2010 OFII General Counsel Conference Washington, D.C. Recent Developments in Delaware Law Stephen P. Lamb, Partner Paul, Weiss, Rifkind, Wharton & Garrison LLP 500 Delaware Ave., Suite 200 Wilmington, DE (302)

2010 OFII General Counsel Conference Washington, D.C. Overview I.Arbitration in the Court of Chancery II.Revlon (2010) III.In re CNX Gas Corp. IV.Top-Up Options V.Proxy Access & Delaware Law 2

2010 OFII General Counsel Conference Washington, D.C. I.Arbitration in the Court of Chancery 3

2010 OFII General Counsel Conference Washington, D.C. Arbitration in the Court of Chancery Commenced by filing petition: –Petition must set forth the nature of the dispute, parties, claims and remedies sought. –At least one party must be a Delaware business entity. If claim is for monetary damages, amount in controversy must be specified and must exceed $1 million. The Chancellor appoints an arbitrator from among the judges and masters of the Court of Chancery. A consent to arbitrate included in an agreement is acceptable if it contains the following language: –"The parties agree that any dispute arising under this agreement shall be arbitrated in the Court of Chancery of the State of Delaware, pursuant to 10 Del. C. § 349." 4

2010 OFII General Counsel Conference Washington, D.C. Arbitration in the Court of Chancery (cont'd) Proceedings are not part of the Chancery docket and remain confidential, unless appealed to the Supreme Court of Delaware. –Arbitration proceedings are appealed directly to the Supreme Court of Delaware. Arbitration hearing occurs within 90 days of receipt of petition. Proceedings are private and only parties and their representatives are permitted to attend. At any stage, the parties may agree to submit the matter for mediation in the Court of Chancery. Arbitrator is ineligible to adjudicate any subsequent litigation arising from the issues raised in the petition. 5

2010 OFII General Counsel Conference Washington, D.C. II. Revlon (2010) 6

2010 OFII General Counsel Conference Washington, D.C. Revlon (2010) In In re Revlon, Inc. S'holders Litig., 2010 WL (Del. Ch. March 16, 2010), the Court of Chancery replaced lead counsel for plaintiffs in a class action suit because "plaintiffs' counsel failed to litigate the case adequately." The court excoriated plaintiffs' lead counsel for failing to provide adequate representation. The court contrasted the strength of the substantive claims with the weakness of the prosecution of the claims. –"The docket establishes that Old Counsel has acted only when there was a dispute over control of the case and Old Counsel's path to a fee." The court, therefore, replaced lead counsel: –"Taking this conduct as a whole, I conclude that Old Counsel has not provided adequate representation. This conclusion provides a sufficient grounding to replace Old Counsel." 7

2010 OFII General Counsel Conference Washington, D.C. III.In re CNX Gas Corp. 8

2010 OFII General Counsel Conference Washington, D.C. In re CNX Gas Corp. CONSOL Energy Inc. owned approximately 80% of CNX Gas Corp., which was formerly wholly-owned by CONSOL. CONSOL proposed a tender offer to purchase the 16.5% of CNX stock not held by CONSOL or the directors and officers of CONSOL and CNX. T. Rowe Price held 6.3% of the stock of CNX and 6.5% of the stock of CONSOL. CONSOL negotiated with T.Rowe Price for an agreement by T. Rowe Price to tender its shares in the offer. CNX formed a special committee of one director to evaluate the tender offer: –Special committee did not have right to negotiate or consider alternatives. –Special committee sought price increase, but price was not increased. –Special committee remained neutral on tender offer. 9

2010 OFII General Counsel Conference Washington, D.C. In re CNX Gas Corp. The court held that entire fairness applied because there were not protections at both the board and stockholder levels –"To receive business judgment review, such a transaction with the controlling stockholder must be conditioned on (1) the recommendation of a fully functioning special committee of disinterested and independent directors and (2) approval of the transaction by a majority of the minority stockholders, which condition shall be non-waivable." The court was somewhat troubled by the potential conflict of T.Rowe Price because it held stakes in both the target and acquiror and thus would not suffer from an underpayment, but the court declined to make a definitive ruling on the preliminary record. 10

2010 OFII General Counsel Conference Washington, D.C. IV.Top-Up Options 11

2010 OFII General Counsel Conference Washington, D.C. Top-Up Options Tender offers with top-up options have become commonplace. Olson v. ev3, Inc. and In re Cogent, Inc. S'holder Litig. provide comfort that top-up options are acceptable under Delaware law. In Olson v. ev3, Inc., the Court of Chancery ruled on a motion to expedite litigation relating to Covidien plc's acquisition of ev3, Inc. The acquisition was structured as a tender offer with a top-up option. –Top-up option Exercisable for the number of shares that, when added to tendered shares, would result in Covidien holding 90% and enabling it to complete a short form merger. Consideration was to be paid in cash equal to the aggregate par value with the remainder paid in the form of a promissory note equal to the aggregate value of the number of shares to be purchased (calculated at the offer price) less the aggregate par value. 12

