A recent decision of the Delaware Court of Chancery (the “Court”) places certain fiduciary constraints on a company’s ability to satisfy its obligations to its preferred equity holders. While investors often seek to acquire preferred stock in return for their investments, the Court’s decision in The Frederick HSU Living Trust v. ODN Holding Corporation (“ODN”) et al., makes it clear that actions taken by a company in connection with the payment of such preference will be subject to the fiduciary duties that a company’s board owes to its holders of common stock.

Plaintiff, a founding stockholder of ODN Holding Corporation (the “Company”), brought an action against the Company’s board of directors (the “Board”) alleging, among other things, breach of fiduciary duty in connection with the redemption of preferred shares owned by the Company’s controlling stockholder, the venture capital firm Oak Hill Capital Partners (“Oak Hill”). As consideration for Oak Hills’s investment in the Company, Oak Hill received shares of preferred stock in the Company, carrying a mandatory redemption right exercisable by Oak Hill five (5) years after the investment (See id. at 6). In the event that the Company did not have sufficient funds to redeem the preferred stock at the time of exercise, the Company agreed to make redemption payments to Oak Hill as funds became available (See id. at 6-7). Plaintiff claimed that Oak Hill caused the Company to alter its business strategy prior to the time that the redemption right was able to be exercised, prioritizing the hoarding of cash to satisfy Oak Hill’s redemption demand rather than fostering the growth and development of the Company for the benefit of the common holders (See id. at 10-14). This included selling two (2) of the Company’s primary lines of business in an effort to raise capital to fund such redemption, and failing to use funds to pursue acquisitions, as was the Company’s prior practice (See id.). As a result of the foregoing, Plaintiff brought several claims against the Company, Oak Hill, and individual members of the Board, among which was a claim for contravention of the Board’s fiduciary duty of loyalty to the holders of the Company’s common stock (See id. at 21).

With respect to the fiduciary duty claim, the Court held in favor of Plaintiff, denying Defendants’ Motion to Dismiss. The Court’s rationale centered on the premise that a company’s board of directors has a fiduciary obligation to maximize the long-term value of the company for the benefit of holders of its “undifferentiated equity” (i.e. its common stock) (See id. at 36-37). The Court distinguished the rights of preferred holders as contractual in nature, entitling them to fiduciary duty protection only to the extent their interests align with the interests of the common holders (See id. at 41 and 44). While the Court readily acknowledged the contractual obligation to redeem the preferred shares held by Oak Hill, it emphasized that the Board took actions to satisfy the redemption obligation before there was any contractual obligation to redeem. In other words, the Board took actions to maximize the value of the redemption right rather than the value of the common stock, which the Court ultimately held to be a direct breach of the Board’s fiduciary duty of loyalty to the shareholders of the Company.

The Court’s holding in this case reminds investors that, at the end of the day, a board’s primary directive is to maximize the company’s value to its common stockholders, not its preferred holders. Because the rights of the preferred are contractually founded, they must ultimately be subject to the overall interests of the “undifferentiated equity” of a company. From an investor’s perspective, the Court’s decision will likely spur efforts to structure preferred equity obligations in a way that gives the preferred holders the ability to take direct action rather than going through the board, thereby making the fiduciary duty issue a moot point. This may be preferable from a company’s perspective as well, especially in the case of board members who are appointed by holders of preferred stock.

However, in structuring the rights of preferred holders, care should be taken to ensure that the protections do not inadvertently lead to other issues. For example, affording preferred stock too many protections could cause it to fall under the definition of “disqualified preferred stock,” or a similar term contained in a company’s senior credit agreement, if applicable, which could have adverse consequences on the company and all of its equity holders.

The full text of the case, The Frederick HSU Living Trust v. ODN Holding Corporation (“ODN”) et al., can be found here.

