Dent v. Ramtron

• Court: Court of Chancery of Delaware
• Decided: June 30, 2014
• Docket: CA 7950-VCP
• Status: Published

Opinion

IN THE COURT OF CHANCERY OF THE STATE OF DELAWARE ) PAUL DENT, On Behalf of Himself and All Others Similarly Situated, ) ) ) Plaintiff, ) ) v. ) C.A. No. 7950-VCP ) RAMTRON INTERNATIONAL ) CORPORATION, ERIC A. BALZER, ) ) THEODORE J. COBURN, JAMES E. DORAN, ) WILLIAM L. GEORGE, WILLIAM G. ) HOWARD Jr., ERIC KUO, CYPRESS ) SEMICONDUCTOR CORPORATION and ) ) RAIN ACQUISITION CORP., ) ) Defendants. )

MEMORANDUM OPINION

Date Submitted: March 25, 2014 Date Decided: June 30, 2014

James R. Banko, Esq., Raj Srivstan, Esq., FARUQI & FARUQI, LLP, Wilmington, Delaware; Attorneys for Plaintiff Paul Dent.

Raymond J. DiCamillo, Esq., Brock E. Czeschin, Esq., Scott W. Perkins, Esq., Nicole C. Bright, Esq., RICHARDS, LAYTON & FINGER, P.A., Wilmington, Delaware; Attorneys for Defendants Ramtron International Corporation, Eric A. Balzer, Theodore J. Coburn, James E. Doran, William L. George, William G. Howard Jr. and Eric Kuo.

A. Thompson Bayliss, Esq., ABRAMS & BAYLISS, LLP, Wilmington, Delaware; Steven Guggenheim, Esq., WILSON SONSINI GOODRICH & ROSATI, Palo Alto, California; Attorneys for Defendants Cypress Semiconductor Corporation and Rain Acquisition Corp.

PARSONS, Vice Chancellor. This action arises from the acquisition of a technology company by a third party,

strategic buyer. The plaintiff, a former stockholder of the acquired entity, makes the

same allegations that have become routine in the ubiquitous shareholder litigation that

immediately follows the announcement of any public company merger or acquisition

transaction: the target board breached its fiduciary duties by failing to maximize the value

of the entity, locking up the deal impermissibly in the acquirer‟s favor, and disseminating

a proxy statement containing material misstatements or omissions, and the acquiring

company aided and abetted those breaches. The challenged transaction was completed in

2012. At this time, the plaintiff seeks, among other monetary relief, quasi-appraisal to

obtain an award of the fair value of his shares as of the date of the acquisition.

Two groups of defendants, the target company‟s board of directors and the

acquirer, each have moved to dismiss the complaint on the grounds that the plaintiff has

failed, in every count of the complaint, to state a claim upon which relief can be granted.

Having considered the parties‟ briefs and heard argument on the motions, I

conclude that the defendants‟ motions to dismiss should be granted, and the complaint

dismissed in its entirety.

I. BACKGROUND

A. The Parties

Plaintiff, Paul Dent, is a stockholder of Ramtron International Corporation

(“Ramtron,” or the “Company”), and purportedly has been a Ramtron stockholder at all

times relevant to this litigation.

1 Defendant Ramtron is a Delaware corporation engaged in the business of

designing, developing, and marketing specialized semiconductor products. Ramtron is

named as a necessary party in connection with Dent‟s request for equitable relief.

Defendants Eric A. Balzer, Theodore J. Coburn, James E. Doran, William L.

George, William G. Howard, and Eric Kuo (collectively, the “Individual Defendants”)

comprised Ramtron‟s Board of Directors (the “Board”) until October 10, 2012. On that

date, Belzer, Doran, and Kuo resigned from the Board.1

Defendant Cypress Semiconductor Corporation (“Cypress”) is a Delaware

corporation headquartered in San Jose, California. Cypress is a world leader in USB

controllers and SRAM memories and operates in numerous market segments, including

consumer, mobile handsets, industrial, and military. Ramtron is now a wholly owned

subsidiary of Cypress.

Defendant Rain Acquisition Corp. (“Rain,” and together with Ramtron, the

Individual Defendants, and Cypress, “Defendants”) is a wholly owned Cypress

subsidiary, which was formed to effectuate the merger between Cypress and Ramtron.

1 Jack L. Saltich is not listed in the caption of this litigation as a defendant. He is identified as a defendant, however, in paragraph 20 of the Verified Second Amended Class Action Complaint (the “Complaint”). According to Defendants, the claims against Saltich should be dismissed because he ceased being a director of Ramtron before the Board approved the merger at issue in this litigation. Plaintiff did not respond to Defendants‟ argument in this regard either in its briefing or at oral argument. Therefore, Plaintiff has waived its right to challenge Saltich‟s dismissal. See Emerald Partners v. Berlin, 726 A.2d 1215, 1224 (Del. 1999) (“Issues not briefed are deemed waived.”).

2 B. Facts2

1. Cypress first approaches Ramtron

On March 8, 2011, Cypress made an unsolicited offer to acquire Ramtron for

$3.01 per share, which represented a 37% premium to the Company‟s share price at the

time. In response, on March 11, Ramtron created a Strategic Transaction Committee (the

“2011 Committee”) consisting of Howard, Balzer, Kuo, and Coburn to evaluate

Cypress‟s offer. After meeting on several occasions with the Company‟s outside legal

and financial advisors, on March 21, 2011, the 2011 Committee informed Cypress that it

had rejected Cypress‟s offer as inadequate and that the Company would not be making a

counterproposal.

