Firefighters' Pension Sys. of Kan. Cityv. Presidio, Inc.

• Decision Date: 29 January 2021
• Docket Number: C.A. No. 2019-0839-JTL
• Citation: 251 A.3d 212
• Parties: FIREFIGHTERS’ PENSION SYSTEM OF the CITY OF KANSAS CITY, MISSOURI TRUST, on behalf of itself and all other similarly situated stockholders of Presidio, Inc., Plaintiff, v. PRESIDIO, INC., Robert Cagnazzi, Steven Jay Lerner, Pankaj Patel, Todd H. Siegel, Heather Berger, Christopher L. Edson, Salim Hirji, Matthew H. Nord, Michael A. Reiss, Apollo Global Management LLC, AP VIII Aegis Holdings, L.P., BC Partners Advisors L.P., and LionTree Advisors, LLC, Defendants.
• Court: Court of Chancery of Delaware

251 A.3d 212

FIREFIGHTERS’ PENSION SYSTEM OF the CITY OF KANSAS CITY, MISSOURI TRUST, on behalf of itself and all other similarly situated stockholders of Presidio, Inc., Plaintiff,

v.PRESIDIO, INC., Robert Cagnazzi, Steven Jay Lerner, Pankaj Patel, Todd H. Siegel, Heather Berger, Christopher L. Edson, Salim Hirji, Matthew H. Nord, Michael A. Reiss, Apollo Global Management LLC, AP VIII Aegis Holdings, L.P., BC Partners Advisors L.P., and LionTree Advisors, LLC, Defendants.

C.A. No. 2019-0839-JTL

Court of Chancery of Delaware.

Date Submitted: October 29, 2020

Date Decided: January 29, 2021

Michael Hanrahan, Samuel L. Closic, Stephen D. Dargitz, Jason W. Rigby, PRICKETT, JONES & ELLIOTT, P.A., Wilmington, Delaware; Lee D. Rudy, J. Daniel Albert, Stacey A. Greenspan, KESSLER TOPAZ MELTZER & CHECK, LLP, Radnor, Pennsylvania; Attorneys for Plaintiff.

Kevin R. Shannon, Berton W. Ashman, Jr., Daniel M. Rusk, IV, POTTER ANDERSON & CORROON LLP, Wilmington, Delaware; Ryan A. McLeod, Alexandra P. Sadinsky, Wilfred T. Beaye, Jr., WACHTELL, LIPTON, ROSEN & KATZ, New York, New York; Attorneys for Defendants Robert Cagnazzi, Steven Jay Lerner, Pankaj Patel, Todd H. Siegel, Heather Berger, Christopher L. Edson, Salim Hirji, Matthew H. Nord, and Michael A. Reiss.

William M. Lafferty, John P. DiTomo, Alexandra M. Cumings, Sara Toscano, MORRIS, NICHOLS, ARSHT & TUNNELL LLP, Wilmington, Delaware; Scott B. Luftglass, Rebecca L. Martin, Anne S. Aufhauser, FRIED, FRANK, HARRIS, SHRIVER & JACOBSON LLP, New York, New York; Attorneys for Defendants Apollo Global Management, Inc. and AP VIII Aegis Holdings, L.P.

Raymond J. DiCamillo, Kevin M. Gallagher, Megan E. O'Connor, RICHARDS, LAYTON & FINGER, P.A, Wilmington, Delaware; John L. Hardiman, SULLIVAN & CROMWELL LLP, New York, New York; Attorneys for Defendant LionTree Advisors LLC.

A. Thompson Bayliss, E. Wade Houston, ABRAMS & BAYLISS LLP, Wilmington, Delaware; Matthew Solum, Courtney A. Carvill, KIRKLAND & ELLIS LLP, New York, New York; Attorneys for Defendant BC Partners Advisors L.P.

LASTER, V.C.

The plaintiff is a former stockholder of Presidio, Inc. (the "Company"). The complaint supports a reasonable inference that the Company's financial advisor tipped one of the bidders during the Company's sale process, resulting in a price below what the Company's board of directors (the "Board") otherwise could have achieved.

The Company merged with an acquisition vehicle controlled by BC Partners Advisors L.P. ("BCP"), a private equity firm. The merger resulted in each of the Company's publicly held shares being converted into the right to receive $16.60 in cash (the "Merger"). The Company's controlling stockholder, Apollo Global Management LLC, received the same per-share consideration as the public stockholders.

Before the Company started its sale process, Apollo and its financial advisor—LionTree Advisors, LLC—met with BCP and another private equity firm, Clayton Dubilier & Rice, LLC ("CD&R"). Later, LionTree and Robert Cagnazzi, the Company's chairman and CEO, met with CD&R. CD&R signaled its interest in a transaction, but did not indicate that it would retain existing management. Unlike BCP, CD&R had a portfolio company that operated in the same industry. CD&R therefore could pay a price that included synergies, but it also had an existing management team, meaning that Cagnazzi might not keep his job in a deal with CD&R. BCP, by contrast, was purely a financial buyer. BCP could not offer a price that included synergies, but BCP was eager to retain existing management.

A month later, BCP contacted LionTree to express interest in a transaction. Based on LionTree's description of the earlier contacts with CD&R, the Board opted to pursue a single-bidder strategy with BCP, rather than also engaging with CD&R. At this stage of the proceeding, it is reasonable to infer that LionTree's description of its earlier contacts was incomplete.

