Cooper Tire & Rubber Co. v. Apollo (Mauritius) Holdings PVT. LTD.

IN THE COURT OF CHANCERY OF THE STATE OF DELAWARE
COOPER TIRE & RUBBER )
COMPANY, )
)
Plaintiff, )
)
v. ) Civil Action No. 8980-VCG
)
APOLLO (MAURITIUS) HOLDINGS )
PVT. LTD., APOLLO TYRES B.V., and )
APOLLO ACQUISITION CORP., )
)
Defendants. )
MEMORANDUM OPINION
Date Submitted: July 9, 2014
Date Decided: October 31, 2014
Stephen C. Norman, Kevin R. Shannon, John A. Sensing, and Christopher N. Kelly,
of POTTER ANDERSON & CORROON LLP; OF COUNSEL: Robert S. Faxon,
Michael A. Platt, Louis A. Chaiten, Kyle T. Cutts, and Marjorie P. Duffy, of
JONES DAY, Attorneys for the Plaintiff.
Raymond J. DiCamillo, Susan M. Hannigan, and Christopher H. Lyons, of
RICHARDS LAYTON & FINGER, P.A.; OF COUNSEL: John L. Hardiman,
Robin D. Fessel, Adam R. Brebner, Laura K. Oswell, Oded Zaluski, Asel
Aliyasova, and Christen M. Martosella, of SULLIVAN & CROMWELL LLP,
Attorneys for the Defendants.
GLASSCOCK, Vice Chancellor
This matter involves the unraveling of the Agreement and Plan of Merger
(the ―Merger Agreement‖) by which a large Indian tire manufacturer—Apollo
(Mauritius) Holdings Pvt. Ltd (―Apollo‖)—was to buy a large American tire
company—Cooper Tire & Rubber Company (―Cooper‖). Among other reasons,
acquisition of Cooper was attractive to Apollo because it would provide Apollo an
entrée into the Chinese market; a significant part of Cooper‘s business was its
majority ownership of an affiliate, a Chinese tire manufacturer, Chengshan Cooper
Tires (―CCT‖). Once the merger was announced, however, Cooper‘s ownership of
the affiliate emerged as a major obstacle to the deal‘s consummation. The
minority partner of CCT—known as Chairman Che—either vehemently opposed
the merger or saw it as an opportunity to extort value from the parties beyond what
his minority interest would justify. In either case, he used his position of authority
over the workers and their union to physically seize the CCT facility, prevent
production of Cooper products there, and deny access of the parties to the facility
and to CCT‘s financial records.
Consummation of the deal encountered another obstacle: Cooper faced
resistance from its own domestic union, the United Steelworkers (―USW‖), which
argued that the merger triggered a contractual right to renegotiation in several of its
collective bargaining agreements. An arbitrator agreed, and Cooper and Apollo
reluctantly entered into an agreement with the USW whereby the merger could not
2
close until a settlement was reached as to the collective bargaining agreements.
Initially barred from the negotiating table by Apollo due to its historically poor
relations with its labor unions, Cooper became increasingly frustrated by Apollo‘s
lack of progress in negotiating with the USW. As the deadline loomed for Cooper
to report its third quarter financials—a condition to closing the merger, which
Cooper could not fulfill due to the disruption at CCT—Cooper began to suspect
that Apollo had grown cold to the merger and was failing to negotiate with the
USW in good faith in order to avoid consummating the transaction.
Once Cooper suspected bad faith, the Merger Agreement came a cropper.
Cooper sued, seeking specific performance or damages for breach of contract.
Apollo counterclaimed, requesting that I declare that Cooper had failed to meet all
conditions to closing, and was therefore not entitled to relief. The matter moved
on an expedited schedule to trial, where Cooper asked me to quickly consider the
specific performance issue in isolation, citing exigencies of its impending financial
reporting obligation. I complied with Cooper‘s request; in a November 8 bench
ruling, supplemented the next day by a letter opinion (together, the ―USW
Opinions‖), I found that the failure to reach an agreement with the USW prevented
the transaction from closing at that time, that this failure was not the result of a
contractual breach on Apollo‘s part, and thus that Cooper was not entitled to
specific performance. Because Cooper represented that appellate relief would be
3
meaningless if not given immediately, I certified an interlocutory appeal on the
narrow grounds of my ruling on specific performance. While that appeal was
pending, however, Cooper dropped its request for specific performance, notifying
the Supreme Court that it instead intended to terminate the merger and sue for
damages under the reverse termination fee provisions of the Merger Agreement
(the ―Reverse Termination Fee‖). The Supreme Court dismissed the interlocutory
appeal as improvidently accepted, and shortly thereafter Apollo moved for an order
temporarily restraining Cooper from drawing on a letter of credit for the Reverse
Termination Fee and, in an effort to permanently prevent Cooper from seeking the
Reverse Termination Fee, a judicial declaration on its counterclaim that Cooper
had not satisfied all conditions to closing the merger as of the trial date. This
Memorandum Opinion addresses the latter issue, and the effect that the rather
bizarre events in China had on Cooper‘s ability to perform as called for in the
Merger Agreement. For reasons arising from the takeover at CCT, and
independent of the failure to reach an agreement with the USW, I find that Cooper
was unable to satisfy all conditions to closing.
I. SCOPE OF THIS OPINION
I first turn to the appropriate scope of this decision. Due to the convoluted
procedural posture of the case, the parties disagree as to what is left for me to
decide. This action is before me on Apollo‘s post-trial Motion for Entry of a
4
Declaratory Judgment on its counterclaim, in which Apollo has asked this Court to
declare that ―the conditions to closing had not been satisfied prior to the trial of this
action, and Cooper [was], thus, not in a position to close the merger.‖1 Cooper
contends that addressing this Motion in full is inappropriate, given my USW
Opinions, in which I determined that Cooper was not entitled, as of that date, to
specific performance of the merger agreement, because closing was conditioned on
Apollo entering into an agreement with the USW and because Apollo had not (as
of that time) breached its obligation to use best efforts in reaching such a
resolution. Cooper suggests that ―[b]ecause the Court‘s decision as to the USW is
sufficient by itself to grant a declaratory judgment for Apollo, the Court should
refrain from reaching any other issue.‖2
I rejected that contention in a letter opinion on January 27, 2014,3 for
reasons that I repeat briefly here. In the USW Opinions, I addressed a request for
equitable relief on a rigorously expedited schedule so that, if appropriate, the
merger could close before Cooper was required to produce its third quarter
financials, a contractual requirement it knew it could not meet due to the lockout at
CCT. The precise issue before me now—whether Cooper had satisfied all
conditions to closing the merger—was not before me in the USW Opinions, in
1
Defs.‘ Mot. for Declaratory J. at 1.
2
Pl.‘s Br. in Opp‘n to Defs.‘ Mot. for Declaratory J. at 12–13.
3
See Cooper Tire & Rubber Co. v. Apollo (Mauritius) Holdings Pvt. Ltd., C.A. No. 8980-VCG
(Del. Ch. Jan. 27, 2014).
5
which I determined that Cooper was not entitled to specific performance as of the
trial date, but also that the parties‘ obligations under the merger agreement
remained outstanding. At any rate, as an appeal of my USW Opinions appears
inevitable, I believe it appropriate to resolve the issues arising from the CCT
takeover presented at trial, in the interest of judicial efficiency; in doing so, I note
that these issues were presented in detail at a three-day expedited trial, have been
fully briefed, and may ultimately be dispositive if the case is remanded.
For its part, Apollo contends that, if I am to evaluate the conditions to
closing beyond the failure to reach an agreement with the USW, I should make that
determination as of November 14, 2013, the date Cooper was required to (and
failed to) file its third quarter financials. In contrast, Cooper suggests in briefing
that my holding should be limited to the period before October 10, 2013, arguing
that ―it would be inappropriate for Apollo now to obtain a declaration that covers
the period through the date of trial,‖ given that ―Apollo‘s counterclaim for a
declaratory judgment was commenced on October 10, and included allegations
only through that date;‖ ―Apollo never filed a supplemental pleading;‖ ―the parties
agreed to collect document discovery only through October 10;‖ and ―Apollo
successfully prevented Cooper from including at trial any post-October 10 claims
by Cooper relating to the tentative agreement with the USW.‖4 I find it appropriate
4
Pl.‘s Br. in Opp‘n to Defs.‘ Mot. for Declaratory J. at 13.
6
that I determine this matter as of the date of trial. In its Motion, Apollo itself
requested a determination ―prior to trial of this action.‖ Further, at oral argument
on the pending Motion, Cooper‘s counsel indicated that the facts relevant to my
analysis, at least with respect to the ongoing lockout at CCT and Cooper‘s inability
to produce financials, had not changed between October 10, 2013 and the date of
trial.5 Accordingly, I do not feel required to expand my decision as Apollo
requests or constrain my decision as Cooper requests. Rather, the appropriate
scope of the issue before me now is, setting aside the issues surrounding
negotiations with the USW, whether Cooper had satisfied the conditions to closing
the merger as of the trial date.
II. BACKGROUND
A. The Cooper-Apollo Merger
Cooper, a Delaware corporation, is the fourth largest tire manufacturer in
North America and the eleventh largest tire company in the world.6 Cooper
employs 13,000 people globally,7 and its revenues in 2012 were more than $4
billion.8
5
See, e.g., July 9, 2014 Oral Arg. Tr. 67:4–7 (explaining that, following the announcement of the
termination of the Merger Agreement, ―[t]he [CCT] labor union relinquished their control over
the facilities. The facilities went back to work producing all tires. Cooper‘s financials are now
current and have been for some time.‖); id. at 68:1–5 (―But there is no record of anything that
happened after the trial. . . . The only issues are those that stood at the time of trial.‖).
