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Cedarview Opportunities Master Fund, L.P. v. Spanish Broadcasting System, Inc.

Court of Chancery of Delaware

August 27, 2018

CEDARVIEW OPPORTUNITIES MASTER FUND, L.P., CETUS CAPITAL III, L.P., CORRIB CAPITAL MANAGEMENT, L.P., LITTLEJOHN OPPORTUNITIES MASTER FUND L.P., RAVENSOURCE FUND, STONEHILL INSTITUTIONAL PARTNERS, L.P., STONEHILL MASTER FUND LTD., STORNOWAY RECOVERY FUND L.P., VSS FUND, L.P., WEST FACE LONG TERM OPPORTUNITIES GLOBAL MASTER L.P., and WOLVERINE FLAGSHIP FUND TRADING LIMITED, Plaintiffs,
v.
SPANISH BROADCASTING SYSTEM, INC., Defendant.

          Date Submitted: May 1, 2018

          Jon E. Abramczyk, D. McKinley Measley, and Alexandra M. Cumings of MORRIS, NICHOLS, ARSHT & TUNNELL LLP, Wilmington, Delaware; Shireen A. Barday of KIRKLAND & ELLIS LLP, New York, New York; Patrick J. Nash of KIRKLAND & ELLIS, Chicago, Illinois; Counsel for Plaintiffs.

          Robert S. Saunders, Matthew P. Majarian, and Haley S. Stern of SKADDEN, ARPS, SLATE, MEAGHER & FLOM LLP, Wilmington, Delaware; Counsel for Defendant.

          MEMORANDUM OPINION

          BOUCHARD, C.

         This action is the latest in a series of disputes that have led to litigation in this court between Spanish Broadcasting System, Inc., a Spanish-language media and entertainment company that operates in the United States, and holders of its Series B preferred stock.[1] This iteration involves essentially two distinct disputes.

         First, certain Series B holders have filed claims asserting that the Company improperly incurred "Indebtedness" without their consent in violation of the certificate of designations governing the Series B preferred stock and the implied covenant of good faith and fair dealing. For these alleged violations, the Series B holders seek damages and certain forms of specific performance.

         Second, the Series B holders have filed claims asserting that the Company improperly cancelled their share certificates and suspended virtually all of their rights as Series B holders in violation of the Company's certificate of incorporation, which contains certain limitations on the percentage of foreign or "alien" ownership of its capital stock. These limitations parallel provisions of the Communications Act of 1934 that regulate foreign investment in entities that control a United States broadcast license. For these alleged violations, the Series B holders seek damages and a declaratory judgment that the operative provision of the certificate of incorporation is invalid.

         The Company has moved to dismiss all of the Series B holders' claims under Court of Chancery Rule 12(b)(6) for failure to state a claim for relief. It also has moved to dismiss the declaratory judgment claim under Court of Chancery Rule 12(b)(1) for lack of ripeness. For the reasons explained below, the motion is granted in part and denied in part.

         I. BACKGROUND

         The facts recited in this opinion are taken from the Verified Amended Complaint filed on December 22, 2017 (the "Amended Complaint")[2] and documents incorporated therein.[3] Any additional facts are either not subject to reasonable dispute or subject to judicial notice.

         A. The Parties

         Defendant Spanish Broadcasting System, Inc. ("SBS" or the "Company") is a Spanish-language media and entertainment company that operates radio and television stations in Hispanic markets throughout the United States. Non-party Raúl Alarcón Jr. is the Company's Chairman, CEO, and President. He is also SBS's controlling stockholder, holding approximately 85% of the combined voting power of its two classes of common stock.

         Plaintiffs hold approximately 94.16% of SBS's outstanding 10 ¾% Series B Cumulative Exchangeable Redeemable Preferred Stock (the "Series B Preferred Stock," and all holders thereof, the "Series B Holders").[4] Certain of these plaintiffs, holding approximately 69.9% of the outstanding Series B Preferred Stock, are foreign entities.[5] The Communications Act of 1934, 47 U.S.C. § 151, et seq. (the "Communications Act"), refers to such foreign entities as "aliens."

         Some of the plaintiffs also hold SBS's 12.5% senior notes (the "Senior Notes"). In total, plaintiffs hold approximately $85, 265, 000 of the face amount of the Series B Preferred Stock and $30, 792, 000 in principal amount of the outstanding Senior Notes.[6]

         B. The Series B Preferred Stock

         On October 29, 2003, SBS authorized the issuance of Series A Preferred Stock.[7] On February 18, 2004, the Company issued shares of Series B Preferred Stock in exchange for the outstanding Series A, pursuant to a certificate of designations for the Series B Preferred (the "Certificate").[8] The only relevant difference between the two securities is that the Series B Preferred Stock, as opposed to the Series A, is freely transferable.[9]

