Monthly Archives: February 2013

Crown Jewels — Restoring the Luster to Creative Deal Lock-ups?

Posted by Daniel E. Wolf, Kirkland & Ellis LLP, on
Friday, February 22, 2013

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Daniel Wolf is a partner at Kirkland & Ellis focusing on mergers and acquisitions. The following post is based on a Kirkland memorandum by Mr. Wolf, David B. Feirstein and Joshua M. Zachariah.

The “crown jewel” lock-up, a staple of high-stakes dealmaking technology in the 1980s M&A boom, has been showing some signs of life in the contemporary deal landscape, albeit often in creative new forms. As traditionally conceived, a crown jewel lock-up is an agreement entered into between the target and buyer that gives the buyer an option to acquire key assets of the target (its “crown jewels”) separate and apart from the merger itself. In the event that the merger fails to close, including as a result of a topping bid, the original buyer retains the option to acquire those assets. By agreeing to sell some of the most valuable pieces of the target business to the initial buyer, the traditional crown jewel lock-up can serve as a significant deterrent to competing bidders and, in some circumstances, a poison pill of sorts.

Given the potentially preclusive nature of traditional crown jewel lock-ups, it is not surprising that they did not fare well when challenged in the Delaware courts in the late 1980s. As the Supreme Court opined in the seminal Revlon case, “[W]hile those lock-ups which draw bidders into a battle benefit shareholders, similar measures which end an active auction and foreclose further bidding operate to the shareholders detriment.” Building on the holding in Revlon, the court in Macmillan said that “Even if the lockup is permissible, when it involves ‘crown jewel’ assets careful board scrutiny attends the decision. When the intended effect is to end an active auction, at the very least the independent members of the board must attempt to negotiate alternative bids before granting such a significant concession.” Although crown jewel lock-ups fell out of favor following these rulings, modern and modified versions of the traditional crown jewel lock-up have been finding their way back into the dealmakers’ toolkit.

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Multi-Forum Merger Litigation and the “Market for Preclusion”

Posted by June Rhee, Co-editor, HLS Forum on Corporate Governance and Financial Regulation, on
Friday, February 22, 2013
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The following post comes to us from Sean J. Griffith, T.J. Maloney Chair in Business Law at Fordham University School of Law. This post is part of the Delaware law series, which is cosponsored by the Forum and Corporation Service Company; links to other posts in the series are available here.

The recent discovery that corporate law litigation very often takes place in courts outside of Delaware has rattled the academic consensus that Delaware won the corporate law “race” by providing a well-managed forum staffed with expert judges willing to decide complex deal cases quickly. In an apparent affront to this settled understanding, recent research shows that more cases are filed against Delaware corporations in other states than in Delaware itself. [1] As a forum for corporate litigation, in other words, Delaware no longer dominates.

Shaken from their settled understandings, commentators have sounded the alarm that fewer cases decided in Delaware could, over time, reduce the expertise of the Delaware judiciary in corporate law matters. Worse, the decisions reached by non-Delaware “dilettantes” threaten to adulterate and degrade the basic Delaware product. In sum, prior commentary on the out-of-Delaware trend has treated it as very bad for corporate defendants, very bad for shareholder plaintiffs, and very bad for Delaware.

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Securities Class Action Filings in 2012

Posted by Noam Noked, co-editor, HLS Forum on Corporate Governance and Financial Regulation, on
Thursday, February 21, 2013
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The following post comes to us from Alexander Aganin, vice president at Cornerstone Research. This post is based on the introduction of a Cornerstone Research report, titled “Securities Class Action Filings: 2012 Year in Review.” For more information, contact Mr. Aganin. The full report is available here.

Federal securities fraud class action filing activity slowed sharply in 2012. There were 152 filings in 2012 compared with 188 in 2011. The number of federal securities fraud class actions (also referred to in this report as filings, class actions, or cases) filed was 21 percent below the annual average of 193 filings observed between 1997 and 2011 (Figure 1).


Click image to enlarge

The following trends are noteworthy for 2012:

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Section 13(r) Disclosure Guidance for Public Companies

Posted by Brian Breheny, Skadden, Arps, Slate, Meagher & Flom LLP, on
Thursday, February 21, 2013
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Brian V. Breheny is a partner at Skadden, Arps, Slate, Meagher & Flom LLP. This post is based on an Eight Law Firm Consensus Report by Gibson, Dunn & Crutcher LLP; Hogan Lovells US LLP; Latham & Watkins LLP; Mayer Brown LLP; Morrison & Foerster LLP; O’Melveny & Myers LLP; Skadden, Arps, Slate, Meagher & Flom LLP; and Weil, Gotshal & Manges LLP.

