BLACK HORSE CAPITAL, LP, BLACK HORSE CAPITAL MASTER FUND LTD., OURAY HOLDINGS I AG, and CHEVAL HOLDINGS, LTD., Plaintiffs,
XSTELOS HOLDINGS, INC., (F/K/A FOOTSTAR, INC.) a Delaware Corporation, XSTELOS CORP., (F/K/A FOOTSTAR CORP.), a Texas Corporation, FCB I HOLDINGS, INC., a Delaware Corporation, and JONATHAN M. COUCHMAN Defendants.
Submitted: February 10, 2014
Elena C. Norman, Esq., James M. Yoch, Jr., Esq., Paul J. Loughman, Esq., YOUNG CONAWAY STARGATT & TAYLOR LLP, Wilmington, Delaware; Jonathan Sherman, Esq., Everett Collis, Esq., BOIES, SCHILLER & FLEXNER LLP, Washington, D.C.; Attorneys for Plaintiffs.
Paul J. Lockwood, Esq., Amy C. Huffman, Esq., Lori W. Will, Esq., SKADDEN, ARPS, SLATE, MEAGHER & FLOM LLP, Wilmington, Delaware; Lauren E. Aguiar, Esq., SKADDEN, ARPS, SLATE, MEAGHER & FLOM LLP, New York, New York; Attorneys for Defendants.
PARSONS, Vice Chancellor.
This is essentially an action for breach of contract. The plaintiffs and the defendants joined together to acquire a pharmaceutical company, and this dispute arose out of that acquisition. The plaintiffs allege that in the days and weeks leading up to the execution of the acquisition agreement, the defendants made an oral promise that they would transfer to the plaintiffs certain assets of the target company at some unspecified time post-closing. The plaintiffs allege that this oral promise was a central precondition to their willingness to make a short-term bridge loan that was necessary to finance the acquisition. On the day the acquisition agreement was executed, a series of written agreements were signed by the parties pertaining to various aspects of the transaction, including financing and the post-closing operation and management of the holding company through which the plaintiffs and the defendants took ownership of the target. Those written agreements, however, make no reference to any prior promise or agreement like the one alleged by the plaintiffs. Furthermore, the written agreements contain integration clauses in which the parties to them agreed that the documents evidenced the entirety of their agreement and understanding with respect to the subject matter of those agreements.
The plaintiffs charge the defendants with breach of contract for failing to make the asset transfer according to the prior oral agreement. They also assert claims for fraudulent inducement, promissory estoppel, and unjust enrichment. The defendants have moved to dismiss, arguing that, taking all alleged facts as true, the complaint fails to state a claim under any of these theories. The defendants primarily contend that the written agreements preclude this action for alleged breach of the prior oral promise.
The plaintiffs also allege breaches of the written acquisition agreements themselves. In that regard, the plaintiffs assert claims for breach of contract and of the implied covenant of good faith and fair dealing independent of the oral promise they seek to enforce in the principal counts of the complaint. The defendants seek dismissal of those claims as well.
This Memorandum Opinion constitutes my ruling of the defendants' motion to dismiss pursuant to Rule 12(b)(6). Having considered the record before me on that motion and the parties' arguments, I conclude that, as to the alleged prior oral agreement, the plaintiffs have failed to state a claim upon which relief can be granted, and I dismiss the plaintiffs' claims for breach of contract as well as those for fraudulent inducement, promissory estoppel, and unjust enrichment. As to the allegations concerning certain of the written acquisition agreements, the plaintiffs adequately have pled claims for breach of contract, but not for breach of the implied covenant of good faith and fair dealing, with one limited exception. The defendants' motion to dismiss, therefore, is granted in part and denied in part.
A. The Parties
Plaintiff Cheval Holdings, Ltd. ("Cheval Holdings") is a Cayman Islands corporation, the ultimate and sole owners of which are non-parties Dale and Mary Chappell. Plaintiffs Black Horse Capital, LP and Black Horse Capital Master Fund Ltd. (together, "Black Horse") are private investment funds owned by the Chappells and other third party investors. Plaintiff Ouray Holdings I AG ("Ouray" and, collectively with Cheval Holdings and Black Horse, "Plaintiffs") is a Swiss corporation and is the successor in interest to Cheval Holdings's interest in several of the entities relevant to this action.