         The Certificate sets forth the "designations, preferences, relative, participating, optional and other special rights and the qualifications, limitations and restrictions" of the Series B Preferred Stock. Absent special circumstances expressly set forth in the Certificate or as required by law, the Series B Holders have no voting rights.[10] Upon the occurrence of a Voting Rights Triggering Event ("VRTE"), however, certain rights, voting and otherwise, do arise.[11] A VRTE occurs, among other times, when:

• Dividends on outstanding Series B Preferred Stock are in arrears and unpaid for four consecutive quarterly dividend periods;
• SBS fails to discharge any redemption or repurchase obligation with respect to the Series B Preferred Stock;
• SBS breaches or violates any covenants or agreements in Section 11 of the Certificate (addressed further below); and
• SBS defaults under any indenture by failing to pay principal or interest.[12]

         When a VRTE occurs, the number of directors constituting SBS's board is increased to permit the Series B Holders to elect two additional members.[13]Additionally, for as long as a VRTE continues, the Company is prohibited from making certain "Restricted Payments" to "Junior Securities," as defined in the Certificate, and SBS may not enter into certain types of transactions, such as mergers or consolidations.[14] Most importantly for the present action is that the Certificate bars SBS from incurring Indebtedness during a VRTE without the consent of the Series B Holders.[15] The definitions of "incur" and "Indebtedness," which are central to this action, are discussed later in this opinion.

         Absent a VRTE, SBS can incur Indebtedness if the Company's "Debt to Cash Flow Ratio" is no greater than 7.0 to 1.0 at the time of incurrence of such Indebtedness.[16] This Debt to Cash Flow Ratio restriction does not apply, however, to twelve enumerated categories of "Permitted Debt," which are obligations that SBS may incur as long as there is no VRTE in effect.[17]

         C. The Senior Notes

         In February 2012, SBS issued $275 million in principal amount of Senior Notes pursuant to the Senior Secured Notes Indenture (the "Indenture").[18] The Senior Notes are secured by substantially all of the Company's assets, and approximately $260 million in face value of the Senior Notes are currently outstanding.[19] Under the Indenture, the Senior Notes became due and payable in full on April 17, 2017.[20]

         Before the Senior Notes due date, the Indenture required the Company to pay interest on the Senior Notes semi-annually in arrears on April 15 and October 15 of each year.[21] After the Senior Notes due date, if the Senior Notes are overdue, SBS must make interest payments "from time to time on demand at the interest rate on the [Senior] Notes."[22]

         D. Multiple VRTEs Have Occurred and are Uncured by SBS

         The Company "encountered financial difficulties as a result of the 2008 recession and its financial position has since deteriorated."[23] Consequently, a number of VRTEs have occurred since then and remain uncured because the Company does not "currently have sufficient funds legally available to it to be able to satisfy the conditions for terminating them."[24]

         A VRTE was triggered in April 2009 when the Company stopped paying dividends to the Series B Holders.[25] As of September 30, 2017, SBS owed approximately $72.6 million in accrued and unpaid dividends to the Series B Holders, an amount that continues to grow.

         A second VRTE occurred on October 15, 2013, when a majority of the Series B Holders exercised their right to require SBS to repurchase their preferred stock at $1, 000 per share, but the Company failed to do so.[26] Due to a lack of legally available funds, SBS only repurchased 1, 800 of the 92, 223 shares for which holders exercised their repurchase rights.[27] The Series B Holders thereafter exercised their right to elect two additional directors to the Company's Board.[28] SBS has acknowledged the occurrence and continuance of this VRTE in its public filings, including its quarterly report dated November 14, 2017.[29]

         A third VRTE occurred on the Senior Notes due date, April 17, 2017, when SBS failed to pay off the Senior Notes and an Event of Default arose under the Indenture.[30] To avoid a foreclosure on the assets secured by the Senior Notes- which are all or substantially all of SBS's assets-SBS executed a forbearance agreement with holders of approximately 75% of the outstanding Senior Notes, dated May 8, 2017 (the "Forbearance Agreement," and such forbearing holders, the "Forbearing Noteholders").[31] The plaintiffs in this action who also hold Senior Notes are not among the Forbearing Noteholders.[32]

         The Forbearance Agreement provided, in relevant part, that the Forbearing Noteholders would forbear from exercising any of their rights and remedies under the Indenture with respect to SBS's failure to repay the Senior Notes until May 31, 2017.[33] In exchange, SBS agreed to: (i) make two monthly interest payments to the holders of the Senior Notes (as opposed to paying interest on a semi-annual basis as set forth in the Indenture), totaling approximately $2.9 million each month;[34] (ii) pay a one-time consent fee to the Forbearing Noteholders equal to 0.35% of their outstanding principal;[35] and (iii) pay the Forbearing Noteholders' legal and financial advisor fees.[36] The Forbearance Agreement did not purport to amend the Indenture or change any term of the Senior Notes.[37]