Starting in February 2013, the Iran Threat Reduction and Syria Human Rights Act (the “Threat Reduction Act”) will impose new reporting requirements on U.S. domestic and foreign companies that are required to file reports with the U.S. Securities and Exchange Commission (the “SEC”) pursuant to Section 13(a) of the Securities Exchange Act of 1934 (the “Exchange Act”). In particular, Section 219 of the Threat Reduction Act added new Section 13(r) to the Exchange Act. Under Section 13(r), Annual Reports on Form 10-K, Annual Reports on Form 20-F and Quarterly Reports on Form 10-Q filed pursuant to Exchange Act Section 13(a) must include disclosure of contracts, transactions and “dealings” with Iranian and other entities. Section 13(r) is effective beginning with reports with a due date after February 6, 2013.

The Staff of the Division of Corporation Finance of the SEC (the “SEC Staff”) has provided helpful guidance on implementation of these new requirements in Exchange Act Compliance and Disclosure Interpretations Questions 147.01-147.07 (available at http://www.sec.gov/divisions/corpfin/guidance/exchangeactsections-interps.htm). However, many questions remain, and the following questions and answers represent the consensus views of the undersigned law firms.

None of the firms subscribing to this report intends thereby to give legal advice to any person. The undersigned firms recommend that counsel be consulted with respect to matters addressed in this report. The answers below may need to be modified based upon unique facts and circumstances.

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Performance Metrics and Their Link to Value

Posted by Michael McCauley, Florida State Board of Administration, on
Wednesday, February 20, 2013
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Michael McCauley is Senior Officer, Investment Programs & Governance, of the Florida State Board of Administration (the “SBA”). This post is based on a Farient Advisors study, titled “Performance Metrics and Their Link to Value,” which was sponsored by the Florida SBA. The full study is available here.

The State Board of Administration (SBA) sponsored an executive compensation research study by Farient Advisors LLC, covering 1,800 companies, 24 Industry groups, and fourteen years of data (from 1998-2011). The research project identifies the primary metrics used in executive compensation plans, overall and by industry, company size, and valuation premiums, and then tests these metrics to determine whether the metrics being used have the highest impact on total stock returns.

The study provides the most definitive answer to date on a critical question—are companies choosing their long-term incentive metrics wisely for the most sustainable benefit to shareowners?

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Bank Regulation with Private-Party Risk Assessments

Posted by R. Christopher Small, Co-editor, HLS Forum on Corporate Governance and Financial Regulation, on
Wednesday, February 20, 2013
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The following post comes to us from Milton Harris, Professor of Finance at the University of Chicago; Christian Opp of the Department of Finance at the University of Pennsylvania; and Marcus Opp of the Finance Group at the University of California, Berkeley.

Triggered by the recent financial crisis, the regulation of banks has gained new traction among academics, regulators, and politicians. One of the key challenges in effective regulation is time inconsistency of regulation. While a regulator would like to commit not to bail out banks in order to set the right ex-ante incentives, this threat is generally not credible since the government does not follow through in the event of a crisis. Banks therefore have an incentive to expose themselves to risk that is partially insured by the government.

To mitigate this problem, regulators attempt to reduce the likelihood of banking crises by regulating both banks’ asset side and liability side. While there has been a recent push to focus on the liability side by mandating higher equity capital requirements, the very nature of a deposit-taking institution implies that leverage is an integral part of the business model of banks, unlike for other firms. In this paper, we therefore focus on the regulation of banks’ asset holdings. The starting point of our paper is the natural assumption that a regulator cannot directly observe the riskiness of assets, but needs to rely on an external (private) assessment of risk. Since the introduction of the Basel I framework, credit ratings have played an important role in bank regulation as “objective” measures of credit risk. This role has been confirmed in the Basel III (2011) guidelines, which still rely on credit ratings as measures of creditworthiness.

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NBIM Publishes Corporate Governance Note

Posted by Stephen Davis and Scott Hirst, Harvard Law School Program on Institutional Investors, on
Tuesday, February 19, 2013
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The following post comes to us from Gavin Grant, Head of Active Ownership at Norges Bank Investment Management, and is based on an NBIM discussion note, available here.

The Oslo-based Norges Bank Investment Management (NBIM), which manages the USD 650 billion Government Pension Fund Global, has published a discussion note setting out its expectations on corporate governance in equities it owns around the world. In particular, the firm outlines reasons it concentrates ownership resources on board accountability and equal treatment of shareholders.