6
Defs.‘ Countercl. ¶ 11; Trial Tr. 13:5–7 (Armes).
7
Trial Tr. 13:20 (Armes).
8
Id. at 13:22.
7
Apollo is an Indian tire manufacturer founded in 1975 and organized under
the laws of the Republic of Mauritius. In 2005, the business began to expand
globally, and by 2010, Apollo had grown into a $2 billion company.9 By 2013,
Apollo viewed an acquisition of Cooper‘s foothold in China—CCT, a joint venture
with Chengshan Group that accounted for roughly 20% of Cooper‘s business in
2012—as vital to its efforts at global expansion.10
According to the testimony elicited at the November 2013 trial, Cooper‘s
business plan in 2012 focused primarily on acquiring smaller companies; Cooper
did not originally plan to sell its business.11 Cooper and Apollo initially met in
2012 to discuss the possibility of a joint venture.12 A joint venture between the two
companies never materialized, and in January 2013, Apollo approached Cooper
about a potential acquisition. Over the next several months, Apollo made bids to
purchase Cooper for $22.75, $25 to $26, $33, $33.75, and finally $35 per share.13
During that negotiation period, Cooper entertained at least one other
potential bidder: Chengshan Group, Cooper‘s 35% Chinese joint venture partner
at CCT.14 The Chairman of Chengshan Group, Chairman Che, organized an
9
Id. at 545:17–546:17 (Kanwar).
10
Id. at 548:6–549:24; Pl.‘s Pre-Trial Br. at 9.
11
Trial Tr. at 16:1–4 (Armes).
12
Id. at 16:8–17. Cooper and Apollo had also previously discussed cooperation in certain other
projects, including one that would facilitate Cooper‘s expansion into the South African tire
market. Id. at 16:11–23.
13
Pl.‘s Pre-Trial Br. at 9.
14
Id.
8
investor group and orally proposed an offer of $38 per share, but he ultimately
declined to make a formal offer.15 Although Cooper informed Chengshan Group,
as its joint venture partner, that Apollo had approached Cooper about an
acquisition, Apollo was never informed that Chengshan Group had expressed an
interest in acquiring Cooper.16
On June 12, 2013, Apollo and Cooper entered into the Merger Agreement,
whereby Apollo agreed to acquire all outstanding Cooper shares for $35 per share,
representing a 40% premium over trading prices and a total transaction value of
roughly $2.5 billion.17 On September 30, approximately 74% of Cooper‘s
outstanding shares voted in support of the merger.18 Had the deal closed, the
resulting entity would have been the seventh largest tire manufacturer in the
world.19
B. The CCT Strike
As noted above, Cooper and Apollo entered into the Merger Agreement on
June 12, 2013. After the transaction was announced, Apollo‘s stock price dropped
15
Trial Tr. 32:1–33:21 (Armes); see also JX 1 (―Prior to the signing of the merger agreement,
Chengshan Group Chairman Che Hongzhi was given the opportunity to bid for Cooper.
Chengshan Group was fully supported in the process. Chengshan Group was given access to
Cooper‘s data room, and Cooper CEO Roy Armes made multiple trips to Beijing to meet with
Che and his advisors. However, Chengshan Group ultimately did not make a formal bid.‖);
Armes Dep. Tr. 15:15–20.
16
Trial Tr. 91:3–19 (Armes); id. at 560:15–562:2 (Kanwar).
17
Compl. ¶ 2.
18
Id. ¶ 123.
19
Id. ¶ 2.
9
by 39%.20 Research analysts speculated that the acquisition was too highly
leveraged and provided few synergies for Apollo.21 In addition, the labor union at
CCT, Cooper‘s Chinese joint venture, openly criticized the merger as too highly
leveraged,22 publishing a paid advertisement in the Wall Street Journal denouncing
the merger.23 On June 21, 2013, the CCT labor union went on strike.24 The union
returned to work on June 28, 2013, but resumed the strike again on or around July
12, 2013.25
On August 17, the CCT union again resumed work at the plant, but refused
to produce Cooper-branded tires.26 In addition, ―the union . . . physically barr[ed]
certain Cooper-appointed managers from accessing CCT‘s facility or from
obtaining certain of CCT‘s financial books and records, and . . . prevented CCT
from entering certain operating and financial data into CCT‘s computer systems.‖27
20
Id. ¶ 54.
21
Id. ¶ 55.
22
Id. ¶ 57.
23
JX 70.
24
Compl. ¶ 58.
25
Id. ¶¶ 58, 63.
26
Id. ¶ 67; see also Trial Tr. 51:16–20 (Armes) (―The financial data is not being uploaded like
we would normally do. The production does continue, but they are not producing Cooper-
branded products. And they‘re restricting the access of our people into the plant.‖).
27
Compl. ¶ 67; see also JX 584 at COOPER0073766 (―The union has prevented Cooper and
others from entering the factory to retrieve their property, and we have recently been told that
Cooper-affiliated management will be prohibited from entering their offices beginning on
August 12.‖); JX 252 at COOPER0037907 (―We have and will continue to supply you with
reasonable access to information. As a result of the announcement of the merger, however, the
union and our partner at CCT have taken actions to limit our access to the plant, including
limiting access to certain books and records. You know that already.‖); JX 620 at
APOLLO_00006337 (noting that Cooper‘s visibility into CCT was largely limited ―to what raw
10
The union‘s reaction to news of the merger was unprecedented,28 and in an effort
to hold up production and force an end to the ―strike‖—in actuality, the physical
exclusion of Cooper from its subsidiary—Cooper management adopted a policy of
suspending payments to suppliers who continued to ship supplies during the
pendency of the strike.29 Cooper also floated ―potential plans . . . to change the
security firm at the CCT site‖—i.e., to physically replace security guards with their
own men—but Apollo rejected this idea due to ―concern[s] for personal safety of
the people at and near the plant.‖30
material inventory is entering the plant‖); JX 255 at GPC014773 (―[W]hile the suggestion that
[Apollo] show up at CCT to attempt access appeared perplexing, I want you to know that as soon
as you have enough access or control at CCT to allow us access we will have people on the next
available flights . . . .‖).
28
Cooper CEO Roy Armes testified at trial that during his tenure at Cooper, the CCT union had
never gone on strike and had never blocked management from CCT facilities. Trial Tr. 52:3–20.
29
Id. at 278:9–12 (Hughes). On September 25, 2013, the General Manager of Cooper‘s Asia
Operations, Allen Tsaur, sent an email to the President of Cooper‘s International Tire Division,
Hal Miller, which Mr. Miller subsequently forwarded to Cooper CEO Roy Armes and General
Counsel Steven Zamansky, summarizing the anticipated consequences of Cooper‘s plan to cut
off payment to CCT‘s suppliers as follows:
 OE customers are likely to sue CCT for contract violation and lost time penalty.
Please note that CCT supplies to all top 5 truck companies in China.
 The raw material payment of 40M RMB is not all for new purchase. Some are for
goods already received. Along with our suppliers, they are likely to sue CCT for
delinquency.
 Many suppliers are in CCT Purchasing Department office everyday demanding
payment.
 CCT is likely to lose in the lawsuits for contract violation and lost time penalty to
OE and delinquency for suppliers. The consequence can be very bad as not only
we need to pay [sic] but also ruin the creditability. CCT will need to buy on cash
in the future.
JX 445 at COOPER0033397.
30
JX 292.
11
Although the parties initially believed that the strike in China was instigated
by CCT‘s labor union, Apollo contends that, upon hiring a private investigator to
interview employees at CCT, it uncovered that the true cause of the strike at CCT
was Chairman Che, who had instructed middle management to warn workers that
―anyone that does not take part in the protest will be fired.‖31 This news came as a
surprise to both Cooper and Apollo, who anticipated in diligence that Chairman
Che might disfavor the merger,32 but had met together with Chairman Che prior to
31
JX 357; see also JX 584 at COOPER0073766 (―A number of workers attempted to return to
work on August 5, but union representatives and security blocked the entrance to the factory and
prevented them from returning.‖); JX 76 (―It seems that the workers interviewed clearly know
the agenda behind the protest. According to them, it is Che Hongzhi that instigated the
protest.‖).
32
See Trial Tr. 19:16–20:7 (Armes) (―As we were talking about a lot of business things as I
indicated before, Chengshan or CCT came up because there was concern from Apollo about how
the Chairman Che would react to this acquisition. And as I recall, I mentioned to Apollo there
could be one of three things that he could do: One, he could go along with the acquisition and
really support it and transition it. Second, he could possibly offer up his shares. He has 35
percent in the joint venture. He could possibly be looking for selling those. And then, thirdly, he
could—he could disrupt it or try to undermine it. And as we talked back and forth, later on there
was a fourth one that came up that basically he may try to put his own bid together. We just
weren‘t sure.‖). But see id. at 87:13–88:4 (Armes) (―Q. Now, you testified on your direct that
you told Apollo that he would -- that Che might do something to undermine the situation. I think
that was your language. Correct me if I'm wrong. A. Mm-hmm. Q. You didn't tell him, though,
that that was a likely situation, though, did you? A. No. I didn't feel that it was a likely situation.
