Forward Merger Anti Assignment Clause

Although not nearly as complex as change of control provisions, assignment provisions may still present a challenge in due diligence projects. We hope this blog post  will help you navigate the ambiguities of assignment clauses with greater ease by explaining some of the common variations. (And, if you like it, please check out our full guide on Reviewing Change of Control and Assignment Provisions in Due Diligence.)

What is an Assignment Clause?

First, the basics:

Anti-assignment clauses are common because without them, generally, contracts are freely assignable. (The exceptions are (i) contracts that are subject to statutes or public policies prohibiting their assignment, such as intellectual property contracts, or (ii) contracts where an assignment without consent would cause material and adverse consequences to non-assigning counterparties, such as employment agreements and consulting agreements.) For all other contracts, parties may want an anti-assignment clause that allows them the opportunity to review and understand the impact of an assignment (or change of control) before deciding whether to continue or terminate the relationship.

In the mergers and acquisitions context, an assignment of a contract from a target company entity to the relevant acquirer entity is needed whenever a contract has to be placed in the name of an entity other than the existing target company entity after consummation of a transaction. This is why reviewing contracts for assignment clauses is so critical.

A simple anti-assignment provision provides that a party may not assign the agreement without the consent of the other party.  Assignment provisions may also provide specific exclusions or inclusions to a counterparty’s right to consent to the assignment of a contract. Below are five common occurrences in which assignment provisions may provide exclusions or inclusions.

Common Exclusions and Inclusions

Exclusion for Change of Control Transactions

In negotiating an anti-assignment clause, a company would typically seek the exclusion of assignments undertaken in connection with change of control transactions, including mergers and sales of all or substantially all of the assets of the company. This allows a company to undertake a strategic transaction without worry. If an anti-assignment clause doesn’t exclude change of control transactions, a counterparty might materially affect a strategic transaction through delay and/or refusal of consent. Because there are many types of change of control transactions, there is no standard language for these. An example might be:

In the event of the sale or transfer by [Party B] of all or substantially all of its assets related to this Agreement to an Affiliate or to a third party, whether by sale, merger, or change of control, [Party B] would have the right to assign any or all rights and obligations contained herein and the Agreement to such Affiliate or third party without the consent of [Party A] and the Agreement shall be binding upon such acquirer and would remain in full force and effect, at least until the expiration of the then current Term.

Exclusion for Affiliate Transactions

A typical exclusion is one that allows a target company to assign a contract to an affiliate without needing the consent of the contract counterparty. This is much like an exclusion with respect to change of control, since in affiliate transfers or assignments, the ultimate actors and responsible parties under the contract remain essentially the same even though the nominal parties may change. For example:

Either party may assign its rights under this Agreement, including its right to receive payments hereunder, to a subsidiary, affiliate or any financial institution, but in such case the assigning party shall remain liable to the other party for the assigning party’s obligations hereunder. All or any portion of the rights and obligations of [Party A] under this Agreement may be transferred by [Party A] to any of its Affiliates without the consent of [Party B].

Assignment by Operation of Law

Assignments by operation of law typically occur in the context of transfers of rights and obligations in accordance with merger statutes and can be specifically included in or excluded from assignment provisions. An inclusion could be negotiated by the parties to broaden the anti-assignment clause and to ensure that an assignment occurring by operation of law requires counterparty approval:

[Party A] agrees that it will not assign, sublet or otherwise transfer its rights hereunder, either voluntarily or by operations of law, without the prior written consent of [Party B].

while an exclusion could be negotiated by a target company to make it clear that it has the right to assign the contract even though it might otherwise have that right as a matter of law:

This Guaranty shall be binding upon the successors and assigns of [Party A]; provided, that no transfer, assignment or delegation by [Party A], other than a transfer, assignment or delegation by operation of law, without the consent of [Party B], shall release [Party A] from its liabilities hereunder.

This helps settle any ambiguity regarding assignments and their effects under mergers statutes (particularly in forward triangular mergers and forward mergers since the target company ceases to exist upon consummation of the merger).

