Pontiac General Employees Retirement System v. Healthways, Inc.: Delaware Chancery Court Declines to Dismiss Fiduciary Duty Claims Against Directors and Aiding and Abetting Claims Against Lender in Connection with Dead Hand Change of Control Provision in Credit Agreement

Sullivan & Cromwell LLP - October 27, 2014

In a bench ruling issued on October 14, 2014, the Delaware Court of Chancery (VC Laster) declined to dismiss fiduciary duty claims against the directors of Healthways, Inc. (“Healthways”) and an aiding and abetting claim against SunTrust Bank (“SunTrust”), the lender administrative agent, for entering into a credit facility of Healthways that has a dead hand “proxy put” provision.  The provision at issue allows the lenders to declare an event of default and accelerate the debt in the event that a majority of the Healthways board during a period of 24 months is comprised of “non-continuing” directors, including directors initially nominated as a result of an actual or threatened proxy contest.  Rejecting the director defendant claims that the fiduciary duty claims were not ripe, the Court stated that Healthways’ stockholders may presently be “suffering a distinct injury” from the deterrent effect of the “proxy put” and the fact that the dissident directors are non-continuing directors under the “proxy put.”  In addition, in a further significant development, the Court stated that its prior holdings on the “entrenching” nature of “proxy puts” placed SunTrust on notice that a borrower’s board runs the risk of breaching their fiduciary duties if they accept dead hand “proxy puts” in the borrower’s debt documentation without negotiating significant value in return.  Because the dead hand “proxy put” was included in Healthways’ credit agreement shortly after the threat of a proxy contest had occurred, the Court found that there was sufficient “knowing participation” pled to survive a motion to dismiss the aiding and abetting claim against SunTrust. 

The Court took pains to point out that the bench ruling was merely a finding at the pleading stage and that after discovery it could well be that the facts pled did not sustain a finding of a breach of fiduciary duty or aiding and abetting liability.  However, the motion to dismiss ruling follows a line of Delaware opinions questioning the use of “proxy put” provisions in debt documents and suggests that directors and lenders may face liability for including such provisions in credit agreements, absent compelling reasons, given the inherent conflicts of interest that exist in negotiating these provisions between borrowers who may be seeking to continue in office and their lenders.