2010 OFII General Counsel Conference Washington, D.C. Top-Up Options (cont’d) Plaintiffs attacked the top-up option on the basis that the shares may dilute the value that could be attained in an appraisal. This could coerce stockholders into tendering. The court granted the motion to expedite to address the issue, but suggested that this issue could be addressed ex ante by an agreement that the consideration for and shares issued in connection with the top-up option could be disregarded for appraisal purposes. Olson settled before a decision was reached, but the Court of Chancery addressed the issue shortly thereafter in In re Cogent, Inc. S'holder Litig. In Cogent, the court held that the inclusion of an agreement to disregard the top-up option shares and consideration adequately addressed any coercion. The agreement was that, "the fair value of the Appraisal Shares shall be determined in accordance with § 262 without regard to the Top-Up Option, the Top-Up Option Shares or any promissory note delivered by the Merger Sub." 13

2010 OFII General Counsel Conference Washington, D.C. Top-Up Options (cont’d) In addition, the court in Cogent held that, based on testimony of a director, the board was sufficiently informed about the operation of the top-up option to satisfy its statutory duties under Sections 152, 153 and 157 of the DGCL. The court also noted that the minimum tender condition in the offer required that a majority of shares outstanding be tendered and that this condition could not be waived without the target board's consent. In addition, as a practical matter, the acquiror would have to receive a majority of the minority outstanding shares. Plaintiffs also alleged that the top-up option was a sham transaction because the note given as consideration for the top-up option shares would never be collected upon, but the court held that, consistent with Section 157, absent fraud the board has the power to set the consideration payable for an option. No fraud had been alleged and, "giving due respect to the corporate form," the note obligation would be an obligation until it was nullified. 14

2010 OFII General Counsel Conference Washington, D.C. V.Proxy Access & Delaware Law 15

2010 OFII General Counsel Conference Washington, D.C. Proxy Access & Delaware Law Relationship of Delaware law to Proxy Access –Due to the current stay of 14a-11, proxy access is unlikely to be an issue this proxy season. –Current SEC position is that stockholders must comply with Rule 14a-11 and a company's advance notice bylaws. Rule 14a-11 is intended to be an avenue through which stockholders exercise their state law right to nominate, but is not intended to displace that right and related obligations that are consistent with state law. –Thus, if a stockholder nomination does not satisfy the state law advance notice requirement, the nomination cannot proceed through the proxy access regime. –In addition, directors must still meet state law based director qualifications in order to be seated on the board. 16

2010 OFII General Counsel Conference Washington, D.C. Revlon; Rights Plans Stephen Fraidin, Partner Kirkland & Ellis LLP 601 Lexington Avenue New York, NY (212)

2010 OFII General Counsel Conference Washington, D.C. Revlon Duties Revisited “Go shop” transactions –Topps case –Duration of shopping –“Excluded Parties” –Right to match –Breakup fee –Tender offers –Why so few topping bids Forgo v. Health Grades (CA 5716 Del. Ch. Sept 3, 2010) –All cash tender offer by a PE firm Injunction denied Probability that target violated its Revlon duties –No presigning market check –No “go shop” –Standard breakup fee –2 step deal – 30 days –Likely that Chairman and CFO to continue / had a relationship with PE firm 18

2010 OFII General Counsel Conference Washington, D.C. Dollar Thrifty Shareholder Litigation (Del. Ch. Sept 8, 2010) Hertz to buy DT –5.5% premium ($41) –No shop –Matching right –Antitrust divestitures –3.9% breakup fee and RTF –Avis makes topping bid ($46.50), without committing to antitrust divestitures –Avis was not invited to bid against Hertz Revlon duties complied with: –Bird in hand –Board thought Avis not in position to bid –Board tried to get highest price –Hard bargaining –Price near top of DCF –No Avis RTF –Value is not value if it is not ultimately paid 19

2010 OFII General Counsel Conference Washington, D.C. Developments in Rights Plans Yucaipa American v. Riggio (Del. Ch. August 11, 2010) –Yucaipa bought 18% of Barnes & Noble Stock –Rights plan with 20% trigger –Riggio was grandfathered at 30% Entire fairness review not applicable since grandfathering Riggio did not constitute a special benefit to him No Blasius problem since shareholders not disenfranchised Reasonably perceived threat of a creeping acquisition with no control premium Proportionate response Ebay v. Newmark (Del. Ch. Sept. 9, 2010) –Rights plan adopted by privately held company – craigslist –Ebay could not buy more shares or sell its shares to third parties –Court rejected the “culture” touchy feely argument –Rights plan ordered rescinded 20

2010 OFII General Counsel Conference Washington, D.C. Developments in Rights Plans (cont’d) Selectica v. Versata (Del. Ch. Feb. 26, 2010) –NOL rights plan (Sec. 382) –Valid corporate objectives –4.9% trigger –Versata refused to sign a standstill if it were exempted –Upheld Atmel Shareholder Litigation (Del. Ch. May 19, 2009) –All cash offer to buy Atmel –Amendment to rights plan 20% to 10% beneficial ownership includes derivatives –Plaintiff claimed the amendment was too vague Lack of an objective calculation regarding trigger “Beneficial ownership” too unclear What is a “derivative”? Offer had been revoked; injunction denied 21