Direct or Indirect Assignment

More ambiguity can arise regarding which actions or transactions require a counterparty’s consent when assignment clauses prohibit both direct and indirect assignments without the consent of a counterparty. Transaction parties will typically choose to err on the side of over-inclusiveness in determining which contracts will require consent when dealing with material contracts. An example clause prohibiting direct or indirect assignment might be:

Except as provided hereunder or under the Merger Agreement, such Shareholder shall not, directly or indirectly, (i) transfer (which term shall include any sale, assignment, gift, pledge, hypothecation or other disposition), or consent to or permit any such transfer of, any or all of its Subject Shares, or any interest therein.

“Transfer” of Agreement vs. “Assignment” of Agreement

In some instances, assignment provisions prohibit “transfers” of agreements in addition to, or instead of, explicitly prohibiting “assignments”. Often, the word “transfer” is not defined in the agreement, in which case the governing law of the contract will determine the meaning of the term and whether prohibition on transfers are meant to prohibit a broader or narrower range of transactions than prohibitions on assignments. Note that the current jurisprudence on the meaning of an assignment is broader and deeper than it is on the meaning of a transfer. In the rarer case where “transfer” is defined, it might look like this:

As used in this Agreement, the term “transfer” includes the Franchisee’s voluntary, involuntary, direct or indirect assignment, sale, gift or other disposition of any interest in…

The examples listed above are only of five common occurrences in which an assignment provision may provide exclusions or inclusions. As you continue with due diligence review, you may find that assignment provisions offer greater variety beyond the factors discussed in this blog post. However, you now have a basic understand of the possible variations of assignment clauses. For a more in-depth discussion of reviewing change of control and assignment provisions in due diligence, please download our full guide on Reviewing Change of Control and Assignment Provisions in Due Diligence.

March 1, 2013

On February 22, 2013, in Meso Scale Diagnostics, LLC v. Roche Diagnostics GmbH, C.A. No. 5589-VCP (Del. Ch. 2013), Vice Chancellor Parsons of the Delaware Court of Chancery ruled that a provision in a license agreement prohibiting an assignment by operation of law did not apply to a reverse triangular merger.  This ruling eliminates the uncertainty Vice Chancellor Parsons created in his April 2011 motion to dismiss decision in which he indicated that there may be circumstances where a reverse triangular merger could be considered an assignment by operation of law for purposes of an anti-assignment clause.

Background

On June 22, 2010, the plaintiffs filed a complaint alleging that the acquisition by Roche Diagnostics GmbH, C.A. ("Roche") of BioVeris Corporation ("BioVeris") through a reverse triangular merger violated the anti-assignment clause found in a 2003 agreement between the plaintiffs and the predecessor entity to BioVeris, among others.  The anti-assignment clause that the plaintiffs alleged was breached stated as follows:

Neither this Agreement nor any of the rights, interests or obligations under [it] shall be assigned, in whole or in part, by operation of law or otherwise by any of the parties without the prior written consent of the other parties . . .

The Court, in its earlier Memorandum Opinion dated April 8, 2011, denying a motion to dismiss, ruled that there may be circumstances where a provision prohibiting assignment of an agreement by operation of law could be triggered by a reverse triangular merger.[1]

Analysis

In support of its summary judgment motion, Roche argued that, because the target entity in a reverse triangular merger remains intact and continues to own its own assets, BioVeris did not assign anything at the time it was acquired through a reverse triangular merger.  Roche further argued that a reverse triangular merger structure is analogous to a sale of the stock of a target corporation, and Delaware courts had repeatedly held that such a stock sale would not violate an anti-assignment provision that did not expressly prohibit a change in control. 

The plaintiffs countered that Delaware case law regarding forward triangular mergers compels the conclusion that a provision covering assignment "by operation of law" extends to all mergers, regardless of their form.[2]  The plaintiffs further argued that the Court should embrace an unreported California federal court decision, SQL Solutions Inc. v. Oracle Corporation, 1991 WL 626458 (N.D. Cal. Dec. 19, 1991), that held that an anti-assignment provision in a software license agreement that did not contain a change of ownership or control provision was triggered by a reverse triangular merger.[3]

The Court concluded that Delaware law, and specifically Section 259 of the Delaware General Corporation Law (the "DGCL"), supported Roche’s position that a reverse triangular merger generally is not an assignment by operation of law or otherwise.  Section 259 provides that:

