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Structuring the transaction

The Perelman family, which owns 46% of the outstanding common stock in Premium Fabrics, has determined that it would like to take the company private at $10 a share in cash. Premium Fabrics, or PFAB, is a publicly traded, Delaware corporation, specializing in the fabrication of textiles. Several years ago, PFAB patented a new technologysignificantly reducing the chemicals and water needed to dye ordinary denim and other heavy fabrics. Despite thepromise of this advancement, due to certain aggressive financials decisions made soon before the onset of the COVID-19 pandemic, the family believes the company has not been able to unlock the value of this new technology.The trading price of Premium Fabrics as of close of the market on December 12 was $7.

The Perelmans have just hired you and your firm to advise them on structuring the transaction. They know very little about doing deals but Tom Higgins, the family’s regular counsel and a graduate of Harvard, knows you and your firm from his law school days. He is looking to you and your firm for the necessary expertise and will follow your advice in structuring the transaction in a manner that protects the Perelmans. You meet with him and he provides you with the following facts:

· The Perelman family owns 46% of the outstanding common stock or Premium Fabrics with a hedge fund, Sharp Capital, owning 12%. Passive institutional investors (like Vanguard and Blackrock) and thegeneral public own the remaining shares, with none holding more than 5% individually.

· The Chief Executive Officer of Premium Fabrics, Walter Blue, a chemical engineer by training, joined the company in 2018. He holds 1% of the company’s common stock and also holds an option to receive an additional 0.5%, which vests upon the achievement of certain performance milestones but would not bereceived if the company were sold before those milestones were met.

· Premium Fabrics’ stock trades on the NYSE. There have been two public offerings by the family: the company went public in 2014 at $15, and later held a secondary offering at $20. Sharp Capital paid $15 /share for the bulk of its 12% stake.

· The Board comprises 7 members. Three members are members of the Perelman family. CEO Walter Blue is a director as well. The President of Sharp Capital, Michelle Eastman, also serves on the Board of Premium Fabrics and has been a member of Winged Foot Country Club in Westchester for several years, upon the recommendation of the Perelmans. For the last 2 years she has rented a summer cottage to the Perelmans in Nantucket for the month of August and the Perelmans have rented their second home in Miami to James and her family for two weeks in January. The rents are at market rates. Besides Michelle Eastman, the other two Board members are Norma Lange and Mark Good. Both have been designated by the PFAB Board as independent for NYSE purposes. Lange is an accountant and Good is an attorneywho represented the Perelmans four years ago in an unrelated real estate transaction. There has beenno recent transactional business. Good has been asked to remain on the Board if the company goes

private. It is assumed that neither Eastman nor Lange will remain on the Board following thetransaction.

· Premium Fabrics regularly uses an investment banking firm called Lightyear Partners, a firm that wasintroduced by the Perelman family to the Board years ago. Lightyear Partners is currently helping PFAB management prepare projections for the company’s performance over the next five years. Lightyear Partners also recently made a presentation to the PFAB Board reporting market intelligence that other public companies – competitors of Premium Fabrics – are interested in acquiring PFAB due to its low stock price, and analyzing PFAB’s value. (This presentation is in part what motivated the Perelmanfamily to reach out to you.)

· The Perelman family is very interested in acquiring the rest of Premium Fabrics and are prepared to be aggressive, but will follow your counsel. Although they would like to offer $10 per share, they are ultimately prepared to pay a price of up to $11 per share.

Please prepare a detailed memorandum to Tom Higgins outlining your advice on how to structure this transaction,addressing both the legal structure and any process considerations. You may offer the client options and you should noteany possible obstacles to your proposed approach(es). Tom Higgins also specifically asked that the memo address how the Perelman’s attempt to take the company private might fail.

Your memo should include legal analysis supporting the structure you propose. You do not need to include a statementof facts in your paper; rather, you should rely on those facts listed above.

Your memorandum should be no longer than 15 pages, double-spaced.

  • New York Stock Exchange Listed Company Manual 101.00 and Para. 312.00 Shareholder Approval Policy

Issuer Tender Offers and Going-Private Transactions- Exchange Act Rule 14(d), 14(e), Rule 13e-14

  • Going private- Exchange Act Rules 13e-3 to 13e-100, Schedule 13E-3 and Item 1014 Regulation M-A Item 1014, Item 9 Schedule 13E-3 incorporates Item 1015 of Regulation M-A. * Rule 13e-3(g)(1)
  • Which kind of deal(s) should be structured
  • Legal Duties of Boards of Directors, Senior Executives and Controlling Shareholders in Negotiated Acquisitions and Transactions.
  • Please review these topics and address them in the hypothetical appropriately
  • Duties of the Board, Shareholders, Executives
  • Business Judgement Rule/Entire Fairness Test
  • Case list

C&J Energy Servs. v. City of Miami Gen. Employees’ & Sanitation Employees’ Ret. Trust, 2014 Del. LEXIS 602 (2014)

In re Cornerstone Therapeutics Inc., 115 A.3d 1173 (2015)

CBS v. National Amusements, 2018 WL 2263385 (2018)

Sample Solution

ls. Catchy jingles are a brilliant way to ensure the consumer associates the product or brand with said jingle, i.e. sound mark. However, due to the use of the words ‘capable of being graphically represented’, sound marks are often not easy to get registered. Due to the inclusion of digital form in graphical representation, registration of sound marks is now relatively easier. Earlier, when graphical representation was limited to pen and paper format only, it was thought that an apparent solution would be to deposit a digital recording of the sound with the registrar. But this proposition was rejected by the International Trademark Association (INTA) as being impracticable, for firstly, sound cannot be published by the Trademark Registry and people would have to go to the registry to hear it, and secondly, it would be difficult for the registry to store so many sound samples. But these problems seemed to have been tackled by not only the new Trade Mark Rules of 2017, but also by general technological advancements. With access to the internet and unlimited cloud storage, the INTA’s apprehensions stand redundant. The first ever sound mark to get registered was way back in 1950 when the United States Patent and Trademark Office (USPTO) recognised NBC’s infamous three chimes as a trade mark capable of being registered. Over the years, a lot of sound marks have been registered all over the world, for instance, Metro Goldwyn-Mayer’s iconic lion roar, 20th Century Fox’s chime, Tarzan’s yell, Intel’s jingle, default ring-tone of a Nokia mobile phone and many more. In India the first ever sound mark was granted to Yahoo! Inc. in 2008 for a man’s voice yodelling yahoo. ICICI Bank was the first Indian entity to obtain sound track registration with the Indian Trade Mark Registry. Colour Mark Colour marks are those marks where a distinct colour or combination of colours is associated with a product or brand and takes us to the original source. Although graphical representation may not be a hurdle for colour marks, they are not easily granted. Section 10 of Trade Marks Act, 1999 talks about registration of a colour combination but only when such colour combination is present in an otherwise traditional logo or mark so that the colour is secondary and the design of the mark is the primary thing to get registered as a trade mark. Essentially the Act can protect a certain mark in a certain colour combination but not the colour itself. However, the Act doesn’t exclude colours and colour combinations from the purview of the definition of trade mark either. Another obstacle faced is the Functionality Doctrine. Its says that a colour cannot be a trademark if the colour is functional in nature. Under this ‘functionality doctrine’, if the feature of the product for which protection is sought is useful or affects the cost or the quality of the article, such that granting trademark protection to the feature would put competitors at a significant disadvantage, the feature is not entitled to trademark protection. For example, a court held that the colour black when used on outboard boat motors serves a functional purpose, since the colour black is compatible with all other boat colours and also because the colour black m
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