Q. If fact, you thought from all indications that he would support the transaction. A. Yes, all our
indications was that. Q. In fact, after the first problems surfaced at CCT, you told your board that
it was very unexpected to you, didn't you? A. Yes.‖); id. at 270:8–11 (Hughes) (―Q. And Apollo
was never told during the merger negotiations that it was likely that there would be disruption at
CCT, was it? A. Not in a discussion I was present at.‖); id. at 557:19–558:1 (Kanwar) (―Q. Is it
your perception that the chairman has taken over CCT? A. Yes. Q. In the premerger agreement
meetings with the folks at Cooper, did anybody suggest to you that anything like that was going
to happen? A. No.‖).
12
signing the Merger Agreement,33 and had understood that as the owner of a 35%
interest, ―[f]rom a technical point of view, [Chengshan Group had] no veto or put
rights, so [Cooper did] not need their approval for the deal.‖34
Information that Chairman Che was behind the strike at CCT incited
Apollo‘s ―Project Charlie,‖ a codename Apollo used in reference to its efforts at
negotiations and relationship-building with Chairman Che.35 Although Cooper
representatives initially sought to resolve the conflict without Apollo‘s direct
involvement,36 on September 2, 2013, Apollo also sent a letter to Chairman Che
33
See id. at 459:7–12 (Zamansky) (―It was consistent that the meeting went well, that there was
some relationship building to do; but [Chairman Che] didn‘t raise any concerns other than saying
that we have some relationship building to do, but it went well and we‘re moving forward.‖).
34
JX 18; see also Trial Tr. 21:1–5 (Armes) (―Q. Did—before March 7th did Chairman Che ever
tell you that he would derail any deal that Cooper was a part of? A. There was no indication of
that at all.‖); JX 52 at 7 (identifying, in due diligence summary materials, change in control
provisions in the CCT joint venture agreement that could trigger Chengshan Group‘s right of
first refusal, but determining that ―these provisions are unlikely to be triggered by an indirect
change of control such as that associated with the Proposed Transaction‖); JX 584 at
COOPER0073765 (―Weeks prior to the signing of the merger deal with Apollo, Cooper asked
Che for his support of the deal and Che did nothing to indicate that there would be a strike if the
Apollo deal went forward.‖).
35
See, e.g., JX 75 (describing, in a summary of meetings with Chengshan Group, the reaction to
the merger at CCT as ―very strong and somewhat irrational,‖ and noting that ―[t]his challenge
will take a ‗creative‘ solution to resolve the union‘s concerns in this situation‖); JX 584 at
COOPER0073766 (―It is unclear why Chairman Che would want to dissolve a company that is
profitable, employs a sizeable work force, and brings prosperity to the local community, by first
advocating a strike and then using the strike as grounds for dissolving the company.‖); JX 76 (―It
seems that the workers interviewed clearly know the agenda behind the protest. According to
them, it is Che Hongzhi that instigated the protest. . . . The workers interviewed said they
personally have no concerns over the acquisition.‖); JX 153 at GPC01602 (providing an
overview of ―Project Charlie,‖ and indicating the unusual position that Chengshan Group held a
―35% minority stake in unlisted subsidiary, with limited rights (however effective management
control)‖).
36
See generally JX 86 (summarizing a July 10, 2013 meeting between Cooper representatives
and Chairman Che).
13
indicating that, despite disruptions at CCT, Apollo still planned to consummate the
merger with Cooper, and explaining that, ―[a]s I am sure you are aware, the
opposition will not prevent the merger from going ahead as planned, for legal and
commercial reasons.‖37 Apollo likewise indicated by letter to the Mayor of
Rongcheng, China, that both Cooper and Apollo ―are legally committed, under
United States and international laws, to proceed with the merger.‖38
However, despite Apollo‘s assurances that it stood behind the merger,
Cooper contends that the strike at CCT ―soured Apollo on the Merger,‖39 and that
Apollo subsequently ―began to look for some other pretext for seeking to escape
what it now perceive[d] as a bad deal, either by delaying the closing long enough
so that the risk relating to CCT shift[ed] to Cooper, or by obtaining leverage to
renegotiate the Merger consideration downward.‖40
C. The USW Strike
In addition to the strike at CCT, Cooper‘s domestic union, the USW, reacted
to the merger announcement by filing grievances against Cooper, claiming that the
proposed merger violated Cooper‘s collective bargaining agreements governing its
Findlay, Ohio and Texarkana, Arkansas plants; the USW argued that those
agreements prevented Cooper from selling its plants prior to a renegotiation of the
37
JX 4.
38
JX 151 at APOLLO_00005514.
39
Compl. ¶ 69.
40
Id. ¶ 71.
14
collective bargaining agreements between a buyer and the union.41 During the
diligence and negotiation process, Cooper and Apollo anticipated what response
the merger announcement would likely generate, including the likelihood that the
USW would invoke the renegotiation provisions.42 However, Cooper‘s
management believed—and indicated to Apollo—that the odds of Cooper
receiving a favorable outcome at arbitration were quite high.43 As a result, with
Apollo‘s approval, Cooper submitted the USW‘s grievances to binding arbitration,
with proceedings held on August 28 and 29, 2013.44 To the surprise of Cooper and
Apollo, the arbitrator issued a decision in favor of the USW, determining that the
merger could not close prior to a successful negotiation between Apollo and the
USW. Rather than permitting the arbitrator‘s ruling to become a court order
enjoining the transaction, on September 25, Apollo, Cooper, and the USW entered
into an agreement providing that the merger ―shall not close unless an agreement
has been entered into in satisfaction of the Opinion and Award issued by [the
arbitrator] on terms acceptable to [the USW].‖45
41
Id. ¶ 72.
42
Id. ¶ 73.
43
Cooper‘s General Counsel Steve Zamansky relayed to Apollo that outside counsel put the
likelihood of success in the range of 60%–95%, though he expressed his disagreement that the
odds were as high as 95%. Trial Tr. 534:9–535:22 (Zamansky). Cooper‘s CEO Roy Armes
indicated that he communicated to Apollo a success rate in the range of 80%–85%. Id. at
105:24–106:2 (Armes).
44
Compl. ¶ 76.
45
Defs.‘ Answer and Countercl. Ex. A; JX 248.
15
On September 7, 2013, immediately after the arbitration decision was issued,
representatives from Cooper and Apollo met in New York to develop a negotiating
strategy. On September 19 and 20, Apollo met with USW representatives in
Nashville, Tennessee. On September 23, Apollo requested supplemental
information from Cooper in order to learn more about the concessions Cooper had
encouraged Apollo to make with the USW.46 Apollo‘s Vice Chairman and
Cooper‘s CEO spoke on September 27, and Apollo again met with the USW on
September 25 and 26, and on October 1 and 2, in Pittsburgh, Pennsylvania.
Throughout these meetings, Apollo prevented Cooper from participating because,
according to Apollo, Cooper had historically maintained strained relationships with
its labor unions and Apollo wished to rebuild relationships with Cooper‘s unions.47
At the same time, Apollo requested that Cooper agree to a price reduction, as
concessions to the USW would be costly. Cooper rejected Apollo‘s request for a
price adjustment, and in an effort to speed up negotiations between Apollo and the
USW, in November 2013, Cooper independently negotiated a conditional
agreement with the USW, which guaranteed the union certain benefits in the event
the merger did not close.
46
JX 242.
47
Defs.‘ Countercl. ¶ 34. On the other hand, Cooper has pointed out that Apollo lost significant
negotiating leverage by refusing to permit Cooper to negotiate with the USW, since Cooper was
ultimately able to work out a deal with the USW that included contingent terms in the event that
the merger did not close, while such a strategy was not available without Cooper‘s presence. See
Trial Tr. 386:21–392:20 (Weiner).
16
The merger, by its terms, had to close no later than December 31, 2013.48
Notwithstanding that ―Outside Date,‖ Cooper needed to close the transaction by
mid-November 2013 because it would otherwise be required to provide its third
quarter financial information as a condition to financing, which it could not do in
light of its exclusion from the CCT facility and documents therein.49
D. Procedural History
Cooper filed its Complaint in this action on October 4, 2013, seeking (1) a
positive injunction requiring Apollo to (a) use its reasonable best efforts to resolve
any disagreements with the USW by permitting Cooper to negotiate in Apollo‘s
stead, and subsequently approving a commercially reasonable agreement
negotiated by Cooper, and (b) consummate the Merger; (2) a declaration that, apart
from Apollo‘s obligation to use best efforts to reach an agreement with the USW,
all conditions to closing had been satisfied; and, in the alternative, (3) unspecified
money damages to compensate Cooper for losses it incurred due to Apollo‘s
alleged breach of the Merger Agreement. In response, Apollo brought a
counterclaim seeking a declaration that conditions precedent to closing had not
been satisfied. The matter was expedited because Cooper, as described above,
knew it would not be able to satisfy a contractual condition after mid-November.
48
JX 65 (―Merger Agreement‖) § 8.1(b)(i).
49
Compl. ¶¶ 42, 67, 128.