On May 30, 2017, Mayor de Blasio signed into law Int. No. 1456, requiring mobile food vendors (food trucks, hotdog carts, etc.) to display letter grades received after sanitary inspections akin to those displayed in windows of city restaurants. The new law will be a win-win for both consumers and vendors as seeing satisfactory grades will assure customers of a sanitary product, further legitimizing the ever-expanding food truck industry in NYC.  A similar bill is active in the NY State Senate. The state law would require the inspection grades to be displayed and require tracking of the mobile food vendors in order to efficiently find their protean locations for inspection purposes. Currently, the NY State bill has passed the State Senate and has been delivered to the State Assembly.  At the very least, expect to see health inspection grades displayed on mobile food vendors in the near future.

There are numerous reasons you might consider selling your business – it could be that retirement beckons, your business has reached its growth limit under current management or financial constraints, or an exit opportunity knocks.  Whichever the case may be, before moving forward with a sale, it is important that you understand what your business is worth and consider the most effective way to market the business for sale.

If you are seriously considering a sale, a prudent first step is to dispassionately determine the value of your business.  There a several ways to do this.  You can rely on your specific industry experience along with the financial history of your business, take into account an offer received from a third party or a competitor, or engage an appraiser to prepare a report based on market conditions.

There are many guidelines and rules-of-thumb for valuing a business (although few absolute rules).  You can use multiples of revenues or earnings, or a combination of the two.  Do not expect an absolute uncontestable answer. Do proceed with caution as these are approximations and useful only to suggest what the market will bear.  Additionally, do not overlook the value of intangible assets such as intellectual property, business methodologies and the goodwill that goes along with an established brand.  In the end, arriving at a realistic price is key to drawing prospective buyers.

When it comes to marketing the business for sale, there are some important things to keep in mind.  Doing the marketing yourself can be hazardous.  It can disrupt ongoing client relationships should your clients learn that you are looking to exit the business.  It can also create uncertainty for employees who, in turn, may seek other employment opportunities.

For these reasons, having your business marketed on a confidential basis by a broker or investment banker is usually the preferred method.  It is recommended that you speak with an attorney prior to engaging a broker or investment banker.  Why?  Your first negotiation will likely be the terms of the agreement to market your business as set out in an engagement letter.  Such letter will set forth the terms of your engagement, including whether the broker/banker will be your exclusive marketing agent, whether you will be charged a monthly fee, and what fee you will pay upon a successful sale.  It is important to note that in many cases a fee will be requested upon sale even if the purchaser was not identified by your broker/banker.  Remember, agreements are always negotiable.  Talk over your goals and expectations with your attorney to ensure you are not surprised by the “small print” as you transact a sale.

There is likely to be no one more passionate about your business than you and no one who knows more about running that business than you.  Yet, at such an important time, when you are ready to move on to your next venture, research, preparation and a qualified team working for you can speed and smooth the process.

Contractors, advisers, and employees (collectively, “Service Providers”) who receive property that is non-transferrable or subject to a substantial risk of forfeiture must generally defer their income recognition until those conditions no longer apply. However, due to the potential appreciation in the property (for example, in value of start-up equity) the ordinary income ultimately recognized could be significantly greater than the initial value. The Service Provider may be able to significantly reduce their taxes, and the employer may create a significant compensation incentive, if the Service Providers make the election under Internal Revenue Code Section 83(b) to recognize the income currently, notwithstanding the forfeiture risks. Timing of this election is critical as it must be made within 30 days after the property is transferred to the Service Provider.

Under Internal Revenue Code 83(a), Service Providers who receive property (including equity interests) for their services that are non-transferrable or subject to a substantial risk of forfeiture are required to pay, at the date the interests vest, income tax on the excess of the fair market value of the property over the amount paid for the property. If the fair market value of the property increases between the grant and vesting of the interests, Service Providers will pay an income tax on the greater value, and possibly at a higher marginal rate too. A Section 83(b) election may be the perfect tool for Service Providers to convert immediate ordinary income into deferred long term capital gains.

The downside of the election is that the income is recognized even though the risk of forfeiture still exists. If the risk materializes and the property goes down in value, or becomes worthless, there is no deduction to the Service Provider. They are stuck with paying income tax on property that is potentially worthless.

