Cedarview Opportunities Master Fund, L.P. v. Spanish Broadcasting System, Inc. ( 2018 )

IN THE COURT OF CHANCERY OF THE STATE OF DELAWARE
)
CEDARVIEW OPPORTUNITIES )
MASTER FUND, L.P., CETUS )
CAPITAL III, L.P., CORRIB )
CAPITAL MANAGEMENT, L.P., )
LITTLEJOHN OPPORTUNITIES )
MASTER FUND L.P., )
RAVENSOURCE FUND, )
STONEHILL INSTITUTIONAL )
PARTNERS, L.P., STONEHILL )
MASTER FUND LTD., )
STORNOWAY RECOVERY FUND )
L.P., VSS FUND, L.P., WEST FACE )
LONG TERM OPPORTUNITIES )
GLOBAL MASTER L.P., and )
WOLVERINE FLAGSHIP FUND )
TRADING LIMITED, )
)
Plaintiffs, )
)
v. ) C.A. No. 2017-0785-AGB
)
SPANISH BROADCASTING )
SYSTEM, INC., )
)
Defendant. )
)
MEMORANDUM OPINION
Date Submitted: May 1, 2018
Date Decided: August 27, 2018
Jon E. Abramczyk, D. McKinley Measley, and Alexandra M. Cumings of MORRIS,
NICHOLS, ARSHT & TUNNELL LLP, Wilmington, Delaware; Shireen A. Barday
of KIRKLAND & ELLIS LLP, New York, New York; Patrick J. Nash of
KIRKLAND & ELLIS, Chicago, Illinois; Counsel for Plaintiffs.
Robert S. Saunders, Matthew P. Majarian, and Haley S. Stern of SKADDEN, ARPS,
SLATE, MEAGHER & FLOM LLP, Wilmington, Delaware; Counsel for
Defendant.
BOUCHARD, C.
This action is the latest in a series of disputes that have led to litigation in this
court between Spanish Broadcasting System, Inc., a Spanish-language media and
entertainment company that operates in the United States, and holders of its Series
B preferred stock.1 This iteration involves essentially two distinct disputes.
First, certain Series B holders have filed claims asserting that the Company
improperly incurred “Indebtedness” without their consent in violation of the
certificate of designations governing the Series B preferred stock and the implied
covenant of good faith and fair dealing. For these alleged violations, the Series B
holders seek damages and certain forms of specific performance.
Second, the Series B holders have filed claims asserting that the Company
improperly cancelled their share certificates and suspended virtually all of their
rights as Series B holders in violation of the Company’s certificate of incorporation,
which contains certain limitations on the percentage of foreign or “alien” ownership
of its capital stock. These limitations parallel provisions of the Communications Act
of 1934 that regulate foreign investment in entities that control a United States
broadcast license. For these alleged violations, the Series B holders seek damages
1
See Brevan Howard Credit Catalyst Master Fund Ltd. v. Spanish Broad. Sys., Inc., 2015
WL 2400712 (Del. Ch. May 19, 2015); Brevan Howard Credit Catalyst Master Fund Ltd.
v. Spanish Broad. Sys., Inc., 2014 WL 2943570 (Del. Ch. June 27, 2014); Lehman Bros.
Holdings Inc. v. Spanish Broad. Sys., Inc., 2014 WL 718430 (Del. Ch. Feb. 25, 2014).
and a declaratory judgment that the operative provision of the certificate of
incorporation is invalid.
The Company has moved to dismiss all of the Series B holders’ claims under
Court of Chancery Rule 12(b)(6) for failure to state a claim for relief. It also has
moved to dismiss the declaratory judgment claim under Court of Chancery Rule
12(b)(1) for lack of ripeness. For the reasons explained below, the motion is granted
in part and denied in part.
I. BACKGROUND
The facts recited in this opinion are taken from the Verified Amended
Complaint filed on December 22, 2017 (the “Amended Complaint”)2 and documents
incorporated therein.3 Any additional facts are either not subject to reasonable
dispute or subject to judicial notice.
A. The Parties
Defendant Spanish Broadcasting System, Inc. (“SBS” or the “Company”) is a
Spanish-language media and entertainment company that operates radio and
television stations in Hispanic markets throughout the United States. Non-party
Raúl Alarcón Jr. is the Company’s Chairman, CEO, and President. He is also SBS’s
2
Dkt. 9.
3
See Winshall v. Viacom Int’l, Inc., 76 A.3d 808, 818 (Del. 2013) (citation and internal
quotations omitted) (“[P]laintiff may not reference certain documents outside the
complaint and at the same time prevent the court from considering those documents’ actual
terms” in connection with a motion to dismiss).
2
controlling stockholder, holding approximately 85% of the combined voting power
of its two classes of common stock.
Plaintiffs hold approximately 94.16% of SBS’s outstanding 10 ¾% Series B
Cumulative Exchangeable Redeemable Preferred Stock (the “Series B Preferred
Stock,” and all holders thereof, the “Series B Holders”).4 Certain of these plaintiffs,
holding approximately 69.9% of the outstanding Series B Preferred Stock, are
foreign entities.5 The Communications Act of 1934, 47 U.S.C. § 151, et seq. (the
“Communications Act”), refers to such foreign entities as “aliens.”
Some of the plaintiffs also hold SBS’s 12.5% senior notes (the “Senior
Notes”). In total, plaintiffs hold approximately $85,265,000 of the face amount of
the Series B Preferred Stock and $30,792,000 in principal amount of the outstanding
Senior Notes.6
B. The Series B Preferred Stock
On October 29, 2003, SBS authorized the issuance of Series A Preferred
Stock.7 On February 18, 2004, the Company issued shares of Series B Preferred
Stock in exchange for the outstanding Series A, pursuant to a certificate of
4
Am. Compl. ¶ 2.
5
Am. Compl. ¶¶ 13-22; Ex. D at 9-11.
6
Am. Compl. ¶ 13.
7
Am. Compl. ¶ 29 & n.14.
3
designations for the Series B Preferred (the “Certificate”).8 The only relevant
difference between the two securities is that the Series B Preferred Stock, as opposed
to the Series A, is freely transferable.9
The Certificate sets forth the “designations, preferences, relative,
participating, optional and other special rights and the qualifications, limitations and
restrictions” of the Series B Preferred Stock. Absent special circumstances expressly
set forth in the Certificate or as required by law, the Series B Holders have no voting
rights.10 Upon the occurrence of a Voting Rights Triggering Event (“VRTE”),
however, certain rights, voting and otherwise, do arise.11 A VRTE occurs, among
other times, when:
 Dividends on outstanding Series B Preferred Stock are in arrears and unpaid
for four consecutive quarterly dividend periods;
 SBS fails to discharge any redemption or repurchase obligation with respect
to the Series B Preferred Stock;
 SBS breaches or violates any covenants or agreements in Section 11 of the
Certificate (addressed further below); and
 SBS defaults under any indenture by failing to pay principal or interest.12
8
Am. Compl. ¶ 29 n.14; Ex. B.
9
Am. Compl. ¶ 29 n.14.
10
Am. Compl. Ex. B §§ 9(a), 15.
11
Am. Compl. Ex. B § 9(b).
12
Am. Compl. Ex. B § 9(b)(i)-(ii), (iv)-(v).
4
When a VRTE occurs, the number of directors constituting SBS’s board is
increased to permit the Series B Holders to elect two additional members.13
Additionally, for as long as a VRTE continues, the Company is prohibited from
making certain “Restricted Payments” to “Junior Securities,” as defined in the
Certificate, and SBS may not enter into certain types of transactions, such as mergers
or consolidations.14 Most importantly for the present action is that the Certificate
bars SBS from incurring Indebtedness during a VRTE without the consent of the
Series B Holders.15 The definitions of “incur” and “Indebtedness,” which are central
to this action, are discussed later in this opinion.
Absent a VRTE, SBS can incur Indebtedness if the Company’s “Debt to Cash
Flow Ratio” is no greater than 7.0 to 1.0 at the time of incurrence of such
Indebtedness.16 This Debt to Cash Flow Ratio restriction does not apply, however,
to twelve enumerated categories of “Permitted Debt,” which are obligations that SBS
may incur as long as there is no VRTE in effect.17
13
Am. Compl. Ex. B § 9(b)(v).
14
Am. Compl. Ex. B §§ 11(a), (c).
15
Am. Compl. ¶ 4; Ex. B § 11(b).
16
Am. Compl. Ex. B § 11(b).
17
Am. Compl. Ex. B § 11(b).
5
C. The Senior Notes
In February 2012, SBS issued $275 million in principal amount of Senior
Notes pursuant to the Senior Secured Notes Indenture (the “Indenture”).18 The
Senior Notes are secured by substantially all of the Company’s assets, and
approximately $260 million in face value of the Senior Notes are currently
outstanding.19 Under the Indenture, the Senior Notes became due and payable in full
on April 17, 2017.20
Before the Senior Notes due date, the Indenture required the Company to pay
interest on the Senior Notes semi-annually in arrears on April 15 and October 15 of
each year.21 After the Senior Notes due date, if the Senior Notes are overdue, SBS
must make interest payments “from time to time on demand at the interest rate on
the [Senior] Notes.”22
18
Transmittal Aff. of Matthew P. Majarian (“Majarian Aff.”) Ex. 2 at 1 (Dkt. 13); Am.
Compl. ¶ 5 & n.6.
19
Am. Compl. ¶ 5 n.6; Majarian Aff. Ex. 3 at 5.
20
Am. Compl. ¶ 5.
21
Majarian Aff. Ex. 2 at A-5.
22
Id.
6
D. Multiple VRTEs Have Occurred and are Uncured by SBS
The Company “encountered financial difficulties as a result of the 2008
recession and its financial position has since deteriorated.”23 Consequently, a
number of VRTEs have occurred since then and remain uncured because the
Company does not “currently have sufficient funds legally available to it to be able
to satisfy the conditions for terminating them.”24
A VRTE was triggered in April 2009 when the Company stopped paying
dividends to the Series B Holders.25 As of September 30, 2017, SBS owed
approximately $72.6 million in accrued and unpaid dividends to the Series B
Holders, an amount that continues to grow.
A second VRTE occurred on October 15, 2013, when a majority of the Series
B Holders exercised their right to require SBS to repurchase their preferred stock at
$1,000 per share, but the Company failed to do so.26 Due to a lack of legally
available funds, SBS only repurchased 1,800 of the 92,223 shares for which holders
exercised their repurchase rights.27 The Series B Holders thereafter exercised their
23
Def.’s Opening Br. 1 (Dkt. 13).
24
Am. Compl. ¶ 45 (quoting SBS, Quarterly Report (Form 10-Q) (Nov. 14, 2017) at 19).
25
Am. Compl. ¶ 46 & n.33.
