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Hanson Trust PLC v. ML SCM Acquisition

January 6, 1986

HANSON TRUST PLC, HSCM INDUSTRIES INC., HANSON HOLDINGS NETHERLANDS B.V., AND HMAC INVESTMENTS INC., PLAINTIFFS-APPELLANTS,
v.
ML SCM ACQUISITION INC., ML L.B.O. HOLDINGS INC., MERRILL LYNCH CAPITOL PARTNERS, INC., MERRILL LYNCH CAPITOL MARKETS, MERRILL LYNCH & CO., INC., AND MERRILL LYNCH, PIERCE, FENNER & SMITH INCORPORATED, SCM CORPORATION, PAUL H. ELICKER, D. GEORGE HARRIS, ROBERT O. BASS, ROBERT P. BAUMAN, JOHN T. BOOTH, GEORGE E. HALL, CROCKER NEVIN, CHARLES W. PARRY, THOMAS G. POWNALL, E. EVERETT SMITH, DAVID W. WALLACE, AND RICHARD R. WEST, DEFENDANTS-APPELLEES



Appeal from an order of the United States District Court for the Southern District of New York, (Kram, Judge), denying plaintiffs-appellants' motion for a preliminary injunction that would bar the exercise of a lock-up option pursuant to an Asset Option Agreement under the terms of which a Merrill Lynch entity could purchase from SCM Corporation two SCM businesses for $350 million and $80 million, respectively, upon the acquisition of one-third of SCM stock by a third party. Reversed with directions. Oakes, Circuit Judge, concurred in a separate opinion. Kearse, Circuit Judge, dissented in a separate opinion.

Author: Pierce

Before: OAKES, KEARSE, and PIERCE, Circuit Judges.

PIERCE, Circuit Judge:

Hanson Trust PLC, HSCM Industries Inc., Hanson Holdings Netherlands B. V., and HMAC Investments Inc. (hereinafter sometimes referred to collectively as "Hanson") appeal from an order, dated November 26, 1985, in the United States District Court for the Southern District of New York, Shirley Wohl Kram, Judge, denying their motion for a preliminary injunction restraining Merrill Lynch, Pierce, Fenner & Smith Incorporated and related entities, including ML SCM Acquisition Inc. (hereinafter "Merrill"), and SCM Corporation (hereinafter "SCM"), and their respective officers, agents and employees, and all persons acting in concert with them, from exercising or seeking to exercise an asset purchase option (hereinafter sometimes referred to as a "lock-up option") pursuant to an Asset Option Agreement and a Merger Agreement between those corporate entities. Under those Agreements, in the event that by March 1, 1986, any third party acquires one third or more of SCM's outstanding common stock or rights to acquire such stock, Merrill would have the right to purchase SCM's Pigments and Consumer Foods Divisions for $350 million and $80 million, respectively. After an eight-day evidentiary hearing, the district court denied Hanson's motion for a preliminary injunction, principally because it found that under New York law approval of the lock-up option by the SCM directors (herein-after sometimes referred to as the "Board"), and the lock-up option itself, were, in the exercise of business judgment, "part of a viable business strategy, as the law currently defines those terms," and because "Hanson failed to adduce sufficient credible proof to the contrary." Hanson Trust PLC v. SCM Corp., 623 F. Supp. 848, Memorandum Opinion and Order at 859-860 (S.D.N.Y. 1985) (hereinafter "Op."). We reverse and remand.