Soon thereafter, the Company raised additional capital through a dilutive public

stock offering at a net price of $1.79 per share. After the public offering, Ramtron‟s

stock price traded as low as $1.65 per share.

2. Cypress approaches Ramtron again

Over a year after having its initial offer rejected, on June 12, 2012, Cypress

renewed its efforts to acquire Ramtron with a cash offer of $2.48 per share. Similar to

Cypress‟s March 2011 offer, the June 2012 offer represented a 37% premium to the

Company‟s share price at the time. In its offer, which was made public, Cypress

indicated that it preferred to proceed through a negotiated agreement, but that it was

2 The facts are derived from Dent‟s complaint, and the documents integral to it. Allen v. Encore Energy P’rs, L.P., 72 A.3d 93, 96 n.2 (Del. 2013).

3 prepared to take the necessary actions to acquire Ramtron even if an agreement could not

be reached.

In response, the Board formed a new Strategic Transaction Committee (the “2012

Committee”) consisting of Defendants Howard, Balzer, Coburn, Doran, and George to

consider, among other things, Cypress‟s new offer. On June 17, the 2012 Committee

decided to reject the offer, and authorized Needham & Company (“Needham”), the

Company‟s financial advisor, to begin contacting third parties who potentially would be

interested in engaging in a transaction with Ramtron. The following day, the Company

filed a Schedule 14D-9 with the U.S. Securities and Exchange Commission (“SEC”)

advising its stockholders not to tender their stock to Cypress at the $2.48 per share tender

price.

Also on June 18, Ramtron invited Cypress to participate in its evaluation of

strategic alternatives, and sent a draft confidentiality agreement to Cypress‟s financial

advisor to initiate such a process. Cypress, however, declined to execute the

confidentiality agreement or otherwise participate in the Company‟s review of strategic

alternatives.

On June 21, 2012, Cypress commenced a tender offer for Ramtron‟s shares at a

price of $2.68 per share. In a July 5, 2012, Schedule 14D-9 filing, the Company again

recommended that its stockholders reject Cypress‟s offer. The June 21 tender offer was

scheduled to expire on July 19, 2012, but was renewed on July 20, August 6, and August

20, 2012, after failing to generate sufficient interest from the Company‟s stockholders.

4 During this same timeframe, the Company continued to explore various strategic

alternatives. This included contacting 24 potential purchasers, and entering into

confidentiality agreements with seven entities that showed interest in completing a deal

with Ramtron. At no time did any of these, or any other, entities make an offer to acquire

the Company.

On August 27, 2012, Cypress again raised its offer to acquire Ramtron, this time

to $2.88 per share. On September 4, the 2012 Committee authorized Needham to inform

Cypress‟s financial advisor that an offer of $3.50 per share would position Cypress well

among the Company‟s strategic alternatives. Cypress, however, never so much as even

countered this overture. On September 8, 2012, after discussing Cypress‟s most recent

proposal with its legal and financial advisors, the Board voted unanimously to reject that

offer and recommend that its stockholders not tender their shares at the price Cypress was

offering. The Board disclosed this decision and recommendation in a September 10,

2012 Schedule 14D-9 filing.

3. Cypress and Ramtron negotiate and reach an agreement

On September 15, 2012, Ramtron‟s Board authorized Needham to make a

counterproposal under which Cypress would acquire the Company for $3.25 per share.

In negotiations the following day, Cypress offered to raise its bid for Ramtron to $3.01.

Ramtron and Cypress continued to negotiate, and on September 19, 2012, the parties

5 issued a joint press release stating that they had reached an agreement for Cypress to

purchase the Company for $3.10 per share in an all-cash tender offer (the “Initial TO”).3

On September 25, 2012, Ramtron filed a schedule 14D-9 recommending that its

stockholder tender their shares into the Initial TO. The Initial TO then was launched, and

it expired at midnight on October 9, 2012. The following day, Cypress issued a press

release stating that it had acquired 23.3 million Ramtron shares through the Initial TO,

thus increasing its ownership position in the Company to 72%. Cypress also announced

that it would be commencing a subsequent offering period (the “Subsequent TO”),

expiring on October 17, 2012, for all remaining untendered Ramtron shares.

On October 18, 2012, Cypress announced that it acquired only an additional 6% of

Ramtron‟s shares in the Subsequent TO. Because at 78% ownership Cypress did not

have sufficient shares to effectuate a short-form merger with Ramtron under Delaware

law, it filed an amendment to its Schedule TO stating that Defendants would be

scheduling a vote for Ramtron‟s stockholders to vote on a long-form merger.

Ramtron filed its definitive Proxy related to the stockholder vote on October 29,

2012 (the “Proxy”). The Proxy contained summaries of four financial analyses

conducted by Needham, including a discounted cash flow (“DCF”) analysis based on

Ramtron‟s management projections. The projections were not included in the Proxy. Of

3 Cypress‟s offer of $3.10 per share represented a 71% premium over the closing price of Ramtron‟s stock on June 11, 2012, the last trading day before the public announcement of Cypress‟s offer to acquire the Company and an 8% premium over the closing price of Ramtron‟s stock on September 18, 2012, the last trading day before the announcement of the Initial TO.