26
Am. Compl. ¶ 47; Ex. B §§ 7(a), 9(b)(ii).
27
Am. Compl. ¶ 47.
7
right to elect two additional directors to the Company’s Board.28 SBS has
acknowledged the occurrence and continuance of this VRTE in its public filings,
including its quarterly report dated November 14, 2017.29
A third VRTE occurred on the Senior Notes due date, April 17, 2017, when
SBS failed to pay off the Senior Notes and an Event of Default arose under the
Indenture.30 To avoid a foreclosure on the assets secured by the Senior Notes—
which are all or substantially all of SBS’s assets—SBS executed a forbearance
agreement with holders of approximately 75% of the outstanding Senior Notes,
dated May 8, 2017 (the “Forbearance Agreement,” and such forbearing holders, the
“Forbearing Noteholders”).31 The plaintiffs in this action who also hold Senior
Notes are not among the Forbearing Noteholders.32
The Forbearance Agreement provided, in relevant part, that the Forbearing
Noteholders would forbear from exercising any of their rights and remedies under
the Indenture with respect to SBS’s failure to repay the Senior Notes until May 31,
28
Am. Compl. ¶ 42. According to plaintiffs, “the two Series B-elected board members
recently resigned—upon information and belief—because of frustration over SBS’s failure
to pursue a right-sizing of its capital structure in good faith.” Id.
29
Am. Compl. ¶ 47.
30
Am. Compl. ¶¶ 5, 48; Ex. B § 9(b)(v); Majarian Aff. Ex. 2 § 6.01(a)(1).
31
Am. Compl. ¶ 6; Majarian Aff. Ex. 1 at 1.
32
Am. Compl. ¶ 6 n.7.
8
2017.33 In exchange, SBS agreed to: (i) make two monthly interest payments to the
holders of the Senior Notes (as opposed to paying interest on a semi-annual basis as
set forth in the Indenture), totaling approximately $2.9 million each month;34 (ii) pay
a one-time consent fee to the Forbearing Noteholders equal to 0.35% of their
outstanding principal;35 and (iii) pay the Forbearing Noteholders’ legal and financial
advisor fees.36 The Forbearance Agreement did not purport to amend the Indenture
or change any term of the Senior Notes.37
The Forbearance Agreement expired on May 31, 2017, with the Senior Notes
remaining unpaid and outstanding.38 Although it does not have a new formal
agreement with the Forbearing Noteholders, SBS has continued to make monthly
interest payments on the Senior Notes and to pay the Forbearing Noteholders’
advisor fees.39 The holders of the Senior Notes, in turn, have not accelerated the
principal amount of their debt or commenced related legal proceedings.40
33
Am. Compl. ¶¶ 6-7; Majarian Aff. Ex. 1 §§ 2.01, 2.02.
34
Am. Compl. ¶ 6; Majarian Aff. Ex. 1 § 4.01(b).
35
Am. Compl. ¶ 6; Majarian Aff. Ex. 1 § 4.02.
36
Am. Compl. ¶ 6; Majarian Aff. Ex. 1 § 4.04.
37
Majarian Aff. Ex. 1 §§ 1.01(d), (f).
38
Am. Compl. ¶¶ 5, 7.
39
Am. Compl. ¶ 7 (citing SBS, Quarterly Report (Form 10-Q) (Nov. 14, 2017) at 16).
40
Am. Compl. ¶ 50.
9
E. SBS Suspends the Series B Holders’ Rights
On November 2, 2017, plaintiffs filed their initial complaint in this action, the
thrust of which was that SBS breached the Certificate by impermissibly incurring
debt during a VRTE by “extending, refinancing or renewing” the Senior Notes with
the Forbearance Agreement.41 After reviewing the initial complaint, SBS claimed
that it learned for the first time that “the collective ownership of non-U.S. entities
exceeds 63 percent of the outstanding Series B Preferred Shares,”42 an amount that
the Company says “exceeds the limitations on foreign ownership set forth in Section
310” of the Communications Act and in Article X of SBS’s Third Amended and
Restated Certificate of Incorporation (the “Charter”).43
Section 310(b)(4) of the Communications Act establishes “a 25 percent
benchmark for investment by foreign individuals, governments and corporations in
U.S.-organized entities that directly or indirectly control a U.S. broadcast . . .
license.”44 Article X of the Charter incorporates the Communications Act’s alien
ownership restrictions, purportedly “to enact protocols or undertake actions to
remain in compliance with the requirements of the [Communications] Act.”45
41
Compl. ¶¶ 58-65 (Dkt. 1).
42
Am. Compl. ¶ 64 (quoting SBS, Current Report (Form 8-K) (Nov. 28, 2017), Ex. 4.1).
43
Am. Compl. Ex. C at 1.
44
Am. Compl. ¶ 64 (citation and internal quotations omitted and alterations in original).
45
Am. Compl. Ex. C at 2.
10
On November 28, 2017, SBS announced that it had suspended all Series B
Holders’ rights as stockholders “other than [the] right to transfer [] shares to a citizen
of the United States.”46 SBS asserted it did this “to ensure that transfers of Series B
Preferred Shares that have been completed in violation of the [Communications] Act
and the Certificate of Incorporation do not adversely affect its FCC broadcast
licenses and ability to continue its business operations.”47
The Company has stated that the suspension of rights will remain in place
with respect to each Series B Holder until SBS has concluded that: (i) the shares of
such holder should be treated as not owned by a foreign entity; or (ii) the total
ownership distribution of the Series B Preferred Stock complies with the
requirements of the Communications Act and the Charter.48 According to SBS, a
single Domestic Share Certificate represented all of the issued and outstanding
Series B Preferred Stock.49 SBS cancelled that single Domestic Share Certificate
46
Am. Compl. ¶ 63 (alterations in original and quoting SBS, Current Report (Form 8-K)
(Nov. 28, 2017), Ex. 4.1).
47
SBS, Current Report (Form 8-K) (Nov. 28, 2017), Ex. 4.1.
48
Id.
49
Def.’s Reply Br. 26 (Dkt. 17).
11
representing the Series B Preferred Stock,50 and announced publicly on March 26,
2018, that “it has not yet issued foreign share certificates evidencing such stock.”51
F. The FCC Proceeding
On December 8, 2017, plaintiffs’ counsel sent SBS a letter explaining its
belief that the Communications Act had not been violated on account of the
nationalities of the Series B Holders and that the Federal Communications
Commission (the “FCC”) was likely to grant a declaratory ruling to that effect.52
Plaintiffs also provided certain ownership information regarding the holders of the
Series B Preferred Stock and offered “to consult with the FCC staff and file a petition
for declaratory ruling” to establish that SBS was in compliance with the alien
ownership restrictions of the Communications Act.53 Unbeknownst to plaintiffs,
SBS already filed a petition with the FCC on December 4, 2017, seeking a
declaration that the Company was in compliance with the Communications Act after
having suspended the Series B Holders’ rights.54
50
Am. Compl. ¶ 63.
51
Letter from R. Saunders, Esq. (Apr. 2, 2018) at 4 & Ex. 1 (SBS, Current Report (Form
8-K) (Mar. 26, 2018), Item 8.01) (Dkt. 18).
52
Am. Compl. ¶ 66; Ex. D.
53
Am. Compl. ¶ 66; Ex. D at 6.
54
Am. Compl. ¶ 67.
12
On January 25, 2018, while SBS’s FCC petition was being briefed, the FCC
issued a letter indicating that the petition “does not provide enough information for
[the FCC] to proceed with a comprehensive review or to address SBS’s prayer for
relief.”55 As a result, the FCC deferred ruling on SBS’s position until February 26,
2018 or until SBS could provide additional information to the FCC.56 The letter also
clarified that “SBS will not be required to redeem the non-compliant foreign interest
or to remedy the non-compliance while its [petition] is pending,” but “it must have
a mechanism in place to come into compliance within thirty (30) days following an
adverse decision on its [petition].”57 The FCC noted that it “take[s] no position on
the outcome of any issue in” this Delaware action and “defer[s] to the Court and its
conclusions.”58
II. PROCEDURAL HISTORY
Plaintiffs’ initial complaint, filed on November 2, 2017, asserted three claims.
After SBS moved to dismiss that complaint on November 27, 2017, and purported
to suspend the rights of the Series B Holders the next day, plaintiffs filed the
Amended Complaint on December 22, 2017, adding two additional claims.
55
Pls.’ Answering Br. Ex. 1 at 3 (Dkt. 14).
56
Id. at 5.
57
Id. at 4.
58
Id. at 3 n.17.
13
Counts I-III assert claims relating to the Certificate. Count I asserts that SBS
breached the Certificate by “extending, refinancing, or renewing” the Senior Notes
with the Forbearance Agreement.59 Count II asserts that the Company breached the
Certificate’s implied covenant of good faith and fair dealing. Count III seeks the
remedy of specific performance.
Counts IV and V assert claims relating to the Charter. Count IV asserts that
SBS breached Section 10.4 of the Charter by suspending the rights of the Series B
Holders.60 Count V seeks a declaratory judgment that Section 10.4 of the Charter is
invalid and unenforceable under Delaware law.
On January 2, 2018, SBS filed a motion to dismiss the Amended Complaint
in its entirety under Court of Chancery Rules 12(b)(1) and 12(b)(6) for lack of
subject matter jurisdiction and for failure to state a claim for relief. At the conclusion
of argument on the motion held on April 12, 2018, the court requested supplemental
briefing on: (i) the appropriate means of resolving any ambiguity in the Certificate
provisions at issue; and (ii) the application of Generally Accepted Accounting
Principles (“GAAP”) to certain items at issue in this action for purposes of the
Certificate’s requirement (discussed below) that, to qualify as “Indebtedness,” an
59
Am. Compl. ¶¶ 73-80.
60
Am. Compl. ¶¶ 92-93.
14
item must appear as a liability on a balance sheet prepared in accordance with
GAAP.61 Supplemental briefing was completed on May 1, 2018.
III. ANALYSIS
The claims in the Amended Complaint fall into two discrete categories: (i)
claims concerning the alleged incurrence of Indebtedness (the Certificate claims);
and (ii) claims concerning the suspension of certain rights of the Series B Holders
(the Charter claims). Discussion of each category is divided between Sections A
and B, respectively.
SBS seeks dismissal of all claims under Court of Chancery Rule 12(b)(6) for
failure to state a claim for relief. The standards governing such a motion are well-
settled:
(i) all well-pleaded factual allegations are accepted as true; (ii) even
vague allegations are “well-pleaded” if they give the opposing party
notice of the claim; (iii) the Court must draw all reasonable inferences
in favor of the non-moving party; and ([iv]) dismissal is inappropriate
unless the “plaintiff would not be entitled to recover under any
reasonably conceivable set of circumstances susceptible of proof.”62
With respect to one of the Charter claims (Count V), SBS also seeks dismissal under
Court of Chancery Rule 12(b)(1) for lack of ripeness. The standards governing such
a motion are discussed below in the analysis of Count V.
