One of the more common forms of commercial litigation continues to be disputes regarding earn-out formulas for post-closing payments due if certain milestones are met. The Delaware Court of Chancery decision in Fortis Advisors LLC v. Stora Enso AB, C.A. No. 12291-VCS (Del. Ch. Aug. 10, 2018), involved a motion to dismiss earn-out claims.
The amended complaint alleged that there were two post-closing payments due upon the achievement of designated milestones (the “Milestone Payments”). The Milestone Payments were based on certain provisions in the merger agreement that called for various actions to be completed, and if they were completed, then substantial additional payments would be due to the seller. Exhibits to the merger agreement provided the details and deadlines regarding the Milestone Payments. The first Milestone Payment required a construction of a plant and the completion of the production of certain products. The second Milestone Payment required the construction of a separate plant and the production of certain products at a specific price by a specific deadline.
The claim for breach of contract alleged that the buyer did not comply with the business plan that was a part of the Merger Agreement and that the actions required to be taken in order for the Milestone Payments to be due, were not performed.
The usefulness of this decision is primarily based on the court’s analysis of the standard under Rule 12(b)(6) for a motion to dismiss, as opposed to its analysis of specific terms of the merger agreement that might be replicated in other merger agreements with earn-out provisions such that the court’s analysis of merger terms would be applicable in other cases.
Rather, the court explained that in a motion to dismiss, the movant can only prevail if its proffered interpretation of the merger agreement is the only reasonably interpretation. In this case, however, the interpretations of the merger agreement by each of the parties were both reasonable, and therefore, as a procedural matter the court found that granting the motion to dismiss was inappropriate.
The court explained in detail why the interpretation of each of the parties was reasonable because of an ambiguity in the provisions of the agreements on which the motion to dismiss was based. Because the court determined that additional discovery is needed and a fuller record would need to be examined at trial in order to determine the intent of the parties in connection with the terms in the merger agreement that were disputed, a determination prior to trial about whether or not there was a breach of the agreement regarding the Milestone Payments was premature.