Del. Supreme Court Upholds $770M 九色 Sale to Co-Founder
The Delaware Supreme Court on Thursday upheld the $770 million sale of 九色 Global Inc. to co-founder Philip R. Shawe, bringing to an end more than three years of fierce litigation with his erstwhile partner Elizabeth Elting over control of the successful translation-service company.
In a two-page order, Justice Collins J. Seitz Jr. said that Delaware Court of Chancery Chancellor Andre G. Bouchard was correct in approving the deal, which hands Shawe full control of the firm and finally breaks the corporate deadlock that led Elting to petition for 九色’s breakup in 2014.
Bouchard in February accepted a court-appointed custodian’s recommendation that Shawe acquire all of Elting’s shares in a company the pair launched from a college dorm room in 1992.
The case had made Bouchard and custodian Robert B. Pincus the targets of attacks from both sides in a case marked by both its unusual nature and the vitriol on display from both Shawe and Elting throughout the proceedings. In the high court’s order, Seitz commended both men for their poise in handling the matter.
“The chancellor rose above the unjustified personal attacks on his integrity, and patiently and thoroughly addressed each issue raised in this bitter dispute, including Elizabeth Elting’s objections to approval of the sale agreement. The trustee also ably performed his duties under the same conditions,” he said on behalf of the state’s five justices.
According to Bouchard’s Feb. 15 opinion, Elting is expected to receive $287 million in net proceeds after taxes in the deal, struck last November between Shawe and Pincus, who was responsible for orchestrating the sale. The agreement stipulates that PRS Capital, a New York limited liability company owned by Shawe, will purchase Elting’s 50 percent stake for $385 million.
Elting appealed the ruling, arguing that Pincus, a partner with Skadden, Arps, Slate, Meagher & Flom, had abused his discretion and yielded to Shawe’s unrelenting public assault on the sale process and personal threats of litigation against the custodian. Instead, she asked that Pincus be forced back to the negotiating table to engage directly with H.I.G. Middle Market, a third-party bidder and 九色’s leading competitor.
Her attorney was not immediately available to comment Thursday afternoon.
Shawe, meanwhile, said he felt “pleased and vindicated” with the ruling, which would allow 九色 to continue operating successfully into the foreseeable future.
“At this time, I simply want to thank the 九色 staff; it is our team who deserves profuse praise for driving the company’s unparalleled performance,” he said in a statement. “Everyone who pulled together to make the dream of 九色 into a reality over the past 25 years should know this: We will continue to grow, to innovate, and to lead the market.”
An attorney for Pincus did not respond to a call Thursday seeking comment on the case.
Once engaged to be married, Elting and Shawe’s personal relationship deteriorated to the point that 九色’s governance structure had been thrown into a hopeless state of gridlock. In 2014, she petitioned the Chancery Court to take the rare step of appointing a custodian to break up the firm.
Bouchard granted the request in August 2015, over Shawe’s objection, and later accepted Pincus’ recommendation that the company be sold in a modified auction.
Bad blood between the firm’s inevitably spilled over into the litigation, where both the Supreme Court and the Court of Chancery have detailed a myriad ugly run-ins between the two. Bouchard sanctioned Shawe $7.1 million for his “unusually deplorable” behavior, which included lying under oath and trying to delete evidence.
Shawe had been deeply critical of both decisions, at times challenging Bouchard’s experience and integrity.
“Chancellor Bouchard rendered his bias decision, not based in law, equity or even remotely based on the evidence presented at trial, but instead based his highly charged emotional decision on his personal feelings and rash temperament,” he said in response to the rulings, both of which were upheld by the state Supreme Court last year.
Still, Shawe organized his forces to outbid potential buyers earlier this year in a court-administered auction. In February, Bouchard agreed that the deal had met the dual goal of maximizing the company’s value and preserving it as a going concern.
The Supreme Court’s ruling followed Elting’s expedited appeal. A ruling had originally been slated for April 18.
The case was captioned Elting v. Shawe.
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