61
Tr. 121-24 (Apr. 12, 2018) (Dkt. 25).
62
Savor, Inc. v. FMR Corp., 812 A.2d 894, 896-97 (Del. 2002) (citations omitted).
15
A. The Certificate Claims
The Certificate claims comprise Counts I, II, and III of the Amended
Complaint. They are discussed below in that order.
1. Plaintiffs Have Stated a Claim for Breach of Contract
Count I asserts that SBS breached Section 11(b) of the Certificate by
“extending, refinancing, or renewing” the Senior Notes with the Forbearance
Agreement while a VRTE was in effect.63 “Under Delaware law, the elements of a
breach of contract claim are: 1) a contractual obligation; 2) a breach of that
obligation by the defendant; and 3) a resulting damage to the plaintiff.”64
“The rules of construction which are used to interpret contracts and other
written instruments are applicable when construing corporate charters and
certificates of designation.”65 “The starting point in construing any contract is to
determine whether a provision is ambiguous, i.e., whether it is reasonably subject to
more than one interpretation.”66 “A contract is not rendered ambiguous simply
because the parties do not agree upon its proper construction.”67 “It is well
63
Am. Compl. ¶¶ 73-80.
64
H-M Wexford LLC v. Encorp, Inc., 832 A.2d 129, 140 (Del. Ch. 2003) (citation omitted).
65
Matulich v. Aegis Commc’ns Grp., Inc., 942 A.2d 596, 600 (Del. 2008) (citation
omitted).
66
Id. (citation omitted and emphasis in original).
67
Rhone-Poulenc Basic Chems. Co. v. Am. Motorists Ins. Co., 616 A.2d 1192, 1196 (Del.
1992).
16
established that a court interpreting any contractual provision, including preferred
stock provisions, must give effect to all terms of the instrument, must read the
instrument as a whole, and, if possible, reconcile all the provisions of the
instrument.”68 “If no ambiguity is present, the Court must give effect to the clear
language of the Certificate.”69 When a contract is “fairly susceptible of different
interpretations”70 and is therefore ambiguous, “the court must turn to secondary
methods of interpretation.”71
The analysis of Count I boils down to essentially one question: has SBS
“incurred Indebtedness,” as those terms are defined in the Certificate, during the
pendency of a VRTE in violation of Section 11(b) of the Certificate? I begin by
quoting the relevant part of Section 11(b), which defines the term “incur,” and the
separate definition of Indebtedness.
Section 11(b) of the Certificate provides, in relevant part, as follows:
The Company shall not, and shall not permit any of its Restricted
Subsidiaries to, directly or indirectly, create, incur, issue, assume,
guarantee or otherwise become directly or indirectly liable,
contingently or otherwise, with respect to (collectively “incur”) any
Indebtedness . . . provided, however, that, so long as no Voting Rights
Triggering Event has occurred and is continuing, the Company may
incur Indebtedness . . . if, in each case, the Company’s Debt to Cash
68
Elliot Assocs., L.P. v. Avatex Corp., 715 A.2d 843, 854 (Del. 1998) (citation omitted).
69
Kaiser Aluminum Corp. v. Matheson, 681 A.2d 392, 395 (Del. 1996) (citation omitted).
70
Id. (citation omitted).
71
Shiftan v. Morgan Joseph Holdings, Inc., 57 A.3d 928, 935 (Del. Ch. 2012) (Strine, C.).
17
Flow Ratio at the time of incurrence of such Indebtedness . . . would
have been no greater than 7.0 to 1.0.
So long as no Voting Rights Triggering Event shall have
occurred and be continuing or should be caused thereby, the provisions
of the first paragraph of this Section 11(b) will not apply to the
incurrence of any of the following (collectively, “Permitted Debt”).72
The term “Permitted Debt” is defined to include twelve different categories of
obligations. One of several items listed in the eighth category is “the accrual of
interest.”73
The complete definition of Indebtedness is set forth below, with the portions
relevant to Count I emphasized:
“Indebtedness” means, with respect to any Person, without
duplication, (i) any indebtedness of such Person, whether or not
contingent, in respect of borrowed money or evidenced by bonds,
notes, debentures or similar instruments or letters of credit (or
reimbursement agreements in respect thereof) or banker’s acceptances
or representing Capital Lease Obligations or the balance deferred and
unpaid of the purchase price of any property or representing any
Hedging Obligations, except any such balance that constitutes an
accrued expense or trade payable, if and to the extent any of the
foregoing indebtedness (other than letters of credit and Hedging
Obligations) would appear as a liability upon a balance sheet of such
Person prepared in accordance with GAAP, (ii) all indebtedness of
others secured by a Lien on any asset of such Person (whether or not
such indebtedness is assumed by such Person) and (iii) to the extent not
otherwise included, the guarantee by such Person of any indebtedness
of any other Person of the sort described in clause (i) of this definition.
Notwithstanding the foregoing, the term “Indebtedness” shall not
include Non-Recourse Debt or indebtedness that constitutes
72
Am. Compl. Ex. B § 11(b) (emphasis added).
73
Am. Compl. Ex. B § 11(b).
18
“Indebtedness” merely by virtue of a pledge of Equity Interests of an
Unrestricted Subsidiary. Furthermore, for the avoidance of doubt,
“Indebtedness” shall not include any Capital Stock or any liabilities in
respect of Capital Stock. The amount of any Indebtedness
outstanding as of any date shall be (A) the accreted value thereof, in
the case of any Indebtedness issued with original issue discount, (B) the
principal amount of the Indebtedness secured, together with any interest
thereon that is more than 30 days past due, in the case of any
Indebtedness of the type described in clause (ii) above, (C) the principal
amount of the Indebtedness guaranteed, together with any interest
thereon that is more than 30 days past due, in the case of any
Indebtedness of the type described in clause (iii) above, (D) the amount
of the net settlement payment payable on termination, in the case of any
Indebtedness constituting a Hedging Obligation (assuming for this
purpose that the Hedging Obligation was terminated on the date as of
which the calculation of the amount of Indebtedness is being made),
and (E) the principal amount thereof, together with any interest
thereon that is more than 30 days past due, in the case of any other
Indebtedness.74
The first sentence of the definition of Indebtedness is divided into three
clauses. Plaintiffs’ argument focuses only on the first clause, which has two parts,
and which implicates the last clause of the last sentence. Thus, the Certificate’s
definition of Indebtedness relevant to plaintiffs’ claims has essentially three
components. First, under clause (i), Indebtedness means “any indebtedness of such
Person, whether or not contingent, in respect of borrowed money or evidenced by
bonds, notes, debentures or similar instruments.”75 Second, to qualify as
74
Am. Compl. Ex. B at 8 (emphasis added).
75
Am. Compl. Ex. B at 8.
19
Indebtedness under clause (i), an item also must “appear as a liability upon a balance
sheet of such Person prepared in accordance with GAAP.”76 Third, “the amount of
any Indebtedness outstanding as of any date” includes “the principal amount thereof,
together with any interest thereon that is more than 30 days past due, in the case of
any other Indebtedness.”77
Seemingly ignoring the component of the definition of Indebtedness in clause
(i) that requires it to be recorded as a liability on a GAAP-compliant balance sheet,
plaintiffs initially argued that a host of payments and obligations associated with the
Senior Notes and the Forbearance Agreement constituted impermissible incurrences
of Indebtedness during a VRTE.78 When responding to the court’s request for
supplemental submissions, however, plaintiffs narrowed their contentions and
identified only two categories of SBS’s obligations they argue would appear as a
liability on a balance sheet prepared in accordance with GAAP such that they would
qualify as Indebtedness under clause (i) of the definition quoted above: (i) accrued
but unpaid interest on the Senior Notes, and (ii) accrued but unpaid professional fees
associated with the Senior Notes and the Forbearance Agreement.79 I address each
category in turn.
76
Am. Compl. Ex. B at 8.
77
Am. Compl. Ex. B at 8.
78
See Pls.’ Answering Br. 17-25.
79
Pls.’ Suppl. Br. 1-2 (Dkt. 23).
20
a. Plaintiffs’ Accrued Interest Allegations Satisfy the
First Two Elements of a Breach of Contract Claim
The logic of plaintiffs’ argument with respect to accrued but unpaid interest
on the Senior Notes goes as follows. Plaintiffs start with the general rule in
paragraph one of Section 11(b) that there is an absolute restriction on incurring
Indebtedness. As plaintiffs point out, however, the latter part of that paragraph
permits the incurrence of Indebtedness so long as there is no pending VRTE and the
Company’s Debt to Cash Flow Ratio does not exceed 7.0 to 1.0.
Plaintiffs next move to paragraph two of Section 11(b), which provides a
further exception to the prohibition on incurring Indebtedness. More specifically,
paragraph two allows SBS to incur twelve enumerated forms of “Permitted Debt” so
long as no VRTE is in place, without regard to SBS’s Debt to Cash Flow Ratio.
From this premise, plaintiffs reason that, because SBS cannot incur any Permitted
Debt when a VRTE is in effect, the twelve categories of Permitted Debt are examples
of Indebtedness. As noted above, one type of “Permitted Debt” includes “the accrual
of interest.”80 Thus, according to plaintiffs, any accrual of interest is a type of
Permitted Debt, which in turn is a subset of Indebtedness that cannot be incurred
during a VRTE. Plaintiffs argue further that the constant accrual of interest meets
80
Am. Compl. Ex. B § 11(b)(viii).
21
the Certificate’s definition of “incurring” a form of Indebtedness, since the term
“incur” is defined broadly.81
The Company concedes that accrued but unpaid interest on the Senior Notes
would appear as a liability on a GAAP-compliant balance sheet,82 but argues that the
fatal flaw in plaintiffs’ theory is that, for accrued interest to qualify as Indebtedness,
the Certificate requires that the interest is “more than 30 days past due.”83 For
support, SBS points to one of the parts of the definition of Indebtedness emphasized
above; namely, that the calculation of the amount of SBS’s Indebtedness outstanding
at any given time includes the principal amount plus interest on the principal “that
is more than 30 days past due.”84 In other words, SBS’s position is that this
definition recognizes that interest can be “Indebtedness,” but only when payment on
interest is more than thirty days in arrears.
The key difference between the parties’ positions, in short, is that plaintiffs
argue that any accrual of interest constitutes Indebtedness through inverse reasoning
based on the structure of Section 11(b), while SBS argues that only certain accrued
interest (i.e., interest more than 30 days past due) constitutes Indebtedness based on
81
Pls.’ Answering Br. 10.