         The Forbearance Agreement expired on May 31, 2017, with the Senior Notes remaining unpaid and outstanding.[38] Although it does not have a new formal agreement with the Forbearing Noteholders, SBS has continued to make monthly interest payments on the Senior Notes and to pay the Forbearing Noteholders' advisor fees.[39] The holders of the Senior Notes, in turn, have not accelerated the principal amount of their debt or commenced related legal proceedings.[40]

         E. SBS Suspends the Series B Holders' Rights

         On November 2, 2017, plaintiffs filed their initial complaint in this action, the thrust of which was that SBS breached the Certificate by impermissibly incurring debt during a VRTE by "extending, refinancing or renewing" the Senior Notes with the Forbearance Agreement.[41] After reviewing the initial complaint, SBS claimed that it learned for the first time that "the collective ownership of non-U.S. entities exceeds 63 percent of the outstanding Series B Preferred Shares, "[42] an amount that the Company says "exceeds the limitations on foreign ownership set forth in Section 310" of the Communications Act and in Article X of SBS's Third Amended and Restated Certificate of Incorporation (the "Charter").[43]

         Section 310(b)(4) of the Communications Act establishes "a 25 percent benchmark for investment by foreign individuals, governments and corporations in U.S.-organized entities that directly or indirectly control a U.S. broadcast . . . license."[44] Article X of the Charter incorporates the Communications Act's alien ownership restrictions, purportedly "to enact protocols or undertake actions to remain in compliance with the requirements of the [Communications] Act."[45]

         On November 28, 2017, SBS announced that it had suspended all Series B Holders' rights as stockholders "other than [the] right to transfer [] shares to a citizen of the United States."[46] SBS asserted it did this "to ensure that transfers of Series B Preferred Shares that have been completed in violation of the [Communications] Act and the Certificate of Incorporation do not adversely affect its FCC broadcast licenses and ability to continue its business operations."[47]

         The Company has stated that the suspension of rights will remain in place with respect to each Series B Holder until SBS has concluded that: (i) the shares of such holder should be treated as not owned by a foreign entity; or (ii) the total ownership distribution of the Series B Preferred Stock complies with the requirements of the Communications Act and the Charter.[48] According to SBS, a single Domestic Share Certificate represented all of the issued and outstanding Series B Preferred Stock.[49] SBS cancelled that single Domestic Share Certificate representing the Series B Preferred Stock, [50] and announced publicly on March 26, 2018, that "it has not yet issued foreign share certificates evidencing such stock."[51]

         F. The FCC Proceeding

         On December 8, 2017, plaintiffs' counsel sent SBS a letter explaining its belief that the Communications Act had not been violated on account of the nationalities of the Series B Holders and that the Federal Communications Commission (the "FCC") was likely to grant a declaratory ruling to that effect.[52]Plaintiffs also provided certain ownership information regarding the holders of the Series B Preferred Stock and offered "to consult with the FCC staff and file a petition for declaratory ruling" to establish that SBS was in compliance with the alien ownership restrictions of the Communications Act.[53] Unbeknownst to plaintiffs, SBS already filed a petition with the FCC on December 4, 2017, seeking a declaration that the Company was in compliance with the Communications Act after having suspended the Series B Holders' rights.[54]

         On January 25, 2018, while SBS's FCC petition was being briefed, the FCC issued a letter indicating that the petition "does not provide enough information for [the FCC] to proceed with a comprehensive review or to address SBS's prayer for relief."[55] As a result, the FCC deferred ruling on SBS's position until February 26, 2018 or until SBS could provide additional information to the FCC.[56] The letter also clarified that "SBS will not be required to redeem the non-compliant foreign interest or to remedy the non-compliance while its [petition] is pending," but "it must have a mechanism in place to come into compliance within thirty (30) days following an adverse decision on its [petition]."[57] The FCC noted that it "take[s] no position on the outcome of any issue in" this Delaware action and "defer[s] to the Court and its conclusions."[58]

         II. PROCEDURAL HISTORY

         Plaintiffs' initial complaint, filed on November 2, 2017, asserted three claims. After SBS moved to dismiss that complaint on November 27, 2017, and purported to suspend the rights of the Series B Holders the next day, plaintiffs filed the Amended Complaint on December 22, 2017, adding two additional claims.

         Counts I-III assert claims relating to the Certificate. Count I asserts that SBS breached the Certificate by "extending, refinancing, or renewing" the Senior Notes with the Forbearance Agreement.[59] Count II asserts that the Company breached the Certificate's implied covenant of good faith and fair dealing. Count III seeks the remedy of specific performance.

         Counts IV and V assert claims relating to the Charter. Count IV asserts that SBS breached Section 10.4 of the Charter by suspending the rights of the Series B Holders.[60] Count V seeks a declaratory judgment that Section 10.4 of the Charter is invalid and unenforceable under Delaware law.

