M&A in 2013: NDA/Standstills. Thursday, June 20, :00 p.m. 1:00 p.m. Central Web Seminar

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1 : NDA/Standstills Thursday, June 20, :00 p.m. 1:00 p.m. Central Web Seminar

2 Speakers Glen J. Hettinger Partner Dallas Bryn Sappington Partner Dallas

3 Continuing Education Information If you are requesting CLE credit for this presentation, please complete the evaluation that we will send via tomorrow. If you are viewing a recording of this web seminar, most state bar organizations will only allow you to claim self-study CLE. Please refer to your state s CLE rules. If you have any questions regarding CLE approval of this course, please contact your bar administrator. If you should have any questions regarding credit, please Terra Worshek at terra.worshek@nortonrosefulbright.com. 3

4 Administrative Information Everything we say today is opinion. We are not dispensing legal advice, and listening does not establish an attorneyclient relationship. This discussion is off the record. Anything we say cannot be quoted without our prior express written permission. Today s program will be conducted in a listen-only mode. To ask an online question at any time throughout the program, simply click on the question mark icon located on the tool bar in the bottom right side of your screen. We will try to answer your question during the session if time permits. 4

5 Purpose of NDAs Protect the discloser s confidential information / business / employee base by preventing disclosure, unpermitted uses, and poaching Allow information sharing Enable discloser to manage and control the transaction Provide a basis for joint defense strategy Allow recipient certainty if deal is abandoned 5

6 Key Factors to Consider for Context Unilateral vs. mutual NDA Acquisition vs. joint venture Private vs. public target Financial vs. strategic buyer Unsolicited vs. solicited bids 6

7 Defining Confidential Information What is Confidential Information? Proprietary information Existence of negotiations and/or NDA (publicity) Other information that parties deem confidential Derivative information (notes and analysis?) Key Issues Labeling or designating documents confidential Publicity Pre-NDA disclosures/discussions 7

8 Confidential Information (cont d) Exceptions for Some Information Publicly available (other than information through a breach of the NDA by the recipient) public domain Previously available to the recipient on a non-confidential basis Already in the recipient s possession Obtained from a third party not bound by an NDA Developed by the recipient without using confidential information at issue 8

9 Use and Disclosure Permitted Disclosure Recipient is only permitted to disclose to specific individuals, representatives, and others that need to know Key Issues Standard of care Definition of Representatives Responsibility for actions by Representatives Exception for: Legally required disclosure Opinions required? Heads up and cooperation Only disclose the minimum required 9

10 Use and Disclosure Use Recipient is typically restricted from using the confidential information for any purpose other than evaluating the proposed transaction Occasionally, other specific uses are expressly prohibited (e.g., development of a competing business strategy) Key Issues Broad v. narrow permitted use standard Definition of transaction 10

11 Use and Disclosure Recent Case Developments Martin Marietta v. Vulcan Key Facts Both parties entered into two NDAs while discussing a possible transaction Definition of transaction a possible business combination transaction... between the two companies or their subsidiaries NDAs did not contain an explicit standstill (i.e., a covenant not to engage in hostile tactics) After Vulcan ended discussions, Martin Marietta launched a hostile exchange offer for Vulcan and began proxy contest trying to elect its slate to Vulcan s board In connection with its hostile offer, Martin Marietta made securities law fillings that (of course) publicly disclosed the transction Key Issues Does transaction include a hostile takeover attempt? Was Martin Marietta s disclosure legally required? 11

12 Use and Disclosure Recent Case Developments (cont d) Martin Marietta v. Vulcan (cont d) Key Holdings The Court found that the definition of transaction in the NDA was ambiguous and looked at the parties intent Exchange offer and proxy fight did not fit the definition of transaction because the parties intended a friendly, negotiated combination Martin Marrietta s disclosure, which arose out of federal securities laws disclosure requirements, did not fit within the exception to non-disclosure Martin Marrietta s obligation did not come from external legal demands, such as interrogatories and subpoenas, but its own, volitional acts 12