82
Def.’s Suppl. Br. 12 n.10 (Dkt. 24).
83
Am. Compl. Ex. B at 8.
84
Am. Compl. Ex. B at 8 (emphasis added).
22
text in the paragraph of the Certificate that defines the term Indebtedness. Although
SBS’s reliance on the paragraph that specifically defines Indebtedness intuitively
seems like a sensible way to resolve the conflict,85 I cannot rule out at the pleadings
stage that both interpretations are reasonable and thus find that the Certificate is
ambiguous.86 Reinforcing the ambiguity is that the “30 days past due” qualification
does not appear in the part of the paragraph that actually defines the term
Indebtedness, but rather in the part that calculates the amount of Indebtedness
outstanding. As plaintiffs argue, a means of quantifying the amount of Indebtedness
does not necessarily rule out that other things may qualify as Indebtedness. Having
found the existence of ambiguity, the next question is what to do about it given that
the instrument at issue is a certificate of designations.
85
See DCV Holdings, Inc. v. ConAgra, Inc., 889 A.2d 954, 961 (Del. 2005) (citation
omitted) (“Specific language in a contract controls over general language, and where
specific and general provisions conflict, the specific provision ordinarily qualifies the
meaning of the general one.”).
86
SBS also argues that plaintiffs’ position would lead to “absurd results” because an
actionable breach of the Certificate would occur immediately upon the pendency of a
VRTE whenever SBS has outstanding debt because some interest necessarily would be
accrued for some period of time. Plaintiffs, however, proffer a response to which the
Company did not respond, i.e., that the Series B Holders “bargained” for a seat at the table
when SBS has fallen behind on its debt. I cannot say as a matter of law that plaintiffs’
position is one “that no reasonable person would have accepted when entering the
contract.” Osborn ex rel. Osborn v. Kemp, 991 A.2d 1153, 1160 (Del. 2010) (citation
omitted).
23
As Chief Justice Strine, writing as Chancellor, commented in Shiftan v.
Morgan Joseph Holdings, Inc., things become “a bit more complicated” when a
certificate of designations is “fairly susceptible of different interpretations.”87 In a
typical case, a breach of contract claim survives a motion to dismiss where the
relevant provisions are ambiguous, because usually “any ambiguity must be resolved
in favor of the nonmoving party.”88 Thereafter, “a court normally will consider
extrinsic evidence of the parties’ contractual intent.”89
Parol evidence, however, may not be illuminative of the parties’ reasonable
expectations in the context of certificates of designations because, for example,
“important parties in interest—the holders of the securities—were neither consulted
about, nor involved in the drafting of,” the contract.90 And even if such evidence
87
Shiftan, 57 A.3d at 935.
88
Kahn v. Portnoy, 2008 WL 5197164, at *3 (Del. Ch. Dec. 11, 2008).
89
Bank of New York Mellon v. Commerzbank Capital Funding Tr. II, 65 A.3d 539, 551
(Del. 2013) (citation omitted).
90
Id.; see also Kaiser, 681 A.2d at 397-98 (citations and internal quotations omitted)
(“[S]uch an investigation would reveal information about the thoughts and positions of, at
most, the issuer and the underwriter. . . . Since these sorts of provisions are . . . not the
consequence of the relationship of particular borrowers and lenders and do not depend
upon particularized intentions of the party to an indenture, evidence of the course of
negotiations would not be helpful.”); Shiftan, 57 A.3d at 935 (citations omitted) (“In the
case of documents like certificates of incorporation or designation, the kinds of parol
evidence frequently available in the case of warmly negotiated bilateral agreements are
rarely available. Investors usually do not have access to any of the drafting history of such
documents, and must rely on what is publicly available to them to understand their rights
as investors. Thus, the subjective, unexpressed views of entity managers and the drafters
24
exists, courts are “reluctant to risk disuniformity by adverting to evidence of the
course of negotiation in a setting in which the same language can be found in many
different contracts.”91 Thus, in the context of resolving ambiguities with respect to
preferred stock, Delaware courts often have resorted to two alternative interpretive
principles that, as the court noted in Shiftan, are “arguably . . . in tension with
another.”92
One method of interpretation, which plaintiffs argue is controlling here, is the
doctrine of contra proferentem, which resolves ambiguities in a certificate of
designations in favor of investors in preferred stock.93 Our Supreme Court referred
to the doctrine in Kaiser Aluminum Corp. v. Matheson as one of “last resort [to be
applied where] the language of the certificate presents a hopeless ambiguity,
particularly when alternative formulations indicate that these provisions could easily
have been made clear.”94 Despite this caution, it has invoked contra proferentem to
who work for them about what a certificate means has traditionally been of no legal
consequence, as it is not proper parol evidence as understood in our contract law.”).
91
Kaiser, 681 A.2d at 398.
92
Shiftan, 57 A.3d at 936.
93
Kaiser, 681 A.2d at 398-99.
94
Id. at 399 (citation omitted).
25
resolve ambiguities about the rights of investors in the governing instruments of
business entities on a number of occasions.95
The second method of construction, which SBS argues is controlling here,
was articulated by our Supreme Court in Rothschild International Corp. v. Liggett
Group Inc.96 There, the high court explained that “[p]referential rights are
contractual in nature and therefore are governed by the express provisions of a
company’s certificate of incorporation. Stock preferences must also be clearly
expressed and will not be presumed.”97 This is because “stock preferences are in
derogation of the common law,”98 so “[a]ny rights, preferences and limitations of
preferred stock that distinguish that stock from common stock must be expressly and
clearly stated, as provided by statute.”99 The upshot of this principle is that courts
95
See, e.g., Commerzbank, 65 A.3d at 551-52 (applying the principle to discern the
meaning of “Parity Securities” in an LLC Agreement); Penn. Mut. Life Ins. Co. v. Oglesby,
695 A.2d 1146, 1149-50 (Del. 1997) (citation omitted) (“It is the obligation of . . . the issuer
of securities to make the terms of the operative document understandable to a reasonable
investor whose rights are affected by the documents. Thus, if the contract in such a setting
is ambiguous, the principle of contra proferentem dictates that the contract must be
construed against the drafter.”); Kaiser, 681 A.2d at 398 (applying the “well-accepted
principle that ambiguities in a contract should be construed against the drafter” to construe
preferred stockholders’ conversion rights under a certificate of designations).
96
474 A.2d 133 (Del. 1984).
97
Id. at 136 (citation omitted).
98
Waggoner v. Laster, 581 A.2d 1127, 1134 (Del. 1990) (citation omitted).
99
Elliot Assocs., 715 A.2d at 852 (citing 8 Del. C. § 151(a)).
26
have been unwilling to recognize or read in implied rights, preferences, or limitations
in certificates of designations.100
Chief Justice Strine described the potential clash of these two interpretive
principles in Shiftan:
One could argue that these interpretive principles come into direct
conflict in a very particular context. Imagine a situation where
preferred stockholders argue that a certificate of designation can be
reasonably read to grant a particular preference. The court agrees, but
also agrees with the corporation that the relevant provision in the
certificate is not clear. There is no parol evidence on the subject. Do
the preferred stockholders win because of contra proferentem? Or does
the corporation win because preferences of preferred stock “will not be
presumed” unless they are clearly expressed in the certificate?101
He ultimately “side-stepped” this issue because he found the relevant provision not
to be ambiguous,102 but noted that, had he found ambiguity, he would have been
willing to consider probative extrinsic evidence:
The principle that the preferences of preferred stockholders must not be
presumed, but rather be clearly expressed, does not, it seems to me,
prevent a court from consulting parol evidence, if that is available.
Avatex itself seemed to require this resolution, as it suggested that the
prior decision of Waggoner v. Laster, which identified “strict
construction” as the analytical methodology for interpreting stock
preferences, was problematic. Avatex, and cases like Kaiser, which did
100
See, e.g., Waggoner, 581 A.2d at 1135; Rothschild, 474 A.2d at 136; Benchmark Capital
Partners IV, L.P. v. Vague, 2002 WL 1732423, at *13-14 (Del. Ch. July 15, 2002), aff’d
sub nom. Benchmark Capital Partners IV, L.P. v. Juniper Fin. Corp., 822 A.2d 396 (Del.
2003) (TABLE).
101
57 A.3d at 937 (citing Rothschild, 474 A.2d at 136).
102
Id. at 937-38.
27
not mention any requirement of strict construction, therefore suggest to
me that this disciplinary principle of narrow interpretation of stock
preferences is not intended to blind a court to all relevant evidence, but
instead to prevent the judiciary from implying or presuming
preferences without a clear basis for doing so. In other words, unless
the parol evidence resolves the ambiguity with clarity in favor of the
preferred stock, the preferred stockholders should lose.103
I agree with the Shiftan court’s reasoning with respect to the consideration of
parol evidence. In my view, the parties should be permitted to develop a factual
record to see if any probative extrinsic evidence exists of the parties’ shared beliefs
about the meaning of “incurring Indebtedness.” As an example, information that
SBS used to market the Series B Preferred Stock may provide helpful evidence of
(i) what the issuer believed when it authorized the preferred stock, and (ii) what the
investors should have reasonably believed that they were purchasing.104 Ultimately,
such evidence may not exist and the court will need to determine the meaning of the
Certificate through the application of interpretive principles, but I need not resolve
that issue now.
103
Id. (citations omitted); see also id. at 938 n.28 (admitting “to having a harder time
reconciling” the two interpretive principles “when no parol evidence is available” and
explaining “[m]aking [the] decision [who wins] more difficult is the fact that other
investors rely on the certificate and other publicly available documents describing the
certificate, and granting rights to the preferred stock on the basis of an ambiguous
certificate could disrupt the reasonable expectations of the other investors”).
104
Id. at 940.
28
To summarize, because I have found the Certificate to be ambiguous, and
because I do not read the Kaiser line of cases105 or the Rothschild line of cases as
precluding the court from considering probative parol evidence, if it exists, when
interpreting a preferred stock instrument, I conclude that plaintiffs’ accrued interest
theory satisfies the first two elements of a contract claim, i.e., the existence of a
contractual obligation and breach of that obligation by defendant.
b. Plaintiffs’ Accrued Professional Fees Allegations
Satisfy the First Two Elements of a Breach of Contract
Claim
Plaintiffs’ second theory for how SBS violated Section 11(b) of the Certificate
can be addressed in short order.106 Plaintiffs contend that professional fees the
Company incurred in connection with obtaining the Forbearance Agreement are
“indebtedness . . . in respect of borrowed money” 107 because these obligations arose
in conjunction with the Senior Notes and the Forbearance Agreement, and that the
accrual of such obligations should be recorded as liabilities on a GAAP-compliant
balance sheet.108
105
Indeed, the Kaiser court stated that “[w]e caution against this principle [i.e., contra
proferentem] becoming a short-cut for avoiding the sometimes difficult tasks of
determining expectations.” 681 A.2d at 399 (citation and internal quotations omitted).