In defining its expectations, NBIM has considered the challenges of protecting its interests as a globally diversified minority shareholder in light of empirical and theoretical evidence. Such a perspective has led the firm to question the basis for the near-universal consensus in support of features appearing in corporate governance codes, given that NBIM finds gaps in academic evidence for many of them. The discussion note takes the view that principles should be seen as best practices only. Deviations from them, if well thought out and persuasively justified, should be both expected and welcomed, in NBIM’s view.

NBIM’s intention is not to provide another code of corporate governance for companies to comply with or report against. Rather, it seeks to set out priorities for corporate governance as a means to foster dialogue and mutual understanding. Underlying the firm’s expectation statement is the idea that market practices should conform to high-level universal principles rather than to detailed prescriptive rules. To this end, NBIM invited input and testing of its views by a number of practitioner and stakeholder groups. The firm continues to welcome comments from all stakeholders, as mentioned at the end of the discussion note.

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Time for Self-Reflection and Pragmatism in the Boardroom

Posted by Noam Noked, co-editor, HLS Forum on Corporate Governance and Financial Regulation, on
Tuesday, February 19, 2013
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The following post comes to us from George L. Davis, co-leader of the Global Board Practice at Egon Zehnder. Additional readings on board succession and board diversity are available here and here.

The recent study by the well-respected women business leadership group The Boston Club, in their Census of Women Directors and Executive Officers in Massachusetts Public Companies exposed “We are frustrated by the large numbers of companies that persist in ignoring the business imperative for a diverse board.”

The diversity quotient is indeed problematic as the Census found that across Massachusetts’ largest 100 public companies, only 12.7% of board directors are women – and this a 1.6 % increase over 2011. More than a third of the top 100 companies still have all male boards. And, interestingly, less than 2% of the 850 director seats in the Census are held by women of color.

So while diversity is championed by many with virtually no opposition, the progress is slow to materialize at the highest levels of corporate governance. Some ponder that the mindset of a “culture of the familiar” permeates people decision-making in the boardroom, where like meets like and relationships have historically been key to nominations and ultimately appointments of new board members. And, since only a select number of openings arise each year on boards, the slow turnover process only exaggerates an already lagging pace of change.

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The JOBS Act: Lessons from the First Nine Months

Posted by Noam Noked, co-editor, HLS Forum on Corporate Governance and Financial Regulation, on
Monday, February 18, 2013
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The following post comes to us from David J. Goldschmidt, partner in the corporate finance department at Skadden, Arps, Slate, Meagher & Flom LLP, and is based on a Skadden alert; the full text, including footnotes, is available here.

Nine months have passed since the Jumpstart Our Business Startups Act (the JOBS Act), a package of legislative measures intended to ease regulatory burdens on smaller companies and facilitate public and private capital formation, was signed into law. While certain portions of the JOBS Act have yet to be implemented pending SEC rulemaking, the provisions related to IPOs have been effective since enactment. These provisions seek to encourage companies with less than $1 billion in annual revenue to pursue an IPO by codifying a number of changes to the IPO process and establishing a transitional “on-ramp” that provides for scaled-down public disclosures for a new category of issuers termed emerging growth companies (EGCs).

Using nine-month data from the final prospectuses of 53 EGCs that successfully completed underwritten IPOs with gross proceeds of at least $75 million between April 5, 2012, and December 15, 2012, below is a summary of a number of developing market practices for EGC IPOs and certain related interpretative guidance issued by the staff of the U.S. Securities and Exchange Commission (Staff and SEC, respectively).

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Lessons from a Jury Trial

Posted by Paul Vizcarrondo, Wachtell, Lipton, Rosen & Katz, on
Monday, February 18, 2013
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Paul Vizcarrondo is a partner in the Litigation Department of Wachtell, Lipton, Rosen & Katz specializing in corporate and securities litigation and regulatory and white collar criminal matters. This post is based on a Wachtell Lipton memorandum by Mr. Vizcarrondo, John F. Lynch, Carrie M. Reilly, Lindsey M. Weiss, and Molly K. Grovak.

A recent Yale Law Journal article describes a “striking trend in the administration of civil justice in the United States”—“the virtual abandonment of the centuries-old institution of trial.” In recent times, only approximately 1% of federal civil cases end in jury trials. Deep-pocketed companies often settle before trial because they fear that jurors will sympathize with individual plaintiffs and that jurors may lack the patience and ability to weigh complicated evidence. This is especially true for financial institutions in the current public-relations climate. But our recent experience co-defending Goldman Sachs in a five-week jury trial demonstrates that corporate defendants need not avoid juries at all costs, especially where important principles are at stake and there is a strong belief that the claims are baseless.

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