BACKGROUND

This is the second suit arising out of an intense struggle for control of a large public corporation, SCM. In the first case, Hanson Trust PLC v. SCM Corp., 774 F.2d 47 (2d Cir.), reh'g denied, (1985) (hereinafter referred to as "Hanson I"), we held that Hanson's termination of a $72 offer and nearly immediate purchases of several large blocks of stock amounting to approximately twenty-five per cent of the outstanding shares of SCM privately from five sophisticated institutional investors and in one open market transaction did not violate §§ 14(d)(1) and (6) of the Williams Act, 15 U.S.C. § 78n(d)(1) and (6) and rules promulgated by the Securities and Exchange Commission thereunder. In the present case, the issue presented is whether it was proper under New York law for SCM and Merrill to execute a lock-up option agreement as part of a $74 offer by Merrill for SCM common stock. In Hanson I, Judge Mansfield summarized the "fast-moving bidding contest" as follows: first, a $60 per share cash tender offer by Hanson, for any and all shares of SCM; next, a counter tender offer of $70, part cash and part debenture, by the SCM Board and their "white knight," Merrill Lynch Capital Markets (with underwriting participation by Prudential Insurance Co.), for a "leveraged buyout" (hereinafter sometimes referred to an an "LBO"); then an increase by Hanson to $72 cash, conditioned on SCM not locking up corporate assets; then a revised $74 cash and debenture offer by SCM-Merrill, with "a 'crown jewel' irrevocable lock-up option to Merrill designed to discouraged Hanson from seeking control by providing that if any other party (in this case Hanson) should acquire more than one-third of SCM's outstanding shares (66 2/3% being needed under N.Y. Bus. L. § 903(a)(2) to effectuate a merger) Merrill would have the right to buy SCM's two most profitable business" (Pigments and Consumer Foods) at $350 million and $80 million, respectively. Hanson I at 50-51. Hanson, evidently deterred by the option and faced with the $74 LBO offer, terminated its $72 offer, but made the September 11 purchases upheld in Hanson I, and later announced a $75 cash tender offer conditioned on the withdrawal or judicial invalidation of the subject lock-up options. A more detailed account of the relevant background follows.

SCM is a New York corporation with its principal place of business in New York City. It consists of several divisions, including Chemicals, Coatings and Resins, Paper Products, Foods, and Typewriters, Pigments, a subdivision of Chemicals, and Consumer Foods, a subdivision of Foods, referred to by Hanson as the "crown jewels" of the SCM Corporation, have generated approximately 50% of SCM's net operating income in recent years. SCM's Board of Directors consists of twelve members. Three directors, Messrs. Elicker, Hall, and Harris, are also members of SCM's management: Elicker is Chairman of the Board and Chief Executive Officer; Harris is SCM's President and Chief Operating Officer; Hall is a Senior Vice President of SCM. The remaining nine members of the board are "outside" or "independent" directors. None of the nine holds a management position in SCM, owns significant amounts of SCM common stock, or receives any remuneration from SCM other then the standard directors' fee. The district court also found that none is affiliated with any entity that does business with SCM and that all of the directors have considerable business experience and working knowledge of SCM and its operations. Op. at 9.

Hanson Trust PLC is a corporation organized under the laws of the United Kingdom. HSCM Industries Inc. is a Delaware corporation and an indirectly wholly owned subsidiary of Hanson Trust PLC. Hanson Holdings Netherlands B. V. is a limited liability company incorporated under the laws of the Kingdom of the Netherlands, and is an indirectly wholly owned subsidiary of Hanson Trust PLC. HMAC Investments Inc. is also a Delaware corporation and is a wholly owned subsidiary of Hanson Trust PLC.

On August 21, 1985, Hanson announced its intention to make a $60 cash tender offer for any and all shares of SCM common stock. The evidence showed that SCM common stock traded below $50 per share in July 1985, and that between August 1 and August 19, Hanson had purchased over 87,000 shares for between approximately $54 and $56. See Offer to Purchase For Cash Any and All Outstanding Shares of Common Stock of SCM Corporation (Aug. 26, 1985), PX 37 at II-1.*fn1 On August 22, 1985, the day after the Hanson offer was announced, the price of SCM stock closed on the New York Stock Exchange at 64 1/8.

It is not disputed that also on August 22--three days prior to the SCM Board's first meeting regarding Hanson's offer--SCM management met with representatives of the investment banking firm of Goldman Sachs & Co. and the law firm of Wachtell, Lipton, Rosen & Katz to discuss a response to Hanson's bid.*fn2 Tr. 27, 30; PX 1 at 31-33. Among the alternatives considered in response to Hanson's offer was the possibility of a leveraged buyout that would include SCM management participation. Tr. 1119. By August 23 or 24, SCM management and Goldman Sachs had initiated discussions with the leveraged buyout firms of Kohlberg, Kravis, Roberts & Co. and Merrill Lynch. Tr. 30-33, 51, 1119-21, 1202-03. SCM's Board met on August 25, and approved the retention of Goldman Sachs and Wachtell Lipton on behalf of SCM and the SCM Board. PX 16 at 11.

