Marcoux v. Prim, 2004 NCBC 5

 

NORTH CAROLINA   COUNTY OF FORSYTH		IN THE GENERAL COURT OF JUSTICE SUPERIOR COURT DIVISION 04 CVS 920
RICHARD MARCOUX, on behalf of himself and all others similarly situated,   Plaintiff,   v.   BILLY D. PRIM, ANDREW J. FILIPOWSKI, MARK CASTANEDA, DAVID L. WARNOCK, RICHARD A. BRENNER, STEVEN D. DEVICK, ROBERT J. LUNN and JOHN H. MUEHLSTEIN,   Defendants.	) ) ) ) ) ) ) ) ) ) ) ) ) ) )	ORDER AND OPINION

 

{1}       This case arises out of Plaintiff Richard Marcoux’s (“Marcoux”) claim that Defendants Billy D. Prim, Andrew J. Filipowski, Mark Castaneda, David L. Warnock, Richard A. Brenner, Steven D. Devick, Robert J. Lunn and John H. Muehlstein (collectively the “Individual Defendants”), in their capacities as members of Blue Rhino Corporation’s Board of Directors, violated their fiduciary duties by approving a merger with Ferrellgas Partners, L.P.  Plaintiff specifically asserts that defendants violated the fiduciary duties of loyalty and due care that directors owe to shareholders.  The corporation is not a party to this lawsuit.  This matter comes before the Court on plaintiff’s motion for a preliminary injunction to prevent the shareholders from voting on the Merger as well as defendants’ motion to dismiss.  The shareholders are scheduled to vote on April 20, 2004. 

{2}       After considering the briefs and oral arguments, the Court denies defendants’ motion to dismiss and denies plaintiff’s motion for preliminary injunction.

 

McDaniel & Anderson, L.L.P. by L. Bruce McDaniel; Milberg Weiss Bershad Hynes & Lerach, L.L.P. by William S. Lerach, Darren J. Robbins, Stephen J. Oddo, A. Rick Atwood, Jr., Randall J. Baron and Shaun L. Grove; and Robbins Umeda & Fink, L.L.P. by Marc M. Umeda and Jeffrey P. Fink for Plaintiff.

 

Bell, Davis & Pitt, P.A. by William K. Davis and Edward B. Davis for Defendants Billy D. Prim, Andrew J. Filipowski and Mark Castaneda.

 

Brooks, Pierce, McLendon, Humphrey & Leonard, L.L.P. by James T. Williams, Jr. and Mack Sperling for Defendants David L. Warnock, Richard A. Brenner, Steven D. Devick, Robert J. Lunn and John H. Muehlstein.

 

PROCEDURAL BACKGROUND

{3}       This matter was designated a complex business case and assigned to the undersigned Special Superior Court Judge for Complex Business Cases by order of the Chief Justice of the Supreme Court of North Carolina dated March 25, 2004.  A telephonic conference involving counsel for all parties was held on Tuesday evening, March 30, 2004.  Although the class action complaint filed February 12, 2004 involved challenges to the proposed merger, and the shareholders’ vote on the merger was set for April 20, 2004, at the time of the telephonic conference neither a motion for preliminary injunction nor motion for expedited discovery had been filed, nor had any deposition been noticed.  Defendants’ counsel had previously filed a motion to dismiss in conjunction with their answer to the complaint.  Plaintiff’s counsel moved orally at the telephone conference for expedited discovery, while defendants’ counsel opposed any discovery, asserting that the complaint is deficient on its face and discovery a mere fishing expedition.

{4}       Given the short history of the case and under these importunate time considerations, the Court established the following schedule by order dated April 1, 2004: opening briefs on plaintiff’s motion for a preliminary injunction and defendants’ motion to dismiss were to be filed by April 9, 2004; opposition briefs to plaintiff’s motion for a preliminary injunction and defendants’ motion to dismiss were due on April 13, 2004; and, because the presiding judge is concurrently in trial in another county, a hearing on plaintiff’s motion for a preliminary injunction and defendants’ motion to dismiss was held on April 15, 2004 at 7 p.m. and concluded at 10 p.m.  A motion to amend the complaint was filed on April 13, 2004.