106
See, e.g., Am. Compl. ¶¶ 7, 50.
107
Am. Compl. Ex. B at 8.
108
Pls.’ Suppl. Br. 2.
29
I agree that this theory, to which the Company has offered no substantive
response, also satisfies the first two elements of a contract claim given the broad
terms of the definition of Indebtedness quoted above and given that the professional
fees in question were incurred to procure a Forbearance Agreement relating to the
Senior Notes. Whether the Company actually accrued such fees and whether their
accrual would be recorded as a liability on a GAAP-compliant balance sheet are fact
issues appropriate for discovery.
c. Plaintiffs Have Alleged a Cognizable Theory of
Compensable Damages
The Company argues that “[e]ven if Plaintiffs had adequately alleged a breach
of the Certificate, their claims would still fail as a matter of law because Plaintiffs
have not alleged any cognizable theory of damages.”109 SBS contends this is so
because plaintiffs have alleged that the Company does not have sufficient funds to
pay off even the Senior Notes and thus, had the holders of the Senior Notes refused
to enter into the Forbearance Agreement and foreclosed on SBS’s assets, the Series
B Preferred Stock would be worthless.110
As an initial matter, this argument is based on a hypothetical, i.e., what the
Series B Holders would have recovered had the holders of the Senior Notes
109
Def.’s Opening Br. 41.
110
Id. at 42.
30
foreclosed. There has been no foreclosure, however, and it is reasonably
conceivable from the facts pled that plaintiffs could establish compensable damages.
For example, plaintiffs allege that the Senior Notes are trading above par value.111
Thus, the possibility of a recovery for plaintiffs on their claims cannot be foreclosed.
The Company admits, furthermore, that “money damages in the form of a
hypothetical consent fee could remedy a proven breach of the Certificate.”112 Thus,
if plaintiffs establish that SBS breached the Certificate, a potential recovery for
plaintiffs could be how much the Company would have had to pay the Series B
Holders for their permission to incur Indebtedness with respect to the Senior Notes
during the pendency of a VRTE.113 The court expresses no opinion whether such a
measure of damages would be appropriate, but provides this illustration simply to
demonstrate another way that compensable damages are reasonably conceivable.114
111
Am. Compl. ¶¶ 5, 51.
112
Def.’s Opening Br. 43-44 (citing Lehman Bros., 2014 WL 718430, at *8); see also
Fletcher Int’l, Ltd. v. ION Geophysical Corp., 2013 WL 6327997, at *1 (Del. Ch. Dec. 4,
2013) (Strine, C.) (determining “damages based on [an] admittedly imperfect attempt to
discern how a hypothetical negotiation would have occurred between [the issuer] and [the
investor] over the consent”).
113
See Fletcher, 2013 WL 6327997, at *18 (citation omitted and emphasis in original)
(“Consent rights are commonly viewed as protective devices meant to shield the holder of
the rights against being harmed by a new transaction that is adverse to its interests,” and
when those rights are violated and the holder had some leverage in a hypothetical
negotiation, “it is entitled to have its reasonable expectations honored”).
114
See Delaware Express Shuttle, Inc. v. Older, 2002 WL 31458243, at *15 (Del. Ch. Oct.
23, 2002) (citation omitted) (“The law does not require certainty in the award of damages
where a wrong has been proven and injury established. Responsible estimates that lack
31
*****
Based on the foregoing discussion, plaintiffs’ allegations with respect to
Count I satisfy the three elements of a contract claim and thus states a claim for
relief. The next issue is whether SBS has advanced a defense that would preclude
the claim at the pleadings stage as a matter of law.
d. Adjudication of SBS’s Acquiescence Defense Would be
Premature
In its reply brief, the Company argued for the first time that, even if Count I
states a claim for relief with respect to the accrual of interest, it should be barred by
acquiescence.115 According to SBS, “[n]othing about SBS’s April 17, 2017 default
on the [Senior] Notes altered how or in what amount interest accrued thereon;
accordingly there are no new circumstances that would permit Plaintiffs to pursue a
claim that arose (if at all) when a VRTE occurred in October 2013.”116
To prevail on a defense of acquiescence, a defendant must show: “(1) the
plaintiff remained silent (2) with knowledge of her rights (3) and with the knowledge
or expectation that the defendant would likely rely on her silence, (4) the defendant
knew of the plaintiff’s silence, and (5) the defendant in fact relied to her detriment
mathematical certainty are permissible so long as the court has a basis to make a
responsible estimate of damages.”).
115
Def.’s Reply Br. 9-11.
116
Def.’s Suppl. Br. 12 n.10.
32
on the plaintiff’s silence.”117 “[A]ffirmative defenses . . . are not ordinarily well-
suited for treatment on [a motion to dismiss]. Unless it is clear from the face of the
complaint that an affirmative defense exists and that the plaintiff can prove no set of
facts to avoid it, dismissal of the complaint based on an affirmative defense is
inappropriate.”118
In Lehman Brothers Holdings Inc. v. Spanish Broadcasting System, Inc., Vice
Chancellor Glasscock granted summary judgment in SBS’s favor based on an
acquiescence defense where plaintiffs were holders of the very same Series B
Preferred Stock at issue in this action. Specifically, he held that, assuming that a
VRTE had occurred, plaintiffs acquiesced to two issuances of debt, including the
issuance of the Senior Notes in February 2012.119 The Vice Chancellor specifically
enumerated the factors that formed the basis for his decision, including: (i) plaintiffs
should have known (under their reading of the Certificate) that a VRTE was in effect;
(ii) plaintiffs knew, or should have known, that SBS intended to enter into the debt
transactions; (iii) plaintiffs raised no objections to the debt transactions, leading SBS
to believe that plaintiffs acquiesced to the debt transactions; (iv) that belief was
reasonable; (v) SBS entered into the debt transactions in reliance on plaintiffs’
117
Lehman Bros., 2014 WL 718430, at *10.
118
Reid v. Spazio, 970 A.2d 176, 183-84 (Del. 2009) (citations omitted).
119
2014 WL 718430, at *12.
33
acquiescence; and (vi) if plaintiffs were permitted to pursue damages, SBS’s reliance
would be detrimental to the Company because “had the Plaintiffs notified SBS of
their objections prior to the debt incurrence, SBS could have chosen for itself its
lowest cost alternative for resolving the dispute.”120
Although SBS ultimately may succeed on its defense of acquiescence to bar
plaintiffs’ claim that the accrual of interest constitutes an impermissible incurrence
of debt, it would be premature to decide that issue now for essentially two reasons.
First, plaintiffs have not had a full and fair opportunity to respond to this defense
because the Company did not raise the argument until its reply brief.121 Second, the
court does not have a sufficient record to adjudicate the issue at this time.
As noted above, Vice Chancellor Glasscock’s finding of acquiescence in
Lehman Brothers was made in adjudicating a motion for summary judgment where
the parties could present an appropriate factual record. Here, certain information
necessary to decide an acquiescence defense is not before the court. For instance,
the record does not reflect when the various plaintiffs in this action acquired their
120
Id.121
See Thor Merritt Square, LLC v. Bayview Malls LLC, 2010 WL 972776, at *5 (Del. Ch.
Mar. 5, 2010) (citations and internal quotations omitted) (“Under the briefing rules, a party
is obliged in its motion and opening brief to set forth all of the grounds, authorities and
arguments supporting its motion. The failure to raise a legal issue in an opening brief
generally constitutes a waiver of the ability to raise that issue in connection with a matter
under submission to the court. Thus, courts routinely have refused to consider arguments
made in reply briefs that go beyond responding to arguments raised in a preceding
answering brief.”).
34
Series B Preferred Stock. As such, no determination can be made whether they
impermissibly remained silent for some period of time when they should have
spoken up and disputed SBS’s accrual of interest during a VRTE. In short, I cannot
say that plaintiffs can prove no set of facts to avoid dismissal based on SBS’s belated
acquiescence defense.
2. Plaintiffs Have Failed to State a Claim for Breach of the
Implied Covenant of Good Faith and Fair Dealing
Count II of the Amended Complaint asserts that the Company breached the
Certificate’s implied covenant of good faith and fair dealing by continuing “to
improperly incur funded debt obligations” during a VRTE without plaintiffs’
consent.122
The implied covenant “attaches to every contract,”123 including certificates of
designations,124 and is “employed to analyze unanticipated developments or to fill
gaps in [a] contract’s provisions.”125 “Existing contract terms control, however, such
that implied good faith cannot be used to circumvent the parties’ bargain, or to create
122
Am. Compl. ¶¶ 83-84.
123
Dunlap v. State Farm Fire & Cas. Co., 878 A.2d 434, 442 (Del. 2005) (citation omitted).
See, e.g., Blue Chip Capital Fund II Ltd. P’ship v. Tubergen, 906 A.2d 827, 833 (Del.
124
Ch. 2006); Gale v. Bershad, 1998 WL 118022, at *4 (Del. Ch. Mar. 4, 1998).
125
Dunlap, 878 A.2d at 441 (citations omitted); see also Nemec v. Shrader, 991 A.2d 1120,
1126 (Del. 2010) (citation omitted) (“The implied covenant only applies to developments
that could not be anticipated, not developments that the parties simply failed to consider.”).
35
a ‘free-floating duty unattached to the underlying legal document.’”126 Thus, “the
implied covenant only applies where a contract lacks specific language governing
an issue and the obligation the court is asked to imply advances, and does not
contradict, the purposes reflected in the express language of the contract.”127 In my
view, plaintiffs’ implied covenant claim fails to state a claim for relief because
plaintiffs have not identified a gap in the Certificate arising from an unanticipated
development, but seek instead to rehash their request for relief in Count I.
As explained above with respect to the accrual of interest, the Certificate is
ambiguous as to the meaning of “incur Indebtedness.” The fact that the contractual
language is unclear, however, does not mean that a hole or gap exists in the
Certificate for the implied covenant to fill. Rather, as pled, plaintiffs’ breach of the
implied covenant claim is merely “an impermissible rehashing of plaintiffs’ breach
of contract claim.”128 The “subject at issue”129 here is what obligations SBS may
incur during the pendency of a VRTE. The Certificate expressly, albeit not
126
Dunlap, 878 A.2d at 441 (citations and alterations omitted).
127
All. Data Sys. Corp. v. Blackstone Capital Partners V L.P., 963 A.2d 746, 770 (Del. Ch.
2009) (Strine, V.C.) (citation omitted), aff’d, 976 A.2d 170 (Del. 2009) (TABLE).