The parties agree that the August 25 Board meeting was called to discuss alternatives to the Hanson offer; that discussions focused principally on finding either another public company to act as a "white knight" or one or more financial institutions to underwrite a leveraged buyout. Willard J. Overlock, Jr., SCM's principal adviser at Goldman Sachs, advised that because SCM was a highly diversified conglomerate, finding another company to act as a "white knight" in time to defeat Hanson was unlikely. Martin Lipton of Wachtell Lipton advised that a leveraged buyout might be the best approach, assuming SCM could find institutional or private investors. The minutes show that the Board delegated to management the responsibility of investigating both options with Goldman Sachs and Wachtell Lipton. During the next five days, Goldman Sachs and SCM management, pursuing the Board's mandate, found that none of over forty companies contacted were willing to act as a "white knight," and that of three LBO firms contacted, by August 30 only Merrill was interested in participating in a leveraged buyout. Meanwhile, Hanson's $60 tender offer had become effective as of August 26, notwithstanding that the market price for SCM shares on that day was in the mid 60's. SCM did not respond to Hanson's overtures for discussions.

Following five days of negotiations, SCM management and Goldman Sachs reached an LBO agreement with Merrill, pending approval of the SCM Board. Under the proposal, Merrill, through a corporate shell called ML SCM Acquisition Inc., would make a $70 cash tender offer for up to 10,500,000 SCM shares (approximately 85% of the outstanding shares), to be followed by a second step in which the remaining shareholders would either have to exchange their shares for "high risk, high yield" subordinated debentures (commonly called "junk bonds") prices so as to be valued at $70 per share or resort to their appraisal rights under New York law. N.Y. Bus. Corp. L. § 623. Proportionately, the proposed buy-out would be $59.50 per share in cash and $10.50 per share in to-be-newly-issued debentures. SCM management would have the right to purchase up to 15% of the resulting ML SCM Acquisition Inc.

Merrill, concerned that it be compensated for its work and that it not become a mere "stalking horse" in the looming battle between Hanson and SCM, insisted on some protective assurances that it would profit for its efforts whether or not they proved fruitful. Although SCM's management would not accede to Merrill's demand for stock options, it granted a $1.5 million engagement fee (the so-called "hello" fee), and a $9 million "break-up" fee (the so-called "goodbye" fee), the latter to be paid to Merrill in the event that any third party should acquire one third or more of the outstanding shares of SCM common stock for $62 or more per share prior to March 1, 1986. The obvious significance of a third party acquiring one third of the shares was that such acquisition would enable that party to "block" the planned merger of tendered shares into the new ML SCM Acquisition entity, since under New York law a merger requires the approval of "two thirds of the outstanding shares entitled to vote." N.Y. Bus. Corp. L. § 903(a)(2).

On August 30, the SCM Management-Merrill LBO proposal was presented to the SCM Board via a telephonic conference call meeting. The terms of the proposal were reduced to a two-page Letter Agreement, which was described to the nine independent directors in detail, but which was not available for them to read until after they had unanimously voted to approve it and to authorize SCM management and Merrill to negotiate a definitive merger agreement. The three management directors did not vote. The meeting was conducted from SCM's offices where SCM management, Goldman Sachs and Wachtell Lipton representatives, but not outside directors, were present.

The Merger Agreement was negotiated and drafted over Labor Day weekend, and presented to a special meeting of the Board of Directors on September 3. Overlock from Goldman Sachs explained to the Board that the proposal remained the only firm offer to counter Hanson's still-outstanding $60 bid, and delivered Goldman Sach's opinion that Merrill's $70 bid was "fair" to SCM shareholders. Overlock further informed the Board that the $70 debentures would be priced by Goldman Sachs and Merrill (or, if they disagreed, by a third nationally recognized investment banker) to ensure that the debentures would have a market value of $70 per share at the time of their issuance. The SCM Board understood that some SCM officers, as yet unidentified, would participate in the LBO, and would obtain an equity position in the new entity of up to 15 percent. The three management directors, though present at the meeting, did not vote. Again, the nine outside directors unanimously approved the Agreement, which was subsequently publicly announced.

In response to this Agreement, on that same day, September 3, Hanson announced that it would raise the price of its tender offer to $72 all cash, for any and all shares of SCM's common stock. Hanson conditioned this new offer on SCM's refraining from "grant[ing] to a person or group proposing to acquire the Company . . . any type of option, warrant or right which, in the sole judgment of [Hanson], constitutes a 'lock-up' device . . . and . . . makes it inadvisable to proceed with the Offer or with such acceptance for payment or payment." Supplement Dated September 5, 1985 to Offer to Purchase Dated August 26, 1985, DX AA at 4. Upon making this offer, Hanson again made unsuccessful overtures to SCM to discuss a "friendly" takeover. Tr. 783-84.