{5}       The Court is placed in a procedural box.  Plaintiff filed his complaint three days after the merger was announced.  Marcoux had few, if any, facts upon which to base a claim.  Hence his allegations are conclusory in nature.  The Delaware courts have repeatedly urged plaintiffs to use the tools available under Delaware law before filing shareholder suits.  Plaintiff did not avail himself of that opportunity or wait for the proxy statement to be filed, but rushed to the courthouse in North Carolina.  He did not avail himself of the case management benefits of the North Carolina Business Court until March 23, 2004.

{6}       After having the benefit of the proxy statement and limited discovery, plaintiff has shifted his theory of the case in his motion for preliminary injunction to one of a failure to disclose and has moved to amend the complaint.  While the Court is not inclined to condone or encourage the filing of complaints without investigation supporting their basis, the Court is also cognizant of its duty to protect shareholders.  Accordingly the Court has addressed both the motion to dismiss and the motion for preliminary injunction.  Because plaintiff filed the motion to amend the complaint just days before the hearing, the Court has based its decision on the motion to dismiss on the original complaint (“Complaint”). 

I.                    FACTUAL BACKGROUND

 

A.  THE MERGER

{7}       On February 9, 2004, Blue Rhino Corporation (“Blue Rhino”) announced that it had entered into a merger agreement (the “Merger Agreement”) with Ferrellgas Partners, L.P. (“Ferrellgas”).  Blue Rhino is a Delaware corporation with its principal offices located in Winston-Salem, North Carolina.  The company is publicly traded on the NASDAQ, and institutional investors and mutual funds own 41% of Blue Rhino’s outstanding common stock.  The primary business of Blue Rhino is exchanging propane cylinders and providing propane-related products. 

{8}       Ferrellgas, a Delaware master limited partnership whose common units trade on the New York Stock Exchange, is a Fortune 1000 company as well as one of the nation’s largest and fastest growing marketers of retail propane. Ferrell Companies, Inc. (“Ferrell”) is a Kansas corporation that owns the general partner of Ferrellgas, as well as approximately 45% of the outstanding common units of Ferrellgas.

{9}       In addition to Ferrell’s ownership interest in Ferrellgas, it also owns FCI Trading Corporation (“FCI”) and Diesel Acquisition, LLC (“Diesel”).  FCI Trading is a Delaware corporation and a Ferrell subsidiary established to purchase and sell energy commodities.  Diesel is a Delaware limited liability company and a wholly owned subsidiary of FCI recently formed solely to effect the Merger with Blue Rhino.

{10}         The Merger Agreement provides for shareholders of Blue Rhino to receive $17 in cash for each share of common stock owned, an amount representing a 22% premium over the closing price the day before the Merger announcement.[1]  The Merger Agreement also includes a $10 million termination fee which is approximately 2.9% of the $340 million value of the Merger.  It also contains a “fiduciary out” provision.  Blue Rhino will hold a shareholders meeting on April 20, 2004, at which time its shareholders may vote to approve or block the Merger with Ferrellgas.  If the shareholders approve the transaction, Blue Rhino will merge into Diesel and become a wholly owned subsidiary of FCI and thus part of the Ferrellgas organization.

 

B.  THE PLAINTIFF

{11}         Marcoux owns 100 shares of Blue Rhino, which he purchased about a year ago for $10 per share.  Plaintiff will make a $700 profit on his $1,000 investment if the proposed Merger goes through.  Marcoux is also the plaintiff in a shareholder derivative action in California in which the Blue Rhino directors are defendants.  No other shareholder has joined Marcoux in this suit or filed similar claims.

 

C.   THE BOARD OF DIRECTORS

{12}         Plaintiff Marcoux filed this case as a class action, on behalf of the shareholders of Blue Rhino against the Individual Defendants, on February 12, 2004 in Forsyth County.  Plaintiff seeks to enjoin the Merger, asserting that each member of Blue Rhino’s Board of Directors (the “Board”) violated his fiduciary duties of loyalty and due care by pursuing and agreeing to the Merger with Ferrellgas.  Plaintiff named the following three persons, who constitute the inside directors on the Board, as defendants:

·          Billy D. Prim (“Prim”) serves as the chairman of the Board and chief executive officer of Blue Rhino.  Prim was the co-founder of Blue Rhino and has served in the above capacities since establishing the company in March 1994.  Prim owns 8.9% of Blue Rhino’s common stock.  Prim is credited with creating the business concept which made Blue Rhino successful.