6 the four analyses, the transaction consideration of $3.10 was below only the $3.57 to

$5.01 per share valuation range implied by the DCF.

On November 20, 2012, Ramtron‟s stockholders approved the Company‟s merger

with Cypress.4

C. Procedural History

Dent filed his initial complaint together with a motion for expedited proceedings

on October 15, 2012. He amended his complaint one week later on October 22. On

November 5, 2012, Dent moved for a preliminary injunction to enjoin the proposed

merger between Ramtron and Cypress. Later that same day, in a bench ruling, I granted

Dent‟s motion for expedition and scheduled a preliminary injunction hearing on

November 19, 2012. After full briefing, I heard argument on Dent‟s motion for

preliminary injunctive relief on November 19 and, in a bench ruling, I denied that

motion. On January 11, 2013, Dent filed the Complaint, which, on January 24, 2013, the

Individual Defendants and Cypress moved separately to dismiss. After full briefing, I

heard argument on those motions on March 25, 2014. This Memorandum Opinion

constitutes my ruling on Defendants‟ motions to dismiss.

D. Parties’ Contentions

Dent asserts three claims against various combinations of Defendants. In Count I,

Dent alleges that the Individual Defendants breached their fiduciary duties by failing to

engage in a competitive sales process that maximized shareholder value (i.e., breached

4 Because by this time Cypress had obtained ownership of over 50% of Ramtron‟s shares, the outcome of the vote was guaranteed to be in favor of the transaction. 7 their Revlon duties) and by failing to fully disclose material information in the Proxy.

Count II is a claim against Cypress and Rain for aiding and abetting the Individual

Defendants‟ alleged breaches of their fiduciary duties. Finally, in Count III, Dent

contends that he and Ramtron‟s other stockholders are entitled to quasi-appraisal for their

shares because the deficient Proxy deprived the Company‟s stockholders of the ability to

make an informed decision about whether to dissent from the transaction and perfect their

appraisal rights.

Defendants have moved to dismiss under Court of Chancery Rule 12(b)(6). As to

Dent‟s breach of fiduciary duty claim, the Individual Defendants argue that the

Complaint does not support an inference that they breached any of their duties to the

Company, and that, at most, the Complaint states a claim for breach of the duty of care

for which Dent cannot recover monetary damages because of the Company‟s 102(b)(7)

exculpatory charter provision. Regarding the claim for aiding and abetting, Cypress and

Rain assert that the Complaint fails to allege adequately any underlying breach of

fiduciary duty, and that in any event, the Cypress-Ramtron negotiation was conducted at

arm‟s-length, which negates any inference that Cypress or Rain knowingly participated in

any breach of fiduciary duty by the Individual Defendants. Finally, as to Dent‟s claim for

quasi-appraisal, Defendants aver that the Company‟s stockholders received adequate

information in the Proxy to make an informed decision about whether to accept the

transaction consideration or to seek appraisal, and thus, have failed to state a viable cause

of action in that regard.

8 II. ANALYSIS

A. Legal Standard

Pursuant to Rule 12(b)(6), this Court may grant a motion to dismiss for failure to

state a claim if a complaint does not assert sufficient facts that, if proven, would entitle

the plaintiff to relief. As recently reaffirmed by the Delaware Supreme Court,5 “the

governing pleading standard in Delaware to survive a motion to dismiss is reasonable

„conceivability.‟”6 That is, when considering such a motion, a court must:

accept all well-pleaded factual allegations in the Complaint as true, accept even vague allegations in the Complaint as “well- pleaded” if they provide the defendant notice of the claim, draw all reasonable inferences in favor of the plaintiff, and deny the motion unless the plaintiff could not recover under any reasonably conceivable set of circumstances susceptible of proof.7

This reasonable “conceivability” standard asks whether there is a “possibility” of

recovery.8 If the well-pled factual allegations of the complaint would entitle the plaintiff

to relief under a reasonably conceivable set of circumstances, the court must deny the

motion to dismiss.9 The court, however, need not “accept conclusory allegations

unsupported by specific facts or . . . draw unreasonable inferences in favor of the non-

5 See Winshall v. Viacom Int’l, Inc., 2013 WL 5526290, at *4 n.12 (Del. Oct. 7, 2013). 6 Central Mortg. Co. v. Morgan Stanley Mortg. Capital Hldgs. LLC, 27 A.3d 531, 536 (Del. 2011) (footnote omitted). 7 Id. (citing Savor, Inc. v. FMR Corp., 812 A.2d 894, 896–97 (Del. 2002)). 8 Id. at 537 & n.13. 9 Id. at 536.

9 moving party.”10 Moreover, failure to plead an element of a claim precludes entitlement

to relief and, therefore, is grounds to dismiss that claim.11

B. Individual Defendants’ Breach of Fiduciary Duty

1. Revlon claim

Corporate directors have “an unyielding fiduciary duty to protect the interests of

the corporation and to act in the best interests of its shareholders.” 12 When directors have

commenced a transaction process that will result in a change of control, a reviewing court

will examine whether the board has reasonably performed its fiduciary duties “in the

service of a specific objective: maximizing the sale price of the enterprise.”13 So-called

Revlon duties are only a specific application of directors‟ traditional fiduciary duties of

care and loyalty in the context of control transactions.14 In that regard, if the

corporation‟s certificate contains an exculpatory provision pursuant to 8 Del. C.

