Benchmark Capital Partners Iv, L.P. v. Vague

2002 WL 1732423 (2002)

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Nature of the Case

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Facts

Juniper (D) is a financial services enterprise with the issuance of credit cards as its core business and it is regulated by the Federal Reserve Board and the Federal Deposit Insurance Corporation. P invested in the first two series of the Juniper Financial Corp.'s (Juniper (D)) preferred stock. P invested $20 million and, in exchange, was issued Series A Preferred Shares. Juniper (D) raised an additional $95.5 million by issuing its Series B Preferred Shares. P contributed $5 million. Juniper (D) now must seek more capital in order to satisfy regulators and business requirements. CIBC (D) is willing to fund $27 million through a mandatory convertible note conditioned on it becoming a senior holder. Juniper (D) initially considered amending its charter to allow for the issuance of another series of senior preferred stock. The protective provisions of the A and B Certificates could be invoked to thwart that strategy. Juniper (D) figured it could do a merger and a sale of Series D Preferred Stock to CIBC (D). Through a Series C Transaction, CIBC (D) invested $ 145 million (including the $ 27 million already delivered to Juniper). CIBC (D) obtained a majority of the voting power in Juniper (D) on an as-converted basis and a majority of the voting power of the preferred stock. CIBC also acquired the right to select six of the eleven members of Juniper's (D) board. As required by Juniper's (D) then existing certificate of incorporation, the approval of the holders of Series A Preferred and Series B Preferred Stock, including P, was obtained in order to close the Series C Transaction. CIBC (D) obtained the right to waive certain protective voting provisions, but the right was not unlimited. Juniper's (D) Certificate protects the holders of Series A Preferred and Series B Preferred from risks associated with the issuance of any additional equity security that would be senior to those shares by requiring their prior approval through a separate class vote. Juniper (D) must also provide the holders of the junior preferred stock with a class vote before it may proceed to dispose of all or substantially all of its assets or to 'consolidate or merge into any other corporation (other than a wholly-owned subsidiary Corporation).' The right of CIBC (D) to waive the voting rights was limited by excluding from the scope of the waiver authority any action that 'would diminish or alter the liquidation preference or other financial or economic rights, modify the registration rights, or increase the obligations, indemnities or liabilities, of the holders of Series A Preferred Stock, Series A Prime Preferred Stock or Series B Preferred Stock or (b) authorize, approve or waive any action so as to violate any fiduciary duties owed by such holders under Delaware law. Once again, Juniper (D) needed more money. Everyone was solicited for more cash. CIBC (D) was the only identified and viable participant available for the next round of financing, now known as the Series D Transaction. The Series D Transaction consists of the following three steps: 1. Juniper (D) will carry out a 100-1 reverse stock split of its common stock. 2. Juniper Merger Corp., a subsidiary of Juniper (D) established for these purposes, will be merged with and into Juniper (D) which will be the surviving corporation. The certificate of incorporation will be revised as part of the merger. 3. Series D Preferred Stock will be issued to CIBC (D) (and, at least in theory, those other holders of Series A, B, and C Preferred who may exercise preemptive rights) for $50 million. The existing Series A and B will be converted into one share of new Series A Preferred or Series B Preferred, and the holders of the existing junior preferred will also receive, for each share, a warrant to purchase a small fraction of a share of common stock in Juniper (D) and a smaller fraction of a share of common stock in Juniper (D). The differences between the new and old shares are significant. Series D Preferred Shares, which will be senior to the newly created A and B Preferred Stock with respect to liquidation preferences, dividends, and as applicable, redemption rights. Series D will be convertible into common stock at a higher ratio than the existing or newly created Series A and B Preferred Stock. The equity in Series A and B will be reduced from approximately 29% before the merger to approximately 7% after the Series D financing, and CIBC (D) will hold more than 90% of Juniper's (D) voting power. Ps filed this suit seeking an injunction. P argues that the junior preferred stockholders are entitled to a vote on the merger. P also invokes its right to a class vote to challenge the Series D Purchase Agreement because that agreement obligates Juniper (D) to issue a senior preferred security. P challenges the issuance of the new Series D after the merger because it will be issued without a class vote by the holders of either the old or the new Series A and B stock. Ds contend that the adverse effects of the transaction arise from the merger and not from any separate amendment of the certificate of incorporation, which would have required the exercise of the junior preferred stockholders' voting rights. Ds contend that none of the junior preferred stock protective provisions expressly applies to mergers.