·          Andrew J. Filipowski (“Filipowski”) is the vice chairman of the Board and was a Blue Rhino co-founder.  Filipowski owns 11.5% of Blue Rhino’s common stock.

·          Mark Castaneda (“Castaneda”) is Blue Rhino’s chief financial officer and a member of the Board.  Castaneda owns 1.2% of Blue Rhino’s common stock.

{13}         Plaintiff also named five other persons, who constitute the outside directors on the Board, as defendants in the Complaint:

·          David L. Warnock (“Warnock) is a director of Blue Rhino since 2000.  Warnock is the managing partner of the private investment firm Camden Partners, L.P. (“Camden Partners”).  Warnock owns 20,007 shares of Blue Rhino, which accounts for less than 1% of the company’s common stock.  An affiliated entity of Camden Partners, Camden Strategic Partners II, LLC, owns 8.5% of Blue Rhino’s common stock.

·          Richard A. Brenner (“Brenner”) is a director of Blue Rhino since 1998.  Brenner is the chief executive officer of Ammar Garage Doors, a manufacturer and distributor of garage doors.  Brenner owns 62,646 shares of Blue Rhino, which account for less than 1% of the company’s common stock.

·          Steven D. Devick (“Devick”) is a director of Blue Rhino since 1994.  Devick is the chief executive officer of DDE, Inc., a management services company.  Devick owns 41,194 shares of Blue Rhino, which account for less than 1% of the company’s common stock.

·          Robert J. Lunn (“Lunn”) is a director of Blue Rhino since 1999.  Lunn is the managing partner of the private investment firm Lunn Partners, LLC.  Lunn owns 24,341 shares of Blue Rhino, which account for less than 1% of the company’s common stock.

·          John H. Muehlstein (“Muehlstein”) is a director of Blue Rhino since 1995.  Muehlstein is the managing partner of the law firm Pederson & Houpt, P.C.  Muehlstein owns 40,546 shares of Blue Rhino, which account for less than 1% of the company’s common stock.

{14}         In connection with the Merger, the parties entered into a voting agreement that provided for several Blue Rhino shareholders to vote in favor of the Merger and in opposition to any measure adverse to the Merger.  Prim, Filipowski, Camden Partners and Malcolm R. McQuilkin (the CEO of Blue Rhino Global Sourcing) agreed to the terms of the voting agreement.  The combined common stock of these shareholders represents approximately 26.5% of the outstanding stock of Blue Rhino.

D.  MERGER NEGOTIATIONS AND THE SPECIAL COMMITTEE

{15}         Blue Rhino employed several precautionary corporate governance and analytical measures before entering into the Merger agreement.  First, the Board considered several other merger opportunities before electing to pursue the deal with Ferrellgas.  For example, in November 2003 Blue Rhino entered into a confidentiality agreement with a Fortune 500 company (the “Fortune 500 company”) to facilitate the exchange of information necessary to evaluate a potential acquisition by this entity.  The Fortune 500 company, however, later decided that it could not acquire Blue Rhino and declined to make an offer. 

{16}         The impetus for the search for strategic alternatives was the entry of AmeriGas Partners, L.P. (“AmeriGas”) into the market.   As a direct competitor to Blue Rhino, AmeriGas had the power to drive down prices and margins in order to grab market share, an accomplishment made easier given the industry customer concentration in big box retailers.  In the view of the directors, AmeriGas posed a threat which warranted the search for a larger partner.  Awareness of that threat is a far more plausible reason for the merger than plaintiff’s assertion that it was done to eliminate his derivative claim.

{17}         After the Fortune 500 company declined to make an offer for Blue Rhino because of various business considerations, the Board authorized management to engage Banc of America Securities to find potential acquirers and explore other strategic alternatives.  Shortly thereafter, Prim contacted Ferrell to gauge if there was any interest on their part to acquire Blue Rhino.  In late December 2003, Blue Rhino and Ferrell executed confidentiality agreements and resolved to commence negotiations in the New Year. The parties commenced negotiations in January 2004, holding several meetings in Winston-Salem.  On January 27 Ferrell offered to acquire Blue Rhino for $17 per share, which is the same price as the proposed transaction that is the subject of this dispute.