Defendant Jonathan M. Couchman is the majority stockholder, CEO, CFO, and Chairman of the board of directors of Defendant Xstelos Holdings, Inc. ("Xstelos Holdings"), a Delaware corporation. Defendant Xstelos Corp., a Texas corporation ("Xstelos, " and together with Xstelos Holdings, the "Xstelos Entities"), is a wholly owned subsidiary of Xstelos Holdings. Xstelos Holdings and Xstelos were formerly known as Footstar, Inc. and Footstar Corp., respectively. Couchman was previously the Chairman and CEO of Footstar Corp. ("Footstar, " and together with Footstar, Inc., the "Footstar Entities"), a Texas corporation.
Nonparty CPEX Pharmaceuticals, Inc. ("CPEX") is a Delaware corporation engaged in the development of drug absorption and delivery technology. CPEX is wholly owned by Defendant FCB I Holdings, Inc. ("FCB Holdings"), also a Delaware corporation. FCB Holdings, in turn, is owned by Xstelos Corp. (80.5 percent) and Ouray, formerly held by Cheval (19.5 percent). CPEX and FCB Holdings have the same three-member boards of directors, consisting of Couchman, nonparty Adam Finerman, and Dale Chappell. Couchman, the principal executive officer of CPEX, manages both CPEX and FCB Holdings.
1. CPEX, Cheval Holdings, and Footstar
CPEX is a biotechnology company that manufactures a patented drug delivery technology known as CPE-215, which enhances the absorption of drugs through the nasal mucosa, skin, and eyes. Since 2003, CPEX has received royalties from Auxilium Pharmaceuticals, Inc.'s marketing of Testim, a testosterone replacement therapy that utilizes the CPE-215 delivery technology. In February 2008, CPEX entered into a license agreement with Allergan, Inc. ("Allergan") for the development and commercialization of another application of CPE-215, to be used in conjunction with Allergan's patented low-dose desmopressin, a synthetic hormone that assists in regulating kidney function for the treatment of nocturia and related conditions. One drug product created by the combination of Allergan's synthetic hormone and CPEX's drug delivery technology is known as "SER-120." It is at the heart of this dispute.
CPEX formerly was the drug delivery business segment of Bentley Pharmaceuticals, Inc. After being spun off in June 2008, CPEX traded on NASDAQ under the ticker "CPEX." As of mid-2009, Cheval Holdings was one of the largest stockholders of CPEX, which had a market capitalization of approximately $25.3 million. The Complaint alleges that Cheval Holdings was interested in expanding its investment in CPEX, and sought an opportunity to acquire its royalty-producing assets. In response to a solicitation of bids, Cheval Holdings unsuccessfully bid $75 million for CPEX in June 2010.
The Complaint states repeatedly that Cheval Holdings had the financial resources, pharmaceutical industry expertise, and willingness to acquire and manage 100 percent of CPEX in its own right. In that regard, I note that Dale Chappell holds both an M.D. and M.B.A., and Mary Chappell holds an M.D. and is a surgeon. Black Horse, managed by the Chappells, has a "particular interest in acquiring or investing in biotechnology and related companies and assets." In evaluating its strategic options vis-à-vis CPEX, however, Cheval Holdings concluded that "the acquisition would be much more efficient if Cheval could bring in a co-investor with a substantial NOL."
A $100 million "NOL, " or net operating loss, was found when Chappell was put in touch with Couchman, then the Chairman and CEO of Footstar. Footstar had operated shoe stores within Kmart locations and had emerged from a Chapter 11 bankruptcy reorganization in 2006. Footstar, which the Complaint describes as "a financial failure, "lost its Kmart contract in 2008. It ultimately filed for liquidation in 2010, having "no prospects for turn around"  and having been unable, up to that point, to put its substantial NOL to use.
In mid-2010, Cheval Holdings solicited Footstar's interest in participating in an acquisition of CPEX. At the time, Footstar faced the possibility of losing the value of its NOL, if the liquidation proceeded and Footstar was dissolved. It had "little cash, and no borrowing capacity or other capital, sufficient to invest in or purchase CPEX on its own." According to the Complaint, Footstar recognized that its "main contribution to the potential acquisition was not technical, scientific, or intellectual property investing expertise. Its principal contribution was the putative tax benefit of its NOL." "In a very real sense, then, " the Complaint alleges, "the Chappells and the Cheval Plaintiffs rescued Couchman and Footstar from his prior business failures by harnessing those very failures to what appeared to be everyone's advantage."