         On January 2, 2018, SBS filed a motion to dismiss the Amended Complaint in its entirety under Court of Chancery Rules 12(b)(1) and 12(b)(6) for lack of subject matter jurisdiction and for failure to state a claim for relief. At the conclusion of argument on the motion held on April 12, 2018, the court requested supplemental briefing on: (i) the appropriate means of resolving any ambiguity in the Certificate provisions at issue; and (ii) the application of Generally Accepted Accounting Principles ("GAAP") to certain items at issue in this action for purposes of the Certificate's requirement (discussed below) that, to qualify as "Indebtedness," an item must appear as a liability on a balance sheet prepared in accordance with GAAP.[61] Supplemental briefing was completed on May 1, 2018.

         III. ANALYSIS

         The claims in the Amended Complaint fall into two discrete categories: (i) claims concerning the alleged incurrence of Indebtedness (the Certificate claims); and (ii) claims concerning the suspension of certain rights of the Series B Holders (the Charter claims). Discussion of each category is divided between Sections A and B, respectively.

         SBS seeks dismissal of all claims under Court of Chancery Rule 12(b)(6) for failure to state a claim for relief. The standards governing such a motion are well-settled:

(i) all well-pleaded factual allegations are accepted as true; (ii) even vague allegations are "well-pleaded" if they give the opposing party notice of the claim; (iii) the Court must draw all reasonable inferences in favor of the non-moving party; and ([iv]) dismissal is inappropriate unless the "plaintiff would not be entitled to recover under any reasonably conceivable set of circumstances susceptible of proof."[62]

         With respect to one of the Charter claims (Count V), SBS also seeks dismissal under Court of Chancery Rule 12(b)(1) for lack of ripeness. The standards governing such a motion are discussed below in the analysis of Count V.

         A. The Certificate Claims

         The Certificate claims comprise Counts I, II, and III of the Amended Complaint. They are discussed below in that order.

         1. Plaintiffs Have Stated a Claim for Breach of Contract

         Count I asserts that SBS breached Section 11(b) of the Certificate by "extending, refinancing, or renewing" the Senior Notes with the Forbearance Agreement while a VRTE was in effect.[63] "Under Delaware law, the elements of a breach of contract claim are: 1) a contractual obligation; 2) a breach of that obligation by the defendant; and 3) a resulting damage to the plaintiff."[64]

         "The rules of construction which are used to interpret contracts and other written instruments are applicable when construing corporate charters and certificates of designation."[65] "The starting point in construing any contract is to determine whether a provision is ambiguous, i.e., whether it is reasonably subject to more than one interpretation."[66] "A contract is not rendered ambiguous simply because the parties do not agree upon its proper construction."[67] "It is well established that a court interpreting any contractual provision, including preferred stock provisions, must give effect to all terms of the instrument, must read the instrument as a whole, and, if possible, reconcile all the provisions of the instrument."[68] "If no ambiguity is present, the Court must give effect to the clear language of the Certificate."[69] When a contract is "fairly susceptible of different interpretations"[70] and is therefore ambiguous, "the court must turn to secondary methods of interpretation."[71]

         The analysis of Count I boils down to essentially one question: has SBS "incurred Indebtedness," as those terms are defined in the Certificate, during the pendency of a VRTE in violation of Section 11(b) of the Certificate? I begin by quoting the relevant part of Section 11(b), which defines the term "incur," and the separate definition of Indebtedness.

         Section 11(b) of the Certificate provides, in relevant part, as follows:

The Company shall not, and shall not permit any of its Restricted Subsidiaries to, directly or indirectly, create, incur, issue, assume, guarantee or otherwise become directly or indirectly liable, contingently or otherwise, with respect to (collectively "incur") any Indebtedness . . . provided, however, that, so long as no Voting Rights Triggering Event has occurred and is continuing, the Company may incur Indebtedness . . . if, in each case, the Company's Debt to Cash Flow Ratio at the time of incurrence of such Indebtedness . . . would have been no greater than 7.0 to 1.0.
So long as no Voting Rights Triggering Event shall have occurred and be continuing or should be caused thereby, the provisions of the first paragraph of this Section 11(b) will not apply to the incurrence of any of the following (collectively, "Permitted Debt").[72]

         The term "Permitted Debt" is defined to include twelve different categories of obligations. One of several items listed in the eighth category is "the accrual of interest."[73]

         The complete definition of Indebtedness is set forth below, with the portions relevant to Count I emphasized:

