USA-M&A, Sonoran Scanners v PerkinElmer

In diesem Fall nahm ein US-Gericht zur Relevanz von impliziten nachlaufenden Verpflichtungen eines Unternehmenskäufers Stellung, also inwieweit trifft den Käufer eine Pflicht bei vereinbartem Earn-Out dafür Sorge zu tragen, dass alles unternommen wird, das eine reelle Chance auf Verwirklichung eines vereinbarten Earn-Out besteht. Die nachfolgende englische Zuasammenfassung wurde der Februar 2010 Ausgabe des Business Lawyer entnommen, die der Wirtschaftskanzlei NIETZER&HÄUSLER . Deutschland . USA aufgrund deren Mitgliedschaft in der American Bar Association, dort der Business Law Section, zur Verfügung steht.

Sonoran Scanners, Inc. v. PerkinElmer, Inc . (Asset Purchase Agreement Contained Implied Term that Buyer Would Use Reasonable Efforts that Would Lead to Earnout Payments to Seller)
In Sonoran Scanners, Inc. v. PerkinElmer, Inc ., the U.S. Court of Appeals for the First Circuit held that, under Massachusetts law, in certain circumstances an agreement for the acquisition of a business that contains earnout provisions may also contain an implied term that the purchaser is obligated to develop and promote technology and products relevant to the determination of the earnout payments.

Sonoran Scanners, Inc. (“Sonoran”) was founded by Joseph P. Donahue (“Donahue”) to develop and market high-speed computer-to-plate technology to the newspaper and graphic arts industries. Facing a cash shortage after the investment of $3.5 million of his own money, Donahue sought a buyer for the business.  PerkinElmer agreed to buy substantially all of the business pursuant to an Asset Purchase Agreement (the “Agreement”), paying $3.5 million cash at the closing and agreeing to make earnout payments if certain sales targets were met over a five-year period. The business, as operated by PerkinElmer, was a failure, and no earnout payments were made.

Sonoran and Donahue sued PerkinElmer on four theories:

(1) breach of the express terms of the Agreement; (2) breach of the implied covenant of good faith and fair dealing by engaging in bad-faith conduct; (3) breach of the implied terms of the Agreement by failing to make reasonably competent and diligent efforts to develop, market, and sell Sonoran’s products; and (4) unfair or deceptive conduct in violation of a Massachusetts statute.

Following discovery, the district court granted summary judgment to Perkin-Elmer on all four claims.  The court of appeals affi rmed with respect to each claim except the third.  The court quoted Eno Systems, Inc. v. Eno  as holding that “it is implied that one who obtains the exclusive right to manufacture a product under a patent has ‘an implied obligation . . . to exert reasonable efforts to promote sales of the process and to establish, if reasonably possible, an extensive use of the invention.’ ”  The court rejected PerkinElmer’s arguments that Eno and similar Massachusetts cases should be limited to exclusive licensing arrangements, and that an implied obligation is only appropriate where there is no other consideration supporting the existence of a contract, and not, as here, where PerkinElmer had already paid $3,500,000 at closing.

The court stated in its opinion:
[V]arious aspects of the . . . Agreement in addition to the contingent nature of Sonoran’s compensation support its argument that the reasonable efforts term was implicit. The earnout compensation was substantial (potentially $3.5 million)  in relationto the up-front payments made by PerkinElmer ($3.5 million). A significant portion of the $3.5 million was paid to Sonoran’s creditors and did not benefi t the shareholders directly. The Purchase Agreement contemplated a campaign to market the Sonoran technology over the next fi ve years. . . . There was no language in the
agreement negating an obligation by PerkinElmer to use reasonable efforts or conferring absolute discretion on PerkinElmer as to the operation of the business.

The court remanded the case to the district court for a determination as to whether PerkinElmer had breached its implied obligation, recognizing that Perkin-Elmer had made a substantial investment in Sonoran and therefore had a substantial interest in making the business succeed, so that it “may not be easy for Sonoran to show a lack of reasonable efforts.”

M&A practitioners should recognize that, in many jurisdictions, Sonoran may be read to offer sellers in earnout cases a theory that, unlike the implied covenant of good faith and fair dealing, does not require the plaintiff to show bad faith on the part of the buyer. While in many cases it may not be possible, as a practical matter, for a buyer to negotiate a term “negating” an obligation to use reasonable efforts with respect to the business, some buyers do succeed in negotiating a term
conferring on the buyer absolute discretion as to the operation of the business. The question arises, then, as to whether such an “absolute discretion” provision, without more, would overcome a finding of implied warranty.

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