{18}         Banc of America Securities, at the request of Blue Rhino management, continued, however, to evaluate other potential acquirers.  On January 21 investment bankers from Banc of America Securities met with representatives of a foreign multinational corporation (the “foreign company”) to determine if that organization had any interest in acquiring Blue Rhino.  The foreign company informed Banc of America Securities that it had no interest.  The foreign company believed that Blue Rhino was fully valued at $13.50 per share.  No entity other than Ferrellgas offered to merge with Blue Rhino.

{19}         Second, the Board formed a special committee (the “Special Committee) consisting of independent directors to evaluate and negotiate the Merger.  The Board formed the Special Committee on January 28, and the newly appointed members held their initial meeting that same day.  Defendants point out that the Special Committee met seventeen times before the announcement of the Merger.  The Board authorized the Special Committee to handle all aspects of the potential acquisition, including entertaining competing offers, and to ultimately recommend a course of action to the Board.  The Special Committee members selected by the Board were four independent directors: Brenner, Devick, Muehlstein and Warnock.  None of these independent directors had an interest beyond that of a shareholder or as the holder of options or warrants with their intrinsic value linked to Blue Rhino stock.

{20}         On January 29 the Special Committee met, hired the law firm of Womble Carlyle Sandridge & Rice (“Womble Carlyle”) to serve as its legal counsel, and engaged Banc of America Securities to prepare a fairness opinion evaluating the potential transaction with Ferrell.  Following these first two meetings, the Special Committee held fifteen telephonic meetings in which Womble Carlyle apprised them of the negotiations and legal matters.  During this same period, Banc of America Securities prepared their fairness opinion of the Merger.

{21}         On February 7 the Special Committee met with Womble Carlyle and Banc of America Securities to consider the proposed Merger and the related documents, including the Merger Agreement, Plan of Merger, and Prim’s employment agreement.  The full Board was not present initially at this meeting and only joined the Special Committee when Banc of America Securities presented an updated financial analysis and its fairness opinion of the proposed transaction.  After the financial presentation, the Special Committee again met without the other members of the Board.  The Special Committee then considered the advantages and disadvantages of the Merger before unanimously concluding that the Merger was in the best interests of Blue Rhino shareholders and subsequently recommending that the Board approve the Merger.

{22}         The Special Committee provided a report to the Board that included its reasoning for recommending the approval of the Merger with Ferrell.  The Board considered the Special Committee’s report and unanimously approved the Merger Agreement, Plan of Merger and related documents.

{23}         Third, the Board obtained a detailed fairness opinion from Banc of America Securities that evaluated the merits of the Merger.  Banc of America Securities arrived at its opinion after reviewing the financial statements, forecasts and stock performance of both Blue Rhino and other publicly traded companies.  There is no company comparable to Blue Rhino.  The bankers also examined this data in the context of the offer made by Ferrell to acquire Blue Rhino.

{24}         Banc of Securities performed six analyses of selected transactions to arrive at the implied range of equity values for Blue Rhino common stock.  The analyses produced the following results:

 

 

The analyses, aside from the upper end of two, all produced an implied value well below the $17 per share offered by Ferrell.  Thus, the bankers opined that from a financial standpoint the proposed Merger was fair to the shareholders of Blue Rhino common stock.

E.  PRIM’S EMPLOYMENT AGREEMENT

{25}         The parties amended Prim’s employment agreement because under the former agreement the Merger qualified as change of control, a qualification which triggered a potential payout to Prim.  The Special Committee examined Prim’s amended employment agreement with Ferrellgas and analyzed and compared the terms of both the existing and amended agreements.

{26}         Under a change of control scenario, Prim had the option to terminate his employment within the twelve months following the closure of the merger.  The termination of Prim’s existing employment agreement entitled him to several benefits, including:

·          Blue Rhino’s would continue to pay his base salary of $600,000 per annum plus cost of living adjustments.