17
I held a three-day trial from November 5–7, 2013, in which the parties
presented evidence on whether Apollo was in material breach of the Merger
Agreement by failing to use its reasonable best efforts to negotiate with the USW,
and whether all conditions precedent to closing had otherwise been satisfied. At
that time, Cooper sought specific performance of the Merger Agreement, and
represented that, because it was vanishingly unlikely due to the strike at CCT that
Cooper would be able to deliver third quarter financials to Apollo‘s financing
sources by November 14, 2013, as required by the Merger Agreement, any
injunctive relief, to be meaningful, would have to be granted by that date. As a
result, on November 8, I delivered a bench decision, supplemented on November 9
by a letter opinion, on a single dispositive issue—whether Cooper was entitled to
injunctive relief, and ultimately specific performance of the Merger Agreement,
because Apollo had materially breached the Agreement by failing to use its
reasonable best efforts to negotiate a resolution with the USW. In those USW
Opinions, I found that Apollo was not in breach and that Cooper was not entitled to
the relief it sought.50
At Cooper‘s request, I then certified an interlocutory appeal, with the
understanding that Monday, November 11 was a holiday, and that Cooper would
50
See Cooper Tire & Rubber Co. v. Apollo (Mauritius) Holdings Pvt. Ltd., C.A. No. 8980-VCG,
at 998:24–1012:9 (Del. Ch. Nov. 8, 2013) (TRANSCRIPT); Cooper Tire & Rubber Co. v. Apollo
(Mauritius) Holdings Pvt. Ltd., C.A. No. 8980-VCG (Del. Ch. Nov. 9, 2013).
18
be denied meaningful access to an appeal if it could not receive a decision on its
appeal by November 14, while specific performance of the Merger Agreement—
that is, while delivery of Cooper‘s current financial information—was still
possible. Instead, after I certified the interlocutory appeal, Cooper represented in
its application to the Supreme Court that it sought recovery of the Reverse
Termination Fee under the Merger Agreement rather than injunctive relief, and
therefore the timeline under which this Court had accommodated the parties was
no longer applicable. The Supreme Court dismissed Cooper‘s appeal on December
16, 2013 as ―improvidently accepted.‖51
That same day, in an effort to prevent Cooper from pursuing the Reverse
Termination Fee it now sought, Apollo moved for a temporary restraining order
preventing Cooper from drawing on the letter of credit for the Reverse Termination
Fee, and a judicial declaration that Cooper had not satisfied all conditions to
closing prior to trial. On January 24, 2014, the parties submitted written argument
regarding how this case should move forward. Despite Cooper‘s request that I
convert my November 8 bench ruling into a final judgment on Apollo‘s
counterclaim, I determined on January 27, 2014 that Apollo‘s Motion for Entry of
51
Cooper Tire & Rubber Co. v. Apollo (Mauritius) Holdings Pvt. Ltd., C.A No. 624, 2013 (Del.
Dec. 16, 2013) (ORDER).
19
a Declaratory Judgment should be resolved before a final judgment is entered.52 I
heard oral argument on that Motion on July 9, 2014.
E. Conditions to Closing
Apollo argues, and requests a judicial declaration stating, that ―the
conditions to closing had not been satisfied prior to the trial of this action, and
Cooper [was], thus, not in a position to close the merger.‖53 Specifically, Apollo
contends that: (1) the 20-day Marketing Period has not taken place;54 and (2)
certain of Apollo‘s Section 7.2 conditions to closing have not been satisfied,
including that (a) a Material Adverse Effect has taken place; (b) Cooper has not
satisfied all of its covenants and agreements under Article V of the Merger
52
See Cooper Tire & Rubber Co. v. Apollo (Mauritius) Holdings Pvt. Ltd., C.A. No. 8980-VCG
(Del. Ch. Jan. 27, 2014).
53
Defs.‘ Mot. for Declaratory J. at 1. It is clear that in the present action Apollo seeks a
declaratory judgment that would effectively prevent Cooper from pursuing the Reverse
Termination Fee under the Merger Agreement. See Defs.‘ Br. in Support of Mot. for TRO and
Declaratory J. at 12 (―Cooper informed the Supreme Court by letter . . . that, instead of seeking
to prevent the termination of the Merger Agreement, Cooper was now ‗consider[ing]‘
terminating the Merger Agreement itself ‗to protect [its] rights under the letter of credit securing
the reverse termination fee.‘ A few hours after Cooper‘s revelation, the Supreme Court
dismissed the interlocutory appeal as improvidently granted. Apollo now brings the present
motion to prevent Cooper from continuing with its scheme to obtain a termination fee to which it
is not entitled.‖ (alterations in original) (citations omitted)). While my declaration as to whether
Cooper satisfied all conditions to closing prior to trial will likely be dispositive of Cooper‘s
ability to recover the Reverse Termination Fee, see Merger Agreement §§ 8.2(c), 8.1(g), my
ruling here is necessarily limited to consideration of the conditions to closing, and not whether
Cooper is entitled to the Reverse Termination Fee.
54
Apollo contends that the occurrence of the Marketing Period, although not an Article VII
condition to closing, is necessary for the merger to close according to Section 1.2. Thus, I list it
among the ―conditions to closing‖ that Apollo seeks to have evaluated in its Motion for Entry of
Declaratory Judgment. However, as detailed below, my decision does not rely on this issue, and
thus I do not find it necessary to determine whether the Marketing Period must occur as a
condition to closing or merely as a condition to Cooper‘s entitlement to the Reverse Termination
Fee under Section 8.1(g).
20
Agreement; and (c) Cooper was in breach of certain of its representations and
warranties under Article VI of the Merger Agreement. In order for Apollo to
prevail on its Motion, only one of these contentions must be true. Consequently, in
my subsequent analysis on the issues, I primarily discuss Cooper‘s breach of its
obligation to operate its, and its subsidiaries‘, business in the ordinary course
during the pendency of the merger—a covenant under Article V. My finding on
that issue is sufficient to resolve the issues remaining before me. For the sake of
completeness, however, all of Apollo‘s contentions are set out in full below,
together with the contractual provisions sufficient to understand them.
1. Marketing Period
Although not contingent on financing, the Merger Agreement provides for
the occurrence of a 20-day Marketing Period, during which Apollo‘s financing
banks can market the debt by which Apollo hoped to finance the merger. Apollo
planned to finance the transaction with a combination of equity and a debt offering
underwritten by Morgan Stanley, Deutsche Bank, Goldman Sachs, and Standard
Chartered Bank; in the event that a debt offering was unsuccessful, the financing
banks would extend a temporary bridge loan until the debt could be sold. The
Merger Agreement therefore provides that:
The closing of the Merger (the ―Closing‖) shall take place at 10:00 am
on the fourth Business Day after the satisfaction or waiver of all of the
conditions (other than any condition that by its nature cannot be
satisfied until the Closing, but subject to satisfaction of any such
21
condition) set forth in ARTICLE VII (the ―Closing Date‖) . . .
provided that if the Marketing Period has not ended at the time of the
satisfaction or waiver of the conditions set forth in ARTICLE VII . . .
then, subject to the satisfaction or waiver of the conditions set forth in
ARTICLE VII at such time, the Closing shall occur instead on the
earlier of (a) any Business Day during the Marketing Period as may be
specified by [Apollo] on no less than three (3) Business Days‘ prior
written notice to [Cooper] and (b) three (3) Business Days after the
final day of the Marketing Period.55
―Marketing Period‖ is defined in Section 10.2 as ―the first period of 20 consecutive
Business Days after the date of this Agreement throughout which [Apollo] shall
have the Required Information [Cooper] is required to provide pursuant to Section
6.11 and such Required Information is Compliant;‖ however, ―the Marketing
Period shall not commence and shall be deemed not to have commenced (i) prior
to the mailing of the Proxy Statement.‖56 Section 6.11(e)(i) defines ―Required
Information‖ as:
(A) [F]inancial statements, financial data and other pertinent
information regarding [Cooper] and its Subsidiaries of the type
required by SEC Regulation S-X and SEC Regulation S-K under the
Securities Act (excluding pro forma financial statements, pro forma
adjustments and information relating specifically to the Financing
(other than historical information relating to [Cooper] and its
Subsidiaries and forward looking information regarding [Cooper] and
its Subsidiaries otherwise required by applicable Law)) and (B)
information relating to [Cooper] and its Subsidiaries (including
information to be used in the preparation of one or more information
packages (including customary confidential information, memoranda,
offering circulars or prospectuses) regarding the business, operations
and business plan or budget of [Cooper] and its Subsidiaries)
55
Merger Agreement § 1.2 (typeface altered from original).
56
Id. § 10.2 (―Marketing Period‖).
22
customary for the placement, arrangement and/or syndication of loans
as contemplated by the Financing Documents, to the extent reasonably
requested by [Apollo] to assist in preparation of customary offering or
information documents or rating agency or lender or investor
presentations relating to such placement, arrangement and/or
syndication of loans; provided, that any memoranda or prospectuses
need not be issued by [Cooper] or any of its Affiliates . . . .57
Further, under the terms of the Merger Agreement, Required Information is
―Compliant‖ if:
(a) [S]uch Required Information does not contain any untrue
statement of a material fact or omit to state any material fact, in each
case with respect to [Cooper] and its Subsidiaries, necessary in order
to make the statements contained in such Required Information, in the
context in which they are made, not misleading;
(b) [S]uch Required Information is, and remains throughout the
Marketing Period, compliant in all material respects with all
applicable requirements of Regulation S-K and Regulation S-X under
the Securities Act (excluding information required by Rule 3-09, Rule
3-10 or Rule 3-16 or Regulation S-X or Compensation Disclosure and
Analysis required by Regulation S-K Item 402(b));
(c) [Cooper‘s] auditors have not withdrawn any audit opinion with
respect to any financial statements contained in the Required
Information;
(d) [Cooper‘s] auditors have delivered drafts of customary comfort
letters, including customary negative assurance comfort with respect
to periods following the end of the latest fiscal year or fiscal quarter
for which historical financial statements are included in the Required
Information, and such auditors have confirmed they are prepared to
issue any such comfort letter upon any pricing date occurring during
the Marketing Period; and
57
Id. § 6.11(e)(i).