On September 6, Merrill and SCM management announced termination of the $70 offer under the broad authority that the Board had given to management to take all "necessary and advisable" actions regarding the offer. Negotiations between Merrill and SCM management for a second LBO-Merger Agreement resumed, and on September 10, the parties prepared a new proposal for the SCM Board. Merrill proposed to make a $74 cash tender offer for a minimum of two-thirds on a fully diluted basis and up to 80 percent (as opposed to the earlier 85%) of SCM's common stock. This could be followed by a second-step merger in which each of the remaining 20% of the shares of SCM common stock would be exchanged for a high risk, high yield debenture, subordinated to other corporate debt and not accruing interest for five years, valued at $74. Given the greater proportion of debenture financing in this offer as compared to Merrill's earlier $70 offer, the effective cash component of the new offer on a proportionate basis was $59.20 per share, or thirty cents less per share than under the $70 offer, and the effective debenture component overall was $14.80 per share, or $4.30 more per share than under the $70 offer. The net result was that under the $74 offer Merrill was not putting up any more case than it was under the $70 offer.

As consideration for this new offer, SCM agreed to place the $9 million break-up fee into an escrow account, payable should a third party acquire one third of SCM stock, paid Merrill an additional $6 million "hello again" fee, and, most importantly, proposed to grant Merrill an option to purchase SCM's Pigments and Consumer Foods businesses.*fn3 Tr. 1033, 1254. Merrill also sought stock options for 18 1/2% of SCM's stock, but SCM refused that request.

Under the proposed asset option provision, Merrill would have the irrevocable right to purchase SCM's Pigments business for $350,000,000, and SCM's Durkee Famous Foods (some-times referred to herein as "Consumer Foods") for $80,000,000, in the event that a third party acquired more than one third of SCM's common stock.*fn4 The district court found that Merrill had made clear that it would not proceed without the asset options, and that the lock-up option prices were the produce of "arm's length negotiations" between Goldman Sachs and Merrill. Op. at 11. There is evidence that Merrill initially proposed $260 million for Pigments and $65 to 70 million for Consumer Foods; that Goldman Sachs, negotiating on behalf of SCM, counteroffered $400 million for Pigments and $90-95 million for Consumer Foods; and that the parties ultimately settled at $350 million for Pigments and $80 million for Consumer Foods. Tr. 1039-40, 1260-62.

On September 10, 1985, at the special meeting of the Board, the nine independent directors for the first time were informed of and considered the new LBO merger agreement and the proposed lock-up options. The meeting began at nine o'clock in the evening, and lasted approximately three hours. Goldman Sachs advised the Board that the $74 offer was the best available, and was fair to SCM shareholders. See Minutes of SCM Board of Directors Meeting (Sept. 10, 1985), PX 27 at 6. This opinion was later confirmed in a formal letter to the SCM Board. Tr. 1060-61. As to the Asset Option Agreement, Overlock advised the Board that the option prices were "within the range of fair value," though he did not inform the Board as to what that range was.*fn5 Overlock stated that he believed that SCM could obtain a higher price for each business if an orderly sale were conducted. PX 27 at 5-6. He also stated that "the current trading value" of Merrill's $74 offer would be above $72 per share. Id. He testified that, giving effect just to the time value of money, the Merrill $74 LBO was in fact worth $1.25 to $1.50 more per share than the Hanson $72 cash offer, but it would trade at about $72.50 per share. Tr. 1179.

The testimony at the evidentiary hearing shows that Goldman Sachs never advised the Board, and the Board never asked, what the fair value of the two businesses was, or what the range of such value was. Tr. 922-25, 932, 1070-71. Further, Goldman Sachs had not calculated such values--and had not informed the Board that it had not made such calculations. Tr. 1071, 1169-70. Nor was there any discussion of the significance for SCM of selling these two businesses, which represent approximately one half of SCM's present and projected operating income. No documents or pro forma financial statements were given out at the meeting, and none were requested. Tr. 910, 1177. None of the directors suggested postponing a decision on the lock-up option. Tr. 920. Nor did the Board suggest contacting Hanson to see if it might top the proposed $74 offer, including the lock-up option. Tr. 1065.

