairman of the board, and Zhongpin’s board of directors (the “Board”) in relation to a merger through which Zhu – who owned 17.3% of Zhongpin’s common stock – would acquire the remainder of the Company’s outstanding shares for $13.50 per share in cash. The transaction was approved by an independent committee of Zhongpin’s Board and the Merger Agreement required approval by a majority of the unrelated stockholders, although this requirement had not appeared in Zhu’s original proposal to Zhongpin’s Board.

On the defendants’ motion to dismiss, the Court held that the plaintiffs had stated a claim for breach of fiduciary duty against Zhu and the individual defendants. The Court stated that plaintiffs had adequately alleged that Zhu was a controlling stockholder even though he owned only 17.3% of Zhongpin’s stock by pointing to a statement in Zhongpin’s Form 10-K that referred to Zhu as “our controlling stockholder” and that said that as a result of the stock ownership “our controlling stockholder” was able to exercise significant influence over a variety of matters, including election of directors, the amount of dividends, if any, new securities issuances and mergers and acquisitions. The Court further held that the transaction was subject to review under the entire fairness standard rather than the business judgment rule because, even though the Merger Agreement required approval by a majority of the unrelated stockholders (and that approval was obtained), Zhu’s original proposal had not included a majority of the minority requirement at the outset. Finally, the Court was unwilling to dismiss the claims against the directors even though Zhongpin’s certificate of incorporation contained a provision under DGCL Section 102(b)(7) protecting directors against monetary liability, because, in a case subject to the entire fairness standard, a claim against directors cannot be dismissed until there is a determination as to entire fairness.

In re Zhongpin

Kahn et. al. v. M&F Worldwide Corp. et. al., No. 334, 2013

By Kristy Harlan and Porter Sesnon

In a much anticipated decision, on March 14, 2014 the Delaware Supreme Court sitting en banc unanimously affirmed then-Chancellor Strine’s decision in In re MFW Shareholders Litigation to dismiss a stockholder lawsuit related to the 2011 acquisition of M&F Worldwide Corp. (“MFW”) by its controlling stockholder, MacAndrews & Forbes Holdings, Inc. (“Holdings”). In upholding the dismissal, the Delaware Supreme Court confirmed that the business judgment standard of review, rather than an “entire fairness” standard of review, applies to controlling-party buyouts where the transaction is conditioned ab initio upon both: (1) the approval of an independent, adequately-empowered special committee that meets its duty of care and (2) the un-coerced, informed vote of a majority of the minority stockholders.

In May 2011, Holdings, which owned 43.4% of MFW’s common stock, began to explore the possibility of taking MFW private. In June 2011, Holdings delivered a written proposal to purchase the MFW shares not already owned by Holdings for $24 per share in cash, representing a premium to the prior day’s closing price of $16.96. Holdings’ proposal expressly stated that it would be subject to approval by a special committee of MFW’s board made up of independent directors, and included a non-waivable condition that a majority of the minority of stockholders approve the transaction.

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