2. The CPEX acquisition
a. Structure of the acquisition
Thus, Cheval Holdings and Footstar jointly pursued CPEX in the hope that a joint acquisition would yield a better return on investment if Footstar's NOL were available to offset CPEX's future income from royalty streams. To realize these tax benefits, Footstar would have to own more than 80 percent of CPEX in the post-merger entity structure. FCB Holdings was created for these purposes. Footstar contributed $3, 220, 000 in cash to FCB Holdings in exchange for an 80.5 percent equity stake; Cheval Holdings contributed $780, 000 for its 19.5 percent stake. According to the Complaint, Cheval Holdings's and Chappell's economic rationale for the transaction was that, although Cheval Holdings would receive less income as a minority owner, the reduction would be "more than offset by the tax benefits of the NOL structure and other aspects of the deal ultimately reached with Couchman. (These included a consulting and advisory fee . . . and a shareholder agreement with minority protections for Cheval Holdings.)"
On August 24, 2010, Cheval Holdings and Footstar submitted to CPEX an indication of interest in acquiring all outstanding shares of CPEX common stock in a merger for $29.00 per share in cash. After nearly five months of negotiations with CPEX, on January 3, 2011, a definitive Agreement and Plan of Merger ("the Merger Agreement") was executed whereby FCB Holdings's subsidiary, FCB I Acquisition Corp., acquired 100 percent of CPEX's common stock in exchange for $27.25 per share.
Also executed on January 3, 2011 were four other agreements concerning the CPEX acquisition and the parties' subsequent relationship: (1) a consulting and advisory services agreement between Footstar and Cheval Holdings (the "Consulting Agreement"); (2) a stockholders' agreement between Footstar, Cheval Holdings, and FCB Holdings (the "Stockholders' Agreement"); (3) a written commitment by Black Horse to provide FCB Holdings with bridge financing (the "Commitment Letter"); and (4) a $64 million secured loan to a subsidiary of FCB Holdings, funded by a consortium of lenders with Bank of New York Mellon as administrative agent (the "BNYM Loan").Because the first three of these writings are integral to this dispute, and they were executed on the same day as the Merger Agreement, I briefly identify them here. To the extent relevant, their terms and import will be discussed in greater depth below.
b. Financing the acquisition—and the "Serenity Agreement"
During initial discussions concerning the CPEX acquisition, the parties contemplated financing the transaction through FCB Holdings's $4 million in equity, plus acquisition financing of $64 million from the BNYM Loan. The BNYM Loan was to be funded into escrow before the closing to alleviate CPEX's concerns about transaction closing uncertainty. In December 2010, however, the lead lender in the BNYM Loan consortium, Athyrium Capital, balked at the pre-closing escrow condition. CPEX, however, resisted proceeding without it. CPEX insisted that, in the absence of funding into the escrow, the Merger Agreement include a specific performance remedy. In addition, CPEX sought financial security for the specific performance remedy, in case the merger failed to close and CPEX had to invoke it.
Chappell and Couchman, on behalf of their respective companies, discussed ways to salvage the deal. Their solution was to scrap the escrow and loan $13 million in bridge financing directly to FCB Holdings to secure the specific performance remedy. According to the Complaint, the most Footstar could contribute toward such a bridge loan was $3 million. The Complaint repeatedly suggests, however, that Footstar "should have- funded $10, 465, 000 (or 80.5 percent) of the $13 million bridge loan, based on the equity ownership ratio. As a result, Plaintiffs allege that: "Cheval and Chappell had a choice. They could walk away from the deal, return to their plan to attempt to purchase the equity of CPEX outright; or they could salvage the transaction with Footstar by pledging vastly more in bridge loans than was consistent" with the FCB Holdings's equity ownership ratios, thereby placing Cheval and Chappell at "a disproportionate risk" of losing the bridge loan funds if the transaction did not close.