13 Use and Disclosure Recent Case Developments (cont d) Martin Marietta v. Vulcan (cont d) Lessons: Clearly define transaction to express the intent of the parties Include negotiated transaction to exclude hostile attempts The recipient should not rely on the disclosure exception when it is solely responsible for the creation of the legally required disclosure obligation NDA may operate as a backdoor standstill 13

14 Standstill What is a standstill? Restriction on the bidder to engage in hostile takeover attempts and any related activities Purpose of Standstills Control the sale process Protect against misuse of confidential information Create leverage for target companies in conducting an auction 14

15 Standstill Who is covered? Representatives Affiliates Upstream affiliates Diverse portfolio companies Term of standstill 6 months 3 years months is most common May be terminated by fall away provisions 15

16 Standstill Board Duties with respect to Standstills Fiduciary Duties (Delaware Law) Duty of care Duty of loyalty Duty of good faith Business Judgment Rule Duty to maximize value for shareholders (Revlon duties) Enhanced scrutiny by court (Unocal/Unitrin) 16

17 Standstill Recent Case Developments In Re The Topps Company Shareholders Litigation (2007) Facts: Topps signed an agreement to be acquired by Tormante for $9.75 / share with a go-shop Upper Deck (a competitor) put in an unsolicited offer after the go-shop period had expired for $10.75 / share Upper Deck had earlier signed an NDA with a standstill The Topps board refused to release Upper Deck from its standstill Holdings: Standstill was improperly used to favor one bidder over another Topps was required to release Upper Deck from the standstill 17

18 Standstill Recent Case Developments (cont d) Ventas v. Health Care Property (2009) Facts: Sunrise had an auction, and the bidders entered NDAs with standstills In the auction, Ventas agreed to buy Sunrise for $15 per unit Health Care Property (HCP) made a topping bid after the end of the auction Holding: Canadian court found HCP violated the standstill and forced HCP to withdraw their bid In Kentucky, jury awarded $101 million in damages for HCP s tortious interference. Upon a pending suit for punitive damages, both parties settled for a total for $125 million. 18

19 Don t Ask / Don t Waive What is a Don t Ask / Don t Waive? Provision in an NDA or standstill, or both, that prohibits a bidder from publicly or privately requesting a waiver of the standstill covenants Purpose Induce a bidder to submit its best and final offer by eliminating any further opportunities to bid Validity No answer from the Delaware Supreme Court yet, but there are hints from lower court decisions 19

20 Don t Ask / Don t Waive Recent Case Developments In re Complete Genomics (Del. Chancery Court 2012) The court enjoined enforcement of Don t Ask / Don t Waive provision in standstill Don t Ask / Don t Waive would likely violate the board s fiduciary duties Board has a duty to: Be informed of all material information that is reasonably available Properly evaluate a competing offer Disclose material information Make a meaningful recommendation to its stockholders Don t Ask / Don t Waive prevents the board from becoming informed 20

21 Don t Ask / Don t Waive Recent Case Developments (cont d) In re Ancestry.com (Del. Chancery Court 2012) Facts: Auction process to sell the company All NDA s contained a Don t Ask / Don t Waive provision Some evidence that Board did not know about the Don t Ask / Don t Waive provisions Stockholders were not informed about Don t Ask / Don t Waive Holdings: Don t Ask / Don t Waive not per se invalid Don t Ask / Don t Waive should be a gavel in the auction process Stockholder vote enjoined pending additional disclosure to stockholders 21

22 Don t Ask / Don t Waive Recent Case Developments (cont d) Koehler v. NetSpend (Del. Chancery Court 2013) Facts: NetSpend entered into a merger agreement that prohibited any waiver of a Don t Ask / Don t Waive Previously, NetSpend discussed a minority investment in NetSpend with two private equity firms Holding: By agreeing to the merger agreement and failing to waive the Don t Ask / Don t Waive, the Board blinded itself to any potential interest from the private equity firms There was evidence the Board did not understand the implications of a Don t Ask / Don t Waive Transaction was not enjoined because plaintiffs could not show that harm from bad process outweighed potential loss of the Koehler deal 22

