US Supreme Court Addresses "Fair Price" and "Fair Value" in Appraisal Proceedings

Posted on December 31, 2010 by Francis G.X. Pileggi

Supreme Court Addresses "Fair Price" and "Fair Value" in Appraisal Proceedings; Declines to Adopt Bright Line Rules for Appraisal Proceedings

In affirming the Court of Chancery’s finding of fair value in an appraisal proceeding, the Delaware Supreme Court in Golden Telecom, Inc. v. Global GT LP, declined to adopt two bright line rules urged by the parties on appeal. Slip op. No. 392, 2010 (Del. Supr. Dec. 29, 2010). Read opinion here. Instead, the Supreme Court held that: (1) in an appraisal proceeding pursuant to 8 Del. C. § 262, the Court of Chancery must take into account all relevant factors and need not defer, either conclusively or presumptively, to the merger price as indicative of fair value; and (2) companies subject to an appraisal proceeding are not bound by the data in their proxy materials. The Supreme Court also held that the abuse of discretion standard of review for appraisal cases is a formidable standard wherein the Supreme Court will defer to the Court of Chancery even where the Supreme Court may have independently reached a different decision.

This summary was prepared by Kevin F. Brady and Ryan P. Newell of Connolly Bove Lodge & Hutz LLP.

The Merger and the Petition for Appraisal

In early 2007, Open Joint Stick Company Vimpel-Communications (“Vimpel-Com”) notified Golden Telecom, Inc. (“Golden”) that Vimpel-Com was interested in acquiring Golden. Because the two largest shareholders of Golden were also the two largest shareholders of Vimpel-Com, Golden formed a special committee of independent directors. After nearly three months of negotiations, the special committee ultimately recommended and the Board approved the merger at $105 per share. Golden and Vimpel-Com executed a merger agreement with a cash tender offer and a backend merger. Global GT LP and Global GT Ltd. (collectively “Global”) declined to tender its shares and sought appraisal. The Court of Chancery held that the fair value of Golden as of the date of the merger was $125.49.

Golden and Global Appeal

Golden appealed arguing that, among other things, the Court: (i) should have deferred to the merger price because it was an arms length transaction with an “efficient market price;” (ii) should have given some weight to market evidence; (iii) erred in considering a blended beta; and (iv) erred in accepting Global’s expert and its long term growth rate in its discounted cash flow analysis. Global cross appealed contending that the Court used the incorrect tax rate.

Fair Value Requires Independent Evaluation Not Deference to Merger Price

Relying on the language of § 262, the Supreme Court, stated that “fair value” is to be determined by “all relevant factors” valuing the corporation as a “going concern, as opposed to the firm’s value in the context of an acquisition or other transaction.” The Supreme Court also reasoned that “[s]ection 262(h) unambiguously calls upon the Court of Chancery to perform an independent evaluation of ‘fair value’ at the time of the transaction” and that “[r]equiring the Court of Chancery to defer—conclusively or presumptively—to the merger price, even in the face of a pristine, unchallenged transactional process, would contravene the unambiguous language of the statute and the reasoned holdings of our precedent.”

Court Refuses to Adopt Bright Line Rule

Global contended that in the appraisal proceeding, Golden should not have been permitted to walk away from the tax rate set forth in the fairness opinion. While the Court agreed that the primary purpose of fairness opinions is to convince shareholders that a merger price is fair, it declined to set forth a bright line rule because: (i) the appraisal process is a flexible process with the Court of Chancery having significant discretion in the factors it considers; (ii) section 262 does not require the Court to bind the parties to previously prepared data, but on the contrary requires consideration of “all relevant factors;” and (iii) “public companies distribute data to stockholders to convince them that a tender offer price is fair[;] [i]n the context of a merger, this ‘fair’ price accounts for various transactional factors such as the synergies between the companies.” The Court emphasized the distinction between valuation at the tender offer stage seeking “fair price” under the circumstances of the merger and valuation at the appraisal stage seeking “fair value” of the company as a going concern.

While the Supreme Court held that corporations subject to an appraisal proceeding may deviate from data in their proxy materials, the Court of Chancery “can—and generally should—consider and weigh inconsistencies in data advocated by a company.” In this case, the Court of Chancery had a “rational basis” for accepting the tax rate Golden relied upon in the appraisal proceeding, but not in its proxy.

Court of Chancery Did Not Abuse Its Discretion in the Valuation

The Court described the “abuse of discretion standard of review” as a “formidable standard” predicated on the Court of Chancery’s expertise in appraisal proceedings. Even where the Supreme Court might independently reach a different conclusion, the Court of Chancery’s decision will not be dismissed unless the factual findings are not supported by the record or the valuation is “clearly wrong.” The Supreme Court affirmed the Court of Chancery in this case because it “addressed each of these findings of fact and valuation methods, and [it] followed an orderly and logical deductive process in arriving at [the Court’s] conclusions . . . .”


http://www.delawarelitigation.com/2010/12/articles/delaware-supreme-court-updates/supreme-court-addresses-fair-price-and-fair-value-in-appraisal-proceedings-declines-to-adopt-bright-line-rules-for-appraisal-proceedings/