This brings us to the gravamen of this case. Plaintiffs allege that in a December 2010 phone conversation, Chappell offered to have Black Horse put up $10 million of the $13 million needed for bridge financing, if Couchman would give "100% of Serenity" to "Cheval" after the merger's closing. "Serenity" is an asset not defined directly in the Complaint or any of the relevant written agreements, but which apparently includes the CPE-215 application mentioned at the outset of this Memorandum Opinion known as SER-120. "Serenity" and SER-120 are discussed in more detail below.
It is sufficient here to note that, during the December 2010 discussions concerning the bridge financing arrangement for the CPEX acquisition, Chappell asked for "100% of Serenity" in exchange for making what Plaintiffs suggest was a disproportionately large bridge loan commitment. During a mid-December phone conversation, Couchman declined this offer, but proposed an 80 percent to 20 percent split of "Serenity" in favor of "Cheval" in a "mirror image" of FCB Holdings. Chappell, "on behalf of Cheval, " agreed to the 80/20 Serenity split. According to the Complaint, Black Horse then promised to fund $10 million of the bridge loans "in consideration for, and in reliance on, " this alleged oral "Serenity Agreement."
On January 3, 2011, when the Merger Agreement was executed, Black Horse and Footstar entered into separate commitment letters with FCB Holdings and CPEX. Pursuant to those letters, the bridge financing was pledged to FCB Holdings in two parts of $10 million and $3 million by Black Horse and Footstar, respectively. The acquisition closed on or about April 4, 2011, after being approved by a vote of CPEX's stockholders. Based on an agreement dated April 5, 2011 (the "Bridge Loan Agreement"), Black Horse made good on its commitment and loaned $10 million to FCB Holdings. Presumably, Footstar similarly made its bridge loan, and the main financing consortium funded the primary loan to FCB Holdings, because the Merger was effectuated and FCB Holdings took 100 percent control of CPEX in early April 2011.
3. SER-120, "Serenity, " and the "Serenity Agreement"
Before continuing to chronicle the material facts in this case, I pause to delineate the Complaint's allegations concerning SER-120 and the alleged Serenity Agreement. The parties' principal dispute centers on these facts. Broadly, it is alleged that Couchman orally promised Chappell that, in exchange for Chappell's putting up the $10 million Bridge Loan, Chappell would be given a greater interest in "Serenity" post-merger. To facilitate my analysis of the legal arguments raised for and against Defendants' motion to dismiss, I begin by reviewing certain of the Complaint's allegations regarding "Serenity" in more detail.
a. The assets to be transferred under the Serenity Agreement
As noted supra, SER-120 is "one particular use- of the CPE-215 technology, which involves combining it with a synthetic hormone called low-dose desmopressin. This synthetic hormone is a separately patented technology owned by Allergan. In 2008, the predecessors-in-interest to CPEX and Allergan with respect to SER-120 (Bentley Pharmaceuticals, Inc. and Serenity Pharmaceuticals Corp., respectively) entered into a license agreement (the "Allergan License") pursuant to which Allergan, ultimately, would develop and commercialize SER-120. The Allergan License requires Allergan to pay CPEX royalties at a set rate and certain "milestone" lump sum payments based on the commercial sales, if any, resulting from the SER-120 venture.
Immediately before the events in question, the value of SER-120 was "difficult to ascertain" because it was in the early stages of U.S. Food & Drug Administration ("FDA") testing. At least once, SER-120 failed to pass the FDA's "Phase III" testing level, a key regulatory hurdle. But in the fall of 2012, well over a year after CPEX was acquired by the parties, SER-120 passed the Phase III test. In addition, Allergan decided in February 2013 to fund a confirmatory trial of the drug. Thus, it appeared that SER-120 had become very valuable.
The Complaint describes "Serenity" as "that one particular use of CPEX's patented CPE-215 drug delivery technology "as combined with Allergan Inc.'s (or its assignees' or successors') patented-low dose desmopressin technology for the treatment or prevention of nocturia. . . . Included in this was the then-developed combination, known as SER-120." Plaintiffs apparently intend for "Serenity" to mean more than merely the licensing or royalty rights between CPEX and Allergan related to SER-120. The oral "Serenity Agreement, " according to the Complaint, "contemplated a transfer to Cheval of an additional 60.5% interest of all CPEX's rights in Serenity, not a mere assignment of the Allergan License, " which would have put the balance of ownership as to Serenity at approximately 80 percent to 20 percent, in favor of "Cheval." The Complaint differentiates between "(i) the license rights to Serenity through a separate license agreement with CPEX and (ii) subject to Allergan's consent, the Allergan License, pursuant to which one potential combination, SER-120, was already being developed, through a separate assignment and assumption agreement with CPEX."