10 Price v. E.I. duPont de Nemours & Co., Inc., 26 A.3d 162, 166 (Del. 2011) (citing Clinton v. Enter. Rent-A-Car Co., 977 A.2d 892, 895 (Del. 2009)). 11 Crescent/Mach I P’rs, L.P. v. Turner, 846 A.2d 963, 972 (Del. Ch. 2000) (Steele, V.C., by designation). 12 Cede & Co. v. Technicolor, Inc., 634 A.2d 345, 360 (Del. 1993) (citations omitted). 13 Malpiede v. Townson, 780 A.2d 1075, 1083 (Del. 2001) (citing, among other cases, Revlon, Inc. v. MacAndrews & Forbes Hldgs., Inc., 506 A.2d 173, 182–83 (Del. 1986)). 14 Wayne Cty. Empls.’ Ret. Sys. v. Corti, 2009 WL 2219260, at *10 (Del. Ch. July 24, 2009) (citing McMillan v. Intercargo Corp., 768 A.2d 492, 502 (Del. Ch. 2000)), aff’d, 966 A.2d 795 (Del. 2010) (TABLE).

10 § 102(b)(7) barring claims for monetary liability against directors for breaches of the duty

of care, the complaint must state a nonexculpated claim, i.e., a claim predicated on a

breach of the directors‟ duty of loyalty or bad faith conduct.15

A factual showing that, for example, a majority of the board of directors was not

both disinterested and independent would provide sufficient support for a claim for

breach of loyalty to survive a motion to dismiss.16 “A director is considered interested

where he or she will receive a personal financial benefit from a transaction that is not

equally shared by the stockholders.”17 “Independence means that a director‟s decision is

based on the corporate merits of the subject before the board rather than extraneous

considerations or influences,”18 such as where one director effectively controls another.19

Moreover, as to any individual director, the disqualifying self-interest or lack of

independence must be material, i.e., “reasonably likely to affect the decision-making

process of a reasonable person . . . .”20

15 See Lyondell Chem. Co. v. Ryan, 970 A.2d 235, 239–40 (Del. 2009); Corti, 2009 WL 2219260, at *10. 16 In re NYMEX S’holder Litig., 2009 WL 3206051, at *6 (Del. Ch. Sept. 30, 2009) (citing In re Lukens S’holders Litig., 757 A .2d 720, 728 (Del. Ch. 1999)). 17 Rales v. Blasband, 634 A.2d 927, 936 (Del. 1993) (citing Aronson v. Lewis, 473 A.2d 805, 812 (Del. 1984)). 18 Aronson, 473 A.2d at 816. 19 Orman v. Cullman, 794 A.2d 5, 24 (Del. Ch. 2002). 20 Cede & Co. v. Technicolor, Inc., 634 A.2d 345, 363 (Del. 1993).

11 Well-pled allegations that the board did not act in good faith also would state a

claim for breach of the duty of loyalty sufficient to survive a motion to dismiss. 21 In

general, “bad faith will be found if a „fiduciary intentionally fails to act in the face of a

known duty to act, demonstrating a conscious disregard for his duties.‟”22 Alternatively,

notwithstanding approval by a majority of disinterested and independent directors, a

claim for breach of duty may exist “where the decision under attack is so far beyond the

bounds of reasonable judgment that it seems essentially inexplicable on any ground other

than bad faith.”23

b. Dent has failed to allege a viable Revlon claim against the Individual Defendants

It is undisputed that at all times relevant to this litigation Ramtron‟s charter

contained a 102(b)(7) exculpatory provision. Because Ramtron and Cypress were

unrelated and independent of one another before agreeing to the transaction, Dent‟s

Revlon claim against the Individual Defendants can survive a motion to dismiss only if

the Complaint supports a reasonable inference that the Individual Defendants breached

their duty of loyalty or acted in bad faith (i.e., committed a nonexculpated breach of

fiduciary duty). The Complaint fails to allege sufficiently any such nonexculpated

21 In re NYMEX S’holder Litig., 2009 WL 3206051, at *6 (footnote omitted). 22 Lyondell Chem. Co. v. Ryan, 970 A.2d 235, 243 (Del. 2009) (quoting In re Walt Disney Co. Deriv. Litig., 906 A.2d 27, 67 (Del. 2006)). 23 Crescent/Mach I P’rs, L.P. v. Turner, 846 A.2d 963, 981 (Del. Ch. 2000) (quoting Parnes v. Bally Entm’t Corp., 722 A.2d 1243, 1247 (Del. 1999)).

12 breach, and, therefore, Dent‟s Revlon claim against the Individual Defendants must be

dismissed.