Martin Lipton advised the Board that in Wachtell Lipton's opinion, the decision whether to approve the Asset Option Agreement was within the discretion of the Board's business judgment. PX 27 at 7-9. There was evidence that one director asked Merrill's chief negotiator whether Merrill would proceed with its $74 proposal without the lock-up option. The negotiator responded that neither Merrill nor its partner, Prudential, would go forward without the asset option. After the three management directors left the room, SCM's independent directors left the room, SCM's independent directors unanimously approved the Asset Option Agreement. The district court found that the directors "approved the lock-up options after concluding that they could not secure the $74 LBO offer without the options." Op. at 11.

In response to Merrill's new proposed tender offer, on September 11 Hanson announced the termination of its $72 all cash tender offer, which had been expressly conditioned upon SCM's not granting a lock-up option. Within hours following this announcement, Hanson purchased approximately twenty-five percent of SCM's common stock in transactions that this court upheld in Hanson I as not constituting a de facto tender offer in violation of the Williams Act. In the present action, the district court found that Hanson's September 11 purchases triggered Merrill's rights to exercise the lock-up option. Op. at 12. Following this court's decision in Hanson I on September 30, Hanson purchased an additional 545,000 shares of SCM stock between October 2 and October 4, bringing its aggregate holdings to some 37.4% on a primary basis and approximately 32.1% on a fully diluted basis.*fn6

On October 8, after commencing the present suit in district court, Hanson announced its intention to make a $75 cash tender offer for any and all shares of SCM common stock, conditioned on the withdrawal or judicial invalidation of the lock-up option,*fn7 to commence on October 11. PX 200 at 15. On October 8, Merrill announced that it was exercising the lock-up option and on October 9 it announced that it had withdrawn the $9 million break-up fee from escrow for its own use. On October 10, the SCM Board approved an Exchange Offer whereby if both the Hanson and Merrill offers fail, all SCM shareholders could exchange each SCM share for $10 cash and $64 in a new series of SCM preferred stock. The offer was made for up to 8,254,000 shares, or two thirds of the outstanding shares on a fully diluted basis.

In the evidentiary hearings before the district court, the parties presented extensive evidence regarding not only the decision-making process of the SCM directors in approving the lock-up option but also the substantive fairness to SCM shareholders of the option and the option prices. This evidence included testimony by Overlock that, based on acceptable price-earnings ratios applied to Goldman Sachs' own data, the value of Pigments could be substantially higher than the option price agreed to by SCM for Pigments. There was also evidence that the Consumer Foods business was seriously undervalued in the Option Agreement. Notwithstanding the extensive evidence adduced from both sides as to the value of the optioned businesses, the district court declined to make findings regarding such evidence. Hanson appeals from the district court's denial of the motion for a preliminary injunction.

Discussion

In this second phase of litigation in this takeover dispute, we are asked to determine whether SCM's Board of Directors' approval of a lock-up option of substantial corporate assets is protected by the business judgment rule. More specifically, we are to consider whether the district court was correct in holding, as it did, that the appellants did not "make a strong showing that the directors somehow breached their fiduciary duties," Op. at 19, such as to shift to the SCM directors the burden of justifying the fairness of the lock-up option. We believe that the district court erred in holding that Hanson has failed to make a prima facie showing of a breach of a fiduciary duty; we also believe that, once the burden shifted, the extensive evidence presented during the eight-day injunction purposes, the appellees did not sustain their burden of justifying the fairness of the lock-up option.

I

To obtain a preliminary injunction, Hanson faces the formidable task of showing: (a) irreparable harm and (b) either (1) likelihood of success on the merits or (2) sufficiently serious questions going to the merits to make them a fair ground for litigation and a balance of hardships tipping decidedly toward the party requesting the preliminary relief. See Norlin Corp. v. Rooney, Pace Inc., 744 F.2d 255, 260 (2d Cir. 1984); Jack Kahn Music Co., Inc. v. Baldwin Piano & Organ Co., 604 F.2d 755, 758 (2d Cir. 1979).

We note at the outset that the district court properly recognized that a preliminary injunction is an extraordinary measure, particularly in a takeover context. As we noted in Hanson I:

Hanson I, 774 F.2d at 60.

Our standard of review is whether the district court abused its discretion in denying the preliminary injunction, Coca-Cola v. Tropicana Products, Inc., 690 F.2d 312, 315 (2d Cir. 1982) (remanding for issuance of preliminary injunction), i.e., whether it "relie[d] on clearly erroneous findings of fact or on an error of law in [not] issuing the injunction," Hanson, I, 774 F.2d at 54.