23
(e) [T]he financial statements in such Required Information are, and
remain throughout the Marketing Period, sufficiently current to permit
a registration statement on Form S-1 using such financial statements
to be declared effective by the SEC on or before the last day of the
Marketing Period.58
If at any point within that 20-day Marketing Period the Required Information is no
longer Compliant, ―a new 20 Business Day period shall commence upon [Apollo]
and its Financing Sources receiving updated Required Information that would be
Compliant.‖59
Cooper notified Apollo on September 3, 2013 that Cooper believed the 20-
day Marketing Period anticipated in Section 1.2 of the Merger Agreement had
begun, as, according to Cooper, all Required Information had been delivered and
was Compliant since August 30.60 On August 30, Cooper had provided Apollo
with (1) a draft offering memorandum incorporating Cooper‘s most recent 10-K
and 10-Q; (2) an updated business plan; (3) historical information regarding
Cooper‘s financials for the prior three years; and (4) a draft comfort letter from
Ernst & Young. With respect to the updated business plan, Cooper CFO Brad
Hughes acknowledged in two separate emails that the operating profit projection in
that plan was ―very fluid . . . given the lack of clarity about what is going on at
58
Id. § 10.2 (―Compliant‖).
59
Id. (―Marketing Period‖).
60
JX 161.
24
CCT,‖61 and that information related to CCT‘s business was only ―directional at
this point.‖62 Nevertheless, Cooper claims that the business plans it provided on
August 30 were Compliant, as defined in Section 10.2 of the Merger Agreement.
By contrast, Apollo contends that any Required Information provided by
Cooper prior to September 3 was not Compliant, as Cooper failed to (1) deliver
accurate business plans relating to CCT, or (2) deliver a final, as opposed to draft,
―customary comfort letter‖ providing ―customary negative assurance comfort.‖63
In fact, on September 5, Apollo responded to Cooper‘s notification that the
Marketing Period had begun, taking the position that ―[w]e do not believe that the
Company has completed the delivery of Required Information that is Compliant,‖64
and noting that Apollo was continuing to work with Cooper representatives to
obtain Required Information, including a revised business plan that addressed
developments at CCT, to ―be finalized shortly after the Company‘s financial
information for August is available.‖65
61
JX 399.
62
JX 199. As of September 15, 2013, Cooper could provide only estimated financials for the
month of August. JX 219.
63
See Defs.‘ Pre-Trial Br. at 26–27, 45–47. Notably, the parties do not argue that, during the 20-
day period in which Cooper alleges the Marketing Period occurred, the Required Information
was insufficient under federal securities laws.
64
JX 186.
65
Id.
25
2. Material Adverse Effect
Section 7.2(c) of the Merger Agreement conditions Apollo‘s obligation to
close the transaction on the non-occurrence of a Material Adverse Effect. Section
10.2 defines ―Material Adverse Effect‖ as:
any fact, circumstance, event, change, effect or occurrence that (i) has
had or would reasonably be expected to have a material adverse effect
on the business, results of operations or financial condition of
[Cooper], its Subsidiaries and Joint Ventures, taken as a whole . . . or
(ii) that would reasonably be expected to prevent or materially delay
or impair the ability of [Cooper] to perform its obligations under this
Agreement or to consummate the Transactions.66
Further, subsection (i) to that definition carves out several circumstances that do
not constitute Material Adverse Effects, including those attributable to
(F) the execution and delivery of this Agreement or the public
announcement or pendency of the Merger or any of the other
Transactions or the Financing, including the impact thereof on the
relationships, contractual or otherwise, of the Company or any of its
Subsidiaries with employees, labor unions, customers, suppliers or
partners, and any litigation arising from allegations of any breach of
fiduciary duty or violation of Law relating to this Agreement or the
transactions contemplated by this Agreement, or compliance by the
Company with the terms of this Agreement . . . .67
Apollo argues that an event falling under the carveout of subsection (i)(F) is not
foreclosed from constituting a Material Adverse Effect under subsection (ii),
however. Specifically, Apollo argues that the lockout at CCT was not
contemplated by the parties, prevented Cooper from satisfying its obligations under
66
Merger Agreement § 10.2 (―Material Adverse Effect‖).
67
Id. § 10.2 (―Material Adverse Effect,‖ (i)(F)).
26
the Merger Agreement, and therefore constituted a Material Adverse Effect under
subsection (ii).
Despite that contention, James Dougherty, Cooper‘s corporate counsel at
Jones Day, testified at trial that Cooper communicated from the outset that its goals
in negotiating the Merger Agreement were to secure maximum deal and financing
certainty, and for the deal to close as quickly as possible.68 According to
Dougherty, Cooper believed it was wholly allocating to Apollo the risk that
tensions between Cooper and its subsidiaries and joint venture partners would
arise.69 Cooper therefore contends that the definition of Material Adverse Effect
evidences the parties‘ intent to prevent Apollo from avoiding its obligation to close
for any reason attributable to the merger announcement‘s impact on Cooper‘s
relationships with its subsidiaries or joint venture partners.
3. Covenants and Agreements as Conditions to Closing
In addition, as outlined in Section 7.2(b) of the Merger Agreement, Apollo‘s
obligation to close the transaction is conditioned on the satisfaction of several
covenants and agreements. That Section provides:
The obligation of [Apollo] to effect the Merger is further subject to
the satisfaction, or waiver by [Apollo], at or prior to the Effective
Time of the following conditions:
....
68
Trial Tr. 143:18–144:14 (Dougherty).
69
Id. at 147:3–153:3.
27
(b) [Cooper] shall have in all material respects performed or complied
with the covenants and agreements contained in this Agreement to be
performed or complied with by it prior to or on the Closing Date.70
Article V sets out the covenants to which the parties agreed, including Section
5.1(a), which states:
From the date of this Agreement and until the Effective Time or the
earlier termination of this Agreement in accordance with its terms,
except as (w) otherwise expressly contemplated by this Agreement . . .
[Cooper] shall, and shall cause each of its Subsidiaries to, conduct its
business in the ordinary course of business consistent with past
practice and in compliance in all material respects with all material
applicable Laws, and shall, and shall cause each of its Subsidiaries to,
use its commercially reasonable efforts to preserve intact its present
business organization, keep available the services of its directors,
officers and employees and maintain existing relations and goodwill
with customers, distributors, lenders, partners, suppliers and others
having material business associations with it or its Subsidiaries.71
Apollo argues that the takeover at CCT amounted to a breach of Cooper‘s covenant
to maintain its interim operations under Section 5.1(a).
Apollo further argues that Cooper has breached Sections 6.11 and 6.5, and
therefore has failed to satisfy conditions to closing under Section 7.2(b). Section
6.11(e) requires that, ―[p]rior to the Closing Date, [Cooper] shall use reasonable
best efforts to provide and to cause its Subsidiaries and Representatives, including
legal, finance and accounting, to provide, to [Apollo], at [Apollo‘s] sole expense,
70
Merger Agreement § 7.2.
71
Id. § 5.1(a).
28
all cooperation reasonably requested by [Apollo] that is customary in connection
with the arrangement of the Financing.‖72 Section 6.5 states:
Subject to the Confidentiality Agreement and applicable Law relating
to the sharing of information, [Cooper] agrees to provide, and shall
cause its Subsidiaries to provide, [Apollo] and its Representatives,
from time to time prior to the earlier of the Effective Time or the
termination of this Agreement, reasonable access during normal
business hours to (i) [Cooper‘s] and its Subsidiaries‘ respective
properties, books, Contracts, commitments, personnel and records and
(ii) such other information as [Apollo] shall reasonably request with
respect to [Cooper] and its Subsidiaries and their respective
businesses, financial condition and operations, in each case, to the
extent related to consummation of the Transactions or the ownership
or operation of the respective businesses of [Cooper] and its
Subsidiaries from and after Closing . . . .73
4. Representations and Warranties as Conditions to Closing
Finally, Section 7.2(a) provides that Apollo‘s obligation to close is subject to
the accuracy of certain representations and warranties. Section 7.2(a) states:
The representations and warranties of [Cooper] set forth herein shall
be true and correct in all respects (without giving effect to any
materiality or ―Material Adverse Effect‖ qualifications contained
therein) both when made and at and as of the Closing Date, as if made
at and as of such time (except to the extent expressly made as of an
earlier date, in which case as of such earlier date), except where the
failure of such representations and warranties to be so true and correct
would not reasonably be expected to have or result in, individually or
in the aggregate, a Material Adverse Effect . . . .74
72
Id. § 6.11(e).
73
Id. § 6.5.
74
Id. § 7.2(a).
29
Apollo points to four representations and warranties that Cooper has purportedly
breached. First, Section 3.5(d) represents that Cooper ―maintains internal control
over financial reporting,‖ and that ―[s]uch internal control over financial reporting
is effective in providing reasonable assurance regarding the reliability of financial
reporting and the preparation of financial statements for external purposes in
accordance with GAAP.‖75 Second, Section 3.6 represents that ―[s]ince December
31, 2012, except as otherwise required or contemplated by this Agreement,
[Cooper], its Subsidiaries and, to the Knowledge of [Cooper], its Joint Ventures
have conducted their respective businesses only in the ordinary course of business
consistent with past practice in all material respects.‖76 Third, Section 3.13
represents that:
[Cooper] or any of its Subsidiaries [are not] the subject of any
material Action that asserts that [Cooper] or any of its Subsidiaries
has committed an unfair labor practice or that seeks to compel it to
bargain with any labor union or labor organization, nor is there
pending or, to the Knowledge of [Cooper], threatened, nor has there
been for the past five years, any labor strike or lock-out or any
material dispute, walk-out, work stoppage or slow-down involving
[Cooper] or any of its Subsidiaries.77
Finally, Section 3.14(b) represents that, ―[e]xcept as would not reasonably be
expected to have, individually or in the aggregate, a Material Adverse Effect,
[Cooper] or one of its Subsidiaries has exclusive possession of each Owned Real
75
Id. § 3.5(d).
