John Mark Zeberkiewicz

August 29, 2018 | Delaware Business Court Insider

In two recent opinions, The Cirillo Family Trust v. Moezinia, 2018 WL 3388398 (Del. Ch. July 11, 2018), and Charles Almond v. Glenhill Advisors, 2018 WL 3954733 (Del. Ch. Aug. 17, 2018), the Delaware Court of Chancery exercised its powers under Section 205 of the Delaware General Corporation Law (the DGCL) to validate acts that, due to technical problems in their authorization, may have otherwise been void or voidable.

By John Mark Zeberkiewicz and Nathaniel Stuhlmiller

8 minute read

December 10, 2014 | Delaware Business Court Insider

The Delaware Court of Chancery's ruling in Pontiac General Employees Retirement System v. Ballantine, C.A. No. 9789-VCL (Del. Ch. Oct. 14, 2014) (Transcript), is the most recent statement on so-called "dead hand" proxy puts—the provisions in credit agreements that trigger an acceleration of the borrower's indebtedness upon a change in a majority of its board within a specified timeframe.

By John Mark Zeberkiewicz and Stephanie Norman

6 minute read

July 30, 2014 | Delaware Business Court Insider

In Friedman v. Khosrowshahi, C.A. No. 9161-CB (Del. Ch. July 16, 2014), the Court of Chancery dismissed the plaintiff's claims challenging the decision by the compensation committee of Expedia Inc. to accelerate the vesting of a restricted stock unit award. Following the well-trodden path in this "seemingly increasing area of litigation," the plaintiff claimed that, under Sanders v. Wang, C.A. No. 16640-VCS (Del. Ch. Nov. 10, 1999), and its progeny, the compensation committee violated the unambiguous terms of the corporation's stock plan such that demand was excused under the second prong of Aronson v. Lewis, 473 A.2d 805, 814 (Del. 1984).

By John Mark Zeberkiewicz and Stephanie Norman

5 minute read

May 07, 2014 | Delaware Business Court Insider

On April 1, Trupanion Inc. and its chief executive officer filed what is believed to be the first petition seeking relief in the Delaware Court of Chancery pursuant to Section 205 of the Delaware General Corporation Law. In less than a month, the Chancery Court issued a final order in the action, resolving multiple questions relating to Trupanion's corporate existence and actions it had taken over several years.

By John Mark Zeberkiewicz and Robert L. Burns

5 minute read

December 04, 2013 | Delaware Business Court Insider

In venture capital financings, fund investors will typically negotiate with founders for various rights and protections, including dedicated board seats and protective provisions, to monitor and protect their investments. Many of these provisions are included in the certificate of incorporation; others, like the provisions identifying the individuals who will serve on the board, are less suited to being placed in the organizational documents and are instead included in stockholders' agreements.

By John Mark Zeberkiewicz and Stephanie Norman

5 minute read

April 24, 2013 | Delaware Business Court Insider

Recent proposed amendments to the Delaware General Corporation Law contain an important addition to Section 251, which governs mergers between Delaware corporations, that would effectively allow the parties to dispense with the need for a back-end stockholder vote on a merger in certain cases where the buyer has acquired a sufficient number of shares in a front-end tender offer. If approved by the Delaware Legislature and signed into law, this amendment, which would appear as Section 251(h), would become effective August 1. If enacted, this amendment would help to streamline two-step transactions, effectively eliminating the delay between the closing of the tender offer and the consummation of the merger that would otherwise result from the need to hold a stockholders' meeting to vote on the adoption of the merger.

By John Mark Zeberkiewicz and A. Jacob Werrett

8 minute read

March 27, 2013 | Delaware Business Court Insider

Among the many significant proposed changes to Delaware's General Corporation Law that were submitted to the corporation law section of the Delaware State Bar Association this March for approval, the sections dealing with ratification of defective corporate acts stand out as particularly noteworthy.

By John Mark Zeberkiewicz and Stephanie Norman

6 minute read

April 04, 2012 | Delaware Business Court Insider

In Zimmerman v. Crothall , C.A. No. 6001-VCP (Del. Ch. March 5, 2012), the Delaware Court of Chancery, ruling on a motion for summary judgment, found that the defendants - directors and venture capital investors of Adhezion Biomedical - failed to establish that Adhezion's issuance of preferred equity and convertible debt to the defendants that was not offered to all holders on the same terms were not self-interested transactions. In so doing, however, the court indicated that equity or debt offerings made to all holders on the same terms may be subject to business judgment review, even if otherwise interested directors and/or controlling holders participate in the offering.

By John Mark Zeberkiewicz

7 minute read

September 07, 2011 | Delaware Business Court Insider

Over the past few years, the level of disclosure regarding the work performed by a financial adviser rendering a fairness opinion in connection with an M&A transaction has increased substantially, due in part to decisions of the Delaware Court of Chancery. At the same time, the number of complaints challenging the adequacy of the disclosure with respect to potential conflicts of interest on the part of the target's financial adviser is seemingly on the rise.

By John Mark Zeberkiewicz and Nathaniel J. Stuhlmiller

5 minute read

July 24, 2013 | Delaware Business Court Insider

The term "sandbagging" has been used generally in the M&A context to refer to the buyer's assertion of post-closing claims for breach of representation and warranty despite its pre-closing knowledge that the seller's representations or warranties were not true and correct when made. Although counterparties may contract around sandbagging by expressly preserving or limiting the buyer's right to assert claims in cases where it knew (or was on notice) of a seller's breach prior to closing, in the absence of a "pro-sandbagging" or "anti-sandbagging" provision, the permissibility of sandbagging is a matter of the law of the jurisdiction governing the agreement.

By John Mark Zeberkiewicz and Stephanie Norman

5 minute read