As to the duty of loyalty, Dent alleges no facts that call into question the

independence or disinterestedness of a majority of the Board. There are no allegations

that any director stood on both sides of the transaction or that any director received any

consideration from the transaction that was not shared pro rata among Ramtron‟s other

stockholders. In addition, there are no allegations that any of the Individual Defendants‟

directorships were material to them or that any one of the Individual Defendants

dominated or otherwise controlled the Ramtron Board.24 Based on the absence of well-

pled allegations that a majority of Ramtron‟s board lacked independence or had an

impermissible personal interest in the transaction with Cypress, Dent has failed to allege

sufficiently that the Individual Defendants‟ agreement to a deal with Cypress implicates

the duty of loyalty.

The Complaint is equally deficient with respect to allegations that the Individual

Defendants approved the transaction with Cypress in bad faith. Under Delaware law,

“there is a vast difference between an inadequate or flawed effort to carry out fiduciary

24 There is an allegation, discussed in greater detail infra, that Defendant George was a member of a “manufacturing advisory board” at Cypress when Ramtron and Cypress agreed to a transaction. Compl. ¶ 11. Even assuming the truth of this allegation, which the briefing suggests is unlikely, and even assuming further that George‟s role on the manufacturing advisory board was material to him, George was one of six members of Ramtron‟s board, and there are no allegations that George, in any way, controlled or dominated any of the other indisputably independent and disinterested directors.

13 duties and a conscious disregard for those duties.”25 In that regard, an “extreme set of

facts” is “required to sustain a disloyalty claim premised on the notion that disinterested

directors were intentionally disregarding their duties.”26 Here, Cypress‟s public efforts to

acquire the Company spanned nearly two years. Over that period of time, the Individual

Defendants, among other things, retained outside legal and financial advisors, rejected

two Cypress offers as inadequate, contacted 24 potential purchasers with the assistance of

their legal and financial advisors, and negotiated an increase in Cypress‟s offer price from

$2.88 to $3.10 per share. Based on the Individual Defendants‟ actions, it is not

reasonably conceivable that Dent could prove on a full evidentiary record that the Board

consciously disregarded its fiduciary duties to Ramtron‟s stockholders when considering,

and eventually agreeing to, a sale of the Company to Cypress.

The allegations that the Company repeatedly rejected Cypress‟s advances

impermissibly do not compel a different conclusion. There are no allegations that when

Cypress first approached the Company in 2011 the Board already had decided to sell

Ramtron or effectuate a change of control transaction. In other words, the “duty of the

[B]oard had [not] changed from the preservation of [Ramtron] as a corporate entity to the

maximization of the [C]ompany‟s value at a sale for the stockholder‟s benefit,”27 and the

Board‟s conduct was subject to business judgment, not Revlon, scrutiny. Dent has

25 Id. 26 Id. 27 Revlon, Inc. v. MacAndrews & Forbes Hldgs., Inc., 506 A.2d 173, 182 (Del. 1986).

14 alleged no facts that would support a reasonable inference that he could overcome the

presumptions of the business judgment rule with respect to the Ramtron Board‟s

independent and disinterested decision to reject Cypress‟s offer to purchase the Company

at a time when the Company was not for sale.

Dent‟s argument in this regard fares no better in the context of the 2012 sales

process, by which time the Board had assumed Revlon duties. Initially, at least, the

Board continued to “say no” to Cypress, and its conduct appears to have contributed to

Cypress raising its offer for the Company. At the same time, however, it also was

conducting board meetings, meeting with its advisors, and reaching out to 24 other

potential acquirers with the assistance of its outside legal and financial advisors. Even if

imperfect, the Board‟s alleged conduct does not support a reasonable inference that it

consciously disregarded its duties to Ramtron‟s stockholders. Plaintiff‟s argument that

the Company should have engaged Cypress earlier in the sales process amounts to little

more than an ex post quibble with the independent and disinterested Board‟s negotiation

strategy. Even assuming that the Board undertook the wrong strategy, however, that fact,

without more, does not make it reasonably conceivable that the Board‟s decision to sell

the Company to Cypress was made in bad faith. Therefore, I reject this aspect of Dent‟s

Revlon claim.

Dent also emphasizes that the $3.10 per share transaction consideration was

below Needham‟s DCF value range. That fact, in the context of this dispute, however,

does not support a reasonable inference that the price was “so far out of bounds” that it

could only be explained by bad faith. Taking as true the allegations in the Complaint,

15 Needham conducted three other valuation analyses in addition to the DCF, and the

transaction price of $3.10 fell within the valuation range implied by each of those other

analyses. Moreover, the Board did not simply accept a price of $3.10 per share; it made

multiple counterproposals, and, even without the leverage of another offer, got Cypress to

increase its offer significantly from its original June 2012 bid. Accordingly, I conclude

that the allegations in the Complaint fall well short of what is necessary to support a

reasonable inference that the Individual Defendants conceivably acted in bad faith by

agreeing to a transaction with Cypress at $3.10 per share.

c. The purported deal protection devices also do not support a reasonable inference of bad faith

In the Complaint, Dent alleges that the Board adopted several “preclusive” and

“draconian” deal protection devices, in breach of their fiduciary duties, to ensure the

transaction with Cypress was completed. These deal protection devices were: (1) a no-

solicitation provision; (2) a standstill provision; (3) a change in recommendation

provision; (4) information rights for Cypress; and (5) a $5 million termination fee.28 But,

none of these deal protection devices, considered separately or together, support a

reasonable inference that the Individual Defendants acted in bad faith.