76
Id. § 3.6.
77
Id. § 3.13.
30
Property and Leased Real Property.‖78 Apollo contends that the lockout at CCT,
and the resulting inability of Cooper‘s management to obtain CCT financial
records, have caused Cooper to breach each of these representations.
III. ANALYSIS
A. The Issues Presented
In the analysis below, I find that, due to the CCT strike and physical
takeover of the CCT facility, apparently orchestrated by Chairman Che, and due to
Cooper‘s reaction to that takeover, which involved an effort to cut off supply from
third-party contractors to CCT, Cooper failed to comply with Section 5.1(a) of the
Merger Agreement, which required Cooper to ―cause each of its subsidiaries to
conduct its business in the ordinary course of business.‖ Compliance with Section
5.1(a) had a cascade effect on other contractual provisions, including those
involving Material Adverse Effects and the Marketing Period. For purposes of this
Memorandum Opinion, however, because Cooper‘s failure to comply with Section
5.1(a) is sufficient to grant the declaratory judgment Apollo seeks here, I confine
my analysis to that issue only.
As described above, pursuant to Section 7.2(b) of the Merger Agreement,
Apollo‘s obligation to close was conditioned on Cooper‘s fulfillment of certain
78
Id. § 3.14(b).
31
covenants and agreements contained in Article V of the Merger Agreement.
Section 5.1(a) sets out one such covenant:
From the date of this Agreement and until the Effective Time or the
earlier termination of this Agreement in accordance with its terms,
except as (w) otherwise expressly contemplated by this Agreement . . .
[Cooper] shall, and shall cause each of its Subsidiaries to, conduct its
business in the ordinary course of business consistent with past
practice and in compliance in all material respects with all material
applicable Laws, and shall, and shall cause each of its Subsidiaries to,
use its commercially reasonable efforts to preserve intact its present
business organization, keep available the services of its directors,
officers and employees and maintain existing relations and goodwill
with customers, distributors, lenders, partners, suppliers and others
having material business associations with it or its Subsidiaries.79
Apollo contends that Cooper has failed to cause CCT to ―conduct its business in
the ordinary course of business consistent with past practice,‖ or to ―use its
commercially reasonable efforts to preserve intact its present business
organization, keep available the services of its directors, officers and employees
and maintain existing relations and goodwill with customers, distributors, lenders,
partners, suppliers and others having material business associations with it or its
Subsidiaries.‖ I address those contentions below.
B. Apollo Did Not Acquiesce in Any Breach of the Merger Agreement
Preliminarily, Cooper contends that Apollo should be estopped from
challenging Cooper‘s failure to fulfill any covenants as a result of the lockout at
CCT because Apollo participated in, or acquiesced to, attempts to resolve the
79
Id. § 5.1(a).
32
disruption, and in the process represented that it was bound to close the transaction
by the Merger Agreement. Among other things, Cooper suggests that the
following factors demonstrate Apollo‘s ―participat[ion] in the situation about
which it now complains‖80: (i) Apollo‘s statements to Chairman Che and the
Mayor of Rongcheng indicating that it was required by the Merger Agreement to
close the transaction; (ii) Apollo‘s rejection of Cooper‘s proposal to ―replac[e] the
CCT security personnel [physically] blocking Cooper‘s representatives from the
CCT facility;‖81 (iii) communications that, according to Cooper, indicate that
Apollo ―took responsibility for negotiating a resolution with Che;‖82 and (iv)
Apollo‘s attempts throughout ―Project Charlie‖ to negotiate a buyout of Che‘s 35%
interest in CCT, which, according to Cooper, ―provided [Che] an incentive to hold
out for more—i.e., to continue the disruptions until Apollo increased its offer to
one that [Che] found acceptable.‖83 Cooper contends that, ―[u]nder such
circumstances, it would be unfair and inequitable to allow Apollo to claim that
Cooper somehow violated its covenants by failing to resolve the CCT
disruptions.‖84
80
Pl.‘s Br. in Opp‘n to Defs.‘ Mot. for Declaratory J. at 28.
81
Id. at 30.
82
Id. at 29.
83
Id. at 30–31.
84
Id. at 31 (emphasis omitted).
33
Acquiescence in another party‘s conduct, under certain circumstances, may
give rise to estoppel.85 In Delaware, as a general rule, ―one who participates or
acquiesces in another‘s conduct has no standing in equity to complain against it.‖86
As our Supreme Court recently explained, a claimant acquiesces in an act where
he:
has full knowledge of his rights and the material facts and (1) remains
inactive for a considerable time; or (2) freely does what amounts to
recognition of the complained of act; or (3) acts in a manner
inconsistent with the subsequent repudiation, which leads the other
party to believe the act has been approved.87
For the reasons explained below, I find that, despite statements indicating that the
transaction would close, and its cooperation with Cooper in attempting to resolve
the lockout at CCT, Apollo did not participate or acquiesce in any breach of the
terms of the Merger Agreement arising from the lockout, and is therefore not
estopped from alleging such a breach.
Although Cooper seeks to prevent Apollo from challenging any breach
caused by Chairman Che‘s seizure of CCT, Cooper does not, and cannot, contend
85
Council of S. Bethany v. Sandpiper Dev. Corp., Inc., 1986 WL 13707, at *4 (Del. Ch. Dec. 8,
1986).
86
Id.; see also Gottlieb v. McKee, 107 A.2d 240, 244 (Del. Ch. 1954) (―The rule is a general one
that he who participates in or acquiesces in an action has no standing in a court of equity to
complain against it. Equity will not hear a complainant stultify himself by complaining against
acts in which he participated or of which he has demonstrated his approval by sharing in their
benefits.‖); Trounstine v. Remington Rand, 194 A. 95, 99 (Del. 1937).
87
Klaassen v. Allegro Dev. Corp., 2014 WL 996375, at *8 (Del. Mar. 14, 2014) (quoting Cantor
Fitzgerald, L.P. v. Cantor, 724 A.2d 571, 582 (Del. Ch. 1998), and The NTC Group, Inc. v. West
Point–Pepperell, Inc., 1990 WL 143842, at *5 (Del. Ch. Oct. 17, 1990)).
34
that Apollo incited, supported, or actively furthered the lockout at CCT. The
evidence on which Cooper now relies does not demonstrate that Apollo actively
impeded, directed, or even approved of Cooper‘s attempts to resolve the situation
at CCT such that Apollo must now be prohibited in equity or law from challenging
Cooper‘s fulfillment of its covenants. For example, Apollo‘s attempts to buy out
Chairman Che‘s interest in CCT, and its rejection of Cooper‘s proposal to send in
its own security personnel ―to attempt to regain control by force,‖88 do not
demonstrate participation in the lockout; instead, those acts demonstrate simply
that Apollo took reasonable steps in attempting to resolve the CCT lockout while
preserving safe conditions for workers at CCT. In addition, while Apollo‘s
involvement may in fact have ―changed the facts on the ground,‖89 there is no
evidence that Apollo‘s involvement with Chairman Che—as the soon-to-be
acquirer of 65% of this joint venture—impeded Cooper‘s ability to direct its
subsidiary or stalled resolution of the lockout.
In further support of its acquiescence defense, Cooper relies on Apollo‘s
representations to Chairman Che and the Mayor of Rongcheng that the parties
were legally required to close the transaction, as well as Apollo‘s other interactions
with Chairman Che throughout its pursuit of ―Project Charlie.‖ The problem with
Cooper‘s theory, however, is that Cooper cannot demonstrate that it reasonably
88
Defs.‘ Br. in Support of Mot. for TRO and Declaratory J. at 36 n.24.
89
Pl.‘s Br. in Opp‘n to Defs.‘ Mot. for Declaratory J. at 30 n.10.
35
understood, based on Apollo‘s attempts to build a relationship with—or develop an
exit strategy for—Chairman Che, that Apollo consented to any breach on Cooper‘s
part resulting from the lockout at CCT. Instead, the evidence presented at trial
indicated a good faith effort on Apollo‘s part to resolve the lockout caused by
Chairman Che, not because Apollo accepted any breach caused by the lockout, but
because Apollo believed it could close the deal if the lockout at CCT was resolved.
That Apollo acted to resolve the dispute with Chairman Che in order to facilitate
closing cannot prevent it from seeking to vindicate its rights under the Merger
Agreement when those efforts failed.90
For the reasons explained above, I find that Apollo is not estopped from
challenging Cooper‘s failure to meet its obligations under the Merger Agreement.