SCM is a New York corporation, and no party disputes that the acts of its directors are to be considered in light of New York law. Under New York corporation law, a director's obligation to a corporation and its shareholders includes a duty of care in the execution of directional responsibilities. Under the duty of care, a director, as a corporate fiduciary, in the discharge of his responsibilities must use at least that degree of diligence that an "ordinarily prudent" person under similar circumstances would use. See N.Y. Bus. Corp. L. § 717. In evaluating this duty, New York courts adhere to the business judgment rule, which "bars judicial inquiry into actions of corporate directors taken in good faith and in the exercise of honest judgment in the lawful and legitimate furtherance of corporate purposes." Auerbach v. Bennett, 47 N.Y.2d 619, 629, 419 N.Y.S.2d 920, 926, 393 N.E.2d 994, 1000 (1979); see also Pollitz v. Wabash, R.R. Co., 207 N.Y. 113, 124, 100 N.E. 721, 724 (1912).

Thus, in duty of care analysis, a presumption of propriety inures to the benefit of directors; absent a prima facie showing to the contrary, directors enjoy "wide latitude in devising strategies to resist unfriendly [takeover] advances" under the business judgment rule. See Norlin, supra, 744 F.2d at 264-65 (citing Treadway v. Care Corp., 638 F.2d 357, 380-84 (2d Cir. 1980); Crouse-Hinds Co. v. Internorth, Inc., 634 F.2d 690, 701-04 (2d Cir. 1980)). However, even if a broad concludes that a takeover attempt is not in the best interests of the company, it does not hold a blank check to use all possible strategies to forestall the acquisition moves. Norlin, supra, 744 F.2d at 265-66.

Although in other jurisdictions, directors may not enjoy the same presumptions per the business judgment rule, at least in a takeover context, see, e.g., Unocal Corp. v. Mesa Petroleum Co., 493 A.2d 946, 954-55 (Del. Sup. 1985) (initial burden on directors in takeover to show reasonable grounds for believing that takeover would endanger corporate policy; satisfied by directors' showing good faith and reasonable investigation), under New York law, the initial burden of proving directors' breach of fiduciary duty rests with the plaintiff. See Crouse-Hinds, supra, 634 F.2d at 702; see also Auerbach, supra, 419 N.Y.S.2d at 926-27.

In the present case, the challenged acts of the directors concern the grant of the lock-up option. This takeover defensive tactic is not per se illegal. See e.g., Buffalo Forge Co. v. Ogden Corp., 717 F.2d 757 (2d. Cir.), cert. denied, 464 U.S. 1018, 78 L. Ed. 2d 724, 104 S. Ct. 550 (1983) (validating a stock lock-up under the business judgment rule), but it may nonetheless be illegal in particular cases, see e.g., Data Probe, supra. See also MacAndrews & Forbes Holdings, Inc. v. Revlon, Inc., No. 8126 (Del. Ch. Oct. 23, 1985) at 25-26, aff'd, Nos. 353 & 354 (Del. Sup. Nov. 1, 1985) (noting that lock-up options are not per se illegal, but preliminarily enjoining asset option agreement as likely misapplication of directorial authority). Further, in evaluating the acts of SCM's directors in the present case, we remain mindful of our overriding concern in Hanson I that the role of the court in an action to enjoin takeover measures is to allow the forces of the free market to determine the outcome to the greatest extent possible within the bounds of the law. See Hanson I, supra, 774 F.2d at 60. In this regard, we are especially mindful that some lock-up options may be beneficial to the shareholders, such as those that induce a bidder to compete for control of a corporation, while others may be harmful, such as those that effectively preclude bidders from competing with the optionee bidder. See Thompson v. Enstar Corp., 501 A.2d 1239, 7643, Slip. op. at 7-13 (Del. Ch. 1984), at 7-13 revised, Aug. 16, 1984 (distinguishing options that attract or foreclose competing bids); see also Note, Lock-Up Options: Towards a State Law Standard, 96 Harv. L. Rev. 1068, 1076-82 (1983).

II

Under the circumstances presented in this case, the business judgment doctrine is misapplied when it is extended to provide protection to corporate board members where there is an abundance of evidence strongly suggesting breach of fiduciary duty, as we develop below. See generally, Arsht, The Business Judgment Rule Revisited, 8 Hofstra L. Rev. 93 (1979) (noting limits of business judgment rule.)

