September 24, 2007

Some Notable Credit Crunch Disclosures and Developments…

Despite the Fed’s reduction in interest rates last week, a number of deals are in trouble and have produced some interesting developments and disclosures. As a result, caselaw regarding MAC clauses and other merger provisions will likely be fleshed out over the next year (remember the September-October issue of the Deal Lawyers print newsletter opens with a related piece: “The ‘Downturn’ Roadmap: Parsing the Shift in Deal Terms”).

Here are some of the notable developments and disclosures:

1. Harman International’s Form 8-K – According to this article, late Friday, Goldman Sachs and Kohlberg Kravis Roberts scuttled their pending $8 billion buyout of Harman International after discovering details about Harman that raised concerns about its business. You may recall that this deal was one of the first to introduce “stub equity.”

2. Genesco’s Form 8-K (filed 9/20/07) – As noted in this article, Genesco is suing to force Finish Line and UBS to complete the deal it made to buy Genesco (here is the Form 8-K regarding the lawsuit filed Friday).

3. Reddy Ice Holding’s Proxy Statement (filed 9/12/07) – As noted in this article, Morgan Stanley, the deal’s solo underwriting bank, claimed in late August that the financing agreements had been breached and said that it was “reserving its rights.” According to the proxy, Morgan Stanley argued that GSO Capital Partners, the buyout’s equity sponsor, and a special committee altered some dates in the original deal agreement and, specifically, stretched out the debt marketing period without Morgan Stanley’s consent. Morgan Stanley insisted that GSO had breached the debt financing contract by doing that.

4. Accredited Home Lenders Holding Co.’s Form 8-K (filed 9/20/07) – As noted in this article, Accredited Home Lenders compromised on its price tag in order to save its sale to the Lone Star Fund.

5. SLM Corp.’s Additional Soliciting Material (filed 8/7/07) – As noted in this article, Sallie Mae’s purchase by a consortium led by JC Flowers & Co. might tank as the buyers are having second thoughts.

Maximizing Value (and Controlling Risk) in Distressed and Special Situations Investing

Join tomorrow for a webcast – “Maximizing Value (and Controlling Risk) in Distressed and Special Situations Investing” – to hear Tim O’Connor of Imperial Capital, and Mark Palmer and Jonathan Gill of Bracewell Giuliani discuss the latest trends and developments regarding the opportunities and strategies available in distressed situations. Given what’s happening in the credit markets – this program is particularly timely!

Coming Soon: On November 1st, join us for the webcast: “Compensation Arrangements for Private Equity Deals.”

Act Now: To catch these programs, try a 2008 no-risk trial to today – and get the “Rest of 2007” at no charge.

Delaware Supreme Court: Rejects Deepening Insolvency Cause of Action

A few weeks ago, the Delaware Supreme Court decided – in Trenwick America Litigation Trust v. Billet, No. 495, 2006 (Del. Aug. 14, 2007) – that no cause of action asserting deepening insolvency exists under Delaware law. Sitting en banc, the court didn’t issue its own decision – rather, it relied on the lengthy opinion of Vice Chancellor Strine issued in August of last year, where he looked carefully at the underlying theory (and other available causes of action) and concluded that the deepening insolvency theory was incoherent. We have posted memos regarding this decision in our “Bankruptcy & Reorganization” Practice Area.

– Broc Romanek