When any merger or consolidation shall have become effective under this chapter, for all purposes of the laws of this State the separate existence of all the constituent corporations, or of all such constituent corporations except the one into which the other or others of such constituent corporations have been merged, as the case may be, shall cease and the constituent corporations shall become a new corporation, or be merged into 1 of such corporations . . . the rights, privileges, powers and franchises of each of said corporations, and all property, real, personal and mixed, and all debts due to any of said constituent corporations on whatever account . . . shall be vested in the corporation surviving or resulting from such merger or consolidation; and all property, rights, privileges, powers and franchises, and all and every other interest shall be thereafter as effectually the property of the surviving or resulting corporation as they were of the several and respective constituent corporations.  (emphasis added)

The Court pointed to cases holding that Section 259 results in only the transfer of the non-surviving corporation’s rights and obligations to the surviving corporation by operation of law.  On the other hand, the language "except the one into which the other or others of such constituent corporations have been merged" in Section 259 implies that the surviving corporation would not have effected any assignment.

As to the plaintiffs’ arguments, the Court distinguished Tenneco and Star Cellular as cases involving forward triangular mergers where the target company was not the surviving entity, whereas in this case BioVeris was the surviving entity in a reverse triangular merger.  Further, the Court declined to follow SQL Solutions because doing so would conflict with Delaware’s well-settled law that stock acquisitions, by themselves, do not result in an assignment by operation of law.

The Court also observed that its interpretation of the anti-assignment clause is consistent with the reasonable expectations of the parties, noting that the vast majority of commentary discussing reverse triangular mergers indicates that a reverse triangular merger does not constitute an assignment by operation of law. 

Conclusion

This ruling is noteworthy because it confirms the view that, until the first Meso Scale Diagnostics ruling, practitioners had long taken for granted: a reverse triangular merger does not result in an assignment by operation of law of the acquired corporation’s contracts or other assets.  The decision should provide comfort to would-be acquirors that they can structure transactions to which the DGCL is applicable in a manner that ensures that consents to assignment do not need to be obtained where there is no change of ownership or control language in the relevant anti-assignment clause.  However, the decision also serves as a reminder that, outside of the confines of the DGCL, there remains uncertainty as to the risks associated with anti-assignment clauses–it may be prudent to require that consents be obtained from applicable third parties where a license or other agreement containing such a clause is important to the target’s business.


  [1]   At this earlier motion to dismiss stage the Vice Chancellor was required to assume the truthfulness of the plaintiff’s allegation and afford the plaintiff the benefit of all reasonable inferences.  The Court declared that it could grant Roche’s motion to dismiss only if Roche’s interpretation of the anti-assignment clause was the only reasonable construction as a matter of law. Although noting that stock acquisitions do not, in and of themselves, constitute an assignment, the Court noted that the plaintiffs had alleged that the transaction in question involved more than just a change of ownership because the plaintiffs had alleged that, within months of the merger, all of BioVeris’s 200 employees were laid off, its Maryland facility was closed and its existing customers were notified that its product lines were being discontinued.  These additional circumstances, in the Court’s view, created a plausible argument "that ‘by operation of law’ was intended to cover mergers that effectively operated like an assignment, even if it might not apply to mergers merely involving changes of control."  

  [2]   SeeTenneco Automotive Inc. v. El Paso Corporation, 2002 WL 453930 (Del. Ch. 2002) and Star Cellular Telephone Company, Inc. v. Baton Rouge CGSA, Inc., 19 Del. J. Corp. L. 875 (Del. Ch. 1993) ruling that forward mergers do trigger anti-assignment provisions prohibiting assignments by operation of law.

  [3]   Since Vice Chancellor Parson’s motion to dismiss ruling in April 2011, a New Jersey federal court decision, DBA Distribution Services, Inc. v. All Source Freight Solutions, Inc., 2012 WL 845929 (D.N.J. Mar. 13, 2012), cited SQL Solutions in support of its holding that, under New Jersey law, a reverse triangular merger does constitute an assignment by operation of law.  The issue was one of first impression in New Jersey.   No other court appears to have cited with approval the SQL Solutions holding that the acquisition of a licensee under a license agreement through a reverse triangular merger results in an assignment of the license agreement. 

 

One thought on “Forward Merger Anti Assignment Clause

Leave a Reply

Your email address will not be published. Required fields are marked *