Regardless of precisely how "Serenity" is defined, it is undisputed that before the Merger, all of the assets in question were owned by CPEX—i.e., any relevant rights CPEX held to CPE-215, "Serenity, " SER-120, and the Allergan License. If that structure were left untouched, Cheval Holdings indirectly would hold a 19.5 percent interest in those assets and Footstar an 80.5 percent interest. According to the Complaint, the Serenity Agreement called for the parties to create a new entity, FCB Serenity LLC, the equity of which would be flipped: 80 percent for "Cheval" and 20 percent for Footstar.FCB Serenity would be "assigned" the Serenity assets, thus giving "Cheval" control of an additional 60.5 percent interest in those assets. In the mid-December 2010 time frame, when the alleged conversations took place between Chappell and Couchman about financing the acquisition and the Serenity Agreement, they allegedly agreed that FCB Serenity would be subject to a stockholders' agreement giving protection to the minority stockholder that effectively would be a "mirror-image" of the FCB Holdings Stockholders' Agreement. Because the Serenity assets were held by CPEX, it is reasonable to infer from the allegations in the Complaint that Plaintiffs believed CPEX would transfer those assets to FCB Serenity at some future time, to give effect to the intended structure.
The Complaint alleges that "Cheval's receipt of an additional 60.5% interest in Serenity" was "a central precondition to Black Horse's willingness to contribute the additional [Bridge Loan] funds, " and that without the extra Serenity interest, there was "no economic incentive for Black Horse" to risk $10 million in bridge financing. While the Complaint's description or use of the term "Serenity" sometimes varies in relation to what Plaintiffs expected to receive, there is no question that the consideration to be provided by Plaintiffs in the oral bargain consisted of the Bridge Loan, and that alone.
b. Written agreements concerning the Serenity Agreement
The formation of the Serenity Agreement allegedly took place in December 2010, when the CPEX merger was being negotiated. All communications concerning the alleged Serenity Agreement were oral. The parties allegedly "did not attempt to document the Serenity Agreement prior to closing" of the merger for several reasons, including that "it would not have made sense" to do so until after CPEX was acquired and FCB Holdings thereby owned the Serenity assets. That is, the parties "did not believe it was necessary or appropriate to expend the legal resources" to document the Serenity Agreement until closing of the Merger was more assured and the "final implementation structure" could be determined.
At least six written agreements pertaining to different aspects of the CPEX acquisition, however, were executed: the Merger Agreement, the Consulting Agreement, the Stockholders' Agreement, the Commitment Letter, the BNYM Loan, and the Bridge Loan Agreement (collectively, "the Acquisition Agreements"). The combined effect of the Acquisition Agreements is to form a network of contractual rights and obligations variously binding the entities involved in the CPEX acquisition. The Merger Agreement was signed by Couchman on behalf of FCB Holdings and FCB I Acquisition Corp., and by CPEX through its President and CEO, John Sedor. The Commitment Letter is signed by Chappell on behalf of Black Horse, Couchman on behalf of FCB Holdings and FCB I Acquisition Corp., and Sedor on behalf of CPEX. Chappell's and Couchman's signatures also appear on the Stockholders' Agreement, the Consulting Agreement, and the Bridge Loan Agreement. The Merger Agreement, which incorporates by reference the Commitment Letter and the BNYM Loan, names and refers to Black Horse and Footstar as "Financing Parties" in several sections. In turn, the Commitment Letter, Stockholders' Agreement, Consulting Agreement, and Bridge Loan each refer to the Merger Agreement.