23 Don t Ask / Don t Waive Recent Case Developments (cont d) Lessons: Don t Ask / Don t Waive provisions will likely get close scrutiny by the courts, especially where there was no full auction or it is used against a nonparticipant in the auction Board must be informed if Don t Ask / Don t Waive are used and of the potential effect on the sale process Stockholders must be informed of the existence of Don t Ask / Don t Waive provisions in proxy materials Exceptions to Don t Ask / Don t Waive may be warranted (e.g., allowing requests to waive confidentially) 23

24 Term Length of the term depends on Information planned to be shared When that information becomes stale Term of standstill provision and non-solicitation provision Type of recipient: competitor vs. financial buyer Some provisions may terminate before full expiration of the NDA (i.e., standstill and non-solicitation) 24

25 Non-Reliance Disclaimer What is a non-reliance disclaimer? Affords target no liability for reliance on furnished confidential information RAA Management v. Savage Sport (2012) RAA sought to recover diligence costs when it discovered that Savage had misrepresented some facts in the diligence process Delaware Supreme Court affirmed dismissal of a fraud claim by RAA because there was an express non-reliance provision in the NDA 25

26 Return / Destruction of Confidential Information Key Issues Option to destroy Certification of destruction of confidential information Timeframe to destroy the information Exceptions Right to retain a copy for legal or regulatory compliance Consider when information is stored as a back-up procedure 26

27 Remedies Right to specific performance vs. right to seek specific performance Acknowledge that breach of NDA will cause irreparable injury Indemnity Require breaching party to pay costs of enforcement 27

28 Residual Clause What is a residual clause? Provides recipient's employees the ability to use confidential information retained in their memories Purpose Provide safe harbor for recipient by excluding residual information from the NDA Key Issues Scope of definition of residual information Resistance of disclosing party Burden of proof Unassisted memory; unintentional remembrance 28

29 Other Provisions Non-solicitation/no-hire/no-contact of employees All employees vs. employees with whom bidder comes into contact vs. designated levels of employee Exceptions 1) general solicitation 2) terminated employees Restriction on consortium bidding Exclusivity Careful consideration needs to be given before granting exclusivity Not a necessary part of NDA / standstill process No Obligation until definitive agreement signed 29

30 Other Provisions Financial Institutions Record Keeping Requirements Broad v. narrow scope Insider Trading Data Site No waiver of privilege 30

31 Questions Glen J. Hettinger Partner Dallas Bryn Sappington Partner Dallas

32 Continuing Education Information If you are requesting CLE credit for this presentation, please complete the evaluation that we will send via tomorrow. If you are viewing a recording of this web seminar, most state bar organizations will only allow you to claim self-study CLE. Please refer to your state s CLE rules. If you have any questions regarding CLE approval of this course, please contact your bar administrator. If you should have any questions regarding credit, please Terra Worshek at terra.worshek@nortonrosefulbright.com. 32

33

34 Disclaimer Norton Rose Fulbright LLP, Norton Rose Fulbright Australia, Norton Rose Fulbright Canada LLP, Norton Rose Fulbright South Africa (incorporated as Deneys Reitz Inc) and Fulbright & Jaworski LLP, each of which is a separate legal entity, are members ( the Norton Rose Fulbright members ) of Norton Rose Fulbright Verein, a Swiss Verein. Norton Rose Fulbright Verein helps coordinate the activities of the Norton Rose Fulbright members but does not itself provide legal services to clients. References to Norton Rose Fulbright, the law firm, and legal practice are to one or more of the Norton Rose Fulbright members or to one of their respective affiliates (together Norton Rose Fulbright entity/entities ). No individual who is a member, partner, shareholder, director, employee or consultant of, in or to any Norton Rose Fulbright entity (whether or not such individual is described as a partner ) accepts or assumes responsibility, or has any liability, to any person in respect of this communication. Any reference to a partner or director is to a member, employee or consultant with equivalent standing and qualifications of the relevant Norton Rose Fulbright entity. The purpose of this communication is to provide information as to developments in the law. It does not contain a full analysis of the law nor does it constitute an opinion of any Norton Rose Fulbright entity on the points of law discussed. You must take specific legal advice on any particular matter which concerns you. If you require any advice or further information, please speak to your usual contact at Norton Rose Fulbright. 34

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