·          Following the cessation of the base salary, Prim would receive cash retirement payments of $778,000 per annum for ten years.

·          Ferrellgas would provide Prim health care coverage for fifteen years.

The Special Committee requested and received a comparison of the original employment agreement and Prim’s contract that would take effect if the merger were consummated.  The Special Committee determined the present value of the original agreement to be approximately $9.7 million in a change of control merger.

{27}         The amended employment agreement retained Prim and prevented the Merger from qualifying as a change of control.  The amended employment agreement includes the following key terms:

·          Most notably, Prim would continue to work for the Blue Rhino following the merger.  Prim would assume the position of executive vice president of Ferrellgas, Inc. and chief executive officer of the Blue Rhino Division of Ferrellgas Partners.  Prim would also be nominated and recommended for election to the Board of Directors of Ferrellgas, Inc.

·          Prim would receive an annual base salary of $600,000 for his service in the above capacity.  If Ferrellgas terminates Prim “without cause” or Prim resigns for a “good reason” then Prim would continue to receive the base salary for one year.

·          The agreement provides Prim with a three-year term and automatic one-year extensions if Ferrellgas does not terminate Prim 60 days before the end of any term.

·          Prim is eligible for bonuses that do not exceed 100% of the above base salary.  The agreement evenly splits the bonuses between discretionary and incentive based bonuses.

·          Ferrellgas would make a one-time payment of $2.5 million to Prim in exchange for his agreeing to noncompetition and nonsolicitation clauses during the first three years of his employment with Ferrellgas.

·          Prim may receive stock options to purchase 250,000 shares of Ferrell stock.  The stock options are on a twelve-year vesting schedule. The Board of Ferrellgas shall determine the exercise price.

·          A retention payment to Prim would be made on either the three-year anniversary of the Merger, or Mr. Prim’s termination of the amended employment agreement with good reason, or Ferrellgas’ termination of Prim without cause.  The retention payments consist of the difference between the $17 per share and the applicable exercise price for Prim’s unvested Ferrellgas stock options.  The projected retention payment is $1,882,240.

F.  PURCHASE OF PRIM’S REAL PROPERTY

{28}         Prim entered into an agreement to sell a five-acre parcel of property that he owns to Ferrellgas.  The property had been in Prim’s family for five generations.  Prim did not want to sell the property, but Ferrellgas made it a condition of the transaction.  Blue Rhino currently uses the property for propane storage, as a warehouse facility and for other operating purposes.  Prim will receive $3.15 million of common units in limited partnership interest of Ferrellgas in exchange for his contributing the property.  At least two directors thought Ferrellgas was paying more than fair market value but were convinced that overall no shareholder value had been diverted to Prim.  Prim is the only witness to testify as to the value, and he stated that the purchase price equaled the replacement value of the manufacturing facility.  He also testified that he did not wish to sell the property.

 

G.  REINVESTMENT BY KEY MANAGEMENT

{29}         Ferrellgas made Prim, Filipowski and McQuilkin agree to reinvest their net proceeds after taxes from the transaction as a condition to the Merger.  The reinvestment reduced the amount of capital that Ferrellgas had to borrow to finance the transaction and was a condition to Ferrellgas consummating the merger.

 

H.  PLAINTIFF’S CONTENTIONS

{30}         Plaintiff, however, claims that several provisions in the Merger Agreement undermine the effectiveness of the aforementioned corporate governance and analytical measures.  First, plaintiff claims that Prim’s employment agreement with Ferrellgas, which names Prim as an executive vice president following the Merger, is suspect.  Plaintiff cites several ordinary provisions in the agreement as questionable, including a $2.5 million lump sum payment and a $600,000 annual salary. 

Plaintiff, moreover, particularly focuses on two clauses addressing Prim’s assistance in litigation and confidential information.  The clauses in Prim’s employment agreement that plaintiff takes issue with are as follows:

11.1 ASSISTANCE IN LITIGATION.  The Executive shall, upon reasonable notice, furnish such information and assistance to the Company as may reasonably be required by the Company in connection with any litigation in which it is, or may become, a party, and which arises out of facts and circumstances known to the Executive.  The Company shall promptly reimburse the Executive for his out-of-pocket expenses incurred in connection with the fulfillment of his obligations under this Section.