128
US Ecology, Inc. v. Allstate Power Vac, Inc., 2018 WL 3025418, at *7 (Del. Ch. June
18, 2018) (citation omitted).
129
Airborne Health, Inc. v. Squid Soap, LP, 984 A.2d 126, 146 (Del. Ch. 2009) (citation
and internal quotations omitted).
36
unambiguously in one respect, covers this issue—i.e., the Company may not incur
“Indebtedness” during a VRTE without the consent of the Series B Holders.
The “subject at issue” in Count II, furthermore, does not arise from some
unanticipated development. Indeed, a number of factors demonstrate that the sorts
of obligations that SBS would be able to incur at any given time were specifically
considered, including the fact that the Certificate: (i) contains a general ban on the
incurrence of Indebtedness, subject to certain quantitative (i.e., a maximum 7.0 to
1.0 Debt to Cash Flow Ratio) and qualitative (i.e., Permitted Debt) exceptions; (ii)
specifically defines “incur” and “Indebtedness”; (iii) sets up a framework of what
SBS can and cannot do during the pendency of a VRTE; and (iv) provides the Series
B Holders certain governance rights during a VRTE.
In sum, Count II does not plead facts alleging a basis for relief independent of
plaintiffs’ breach of contract claim in Count I. Thus, the merits of plaintiffs’ alleged
contractual grievance must rise and fall with Count I.
3. Plaintiffs’ Request for Specific Performance is Viable in Part
Count III of the Amended Complaint seeks specific performance, requesting
that the court “require compliance with the Certificate by prohibiting SBS from
making any payments on account of the Senior Notes and requiring SBS to redeem
the Series B Preferred Stock at face value plus accrued dividends.”130 Thus, the relief
130
Am. Compl. ¶ 89.
37
that plaintiffs seek in Count III has two components, which seem at odds with each
other on their face: (i) an order requiring SBS to respect the Series B Holders’
consent rights; and (ii) an order requiring SBS to repurchase the Series Preferred B
Stock. I address each request in turn.
“A remedy at law, i.e. money damages, will foreclose the equitable relief of
specific performance when that remedy is ‘complete, practical and as efficient to the
end of justice as the remedy in equity, and is obtainable as [a matter] of right.’”131
As explained above, Count I states a claim for breach of contract against SBS for
impermissibly incurring Indebtedness. A possible measure of damages for that
claim could be the amount of a hypothetical consent fee. At the motion to dismiss
phase, however, plaintiffs are not precluded from pleading reasonably conceivable
alternative remedies.132 As Chief Justice Strine, writing as Chancellor, observed in
Fletcher International, Ltd. v. Ion Geophysical Corp., “consent rights cases are
better dealt with by injunctive relief if the court can act with alacrity and give the
parties a reasonable period to have the negotiation or work around the consent
131
NAMA Holdings, LLC v. Related World Mkt. Ctr., LLC, 922 A.2d 417, 437 (Del. Ch.
2007) (citation omitted).
132
See, e.g., Bear Sterns Mortg. Funding Tr. 2006-SL1 v. EMC Mortg. LLC, 2015 WL
139731, at *15 (Del. Ch. Jan. 12, 2015) (permitting claims “framed alternatively in the
language of damages, specific performance, and declaratory judgment” to survive a motion
to dismiss).
38
rights.”133 Accordingly, I am reluctant to foreclose a possible remedy at this stage
of the case, and decline to do so with respect to plaintiffs’ claims regarding the
Company’s alleged violation of the Series B Holders’ consent rights.
Plaintiffs, however, are not entitled to an order requiring SBS to redeem the
Series B Preferred Stock as a matter of law. “Delaware courts have held consistently
that preferred stock is equity, not debt.”134 This is because “the holder of preferred
stock is not a creditor of the corporation. Such a holder has no legal right to annual
payments of interest, as long term creditors will have, and most importantly has no
maturity date with its prospect of capital repayment or remedies for default.”135 “The
existence of a mandatory redemption right, even one that has ripened, does not
convert the holder of preferred stock into a creditor.”136 “Authority spanning three
different centuries adverts to and enforces limitations on the ability of preferred
133
Fletcher, 2013 WL 6327997, at *19.
134
Frederick Hsu Living Tr. v. ODN Holding Corp., 2017 WL 1437308, at *12 (Del. Ch.
Apr. 14, 2017) (citation omitted).
135
HB Korenvas Invs., L.P. v. Marriott Corp., 1993 WL 205040, at *5 (Del. Ch. June 9,
1993) (Allen, C.).
136
Hsu, 2017 WL 1437308, at *12.
39
stockholders to force redemption.”137 A redemption right may be subject to
statutory, common law, and contractual limitations.138
Section 7 of the Certificate granted the Series B Holders, on October 15, 2013,
“the right to require the Company to repurchase (subject to the legal availability of
funds therefor and to Section 170 of the DGCL) all or a portion of the Series B
Preferred Stock held by such Holder” at a specified price and in accordance with
certain procedures.139 Key to plaintiffs’ claim here, the Series B Holders’
redemption right is subject to contractual limitations, including “the legal
availability of funds.” Plaintiffs recognize as much. The Amended Complaint
pleads that SBS was unable to repurchase all of the requested shares due to a lack of
legally available funds,140 and nowhere in the Amended Complaint have plaintiffs
alleged that SBS violated the Certificate because it actually had greater legally
available funds to repurchase additional Series B Preferred Stock.141
137
SV Inv. Partners, LLC v. ThoughtWorks, Inc., 7 A.3d 973, 990 (Del. Ch. 2010) (citation
omitted).
138
Hsu, 2017 WL 1437308, at *12.
139
Am. Compl. Ex. B § 7(a).
140
Am. Compl. ¶ 47.
141
Cf. Brevan Howard, 2014 WL 2943570, at *8 (denying SBS’s motion to dismiss
because the complaint “adequately pleads that SBS breached the Series B Certificate by
failing in its contractual obligations to undertake appropriate actions to determine what
‘legally available funds’ were at the Company’s disposal as of October 15, 2013”).
40
Plaintiffs’ allegations, rather, stem from the Company’s purported violation
of the Certificate by incurring Indebtedness without the Series B Holders’ consent
during the pendency of a VRTE. Given the failure to even allege in the Amended
Complaint a breach of the Company’s buyback obligations in Section 7 of the
Certificate, plaintiffs cannot be entitled to the remedy of specific performance as to
that provision.
B. Charter Claims
I now turn to plaintiffs’ two claims regarding SBS’s suspension of the rights
of the Series B Preferred Stock under Section 10.4 of the Charter. For the reasons
explained below, both claims survive the motion to dismiss.
1. Plaintiffs Have Stated a Claim for Breach of the Charter
Count IV of the Amended Complaint asserts that SBS “breached Section 10.4
of the Charter and improperly disenfranchised Plaintiffs” because SBS “unilaterally
suspended all rights of the Series B Holders, ‘other than [the] right to transfer []
shares to a citizen of the United States.’”142
Section 10.4 of the Charter—entitled “Limitation on Foreign Ownership” and
to which I refer at times as the “Enforcement Provision”—states in its entirety the
following:
[1] Except as otherwise provided by law, not more than twenty-five
percent of the aggregate number of shares of Capital Stock of the
142
Am. Compl. ¶¶ 92-93.
41
Corporation outstanding shall at any time be owned of record by or for
the account of aliens or their representatives or by or for the account of
a foreign government or representatives thereof, or by or for the account
of any corporation organized under the laws of a foreign country. [2]
Shares of Capital Stock shall not be transferable on the books of the
Corporation to aliens or their representatives, foreign governments or
representatives thereof, or corporations organized under the laws of
foreign countries if, as a result of such transfer, the aggregate number
of shares of Capital Stock owned by or for the account of aliens and
their representatives, foreign governments and representatives thereof,
and corporation [sic] organized under the laws of foreign countries shall
be more than twenty-five percent of the number of shares of Capital
Stock then outstanding. [3] If it shall be found by the Corporation that
Capital Stock represented by a Domestic Share Certificate is, in fact,
held by or for the account of aliens or their representative[s], foreign
governments or representatives thereof, or corporations organized
under the laws of foreign countries, then such Domestic Share
Certificate shall be canceled and a new certificate representing such
Capital Stock marked “Foreign Share Certificate” shall be issued in
lieu thereof, but only to the extent that after such issuance the
Corporation shall be in compliance with this ARTICLE X; provided,
however, that if, and to the extent, such issuance would violate this
ARTICLE X, then, the holder of such Capital Stock shall not be
entitled to vote, to receive dividends, or to have any other rights with
regard to such Capital Stock to such extent, except the right to
transfer such Capital Stock to a citizen of the United States.143
There are essentially two parts to Section 10.4. The first two sentences
concern a 25% limitation on “alien” ownership of the Company’s “Capital Stock.”
The term “alien” has the meaning ascribed to it by the FCC,144 and the term “Capital
143
Am. Compl. Ex. A § 10.4 (emphasis added).
144
Am. Compl. Ex. A § 10.1.
42
Stock” is defined to include SBS’s common stock and preferred stock.145 The second
part of Section 10.4, found in the third sentence emphasized above, sets forth what
the Company must do if it discovers that any of its Capital Stock “represented by a
Domestic Share Certificate” is held by an alien.
SBS asserts that a “single Domestic Share Certificate” represents all of the
Series B Preferred Stock146 and that, when it reviewed plaintiffs’ original complaint
in this action, “it learned for the first time that certain Plaintiffs purport to be Series
B Preferred stockholders and are foreign entities.”147 This prompted SBS to take the
action that precipitated the filing of Counts IV and V: SBS suspended all Series B
Holders’ rights as stockholders “other than [the] right to transfer [] shares to a citizen
of the United States.”148 To date, SBS has not issued a Foreign Share Certificate to
any of the Series B Holders.
The Company contends it was required under Section 10.4 to cancel the single
Domestic Share Certificate representing the Series B Preferred Stock upon learning
that some of the Series B Holders are aliens. It further contends that it could not
issue any Foreign Share Certificate because: (i) Section 10.4 of the Charter requires
145
Am. Compl. Ex. A § 5.1 (“The Common Stock and the Preferred Stock are sometimes
referred to herein as the Capital Stock of the Corporation.”).
146
Def.’s Opening Br. 46; Def.’s Reply Br. 26.
147
Def.’s Opening Br. 17; see also Am. Compl. ¶¶ 14-15, 17, 19-22.
148
Am. Compl. ¶ 63 (quoting SBS, Current Report (Form 8-K) (Nov. 28, 2017), Ex. 4.1).