The district court herein found no fraud, no bad faith and no self-dealing by SCM's directors; we do not disagree with these findings. However, the exercise of fiduciary duties by a corporate board member includes more than avoiding fraud, bad faith and self-dealing. Directors must exercise their "honest judgment in the lawful and legitimate furtherance of corporate purposes," Auerbach, supra, 419 N.Y.S.2d at 926. It is not enough that directors merely be disinterested and thus not disposed to self-dealing or other indicia of a breach of the duty of loyalty. Directors are also held to a standard of due care. They must meet this standard with "conscientious fairness, " Alpert v. 28 Williams St., Corp., 63 N.Y.2d, 557, 569, 483 N.Y.S.2d 667, 674, 473 N.E.2d 19, 26 (1984) (citing cases). For example, where their "methodologies and procedures: are "so restricted in scope, so shallow in execution, or otherwise so pro forma or halfhearted as to constitute a pretext or sham," then inquiry into their acts is not shielded by the business judgment rule. Auerbach, supra, 419 N.Y.S.2d at 929.

The law is settled that, particularly where directors made decisions likely to affect shareholder welfare, the duty of due care requires that a director's decision be made on the basis of "reasonable diligence" in gathering and considering material information. In short, a director's decision must be an informed one. See American Law Institute, Principles of Corporate Governance: Analysis and Recommendations § 4.01(c)(2) (Tent. Draft No. 4, April 12, 1985) ("informed with respect to the subject of his business judgment to the extent he reasonably believes to be appropriate under the circumstances"); H. Ballantine, Law of Corporations § 63a at 161 (rev. ed. 1946) ("presupposed that reasonable diligence and care have been exercised"); Arsht, supra, at 111 (business judgment rule should not be available to directors who do "not exercise due care to ascertain the relevant and available facts before voting"). Directors may be liable to shareholders for failing reasonably to obtain material information or to make a reasonable inquiry into material matters. See e.g., Manheim Dairy Co. v. Little Falls Nat. Bank, 54 N.Y.S.2d 345, 365-66 (Sup. Ct. 1945), cited in Platt Corp. v. Platt, et al., 42 Misc. 2d 640, 249 N.Y.S.2d 1, 6 (Sup. Ct. 1964), aff'd, 23 A.D.2d 823, 258 N.Y.S.2d 629 (1st Dep't. 1965), rev'd on other grounds, 17 N.Y.2d 234, 270 N.Y.S.2d 408, 217 N.E.2d 134 (1966). Cf. Beveridge v. New York El. R. Co., 112 N.Y. 1, 22, 19 N.E. 489, 494 (1889) (directors owe to shareholders duties "of the most responsible kind"). Thus, while directors are protected to the extent that their actions evidence their business judgment, such protection assumes that courts must not reflexively decline to consider the content of their "judgment" and the extent of the information on which it is based.

The actions of the SCM Board do not rise to that level of gross negligence found in Smith v. Van Gorkom, 488 A.2d 858, 874-78 & n.19 (Del. Sup. 1985). There, in making its decision after only two hours of consideration, the board relied primarily on a twenty-minute presentation by the chief executive officer who had arranged the proposed merger without informing other Board members of management and despite the advice of senior management that the merger price was inadequate. On the other hand, the SCM directors failed to take many of the affirmative directorial steps that under lie the finding of due care in Treadway, supra, on which the district court herein relied. In Treadway, the directors "armed" their bankers with financial questions to evaluate; they requested balance sheets; they adjourned deliberations for one week to consider the requisitioned advice; and they conditioned approval of the deal on the securing of a fairness opinion from their bankers. See Treadway, 638 F.2d at 384. By contrast, the SCM directors, in a three-hour late-night meeting, apparently contented themselves with their financial advisor's conclusory opinion that the option prices were "within the range of fair value," although had the directors inquired, they would have leaned that Goldman Sachs had not calculated a range of fairness. There was not even a written opinion from Goldman Sachs as to the value of the two optioned businesses. Tr. 1070. Moreover, the Board never asked what the top value was or why two businesses that generated half of SCM's income were being sold for one third of the total purchase price of the company under the second LBO merger agreement, or what the company would look like if the options were exercises. Tr. 131, 142-44. There was little or no discussion of how likely it was that the option "trigger" would be pulled, or who would make that decision--Merrill, the Board, or management. Also, as was noted in Van Gorkom, the directors can hardly substantiate their ...


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