"Indebtedness" means, with respect to any Person, without duplication, (i) any indebtedness of such Person, whether or not contingent, in respect of borrowed money or evidenced by bonds, notes, debentures or similar instruments or letters of credit (or reimbursement agreements in respect thereof) or banker's acceptances or representing Capital Lease Obligations or the balance deferred and unpaid of the purchase price of any property or representing any Hedging Obligations, except any such balance that constitutes an accrued expense or trade payable, if and to the extent any of the foregoing indebtedness (other than letters of credit and Hedging Obligations) would appear as a liability upon a balance sheet of such Person prepared in accordance with GAAP, (ii) all indebtedness of others secured by a Lien on any asset of such Person (whether or not such indebtedness is assumed by such Person) and (iii) to the extent not otherwise included, the guarantee by such Person of any indebtedness of any other Person of the sort described in clause (i) of this definition. Notwithstanding the foregoing, the term "Indebtedness" shall not include Non-Recourse Debt or indebtedness that constitutes "Indebtedness" merely by virtue of a pledge of Equity Interests of an Unrestricted Subsidiary. Furthermore, for the avoidance of doubt, "Indebtedness" shall not include any Capital Stock or any liabilities in respect of Capital Stock. The amount of any Indebtedness outstanding as of any date shall be (A) the accreted value thereof, in the case of any Indebtedness issued with original issue discount, (B) the principal amount of the Indebtedness secured, together with any interest thereon that is more than 30 days past due, in the case of any Indebtedness of the type described in clause (ii) above, (C) the principal amount of the Indebtedness guaranteed, together with any interest thereon that is more than 30 days past due, in the case of any Indebtedness of the type described in clause (iii) above, (D) the amount of the net settlement payment payable on termination, in the case of any Indebtedness constituting a Hedging Obligation (assuming for this purpose that the Hedging Obligation was terminated on the date as of which the calculation of the amount of Indebtedness is being made), and (E) the principal amount thereof, together with any interest thereon that is more than 30 days past due, in the case of any other Indebtedness.[74]

         The first sentence of the definition of Indebtedness is divided into three clauses. Plaintiffs' argument focuses only on the first clause, which has two parts, and which implicates the last clause of the last sentence. Thus, the Certificate's definition of Indebtedness relevant to plaintiffs' claims has essentially three components. First, under clause (i), Indebtedness means "any indebtedness of such Person, whether or not contingent, in respect of borrowed money or evidenced by bonds, notes, debentures or similar instruments."[75] Second, to qualify as Indebtedness under clause (i), an item also must "appear as a liability upon a balance sheet of such Person prepared in accordance with GAAP."[76] Third, "the amount of any Indebtedness outstanding as of any date" includes "the principal amount thereof, together with any interest thereon that is more than 30 days past due, in the case of any other Indebtedness."[77]

         Seemingly ignoring the component of the definition of Indebtedness in clause (i) that requires it to be recorded as a liability on a GAAP-compliant balance sheet, plaintiffs initially argued that a host of payments and obligations associated with the Senior Notes and the Forbearance Agreement constituted impermissible incurrences of Indebtedness during a VRTE.[78] When responding to the court's request for supplemental submissions, however, plaintiffs narrowed their contentions and identified only two categories of SBS's obligations they argue would appear as a liability on a balance sheet prepared in accordance with GAAP such that they would qualify as Indebtedness under clause (i) of the definition quoted above: (i) accrued but unpaid interest on the Senior Notes, and (ii) accrued but unpaid professional fees associated with the Senior Notes and the Forbearance Agreement.[79] I address each category in turn.

         a. Plaintiffs' Accrued Interest Allegations Satisfy the First Two Elements of a Breach of Contract Claim

         The logic of plaintiffs' argument with respect to accrued but unpaid interest on the Senior Notes goes as follows. Plaintiffs start with the general rule in paragraph one of Section 11(b) that there is an absolute restriction on incurring Indebtedness. As plaintiffs point out, however, the latter part of that paragraph permits the incurrence of Indebtedness so long as there is no pending VRTE and the Company's Debt to Cash Flow Ratio does not exceed 7.0 to 1.0.

         Plaintiffs next move to paragraph two of Section 11(b), which provides a further exception to the prohibition on incurring Indebtedness. More specifically, paragraph two allows SBS to incur twelve enumerated forms of "Permitted Debt" so long as no VRTE is in place, without regard to SBS's Debt to Cash Flow Ratio. From this premise, plaintiffs reason that, because SBS cannot incur any Permitted Debt when a VRTE is in effect, the twelve categories of Permitted Debt are examples of Indebtedness. As noted above, one type of "Permitted Debt" includes "the accrual of interest."[80] Thus, according to plaintiffs, any accrual of interest is a type of Permitted Debt, which in turn is a subset of Indebtedness that cannot be incurred during a VRTE. Plaintiffs argue further that the constant accrual of interest meets the Certificate's definition of "incurring" a form of Indebtedness, since the term "incur" is defined broadly.[81]

         The Company concedes that accrued but unpaid interest on the Senior Notes would appear as a liability on a GAAP-compliant balance sheet, [82] but argues that the fatal flaw in plaintiffs' theory is that, for accrued interest to qualify as Indebtedness, the Certificate requires that the interest is "more than 30 days past due."[83] For support, SBS points to one of the parts of the definition of Indebtedness emphasized above; namely, that the calculation of the amount of SBS's Indebtedness outstanding at any given time includes the principal amount plus interest on the principal "that is more than 30 days past due."[84] In other words, SBS's position is that this definition recognizes that interest can be "Indebtedness," but only when payment on interest is more than thirty days in arrears.