43
that a Foreign Share Certificate be issued in lieu of a canceled Domestic Share
Certificate “on a one-for-one basis”; and (ii) if SBS were to issue a single Foreign
Share Certificate, the issuance would violate Section 10.2 of the Charter.149
Section 10.2—which is entitled “Voting” and to which I refer as the “Voting
Provision”—contains a different 25% limitation on alien ownership than the one in
Section 10.4. Specifically, Section 10.2 provides as follows:
Except as otherwise provided by law, not more than twenty-five
percent of the aggregate number of shares of Capital Stock of the
Corporation outstanding in any class or series entitled to vote on any
matter before a meeting of stockholders of the Corporation shall at any
time be held for the account of aliens or their representatives or for the
account of a foreign government or representative thereof, or for the
account of any corporation organized under the laws of a foreign
country.150
SBS argues that Section 10.2 prohibits alien ownership of more than 25% of
the stock in any particular class or series that is entitled to vote on any matter at a
stockholder meeting.151 According to the Company, the Voting Provision’s 25%
149
Def.’s Reply Br. 27. At oral argument, SBS also argued that if it were to issue a single
Foreign Share Certificate to represent all of the Series B Preferred Stock, the issuance
would violate Section 10.3 of the Charter. Tr. 69-70 (Apr. 12, 2018). Section 10.3 of the
Charter mandates that “[s]hares of Capital Stock issued to or held by or for the account of
aliens . . . shall be represented by Foreign Share Certificates” and that “[a]ll other shares
of Capital Stock shall be represented by Domestic Share Certificates.” Am. Compl. Ex. A
§ 10.3.
150
Am. Compl. Ex. A § 10.2 (emphasis added).
151
Def.’s Reply Br. 28-29.
44
limitation has been violated because “the present VRTE granted certain voting rights
to the Series B Preferred stockholders”152 (i.e., the right to elect two directors to
SBS’s board), and aliens hold approximately 69.92% of the outstanding Series B
Preferred Stock.153 The Company further contends that, because it could not issue a
single Foreign Share Certificate to replace the single Domestic Share Certificate it
canceled because aliens then would have voting rights in excess of the limitation set
forth in Section 10.2, the Company was forced to suspend all rights of the Series B
Holders other than the right to transfer the Series B Preferred Stock to a citizen of
the United States in order to comply with Section 10.4.154 As a secondary matter,
SBS contends that “even if SBS were permitted to replace the canceled Domestic
Share Certificate with an issuance of multiple Domestic and Foreign Share
Certificates,” it could not do so because of a lack of information.155
In response, plaintiffs advance essentially three arguments for why SBS’s
actions breached Article X of the Charter.
152
Def.’s Opening Br. 49 (citing Am. Compl. ¶ 42).
153
Id. at 7.
154
See Am. Compl. Ex. A § 10.4 (“[I]f, and to the extent, [the Foreign Share Certificate
issuance] would violate this ARTICLE X, then, the holder of such Capital Stock shall not
be entitled to vote, to receive dividends, or to have any other rights with regard to such
Capital Stock to such extent, except the right to transfer such Capital Stock to a citizen of
the United States.”).
155
Def.’s Reply Br. 27 n.13 (citing Am. Compl. Ex A §§ 10.2, 10.3).
45
First, they contend Section 10.1 provides that “Article X was designed to
ensure compliance with the Communications Act of 1934, and not . . . to do more
than that.”156 Plaintiffs thus argue that the clause “[e]xcept as otherwise provided by
law”157 at the beginning of both Sections 10.2 and 10.4 means that those provisions
“will be disabled if foreign ownership otherwise complies with the restrictions
contained in the Communications Act.”158 According to plaintiffs, because “the
Series B Holders have not violated the Communications Act in these circumstances,
and any such violations would be cured by the filing of an appropriate petition with
the FCC,” SBS was not entitled to cancel the Series B Preferred Stock Domestic
Share Certificate.159 More specifically, plaintiffs argue that there has been no
violation of the Communications Act because the FCC told SBS that it did not need
to take any remedial action while its petition is outstanding.160
156
Tr. 95 (Apr. 12, 2018). Section 10.1 states, in relevant part, that “ARTICLE X shall be
applicable to the Corporation so long as the provisions of Section 310 of the
Communications Act . . . are applicable to the Corporation” and that “[i]f the provisions of
Section 310 of the Communications Act . . . are amended, the restrictions in this ARTICLE
X shall be amended in the same way, and as so amended, shall apply to the Corporation.”
Am. Compl. Ex. A § 10.1.
157
Am. Compl. Ex. A §§ 10.2, 10.4.
158
Pls.’ Answering Br. 42.
159
Id. at 42 n.29.
160
Tr. 102-03 (Apr. 12, 2018).
46
Second, plaintiffs argue that the Company’s interpretation of how to calculate
the 25% ownership limitation in the Voting Provision is incorrect. Plaintiffs contend
that, properly read, the limitation in Section 10.2 requires SBS to apply the 25%
limitation to the “aggregate” of all classes and series entitled to vote on any matter
before any meeting of stockholders,161 and that, as a factual matter, “‘aliens’ never
held ‘more than twenty-five percent of the aggregate shares of Capital Stock.’”162
In other words, in considering the alien ownership limitation in the Voting Provision,
plaintiffs argue that SBS must tally all of the Capital Stock entitled to vote on any
matter at a stockholder meeting and then determine whether aliens own more than
25% of that sum, whereas the Company contends that that it must consider each class
or series of stock individually.
Third, plaintiffs assert in the alternative that “even if the [25% ownership
limitation in the Voting Provision] were applicable such that the Enforcement
Provision were triggered, the Enforcement Provision applies—if at all—only ‘to the
extent’ ownership of the Series B Holders violates the Charter.” 163 According to
plaintiffs, Section 10.4 requires SBS to “analyze the Series B Holder’s nationality
161
Pls.’ Answering Br. 43-44; Tr. 99-100 (Apr. 12, 2018).
162
Am. Compl. ¶ 92 (emphasis in original).
163
Am. Compl. ¶ 71.
47
on an individual basis,”164 because “Article X does not—and could not—authorize
SBS to unilaterally suspend the rights of the holders of an entire class or series of
stock on grounds that certain members may be foreign holders.”165
I need not address, and express no opinion on, plaintiffs’ first and second
arguments because, in my opinion, Count IV clearly states a claim for relief based
on plaintiffs’ third argument, i.e., that SBS failed to issue new share certificates after
canceling the Domestic Share Certificate “to the extent” that compliance with
Article X could be maintained. In my view, a reasonable interpretation of the
Enforcement Provision is that after canceling a Domestic Share Certificate, the
Company had an obligation to issue replacement share certificates to the extent
possible up to the alien ownership limitation threshold. Indeed, the Charter plainly
contemplates that a class or series of stock would have both domestic and foreign
holders. Thus, a reasonable interpretation of the Enforcement Provision is that SBS
could issue multiple share certificates in lieu of a single Domestic Share Certificate
by issuing new Domestic Share Certificates for those Series B Holders qualified to
164
Am. Compl. ¶ 71.
165
Pls.’ Answering Br. 46-47 (emphasis in original). During oral argument, plaintiffs
advanced a fourth argument: SBS only could cancel the Domestic Share Certificate in the
first place if it could also issue a replacement Foreign Share Certificate (or multiple ones)
in its stead. Plaintiffs base this argument on the language in Section 10.4 that says SBS
both “shall” cancel a Domestic Share Certificate and “shall” issue a Foreign Share
Certificate upon discovering an alien holds Capital Stock represented by a Domestic Share
Certificate. In other words, plaintiffs argue that this provision means “if you can’t issue as
a result of canceling, you just can’t follow that option.” Tr. 107-08 (Apr. 12, 2018).
48
receive them and Foreign Share Certificates to the other Series B Holders up to the
alien ownership limitation threshold.
Notwithstanding the foregoing, the Company had not issued any replacement
certificates, Foreign or Domestic, as of oral argument. Thus, it appears that none of
the Series B Preferred Stock is represented by a share certificate and none of the
Series B Holders has any rights other than to transfer the stock to a U.S. citizen.
Indeed, as of oral argument, the Company had not even issued replacement Domestic
Share Certificates for those plaintiffs who verified allegations of the Amended
Complaint attesting that they are United States citizens.166
I reject SBS’s contention that the only reasonable interpretation of Section
10.4 is that it “requires that new Certificates be issued in lieu of cancelled
Certificates on a one-for-one basis.”167 As an initial matter, this position is at odds
with SBS’s own public filings referenced in the Amended Complaint and its April
2, 2018 letter to the court, which suggest that SBS (presumably aware of the single
Domestic Share Certificate for all the Series B Preferred Stock) planned to issue
multiple replacement certificates to the Series B Holders.168 The clause in Section
166
See, e.g., Am. Compl. ¶¶ 14, 15, 18, 71.
167
Def.’s Reply Br. 27.
168
See Am. Compl. ¶ 63 n.44 (citing SBS, Current Report (Form 8-K) (Nov. 28, 2017),
Ex. 4.1) (emphasis added) (“Consistent with the requirements of Section 10.3 and 10.4 of
the Certificate of Incorporation, your shares shall hereafter by represented by ‘Foreign
49
10.4 on which the Company relies, moreover, appears to be simply illustrative in
nature.169 It does not address the scenario where a single certificate represents
multiple underlying holders (domestic and/or foreign), and it seems implausible that
this clause was intended to preclude the issuance of multiple certificates to replace
a single certificate in that situation given that the Charter plainly contemplates that
a class or series of stock would have both domestic and foreign holders.
SBS complains that it does not know the citizenship of the Series B Holders
and thus “cannot issue any new certificates without running the risk of erroneously
issuing a Foreign Share Certificate to a domestic entity, issuing a Domestic Share
Certificate to a foreign entity or issuing a Foreign Share Certificate to an alien that
bought shares after the 25% ownership threshold in Section 10.2 of the Charter had
been exceeded.”170 Putting aside the fact that this explanation contradicts the
Company’s “one-for-one basis” argument, it does not negate the viability of Count
Share Certificates,’ subject to the terms and provisions contained in the Certificate of
Incorporation that are applicable to such shares, unless and until the Company subsequently
determines that your shares are properly represented by ‘Domestic Share Certificates.’”);
Letter from R. Saunders, Esq. (Apr. 2, 2018), Ex. 1 (emphasis added) (“[W]hile certain of
its Series B Preferred Stock may have been transferred to non-U.S. entities, [SBS] has not
yet issued foreign share certificates evidencing such stock.”).
169
The relevant clause states simply that “[i]f it shall be found by the Corporation that
Capital Stock represented by a Domestic Share Certificate is, in fact, held by or for the
account of aliens . . . then such Domestic Share Certificate shall be canceled and a new
certificate representing such Capital Stock marked ‘Foreign Share Certificate’ shall be
issued in lieu thereof.” Am. Compl. Ex. A § 10.4.
170
Def.’s Reply Br. 27 n.13.