Before examining the actual deal protection devices at issue here, I note two

salient contextual points that strongly weigh against finding that Dent has alleged

adequately that the deal protection devices support a reasonable inference of bad faith.

First, Ramtron was “in play” for several months before ever agreeing to a transaction

28 The termination fee equated to 4.5% of the deal‟s total equity value.

16 with Cypress. Up to the time that Ramtron and Cypress agreed to a deal, there were no

deal protection devices in place, and, thus, there was nothing preventing or inhibiting any

of the 24 entities that Ramtron contacted from making a viable offer for the Company or

any other entity from making an unsolicited offer. Yet, notwithstanding the fact that

Cypress‟s pursuit of Ramtron was known publicly and there was nothing restricting any

entity from approaching the Company or the Company‟s ability to consider any such

approach, no one appears to have met or exceeded Cypress‟s offer. Thus, it is unclear

what other realistic opportunities the Board precluded itself from by accepting the deal

protection devices contained in the agreement with Cypress.

Second, while the Complaint half-heartedly makes the conclusory accusations that

the deal protection devices were “draconian” and “preclusive,” Dent makes no effort to

explain how the devices at issue work in such a harmful manner. Instead, the Complaint

contains long block quotes of the relevant sections of the merger agreement without any

non-conclusory justification for Dent‟s assertion that those provisions are problematic

under Delaware law. While the unacceptably conclusory nature of Dent‟s allegations

alone may provide an adequate basis to dismiss his claims with respect to the deal

protection devices, I nevertheless have reviewed the relevant provisions of the merger

agreement and find that Dent has failed to state a viable claim in this regard.

The no-solicitation provision at issue does not appear to deviate in any meaningful

way from similar types of provisions that repeatedly have been approved by this Court. 29

29 See ACE Ltd. v. Capital Re Corp., 747 A.2d 95, 106 (Del. Ch. 1999) (describing the no-solicitation clause at issue as a type of restriction that “is perfectly 17 Moreover, the no-solicitation provision is coupled with a reasonable “fiduciary out”

clause, which mitigates any “preclusive” restrictions on the Board‟s ability to consider

other potentially value-maximizing transactions. Thus, Dent‟s argument that this feature

of the merger agreement supports a reasonable inference that the Individual Defendants

consciously disregarded their fiduciary duties is without merit.30

Dent also has made no effort to explain why the merger agreement‟s change in

recommendation section was impermissible. By its plain terms, the Board was permitted

to change its recommendation on the Cypress transaction if it believed in good faith that

another offer was better for the Company‟s stockholders. This right was subject to the

unremarkable and customary procedural restraints of notice and matching rights in favor

of Cypress. Dent has cited no authority in support of his argument that these restraints

were unreasonable. To the contrary, there is ample precedent for the proposition that the

three-day notice period31 and matching rights32 given to Cypress were reasonable under

understandable, if not necessary, if good faith business transactions are to be encouraged”); McMillan v. Intercargo Corp., 768 A.2d 492, 506 (Del. Ch. 2000) (stating that “[t]he presence of [a standard no-shop] type of provision in a merger agreement is hardly indicative of a Revlon (or Unocal) breach.”) (internal citations omitted). 30 The same holds true for the merger agreement‟s “standstill” provision. Dent does not cite any authority or present any cogent argument as to how the standstill provision at issue, which also included a reasonable fiduciary out, was atypical or unreasonable. 31 See In re Micromet, Inc. S’holders Litig., 2012 WL 681785, at *9 (Del. Ch. Feb. 29, 2012) (upholding four-day notice period). 32 In re Smurfit-Stone Container Corp. S’holder Litig., 2011 WL 2028076, at *21 n.141 (Del. Ch. May 20, 2011) (“no shop and matching rights clauses of the kind 18 the circumstances of this litigation.33 Even assuming these restraints were problematic,

however, there is nothing about them that would enable this Court to draw a reasonable

inference that they were adopted or agreed to in bad faith.

The assertion that the termination fee in this case supports an inference that the

Individual Defendants acted in bad faith is similarly unavailing. At 4.5% of the

transaction‟s equity value, it is highly unlikely that the termination fee here was

unreasonably high.34 Moreover, even if the termination fee were deemed excessive, it

certainly does not approach a level that would suggest the Company‟s board consciously

disregarded their duties to Ramtron‟s stockholders in agreeing to it. Nor can it be said

that the termination fee was so egregious that it only can be explained by the Individual

Defendants having acted in bad faith. Thus, the termination fee cannot form the basis of

an actionable claim against the Individual Defendants for money damages.

included in the Merger Agreement are customary in public company mergers today.”); In re Toys “R” Us, Inc. S’holder Litig., 877 A.2d 975, 1017 (Del. Ch. 2005) (“neither a termination fee nor a matching right is per se invalid. Each is a common contractual feature”). 33 There also is nothing unreasonable about Cypress‟s information rights in the agreement. In essence, Cypress has the right to be notified if another entity expresses interest in acquiring Ramtron. Dent offers no support for his assertion that this facially reasonable provision somehow endows Cypress with an unreasonable advantage over other potential acquirers of Ramtron. 34 In re Topps Co. S’holders Litig., 926 A.2d 58, 86 (Del. Ch. 2007) (upholding 4.3% termination fee); In re 3Com S’holders Litig., 2009 WL 5173804, at *7 (Del. Ch. Dec. 18, 2009) (“The provisions that plaintiffs attack [including a termination fee of over 4% of the merger‟s equity value] have been repeatedly upheld by this Court.”).