         The key difference between the parties' positions, in short, is that plaintiffs argue that any accrual of interest constitutes Indebtedness through inverse reasoning based on the structure of Section 11(b), while SBS argues that only certain accrued interest (i.e., interest more than 30 days past due) constitutes Indebtedness based on text in the paragraph of the Certificate that defines the term Indebtedness. Although SBS's reliance on the paragraph that specifically defines Indebtedness intuitively seems like a sensible way to resolve the conflict, [85] I cannot rule out at the pleadings stage that both interpretations are reasonable and thus find that the Certificate is ambiguous.[86] Reinforcing the ambiguity is that the "30 days past due" qualification does not appear in the part of the paragraph that actually defines the term Indebtedness, but rather in the part that calculates the amount of Indebtedness outstanding. As plaintiffs argue, a means of quantifying the amount of Indebtedness does not necessarily rule out that other things may qualify as Indebtedness. Having found the existence of ambiguity, the next question is what to do about it given that the instrument at issue is a certificate of designations.

         As Chief Justice Strine, writing as Chancellor, commented in Shiftan v. Morgan Joseph Holdings, Inc., things become "a bit more complicated" when a certificate of designations is "fairly susceptible of different interpretations."[87] In a typical case, a breach of contract claim survives a motion to dismiss where the relevant provisions are ambiguous, because usually "any ambiguity must be resolved in favor of the nonmoving party."[88] Thereafter, "a court normally will consider extrinsic evidence of the parties' contractual intent."[89]

         Parol evidence, however, may not be illuminative of the parties' reasonable expectations in the context of certificates of designations because, for example, "important parties in interest-the holders of the securities-were neither consulted about, nor involved in the drafting of," the contract.[90] And even if such evidence exists, courts are "reluctant to risk disuniformity by adverting to evidence of the course of negotiation in a setting in which the same language can be found in many different contracts."[91] Thus, in the context of resolving ambiguities with respect to preferred stock, Delaware courts often have resorted to two alternative interpretive principles that, as the court noted in Shiftan, are "arguably . . . in tension with another."[92]

         One method of interpretation, which plaintiffs argue is controlling here, is the doctrine of contra proferentem, which resolves ambiguities in a certificate of designations in favor of investors in preferred stock.[93] Our Supreme Court referred to the doctrine in Kaiser Aluminum Corp. v. Matheson as one of "last resort [to be applied where] the language of the certificate presents a hopeless ambiguity, particularly when alternative formulations indicate that these provisions could easily have been made clear."[94] Despite this caution, it has invoked contra proferentem to resolve ambiguities about the rights of investors in the governing instruments of business entities on a number of occasions.[95]

         The second method of construction, which SBS argues is controlling here, was articulated by our Supreme Court in Rothschild International Corp. v. Liggett Group Inc.[96] There, the high court explained that "[p]referential rights are contractual in nature and therefore are governed by the express provisions of a company's certificate of incorporation. Stock preferences must also be clearly expressed and will not be presumed."[97] This is because "stock preferences are in derogation of the common law, "[98] so "[a]ny rights, preferences and limitations of preferred stock that distinguish that stock from common stock must be expressly and clearly stated, as provided by statute."[99] The upshot of this principle is that courts have been unwilling to recognize or read in implied rights, preferences, or limitations in certificates of designations.[100]

         Chief Justice Strine described the potential clash of these two interpretive principles in Shiftan:

One could argue that these interpretive principles come into direct conflict in a very particular context. Imagine a situation where preferred stockholders argue that a certificate of designation can be reasonably read to grant a particular preference. The court agrees, but also agrees with the corporation that the relevant provision in the certificate is not clear. There is no parol evidence on the subject. Do the preferred stockholders win because of contra proferentem? Or does the corporation win because preferences of preferred stock "will not be presumed" unless they are clearly expressed in the certificate?[101]

         He ultimately "side-stepped" this issue because he found the relevant provision not to be ambiguous, [102] but noted that, had he found ambiguity, he would have been willing to consider probative extrinsic evidence:

The principle that the preferences of preferred stockholders must not be presumed, but rather be clearly expressed, does not, it seems to me, prevent a court from consulting parol evidence, if that is available. Avatex itself seemed to require this resolution, as it suggested that the prior decision of Waggoner v. Laster, which identified "strict construction" as the analytical methodology for interpreting stock preferences, was problematic. Avatex, and cases like Kaiser, which did not mention any requirement of strict construction, therefore suggest to me that this disciplinary principle of narrow interpretation of stock preferences is not intended to blind a court to all relevant evidence, but instead to prevent the judiciary from implying or presuming preferences without a clear basis for doing so. In other words, unless the parol evidence resolves the ambiguity with clarity in favor of the preferred stock, the preferred stockholders should lose.[103]

         I agree with the Shiftan court's reasoning with respect to the consideration of parol evidence. In my view, the parties should be permitted to develop a factual record to see if any probative extrinsic evidence exists of the parties' shared beliefs about the meaning of "incurring Indebtedness." As an example, information that SBS used to market the Series B Preferred Stock may provide helpful evidence of (i) what the issuer believed when it authorized the preferred stock, and (ii) what the investors should have reasonably believed that they were purchasing.[104] Ultimately, such evidence may not exist and the court will need to determine the meaning of the Certificate through the application of interpretive principles, but I need not resolve that issue now.