50
IV. Given the severity of depriving stockholders of fundamental rights, it is
reasonable to expect that the Company would proceed with alacrity in issuing
replacement certificates under Section 10.4. Yet, to repeat, many months had passed
since the instant motion was argued without any curative action being taken.
For the reasons explained above, I find that plaintiffs have sufficiently pled
facts such that it is reasonably conceivable that SBS breached the Charter by
canceling the Domestic Share Certificate, not issuing any replacement share
certificates, and indiscriminately suspending the rights of all of the Series B
Holders.171
2. Plaintiffs Have Stated a Claim that Section 10.4 is Invalid as
Applied
Count V of the Amended Complaint seeks a declaratory judgment that Section
10.4 of the Charter is invalid on the theory that it impermissibly “purports to permit
the suspension of all rights of stockholders of a Delaware corporation.”172 According
to plaintiffs, “the broad suspension of rights, in and of itself, is unenforceable facially
and as-applied.”173
171
The elements of a breach of charter claim are the same as a breach of contract claim.
Alta Berkeley VI C.V. v. Omneon, Inc., 41 A.3d 381, 385-86 (Del. 2012). See supra Section
III.A.1.
172
Am. Compl. ¶ 96.
173
Pls.’ Answering Br. 50.
51
Plaintiffs’ claim that Section 10.4 of the Charter is facially invalid must be
dismissed. In a facial challenge to the validity of a charter provision, a plaintiff has
the burden to show that the charter provision “cannot operate lawfully or equitably
under any circumstances.”174 A plaintiff has this burden because charter provisions
are “presumed to be valid, and the courts will construe the [charter provisions] in a
manner consistent with the law rather than strike down the [charter provisions].”175
Here, because plaintiffs have not attempted to explain how Section 10.4 cannot
operate lawfully or equitably under any circumstances, their claim that the charter
provision is facially invalid shall be dismissed.176
I now turn to whether the Enforcement Provision, as applied here, is invalid.
The Company argues that Count V should be dismissed under Court of Chancery
Rules 12(b)(1) and 12(b)(6) for, respectively, lack of ripeness and the failure to state
a claim for relief.
174
Boilermakers Local 154 Ret. Fund v. Chevron Corp., 73 A.3d 934, 948 (Del. Ch. 2013)
(citation omitted and emphasis in original) (Strine, C.). Boilermakers involved challenges
to bylaws, rather than a charter provision, but Delaware courts have held that the legal
principles relevant to interpreting a charter provision and a bylaw are identical. Id. at 948
n.55.
175
Id. at 948 (citing Frantz Mfg. Co. v. EAC Indus., 501 A.2d 401, 407 (Del. 1985)).
176
See Emerald Partners v. Berlin, 726 A.2d 1215, 1224 (Del. 1999) (citation omitted)
(“Issues not briefed are deemed waived.”).
52
Ripeness is a threshold issue.177 Under 10 Del. C. § 6501, Delaware courts
only have subject matter jurisdiction over a declaratory judgment action where an
“actual controversy” exists between the parties.178 An actual controversy requires,
among other things, that “the issue involved in the controversy must be ripe for
judicial determination.”179 A controversy is ripe where it has “matured to a point
where judicial action is appropriate.”180 Our Supreme Court has described the
relevant analysis as follows:
A ripeness determination requires a common sense assessment of
whether the interests of the party seeking immediate relief outweigh the
concerns of the court in postponing review until the question arises in
some more concrete and final form. Generally, a dispute will be
deemed ripe if litigation sooner or later appears to be unavoidable and
where the material facts are static. Conversely, a dispute will be
deemed not ripe where the claim is based on uncertain and contingent
events that may not occur, or where future events may obviate the need
for judicial intervention.181
177
K&K Screw Prods., L.L.C. v. Emerick Capital Invs., Inc., 2011 WL 3505354, *6 (Del.
Ch. Aug. 9, 2011).
178
Stroud v. Milliken Enters., Inc., 552 A.2d 476, 479 (Del. 1989).
179
Id. at 480 (citation omitted).
180
XI Specialty Ins. Co. v. WMI Liquidating Tr., 93 A.3d 1208, 1217 (Del. 2014) (citation
and internal quotations omitted).
181
Id. at 1217-18 (citations and internal quotations omitted).
53
Plaintiffs bear the burden of demonstrating that their claims are ripe, and the court
may consider documents outside the complaint on a motion to dismiss for lack of
subject matter jurisdiction.182
SBS argues that Count V is not ripe because plaintiffs “do not allege that any
SBS stockholder attempted to exercise [its] rights (or wants to) and was denied”
through the operation of Section 10.4 of the Charter.183 True enough, plaintiffs
alleged in the Amended Complaint merely that “SBS appears to preclude Plaintiffs
from exercising statutory inspection rights or bringing actions on behalf of SBS,”
without pleading that they intended to exercise such rights or attempted to do so but
were denied.184 In their answering brief and at oral argument, however, plaintiffs
represented that one of the them, West Face Long Term Opportunities Global Master
L.P., served on SBS a books and records demand under 8 Del. C. § 220 on January
22, 2018 to, among other things, investigate West Face’s rights and obligations
under the Foreign Share Certificates.185 The Company apparently rejected this
182
E.I. du Pont de Nemours & Co. v. Bayer CropScience, L.P., 2008 WL 2673376, at *2
(Del. Ch. July 2, 2008).
183
Def.’s Opening Br. 50.
184
Am. Compl. ¶ 72.
185
Pls.’ Answering Br. 49 n.43; Tr. 108 (Apr. 12, 2018).
54
demand on January 26, 2018, stating that West Face lacks standing to assert rights
under Section 220.186
Although “[a]rguments in briefs do not serve to amend the pleadings,”187 the
court may, as noted above, look outside of the pleadings to determine whether it has
jurisdiction.188 Items that the court may consider include “the pleadings, proxy
statements, affidavits, and briefs of the parties.”189 Here, plaintiffs have represented
that one of them attempted to exercise its inspection rights but was rebuffed by SBS.
SBS does not deny that this occurred. Accordingly, plaintiffs have a ripe claim with
respect to Count V.
Count V also states a claim upon which relief can be granted in my opinion.
A court will “only invalidate a certificate provision if it ‘transgress[es]’—i.e.,
vitiates or contravenes—a mandatory rule of our corporate code or common law.”190
“A stockholder’s rights under [S]ection 220 cannot be eliminated or limited by a
provision in a corporation’s certificate of incorporation.”191 “By default, ‘all stock
186
Pls.’ Answering Br. 49 n.43.
187
In re MeadWestvaco Stockholder Litig., 168 A.3d 675, 688 n.68 (Del. Ch. 2017)
(citation and internal quotations omitted).
188
Sloan v. Segal, 2008 WL 81513, at *6 (Del. Ch. Jan. 3, 2008) (Strine, V.C.).
189
Crescent/Mach I Partners, L.P. v. Turner, 846 A.2d 963, 974 (Del. Ch. 2000).
190
Jones Apparel Grp., Inc. v. Maxwell Shoe Co., Inc., 883 A.2d 837, 846 (Del. Ch. 2004)
(Strine, V.C.) (citing Sterling v. Mayflower Hotel Corp., 93 A.2d 107, 118 (Del. 1952)).
191
2 EDWARD P. WELCH ET AL., FOLK ON THE DELAWARE GENERAL CORPORATION LAW
§ 220.01, at 7-203 (6th ed. Supp. 2018) (citing Marmon v. Arbinet-Thexchange, Inc., 2004
55
is created equal,’”192 so “all classes of stock enjoy the same rights and privileges
unless an affirmative expression alters those rights.”193 If a certificate of
incorporation or a certificate of designations “is silent on a particular issue, then as
to that issue the preferred stock and the common stock have the same rights,”194 i.e.,
the “default rights remain unaltered.”195
As noted above, “[a]ny rights, preferences and limitations of preferred stock
that distinguish that stock from common stock must be expressly and clearly stated,
WL 936512, at *5 n.12 (Del. Ch. Apr. 28, 2004)). In Marmon, the court explained that a
“charter provision that conflicts with a statute is void,” so a charter provision “is void to
the extent that it abridges or limits shareholder inspection rights.” 2004 WL 936512, at *5
n.12.
In re Trados Inc. S’holder Litig., 73 A.3d 17, 39 (Del. Ch. 2013) (citing MCG Capital
192
Corp. v. Maginn, 2010 WL 1782271, at *6 (Del. Ch. May 5, 2010)).
193
MCG Capital, 2010 WL 1782271, at *6 (citing Jedwab v. MGM Grand Hotels, Inc.,
509 A.2d 584, 593-94 (Del. Ch. 1986) (Allen, C.)); see 8 Del. C. § 151(a) (“Every
corporation may issue 1 or more classes of stock or 1 or more series of stock within any
class thereof, . . . and which classes or series may have such voting powers, full or limited,
or no voting powers, and such designations, preferences and relative, participating, optional
or other special rights, and qualifications, limitations or restrictions thereof, as shall be
stated and expressed in the certificate of incorporation or of any amendment thereto.”).
194
In re Trados, 73 A.3d at 39 (citation omitted).
195
MCG Capital Corp., 2010 WL 1782271, at *6 (citing Jedwab, 509 A.2d at 953-54(emphasis in original) (“If a certificate designating rights, preferences, etc. of special stock
contains no provision dealing with voting rights or no provision creating rights upon
liquidation, it is not the fact that such stock has no voting rights or no rights upon
liquidation. Rather, in such circumstances, the preferred stock has the same voting rights
as common stock . . . or the same rights to participate in the liquidation of the
corporation.”)).
56
as provided by statute,”196 because “stock preferences are in derogation of the
common law.”197 Here, however, SBS does not point to any alteration, limitation,
or elimination in the Certificate of the Series B Holders’ right to inspect SBS’s books
and records under 8 Del. C. § 220. As such, the Series B Holders have the right to
inspect SBS’s books and records under Section 220, a right that SBS cannot limit or
restrict in the Charter. Despite the existence of this right, the Company allegedly
rejected West Face’s demand because it “lacks standing to assert rights under
Section 220.”198 Accordingly, plaintiffs’ as-applied challenge to the validity of the
Enforcement Provision states a claim, because it is reasonably conceivable that SBS
used Section 10.4 to deny West Face’s inspection rights impermissibly.
IV. CONCLUSION
For the reasons explained above, SBS’s motion to dismiss is granted in part
and denied in part. The parties are directed to confer and to submit an implementing
order in accordance with this opinion within five business days.
IT IS SO ORDERED.
196
Elliot Assocs., 715 A.2d at 852 (citing 8 Del. C. § 151(a)).
197
Waggoner, 581 A.2d at 1134 (citation omitted).
198
Pls.’ Answering Br. 49 n.34.
57