With LionTree now working as the Company's financial advisor, the Board entered into discussions with BCP. The Board made clear that any transaction would be subject to a post-signing go-shop. The discussions resulted in a merger agreement that contemplated a transaction at $16.00 per share, subject to a go-shop (the "Original Merger Agreement").

During the go-shop phase, CD&R offered to acquire the Company for $16.50 per share, thereby qualifying as an "Excluded Party" under the Original Merger Agreement. As a result, the Company could continue negotiating with CD&R for another ten days and only would have to pay a termination fee of $18 million to terminate the Original Merger Agreement for a deal with CD&R. If the Company reached a deal with any other party, the Company would have to pay $40 million.

Unbeknownst to the Board, LionTree tipped BCP about the price of CD&R's bid. BCP immediately submitted a revised bid at $16.60 per share, outbidding CD&R by just 10¢. BCP conditioned its bid on the Company increasing the termination fee to $41 million for any competing deal, regardless of the counterparty's status as an Excluded Party. BCP demanded that the Company respond within twenty-four hours.

Oblivious to LionTree's tip, the Board instructed LionTree to ask CD&R to strengthen its bid. To meet BCP's deadline, the Board required that CD&R respond in less than twenty hours. CD&R met the deadline and represented that it could raise its bid to at least $17.00 per share. CD&R objected to any changes in the go-shop process and indicated that it would likely walk if the Company increased the termination fee.

After receiving CD&R's response, and still oblivious to LionTree's tip, the Board accepted BCP's offer and entered into an amended merger agreement (the "Amended Merger Agreement"). After the Company publicly announced the Amended Merger Agreement, CD&R walked.

The complaint names as defendants Cagnazzi, the other members of the Board, Apollo, LionTree, and BCP. The plaintiff maintains that Cagnazzi, the other directors, and Apollo breached their fiduciary duties during the sale process by (i) approving the Amended Merger Agreement and (ii) failing to disclose all material information to the stockholders in connection with the vote on the Merger. The complaint maintains that LionTree and BCP aided and abetted the fiduciary defendants in breaching their duties. The complaint asserts a claim in the alternative against Apollo for aiding and abetting, but the defendants did not dispute that Apollo was a controlling stockholder that owed fiduciary duties to the Company and its other stockholders. This decision therefore analyzes Apollo's potential liability as a fiduciary rather than as an aider and abettor.

All of the defendants have moved to dismiss the complaint for failure to state a claim on which relief can be granted. This decision denies the motion as to Cagnazzi, LionTree, and BCP. It grants the motion as to Apollo and the other members of the Board.

I. FACTUAL BACKGROUND

The facts are drawn from the amended complaint and the documents that it incorporates by reference. At this procedural stage, the complaint's allegations are assumed to be true, and the plaintiff receives the benefit of all reasonable inferences.

A. Apollo Acquires The Company.

Before the Merger, the Company was a Delaware corporation with its headquarters in New York, New York. The Company provided information technology solutions, including services related to digital infrastructure, the cloud, and security.

In February 2015, Apollo paid approximately $1.3 billion to purchase the Company from another private equity firm. Apollo acquired the Company through defendant AP VIII Aegis Holdings, L.P. ("Fund VIII"), which is an investment fund managed by Apollo. This decision refers to the Apollo entities together as "Apollo," except where greater specificity is warranted.

When Apollo acquired the Company, Cagnazzi served as its CEO, and his brother Chris served as a member of the Company's leadership team. After the acquisition, Apollo continued to employ both Cagnazzi brothers. In June 2016, the Company hired a third Cagnazzi brother, Victor, to work in its "Cloud/[Internet of Things] Tri-State division." Compl. ¶ 48 n.7.

In March 2017, the Company completed an initial public offering of 16,666,666 shares of common stock at $14 per share. LionTree acted as the Company's financial advisor for the IPO. After the IPO, Apollo's holdings represented 75.6% of the Company's voting power. From then until the Merger, the Company's stock traded on the NASDAQ Global Select Market under the ticker symbol "PSDO."

Concurrently with the IPO, Apollo and the Company executed a stockholders agreement, under which Apollo received the right to designate five of the Board's nine directors, as long as Apollo held at least 50% of the Company's common stock. If Apollo's common stock ownership dipped below 50%, then the number of directors that it could appoint would fall in proportion to its voting power. The stockholder agreement also provided that as long Apollo held at least 30% of the Company's common stock, then the Company could not terminate Cagnazzi or designate a new CEO without the approval of a majority of Apollo's director designees.

About two-and-a-half years after acquiring the Company, Apollo began liquidating its equity position. On its fourth quarter 2017 earnings call, Apollo announced that its investment in the Company was maturing and that Apollo was "starting to set [itself] up for valuation." Compl. ¶ 37. Between November 2017 and March 2019, Apollo sold more than twenty-one million shares of Company common stock through four secondary offerings. Apollo announced each of these four sales on the heels of positive earnings announcements and corresponding increases in the Company's stock price. Each time Apollo announced a sale, however, the Company's stock price fell.

After the fourth sale, Apollo's equity stake and its associated voting power had declined to 42%. As a result, Apollo would be entitled to appoint...