         To summarize, because I have found the Certificate to be ambiguous, and because I do not read the Kaiser line of cases[105] or the Rothschild line of cases as precluding the court from considering probative parol evidence, if it exists, when interpreting a preferred stock instrument, I conclude that plaintiffs' accrued interest theory satisfies the first two elements of a contract claim, i.e., the existence of a contractual obligation and breach of that obligation by defendant.

         b. Plaintiffs' Accrued Professional Fees Allegations Satisfy the First Two Elements of a Breach of Contract Claim

         Plaintiffs' second theory for how SBS violated Section 11(b) of the Certificate can be addressed in short order.[106] Plaintiffs contend that professional fees the Company incurred in connection with obtaining the Forbearance Agreement are "indebtedness . . . in respect of borrowed money"[107] because these obligations arose in conjunction with the Senior Notes and the Forbearance Agreement, and that the accrual of such obligations should be recorded as liabilities on a GAAP-compliant balance sheet.[108]

         I agree that this theory, to which the Company has offered no substantive response, also satisfies the first two elements of a contract claim given the broad terms of the definition of Indebtedness quoted above and given that the professional fees in question were incurred to procure a Forbearance Agreement relating to the Senior Notes. Whether the Company actually accrued such fees and whether their accrual would be recorded as a liability on a GAAP-compliant balance sheet are fact issues appropriate for discovery.

         c. Plaintiffs Have Alleged a Cognizable Theory of Compensable Damages

         The Company argues that "[e]ven if Plaintiffs had adequately alleged a breach of the Certificate, their claims would still fail as a matter of law because Plaintiffs have not alleged any cognizable theory of damages."[109] SBS contends this is so because plaintiffs have alleged that the Company does not have sufficient funds to pay off even the Senior Notes and thus, had the holders of the Senior Notes refused to enter into the Forbearance Agreement and foreclosed on SBS's assets, the Series B Preferred Stock would be worthless.[110]

         As an initial matter, this argument is based on a hypothetical, i.e., what the Series B Holders would have recovered had the holders of the Senior Notes foreclosed. There has been no foreclosure, however, and it is reasonably conceivable from the facts pled that plaintiffs could establish compensable damages. For example, plaintiffs allege that the Senior Notes are trading above par value.[111]Thus, the possibility of a recovery for plaintiffs on their claims cannot be foreclosed.

         The Company admits, furthermore, that "money damages in the form of a hypothetical consent fee could remedy a proven breach of the Certificate."[112] Thus, if plaintiffs establish that SBS breached the Certificate, a potential recovery for plaintiffs could be how much the Company would have had to pay the Series B Holders for their permission to incur Indebtedness with respect to the Senior Notes during the pendency of a VRTE.[113] The court expresses no opinion whether such a measure of damages would be appropriate, but provides this illustration simply to demonstrate another way that compensable damages are reasonably conceivable.[114]

         Based on the foregoing discussion, plaintiffs' allegations with respect to Count I satisfy the three elements of a contract claim and thus states a claim for relief. The next issue is whether SBS has advanced a defense that would preclude the claim at the pleadings stage as a matter of law.

         d. Adjudication of SBS's Acquiescence Defense Would be Premature

         In its reply brief, the Company argued for the first time that, even if Count I states a claim for relief with respect to the accrual of interest, it should be barred by acquiescence.[115] According to SBS, "[n]othing about SBS's April 17, 2017 default on the [Senior] Notes altered how or in what amount interest accrued thereon; accordingly there are no new circumstances that would permit Plaintiffs to pursue a claim that arose (if at all) when a VRTE occurred in October 2013."[116]

         To prevail on a defense of acquiescence, a defendant must show: "(1) the plaintiff remained silent (2) with knowledge of her rights (3) and with the knowledge or expectation that the defendant would likely rely on her silence, (4) the defendant knew of the plaintiff's silence, and (5) the defendant in fact relied to her detriment on the plaintiff's silence."[117] "[A]ffirmative defenses . . . are not ordinarily well-suited for treatment on [a motion to dismiss]. Unless it is clear from the face of the complaint that an affirmative defense exists and that the plaintiff can prove no set of facts to avoid it, dismissal of the complaint based on an affirmative defense is inappropriate."[118]