These agreements are critical to the disposition of Defendants' motion to dismiss. Where relevant, the material terms and language from these agreements will be excerpted and discussed in the legal Analysis section, infra. At this point, I note only that there is no allegation that any of the written agreements pertaining to the CPEX acquisition contains the term "Serenity" or makes any reference to the "Serenity Agreement."
c. Parties to the alleged Serenity Agreement
The Complaint varies in its identification of the entities or persons that allegedly made promises with respect to the Serenity Agreement. Nevertheless, a few points are relatively clear. First, it was Black Horse alone that made the Bridge Loan commitment and that actually expended the $10 million to fund Plaintiffs' part of the Bridge Loan. Second, it was Couchman and Footstar, or Couchman on behalf of Footstar, that made the alleged promises on Defendants' side. Third, CPEX is not alleged to be a promisor or promisee with respect to the Serenity Agreement, although the assets in question are CPEX's (or FCB Holdings's insofar as it owned 100 percent of CPEX's common stock post-Merger).
As to who was to receive the Serenity assets under the alleged Serenity Agreement, the Complaint is less clear. In several paragraphs, Plaintiffs identify "Cheval, " defined to include both Cheval Holdings and the two Black Horse funds, as the recipient; elsewhere, they suggest it was Cheval Holdings specifically; and still elsewhere, Plaintiffs specify the Black Horse funds alone. In some other paragraphs, the Complaint simply lumps all Defendants and all Plaintiffs together when discussing the Serenity Agreement, without regard for the separate corporate identities of the various parties.
4. Events after the CPEX acquisition
The CPEX acquisition was consummated on or about April 4, 2011. At various points thereafter, Chappell attempted to persuade Couchman to document the Serenity Agreement, but Couchman allegedly demurred, each time with a different excuse.Apparently, Couchman's reluctance was due in part to the fact that Footstar, then a publicly traded company, had "never publicly disclosed the Serenity Agreement to its shareholders." The Footstar Entities underwent a restructuring in which they merged into the newly formed Xstelos Entities, and the former stockholders of Footstar, Inc., including Couchman, became stockholders of Xstelos Holdings.
In February 2012, Couchman and Xstelos proposed an asset swap transaction "to justify the transfer" of the Serenity assets from CPEX to "Cheval." Pursuant to this proposal, Xstelos would acquire Cheval Holdings's 19.5 percent interest in a CPEX subsidiary that owned a New Hampshire office building valued at $1.5 million, in consideration for CPEX transferring to Plaintiffs 60.5 percent of "Serenity" plus $150, 996 in cash. When Xstelos sent draft documentation for this transfer to Chappell in May 2012, however, Chappell balked. Plaintiffs allege that the structure contemplated by the draft agreements "was not what the parties had agreed to in the Serenity Agreement, " because Xstelos's draft paperwork only purported to transfer the Allergan License, while Plaintiffs were seeking to document their ownership of a "broader license" to the Serenity assets as described in the Complaint.
The parties unsuccessfully continued to discuss their differences. In June 2012, Xstelos filed a certificate of formation creating FCB Serenity LLC, a wholly owned CPEX subsidiary that was supposed to be the vehicle for effectuating the Serenity transfer. Xstelos also secured Allergan's consent to the assignment of the Allergan License from CPEX to FCB Serenity. The parties' attorneys, including Finerman, discussed a draft of the operating agreement for FCB Serenity and the contemplated asset swap transactions. Those draft agreements would have removed FCB Serenity from FCB Holdings and CPEX, and given it to Plaintiffs and Xstelos in the form of their anticipated respective 80 and 20 percent ownership interests.
In September 2012, Couchman emailed Chappell requesting Cheval Holdings's approval of a consent dividend for the 2011 CPEX income to enable Couchman to deal with a tax issue that had arisen after the Merger. Chappell responded that he would consent to the dividend if "XTLS and Cheval will document the ownership rights to
Serenity in the next five business days." When asked what that had to do with the consent dividend, Chappell answered that he was "not asking for anything new. It is simply documenting the agreement that we have already reached almost two years ago which was to split Serenity 80/20 in favor of Cheval." Couchman replied that, "We agree in principle to split Serenity 80/20 in favor of Cheval, with the New Hampshire building to go to Xstelos, subject to reaching agreements as to mechanics of distribution, governance, escrow provisions . . . all to be finalized in definitive documentation."After further back-and-forth, Couchman ultimately stated, "if you accept a consent dividend, I will ...