These risk/reward tradeoffs highlight the advantage of using this election for compensating employees of start-up ventures, typically with equity subject to vesting. In this case, the current value of the equity is limited, so there is little or no income to report (and pay tax on) currently. If the equity goes down in value, or is forfeited, the employee has not wasted tax payments. However, if the equity increases in value, as the parties hope, then the employee will be able to report this value at the more favorable capital gains rates instead of ordinary rates. The Section 83(b) election can make a start-up equity grant a much more effective inducement to attract new employees, by putting more money into the pocket of the employee.

But remember, taking advantage of the Section 83(b) elections requires a filing by the Service Provider within 30 days after the grant of property. The law does not want to allow the Service Provider to see which way the value is moving. The election, and the commitment to property must be made up front.

Service Providers should contact an attorney or other tax professional when deciding whether or not to make a Section 83(b) election. Additionally, issuers and companies should contact Cole Schotz P.C. before granting equity or other compensation.

The International Council of Shopping Centers (ICSC) recently released an interesting report prepared in collaboration with Jones Lange LaSalle (JLL) entitled The Successful Integration of Food & Beverage Within Retail Real Estate.  The study explores how foodservice growth is increasingly impacting retail real estate models, and includes case studies and practical analyses highlighting the successful integration of food with traditional retailers at malls and shopping centers around the United States and the world.

The study identifies three macro demographic trends that are driving structural changes in the global retail and leisure landscape, where consumer spending is shifting from “transactional to experiential food offers.”

Urbanization and Population Growth

Ever-increasing numbers of people and customers are moving into key market areas.  This is particularly true for the expanding middle-class who comprise a larger percentage of the global population, and who are “also becoming richer, better educated and more technologically connected.”

The Rise and Role of Technology in the Digital Age

JLL notes that today’s millennials and Gen-Z-ers are increasingly shopping online and are generally characterized as having shorter attention spans with a lack of brand loyalty compared with their predecessors.  More than ever before, they are demanding a seamless transactional experience where they can order online with smartphones and on social media sites, and then have their items ready for immediate pick-up at the store, or vice-versa.

Experience Economy

As time becomes an ever-more precious commodity than “stuff,” consumers are becoming more interested in enjoying memorable experiences that they can share (often contemporaneously through social media outlets) rather than tangible, material items.  The hot trend of food halls – particularly in the United States – is an example of this, where those destinations are increasingly becoming the anchor and key draw at shopping centers given the “experience” they provide for shoppers.

What Does This Mean for Landlords and Tenants?

JLL notes that the amount of space dedicated to foodservice at existing retail properties has grown from approximately 5% to 8%-15% over the last 10 years, and is forecasted to reach 20%-25% in some markets by the year 2025.

Accordingly, there will be a significant transformation in the way landlords approach leasing strategies at their retail centers.  Their efforts will need to focus on seamlessly integrating food and traditional retail operators to create a unique and experiential tenant mix.

In addition, landlords will face new challenges in understanding how their support for foodservice and restaurant operators both differs from, and is also interrelated with, their responsibilities to traditional retailers.  Among other considerations, these include:

  • Greater risks from food-based fit-outs and capital expenditures;
  • The increased likelihood of dealing with smaller-scale food operators instead of larger “corporate” entities;
  • Optimizing the ratio of base and percentage rent deals that are more common among foodservice operators;
  • Understanding the differences in desired lease terms (foodservice locations will typically demand longer lease terms in order to amortize and realize the benefits of larger capital/fit-out expenditures); and
  • Strategically placing food and retail locations within the larger mall space, including considerations for interior/exterior access points and parking needs.

The report provides many examples of how foodservice can be successfully integrated within shopping centers of different shapes, sizes and formats; however, there is no “one-size fits all” solution.  What is clear is that savvy retail landlords and their tenants are those who will embrace the idea of incorporating experiential foodservice options into their business plans.