19 Finally, when considered together, the deal protection devices challenged here do

not support a reasonable inference that the Individual Defendants conducted themselves

in bad faith. Similar, if not more potent, combinations of deal protection devices often

have been upheld by this Court.35 Moreover, to the extent the deal protection devices at

issue in this dispute go beyond those that previously have been upheld, there are no well-

pled allegations that would support a reasonable inference that any such departure was

significant enough to constitute bad faith.

In sum, it is not reasonably conceivable based on the Complaint‟s allegations that

Dent could prove on a full record that the Individual Defendants acted in bad faith or

otherwise breached their duty of loyalty by agreeing to the transaction with Cypress.

Moreover, the Board‟s decision to sell the Company at a 71% premium to its unaffected

stock price after a lengthy and public sales process was not “so far beyond the bounds of

35 In re BioClinica, Inc. S’holder Litig., 2013 WL 5631233, *8 (Del. Ch. Oct. 16, 2013) (rejecting Revlon claim and dismissing complaint where merger agreement contained a no-solicitation provision, a poison pill, a 5.3% termination and expense reimbursement fee, information rights, and a top-up option); In re BJ’s Wholesale Club, Inc. S’holders Litig., 2013 WL 396202, at *13 (Del. Ch. Jan. 31, 2013) (dismissing complaint challenging merger agreement that included a no- shop provision, matching and information rights, a 3.1% termination fee, and a force-the-vote provision because they “have routinely been upheld as reasonable” by Delaware courts); In re Synthes, Inc. S’holder Litig., 50 A.3d 1022, 1048 (Del. Ch. 2012) (dismissing complaint challenging a no-solicitation provision, a 3.05% termination fee, matching rights, a force-the-vote provision, and a voting agreement that locked up at least 33% of the company‟s shares in favor of the merger); In re Orchid Cellmark Inc. S’holder Litig., 2011 WL 1938253, at *7 (Del. Ch. May 12, 2011) (noting that comparable deal protections “are unremarkable,” that “the no-shop provision . . . is balanced by a fiduciary out,” and that the “matching and informational rights” as well as a termination fee, “would not preclude a serious bidder from stepping forward.”).

20 reasonable judgment that it seems essentially inexplicable on any grounds other than bad

faith.”36 At most, the Complaint states a claim that the Individual Defendants breached

their duty of care in agreeing to a transaction with Cypress at $3.10 per share and

agreeing to the deal protection devices contained in their merger agreement. Because the

Company has an exculpatory charter provision, however, that is not sufficient to state a

viable claim for monetary damages. Thus, Dent‟s claim in this respect must be

I turn next to Dent‟s claim that the Individual Defendants are liable for breaching

their duty of candor.

2. Duty of candor claim

The duty of disclosure is a specific application of corporate directors‟ fiduciary

duties of care and loyalty,37 requiring directors “to disclose fully and fairly all material

information within the board‟s control when it seeks shareholder action.”38 “An omitted

fact is material if there is a substantial likelihood that a reasonable shareholder would

consider it important in deciding how to vote.”39 Stated another way, there must be “a

substantial likelihood that the disclosure of the omitted fact would have been viewed by

the reasonable investor as having significantly altered the „total mix‟ of information made

available.”40 In that regard, Delaware law does not require information to be disclosed

simply because that information “might be helpful.”41 Furthermore, courts must “guard

36 In re Alloy, Inc., 2011 WL 4863716, at *10 (Del. Ch. Oct. 13, 2011).

21 against the fallacy that increasingly detailed disclosure is always material and beneficial

disclosure.”42

To plead adequately a disclosure claim, a plaintiff “must allege that facts are

missing from the Proxy, identify those facts, [and] state why they meet the materiality

standard and how the omission caused injury.”43 The plaintiff bears the burden of

demonstrating materiality.44

b. It is not reasonably conceivable that Dent has a viable claim for breach of the duty of candor against the Individual Defendants

Dent‟s disclosure claims can be categorized into four groups based on the subject

matters addressed by the challenged disclosures. Those groups are: the Company‟s

management projections; the summary of Needham‟s analyses in the Proxy; the Proxy‟s

description of the events leading up to the Cypress-Ramtron transaction; and conflicts

37 Malpiede v. Townson, 780 A.2d 1075, 1086 (Del. 2001). 38 Stroud v. Grace, 606 A.2d 75, 84 (Del. 1992). 39 Rosenblatt v. Getty Oil Co., 493 A.2d 929, 944 (Del. 1985) (quoting TSC Indus., Inc. v. Northway, Inc., 426 U.S. 438, 449 (1976) and adopting TSC‟s materiality standard as Delaware law). 40 Id. 41 Skeen v. Jo-Ann Stores, Inc., 750 A.2d 1170, 1174 (Del. 2000). 42 Zirn v. VLI Corp., 1995 WL 362616, at *4 (Del. Ch. June 12, 1995). 43 Wayne Cty. Employees’ Ret. Sys. v. Corti, 954 A.2d 319, 330 (Del. Ch. 2008) (quoting Skeen, 750 A.2d at 1174). 44 In re Siliconix Inc. S’holders Litig., 2001 WL 716787, at *9 (Del. Ch. June 19, 2001).