C. Cooper Breached Section 5.1(a) of the Merger Agreement
1. The Seizure of CCT
Pursuant to Section 5.1(a) of the Merger Agreement, Cooper must fulfill two
separate obligations. First, Cooper ―shall, and shall cause each of its Subsidiaries
to, conduct its business in the ordinary course of business consistent with past
90
I note that it is clear from the record evidence that Apollo‘s representations to Chairman Che
and the Mayor of Rongcheng indicating that the merger was required to close regardless of the
lockout at CCT was a negotiating tactic intended to strengthen both Apollo‘s and Cooper‘s
negotiating position with Chairman Che, and Cooper undoubtedly understood those statements
as such. Indeed, it is easy to envision what Cooper would have argued had Apollo said the
opposite—that the lockout could and would impede the transaction. Had Apollo taken such a
position, Cooper undoubtedly would have argued that Apollo contributed to the lockout or
caused it to continue, and Chairman Che likely would have been even less amenable to
negotiating a deal with Apollo.
36
practice and in compliance in all material respects with all material applicable
Laws.‖91 Second, Cooper:
shall, and shall cause each of its Subsidiaries to, use its commercially
reasonable efforts to preserve intact its present business organization,
keep available the services of its directors, officers and employees and
maintain existing relations and goodwill with customers, distributors,
lenders, partners, suppliers and others having material business
associations with it or its Subsidiaries.92
Notably, the second clause of Section 5.1(a) contemplates the use of
―commercially reasonable efforts‖ by Cooper and its subsidiaries, while the first
clause imposes an unconditional obligation.
The parties dispute whether the first or second clause of Section 5.1(a)
applies, and, as a result, whether Cooper‘s obligation to conduct the business of
CCT was governed by a ―commercially reasonable efforts‖ standard. Apollo
argues that under the first clause of Section 5.1(a), Cooper has an unqualified
obligation to cause CCT to operate its business in the ordinary course, consistent
with past practice, and that Cooper was unable to satisfy this obligation due to the
lockout at CCT. According to Apollo, such a reading ―makes sense because a
company can reasonably be tasked with an absolute requirement to take its own
actions, and to cause its subsidiaries to do so, ‗in the ordinary course.‘‖93
Conversely, Apollo notes that the commercially reasonable efforts standard
91
Merger Agreement § 5.1(a).
92
Id.
93
Defs.‘ Br. in Supp. of Mot. for Declaratory J. at 26.
37
appearing in the second clause of Section 5.1(a) makes business sense in a
situation not applicable here, as ―with respect to its relationship with third-parties,
all that [Cooper] can do is employ commercially reasonable efforts to ensure that
others maintain their ‗material business associations with it or its Subsidiaries.‘‖94
Apollo emphasizes that its reading of Section 5.1(a) is also consistent with Section
6.8, which provides that, ―[w]henever this Agreement requires a Subsidiary of
[Cooper] to take any action, such requirement shall be deemed to include an
undertaking on the part of [Cooper] to cause such Subsidiary to take such action.‖95
By contrast, Cooper argues that the language of Section 5.1(a) distinguishes
between ―those aspects of Cooper‘s and CCT‘s business that are fully within their
control, and those aspects that involve third parties,‖ such as CCT‘s employees or
partners.96 According to Cooper, Section 5.1(a) imposes an obligation on Cooper
to operate its subsidiaries‘ businesses only in relation to those ―things that are
completely within the control of Cooper or CCT,‖ while a commercially
reasonable efforts standard applies ―[w]here third parties, such as Cooper‘s or
CCT‘s employees and partners[,] are involved.‖97 Cooper argues that, because
―the disruptions at CCT relate entirely to Cooper‘s ability to maintain existing
relations with its joint venture partner and CCT‘s ability to keep available the
94
Id.
95
Merger Agreement § 6.8.
96
Pl.‘s Br. in Opp‘n to Defs.‘ Mot. for Declaratory J. at 31.
97
Id.
38
services of employees and labor unions,‖98 Section 5.1(a) only obligates Cooper to
use commercially reasonable efforts to maintain CCT‘s business. According to
Cooper, its efforts satisfied that standard.
Even accepting Cooper‘s reading of Section 5.1(a), I find that events at CCT
cannot be fairly characterized as bearing solely on ―Cooper‘s ability to maintain
existing relations with its joint venture partner and CCT‘s ability to keep available
the services of employees and labor unions.‖99 Although Cooper characterizes
events at CCT as a labor strike, trial testimony and evidence in the record make
clear that the disruptions at CCT were far more complicated. The events at CCT
do not represent a traditional dispute between labor and capital. CCT employees
were not attempting to secure better working conditions or other concessions from
their employer, nor were they actively contesting the details of the deal. Instead,
CCT employees were told by certain members of management acting under the
direction of Chairman Che that they would lose their jobs if they did not strike; that
order, in all likelihood, was given not primarily as a result of a disagreement about
the Cooper-Apollo deal terms as they affected employees, but for reasons personal
to Chairman Che himself. In other words, what appeared to be a labor strike was
98
Id. at 32.
99
Id. Because I find this portion of the Merger Agreement unambiguous, I do not consider
parole evidence in my analysis. See Lillis v. AT&T Corp., 2007 WL 2110587, at *16 (Del. Ch.
July 20, 2007) (―The court will consider extrinsic evidence to interpret the agreement only if
there is an ambiguity in the contract. If the instrument is clear and unambiguous on its face,
parole evidence may not be used ‗to interpret it or search for the parties‘ intent.‘‖ (footnotes
omitted)).
39
in fact a mechanism used by Chairman Che to advance his efforts to physically
seize the joint venture—a seizure he was legally not entitled to make as he retained
only a minority voting interest.
Moreover, the events at CCT were not, as Cooper avers, centered on
Cooper‘s ―ability to maintain existing relations with its joint venture partner,‖
Chairman Che; rather, the events at CCT were precipitated by Che‘s physical
takeover of the facilities. As a result of Chairman Che‘s instigation, Cooper‘s
largest subsidiary—which Cooper had undertaken in the Merger Agreement to
cause to operate in the ordinary course consistent with past practice—stopped
producing Cooper-branded tires or generating financial statements, and physically
prevented Cooper employees from accessing records and facilities. These aspects
of the disruption do not implicate Cooper‘s ability to ―keep available the services
of its . . . employees‖ or ―maintain existing relations and goodwill with customers .
. . partners, [or] suppliers,‖ as Cooper contends, but Cooper‘s ability to cause its
subsidiary—an entity Cooper legally controlled with its 65% ownership interest—
to operate in the ordinary course of business.100 This Court has previously
interpreted the contractual term ―ordinary course‖ to mean ―[t]he normal and
ordinary routine of conducting business.‖101 As noted above, CCT halted
100
Merger Agreement § 5.1(a).
101
Ivize of Milwaukee, LLC v. Complex Litig. Support, LLC, 2009 WL 1111179, at *9 (Del. Ch.
Apr. 27, 2009).
40
production of Cooper-branded tires,102 restricted ―certain Cooper employees . . .
from entering parts of CCT,‖ and ―limited [Cooper‘s] access to the financials [of
CCT].‖103 Cooper, moreover, had only ―limited information about to whom [CCT]
products [were] being sold.‖104
In fact, Cooper‘s own actions, while perhaps a reasonable reaction to the extra-
legal seizure of CCT, evinces a conscious effort to disrupt the operations of the
facility. Cooper itself suspended payments to suppliers who continued to ship
materials to CCT. As Cooper CFO Brad Hughes testified, ―What we did is we said
to suppliers that if they had not shipped material that had been—that we would pay
for what had been received. We would not pay for shipments that were following a
particular point in time.‖105 In an internal email dated September 25, 2013 from
Cooper‘s Senior Vice President and General Manager of Asia Operations, Allen
Tsaur, to the President of Cooper‘s International Tire Division, Hal Miller, which
Mr. Miller subsequently forwarded to Cooper CEO Roy Armes and General
Counsel Steve Zamansky, Mr. Tsaur summarized what he anticipated to be the
likely consequences of Cooper‘s plan to cut off payment to CCT‘s suppliers:
 OE customers are likely to sue CCT for contract violation and lost
time penalty. Please note that CCT supplies to all top 5 truck
102
Trial Tr. 270:15–17 (Hughes).
103
Id. at 343:1–8 (Hughes); see also id. at 84:6–85:19 (Armes) (testifying as to Cooper‘s limited
access to CCT financials and restricted access to the CCT facilities).
104
Id. at 273:8–9 (Hughes).
105
Id. at 341:23–342:3 (Hughes).
41
companies in China
 The raw material payment of 40M RMB is not all for new purchase.
Some are for goods already received. Along with our suppliers, they
are likely to sue CCT for delinquency.
 Many suppliers are in CCT Purchasing Department office everyday
demanding payment.
 CCT is likely to lose in the lawsuits for contract violation and lost
time penalty to OE and delinquency for suppliers. The consequence
can be very bad as not only we need to pay [sic] but also ruin the
creditability. CCT will need to buy on cash in the future.106
Reflecting on the plan to ―put pressure on Che,‖ Mr. Tsaur concluded: ―What this
means is that we officially shut down CCT given the low possibilities of Che‘s
willingness to enter financial data. Of course, the issues will go away if Che
agrees to enter data for whatever reason. That is currently our only hope to avoid
the showdown.‖107 These elements of the CCT lockout illustrate Cooper‘s failure
to cause CCT—its largest subsidiary—to conduct business in the ordinary course,
and demonstrate just the opposite.
2. The ―Material Adverse Effect‖ Exclusions Do Not Trump Cooper‘s
Obligations Under Section 5.1(a)
Cooper asserts that the phrase ―except as . . . otherwise expressly
contemplated by [the Merger] Agreement‖ in Section 5.1(a) ―naturally
incorporates the expressly-contemplated exclusions from events constituting [a
106
JX 445 at COOPER0033397.