         In Lehman Brothers Holdings Inc. v. Spanish Broadcasting System, Inc., Vice Chancellor Glasscock granted summary judgment in SBS's favor based on an acquiescence defense where plaintiffs were holders of the very same Series B Preferred Stock at issue in this action. Specifically, he held that, assuming that a VRTE had occurred, plaintiffs acquiesced to two issuances of debt, including the issuance of the Senior Notes in February 2012.[119] The Vice Chancellor specifically enumerated the factors that formed the basis for his decision, including: (i) plaintiffs should have known (under their reading of the Certificate) that a VRTE was in effect; (ii) plaintiffs knew, or should have known, that SBS intended to enter into the debt transactions; (iii) plaintiffs raised no objections to the debt transactions, leading SBS to believe that plaintiffs acquiesced to the debt transactions; (iv) that belief was reasonable; (v) SBS entered into the debt transactions in reliance on plaintiffs' acquiescence; and (vi) if plaintiffs were permitted to pursue damages, SBS's reliance would be detrimental to the Company because "had the Plaintiffs notified SBS of their objections prior to the debt incurrence, SBS could have chosen for itself its lowest cost alternative for resolving the dispute."[120]

         Although SBS ultimately may succeed on its defense of acquiescence to bar plaintiffs' claim that the accrual of interest constitutes an impermissible incurrence of debt, it would be premature to decide that issue now for essentially two reasons. First, plaintiffs have not had a full and fair opportunity to respond to this defense because the Company did not raise the argument until its reply brief.[121] Second, the court does not have a sufficient record to adjudicate the issue at this time.

         As noted above, Vice Chancellor Glasscock's finding of acquiescence in Lehman Brothers was made in adjudicating a motion for summary judgment where the parties could present an appropriate factual record. Here, certain information necessary to decide an acquiescence defense is not before the court. For instance, the record does not reflect when the various plaintiffs in this action acquired their Series B Preferred Stock. As such, no determination can be made whether they impermissibly remained silent for some period of time when they should have spoken up and disputed SBS's accrual of interest during a VRTE. In short, I cannot say that plaintiffs can prove no set of facts to avoid dismissal based on SBS's belated acquiescence defense.

         2. Plaintiffs Have Failed to State a Claim for Breach of the Implied Covenant of Good Faith and Fair Dealing

         Count II of the Amended Complaint asserts that the Company breached the Certificate's implied covenant of good faith and fair dealing by continuing "to improperly incur funded debt obligations" during a VRTE without plaintiffs' consent.[122]

         The implied covenant "attaches to every contract, "[123] including certificates of designations, [124] and is "employed to analyze unanticipated developments or to fill gaps in [a] contract's provisions."[125] "Existing contract terms control, however, such that implied good faith cannot be used to circumvent the parties' bargain, or to create a 'free-floating duty unattached to the underlying legal document.'"[126] Thus, "the implied covenant only applies where a contract lacks specific language governing an issue and the obligation the court is asked to imply advances, and does not contradict, the purposes reflected in the express language of the contract."[127] In my view, plaintiffs' implied covenant claim fails to state a claim for relief because plaintiffs have not identified a gap in the Certificate arising from an unanticipated development, but seek instead to rehash their request for relief in Count I.

         As explained above with respect to the accrual of interest, the Certificate is ambiguous as to the meaning of "incur Indebtedness." The fact that the contractual language is unclear, however, does not mean that a hole or gap exists in the Certificate for the implied covenant to fill. Rather, as pled, plaintiffs' breach of the implied covenant claim is merely "an impermissible rehashing of plaintiffs' breach of contract claim."[128] The "subject at issue"[129] here is what obligations SBS may incur during the pendency of a VRTE. The Certificate expressly, albeit not unambiguously in one respect, covers this issue-i.e., the Company may not incur "Indebtedness" during a VRTE without the consent of the Series B Holders.

         The "subject at issue" in Count II, furthermore, does not arise from some unanticipated development. Indeed, a number of factors demonstrate that the sorts of obligations that SBS would be able to incur at any given time were specifically considered, including the fact that the Certificate: (i) contains a general ban on the incurrence of Indebtedness, subject to certain quantitative (i.e., a maximum 7.0 to 1.0 Debt to Cash Flow Ratio) and qualitative (i.e., Permitted Debt) exceptions; (ii) specifically defines "incur" and "Indebtedness"; (iii) sets up a framework of what SBS can and cannot do during the pendency of a VRTE; and (iv) provides the Series B Holders certain governance rights during a VRTE.

         In sum, Count II does not plead facts alleging a basis for relief independent of plaintiffs' breach of contract claim in Count I. Thus, the merits of plaintiffs' alleged contractual grievance must rise and fall with Count I.

         3. Plaintiffs' Request for Specific Performance is Viable in Part

         Count III of the Amended Complaint seeks specific performance, requesting that the court "require compliance with the Certificate by prohibiting SBS from making any payments on account of the Senior Notes and requiring SBS to redeem the Series B Preferred Stock at face value plus accrued dividends."[130] Thus, the relief that plaintiffs seek in Count III has two components, which seem at odds with each other on their face: (i) an order requiring SBS to respect the Series B ...


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