 

11.2 CONFIDENTIAL INFORMATION.  The Executive acknowledges that all Confidential Information has a commercial value in the Companies’ Business and is the sole property of the Companies.  The Executive agrees that he shall not disclose or reveal, directly or indirectly, to any unauthorized person any Confidential Information, and the Executive confirms that such information constitutes the exclusive properties of the Companies; provided, however, that the foregoing shall not prohibit the Executive from disclosing such information to third parties or governmental agencies in furtherance of the interests of the Companies or as may be required by law.

 

{31}         The alleged effect of these clauses is to stifle both a federal securities class action and a state shareholder derivative claim pending against the directors in California.  Plaintiff furthermore asserts that defendants sought a purchaser that would provide them with continued employment as well as protect them from potential liability in the other shareholder actions.  The result, according to plaintiff, was that the directors accepted a discounted share price from Ferrellgas in exchange for protecting their personal interests.  The Complaint, however, does not cite an employment agreement with Ferrellgas entered into by a Board member other than Prim.  More importantly, the proxy fully disclosed Prim’s employment agreement with Ferrellgas.

{32}         Second, plaintiff claims the Board members possess private information that provides insight into the future value of Blue Rhino.  This information allegedly concerns the financial condition and prospects of Blue Rhino.  Plaintiff asserts that this information supports the proposition that the Ferrellgas offer does not adequately compensate Blue Rhino’s shareholders for the company’s present or future value. 

{33}         Third, plaintiff claims that the Board failed to study the merger and acquisition market to obtain the highest bid possible for Blue Rhino’s shareholders.  Defendants, however, claim that the Board considered many strategic alternatives before pursuing the transaction with Ferrellgas.

{34}         Fourth, plaintiff claims that Devick and Muehlstein did not qualify as outside directors and hence tainted the evaluation of the Merger.  The Complaint asserts that Devick had extensive business and personal relationships with Prim and Filipowski.  Plaintiff also claims that Muehlstein’s law firm received legal fees in the past for its work on behalf of Blue Rhino as well as for the outside ventures of Prim and Filipowski.  Thus, plaintiff claims that Muehlstein does not qualify as an independent director.  Muehlstein and his firm ceased doing work for Blue Rhino after the passage of Sarbanes-Oxley.

{35}         Plaintiff seeks to enjoin the Merger with Ferrellgas and have the Court determine that the Board breached its fiduciary duties.  The prayer for relief also seeks to enjoin Blue Rhino from combining with any third party until the Board implements a procedure to obtain the highest possible price.  In addition, plaintiff seeks to tax defendants for cost and disbursements of this action, including reasonable attorney and expert fees.

II.                 ANALYSIS OF MOTION TO DISMISS

 

A.  THE REQUIREMENTS OF MAINTAINING A DERIVATIVE ACTION

{36}         If this is a derivative action rather than a direct action, the plaintiff made three crucial mistakes as to the Complaint filed in this action. 

First, North Carolina law requires verification of the complaint in a derivative action:

In an action brought to enforce a secondary right on the part of one or more shareholders or members of a corporation or an unincorporated association because the corporation or association refuses to enforce the rights which may properly be asserted by it, the complaint should be verified by oath.

 

N.C. Gen. Stat. § 1A-1, Rule 23 (b) (2003)(emphasis added).  Plaintiff simply did not verify the Complaint, which alone provides this Court the grounds for dismissal if this is a derivative action.  The verification requirement is not simply a technicality.  It is required for a reason and plaintiff must fulfill the requirement.

{37}         Second, plaintiff did not comply with Delaware law because he did not join the corporation as a party.  See Agostino  v. Hicks, 2004 WL 569353 (Del. Ch. Mar. 22, 2004).

{38}         Third, the amended complaint does not contain allegations with respect to demand futility required by Delaware law.  If this is a derivative action, it is subject to dismissal.

 

B.  ENJOINING THE NON-PARTY CORPORATION

{39}         Plaintiff seeks relief that clearly affects the corporation, which is not a named party to this action.  The Complaint’s prayer for relief included only the following:

A.