107
Id.
42
Material Adverse Effect].‖108 Cooper argues that, because ―the parties expressly
agreed that disruptions at CCT caused by the merger would not permit Apollo to
abandon the deal,‖ it would be illogical if ―the very same event that the parties‘
intended would not prevent a closing as [a Material Adverse Effect] would prevent
a closing by reason of a breach of Section 5.1(a).‖109 Citing to this Court‘s
decision in In re IBP, Inc. Shareholders Litigation, Cooper argues that ―[s]uch an
interpretation, which requires Section[] 5.1(a) . . . to be read in isolation, and not in
connection with the [Material Adverse Effect] exclusions, is not only wrong but
‗would be unreal to men of business and practical affairs.‘‖110
Section 7.2(c) provides, as a condition to closing, that ―[e]xcept for any
event, state of facts or circumstances disclosed in the Company Disclosure Letter,
since December 31, 2012, there shall not have occurred any event, state of facts or
circumstances which, individually or in the aggregate, would reasonably be
expected to have a Material Adverse Effect.‖111 The Merger Agreement defines
―Material Adverse Effect‖ by laying out two general categories—subsections (i)
108
Pl.‘s Br. in Opp‘n to Defs.‘ Mot. for Declaratory J. at 22.
109
Id. at 20, 22 (emphasis omitted).
110
Id. at 21 (citing In re IBP, Inc. S’holders Litig., 789 A.2d 14, 57 (Del. Ch. 2001)); see also id.
at 21–22 (―If Cooper and Apollo specifically agreed that a negative reaction to the merger by
Cooper‘s labor unions or joint venture partners would not prevent a closing under the [Material
Adverse Effect] clause, it is implausible to think that the Merger Agreement would construe
those very same circumstances as preventing a closing due to alleged non-compliance with
Section 5.1(a) . . . . As in IBP, this Court should not accept such a bizarre and implausible
construction of the Merger Agreement.‖).
111
Merger Agreement § 7.2(c).
43
and (ii)—and a series of specific carve-outs to subsection (i)—subsections (i)(A)–
(J):
―Material Adverse Effect‖ means any fact, circumstance, event,
change, effect or occurrence that (i) has had or would reasonably be
expected to have a material adverse effect on the business, results of
operations or financial condition of the Company, its Subsidiaries and
Joint Ventures, taken as a whole, but will not include facts
circumstances, events, changes, effects, or occurrences to the extent
attributable to . . . (F) the execution and delivery of this Agreement or
the public announcement or pendency of the Merger or any of the
other Transactions or the Financing, including the impact thereof on
the relationships, contractual or otherwise, of the Company or any of
its Subsidiaries with employees, labor unions, customers, suppliers or
partners, and any litigation arising from allegations of any breach of
fiduciary duty or violation of Law relating to this Agreement or the
transactions contemplated by this Agreement or compliance by the
Company with the terms of this Agreement . . . ; or (ii) that would
reasonably be expected to prevent or materially delay or impair the
ability of [Cooper] to perform its obligations under this Agreement or
to consummate the Transactions.112
As noted above, Cooper argues that ―[i]f Cooper and Apollo specifically agreed
that a negative reaction to the merger by Cooper‘s labor unions or joint venture
partners would not prevent a closing under the [Material Adverse Effect] clause, it
is implausible to think that the Merger Agreement would construe those very same
circumstances as preventing a closing due to alleged non-compliance with Section
5.1(a).‖113
112
Id. § 10.2 (―Material Adverse Effect‖) (typeface altered from original).
113
Pl.‘s Br. in Opp‘n to Defs.‘ Mot. for Declaratory J. at 22.
44
In IBP, then-Vice Chancellor Strine, in evaluating a plaintiff-seller‘s request
for specific performance of a merger agreement, addressed the defendant-buyer‘s
defense that the seller had breached certain representations made in the merger
agreement when it restated its financial information due to the discovery of
improper accounting practices.114 The relevant provision of the agreement in that
case represented that, ―[e]xcept as set forth in Schedule 5.11 [or the Warranted
Financials], there are no liabilities of the Company or any Subsidiary of any kind
whether accrued, contingent, absolute, determinable or otherwise.‖115 Schedule
5.11 expressly disclosed that the seller may be subject to further liabilities
associated with improper accounting practices, and the buyer acknowledged that
the seller‘s restatement of its financials did not breach Schedule 5.11; nevertheless,
the buyer argued that the same facts expressly carved out of Schedule 5.11—the
incurrence of liabilities due to the restatement of financial information—breached
representations made in the ―Warranted Financials.‖ The Court rejected that
argument, explaining that at trial, the buyer‘s CFO could not articulate why the
parties would have agreed to such a scheme, while the buyer‘s general counsel
―admitted that it made no economic difference whether the Warranted Financials
were restated to record the liabilities or whether those liabilities were recorded in a
114
In re IBP, 789 A.2d at 51–52.
115
Id. at 56.
45
filing for a later period.‖116 Considering the provisions together with additional
extrinsic evidence, then-Vice Chancellor Strine concluded that ―the record reveals
that this sort of hair-splitting has no rational commercial purpose,‖ and that the
buyer‘s construction of the merger agreement did not reflect the parties‘ intent at
the time of drafting.117
Here, by contrast, a rational business purpose is evident in the parties‘
drafting of the definition of Material Adverse Effect in Section 10.2. Subsection
(i) states that any event that ―has had or would reasonably be expected to have a
material adverse effect on the business, result of operations or financial condition
of [Cooper], its Subsidiaries and Joint Ventures,‖ will constitute a Material
Adverse Effect, provided that the event does not fall under certain enumerated
exceptions. Subsection (ii) further provides that an event ―that would reasonably
be expected to prevent or materially delay or impair the ability of [Cooper] to
perform its obligations under this Agreement or to consummate the Transaction‖
will nevertheless also constitute a Material Adverse Effect.
If subsection (i) were properly to be considered in isolation, Cooper might
be correct that the lockout at CCT falls under the exclusion enumerated in
subsection (i)(F), which exempts from the definition of Material Adverse Effect
the impact of the pendency of the merger on the relationships of Cooper and its
116
Id. at 57.
117
Id.
46
subsidiaries or partners. However, it is axiomatic that contractual provisions must
be read to make sense of the whole.118 While Cooper understands subsection (i) to
shift the risk of certain events, including the lockout at CCT, wholly onto Apollo,
the parties made clear under subsection (ii) that Apollo would bear the risk of such
an event only so long as that event would not ―reasonably be expected to prevent
or materially delay or impair the ability of [Cooper] to perform its obligations
under [the Merger Agreement].‖ In other words, the logical operation of the
definition of Material Adverse Effect shifts the risk of any carved-out event onto
Apollo, unless that event prevents Cooper from complying with its obligations
under the Merger Agreement; the parties agreed not to excuse Cooper for any such
breach.
Evaluating the language of the Material Adverse Effect definition in Section
10.2 in the context of the entire transaction bolsters this reading. As noted above,
Apollo intended to finance the transaction in part with a debt offering to be
underwritten by Morgan Stanley, Deutsche Bank, Goldman Sachs, and Standard
Chartered Bank. In order to facilitate that debt offering, the parties negotiated a
20-day Marketing Period, which by the terms of the Merger Agreement was
118
See, e.g., Kuhn Constr., Inc. v. Diamond State Port Corp., 990 A.2d 393, 396–97 (Del. 2010)
(stating the principle that ―[the court] will read a contract as a whole and we will give each
provision and term effect,‖ and ruling in favor of the plaintiff because, ―[a]lthough isolated terms
and provisions of the contract support [the defendant‘s] contractual interpretation, the contract as
a whole . . . supports [the plaintiff‘s] interpretation‖).
47
required to take place for the merger to close and could not begin until Cooper
delivered all Required Information necessary to market the debt. That the parties
negotiated a provision in the definition of Material Adverse Effect that protected
Apollo‘s contractual right to require Cooper to comply with its obligations, when
those obligations would impact Apollo‘s ability, among other things, to obtain
financing, is not commercially unreasonable. Unlike the irrational contractual
interpretation propounded by the buyer in IBP, Apollo has convincingly articulated
why the parties intended, under subsection (i), to exclude as a Material Adverse
Effect an event such as the labor disruption at a subsidiary but, under subsection
(ii), to nevertheless require Cooper to comply with its obligations if such an event
occurred.
Having determined that the carveout under subsection (i)(F) does not
prevent Apollo from enforcing Cooper‘s obligations under the Merger Agreement,
I conclude that Cooper breached its obligations under Section 5.1(a), thereby
relieving Apollo of its obligations to close pursuant to Section 7.2(b). Having
found that Cooper had not satisfied the condition in Section 7.2(b), I do not find it
necessary to consider the other conditions that Apollo alleges Cooper failed to
meet, and Apollo is entitled to a declaratory judgment that the conditions to closing
remained unsatisfied as of the trial date.
48
IV. CONCLUSION
In addition to the USW strike addressed in the USW Opinions, the seizure of
Cooper‘s CCT facility, by the workers at the direction of the minority partner in
that venture, emerged as a barrier to the consummation of the Apollo-Cooper
merger. The seizure was unanticipated, and neither party caused it to occur;
nonetheless, it prevented Cooper from complying with its contractual obligations
necessary to close the merger. For the reasons described above, and for the
reasons addressed in the USW Opinions, the Defendants‘ Motion for Entry of a
Declaratory Judgment is GRANTED. The parties should submit an appropriate
form of order.
49