22 faced by Defendant George. I address these categories in turn, and conclude that none of

them state a viable disclosure claim.

c. Ramtron’s management projections

Dent‟s primary disclosure-related argument pertains to Ramtron management

projections for the years 2012 to 2016. Although Needham was given these projections

and relied on them in conducting its DCF analysis, the projections were not disclosed to

Ramtron‟s stockholders in the Proxy. Dent avers that these projections are material to the

Company‟s stockholders and the Individual Defendants breached their duty of candor in

failing to disclose them. I disagree.

There is no per se duty under Delaware law to disclose to stockholders financial

projections given to and relied on by a financial advisor.45 This is because the question

of materiality under Delaware law is a context-specific inquiry, and “[t]he myriad of

detailed information that must be furnished to shareholders necessarily differs from

merger to merger.”46 In a bench ruling denying Dent‟s motion for a preliminary

injunction to enjoin the Cypress-Ramtron merger, I held that these same management

projections were not material.47 I adhere to that prior holding.48

45 Cty. of York Emps. Ret. Plan v. Merrill Lynch & Co., 2008 WL 4824053, at *12 n.72 (Del. Ch. Oct. 28, 2008); McMillan v. Intercargo Corp., 1999 WL 288128, at *6 (Del. Ch. May 3, 1999). 46 Glassman v. Wometco Cable TV, Inc., 1989 WL 1160, at *5 (Del. Ch. Jan. 6, 1989). 47 Prelim. Inj. Hr‟g Tr. 69–72.

23 It is undisputed that, because of Cypress‟s 78% interest in Ramtron at the time of

the vote on the transaction, there was no doubt that Cypress would complete its

acquisition of Ramtron. Thus, Ramtron‟s remaining stockholders were not being asked

to weigh the transaction consideration versus the Company‟s future prospects. Rather,

those stockholders were going to be cashed out regardless of how they voted, and the

only question they faced was whether they wished to accept the merger consideration or

seek appraisal pursuant to 8 Del. C. § 262.49 To assist them in making that decision, the

Proxy summarized four financial analyses conducted by Needham, including a DCF.

While the Company‟s stockholders were not given the management projections, the

Proxy disclosed that the merger consideration was: (1) in the valuation range implied by

three of the four financial analyses; and (2) well below the DCF‟s valuation range of

48 Because the record in this case has not changed since the preliminary injunction hearing, I arguably need not reexamine Dent‟s claim. See McMillan v. Intercargo Corp., 768 A.2d 492, 507 n.67 (Del. Ch. 2000) (noting that where the record has not changed since a disclosure claim was found to be without merit on a motion for a preliminary injunction, the Court need not reconsider its prior analysis). Nevertheless, in the circumstances of this case, I believe it would be helpful to explain briefly my rationale for rejecting Dent‟s claim as to Ramtron‟s management projections. 49 In that regard, this case is different from both In re Netsmart Techs., Inc. S’holders Litig., 924 A.2d 171 (Del. Ch. 2007) and Maric Capital Master Fund, Ltd. v. PLATO Learning, Inc., 11 A.3d 1175 (Del. Ch. 2010). In each of those cases, the stockholders were being asked to decide whether to tender their shares in return for a fixed sum of cash or remain stockholders in an ongoing business. Moreover, I carefully considered both of those cases in deciding Dent‟s motion for a preliminary injunction, and found them not to be controlling in this dispute. Prelim. Inj. Hr‟g Tr. 71.

24 $3.57 to $5.01 per share. The remaining stockholders also were told explicitly that the

DCF analysis was based on Ramtron‟s management projections.

In this context, other than making the conclusory allegation that the projections are

“crucial” to stockholders, Dent has failed to explain how disclosing the Company‟s

management projections used in the DCF would significantly alter the total mix of

information available to the Company‟s stockholders. Because the stockholders were

informed that the transaction consideration was lower than the DCF range, by how much

it was lower, and that the DCF range was based on management projections, a reasonable

stockholder could infer that the transaction consideration was lower than the Company‟s

estimate of its own future earning potential.50 In this case, therefore, disclosing the

projections themselves would not provide stockholders with any meaningful additional

information or insight as to whether they should tender their shares or seek appraisal.

I note also that during the course of expedited discovery related to the preliminary

injunction hearing, Dent was given a copy of the projections that are the subject of this

dispute. Importantly, notwithstanding his possession of the projections, Dent has made

no allegation that the undisclosed projections are in any way inconsistent with, or

otherwise significantly different from, the information that was disclosed. The Delaware

50 It also was disclosed in the Proxy that Ramtron made two counterproposals to Cypress, one at $3.50 per share and one at $3.25 per share. This information could help stockholders assess how reliable the Company believed its projections were.

25 Supreme Court has held that such a failure can be fatal to a claim for breach of the duty

of candor.51

At most, the Complaint supports a reasonable inference that Ramtron‟s

management projections may have been helpful to the Company‟s stockholders in

electing whether to accept the transaction consideration or to seek appraisal. For omitted

information to form the basis of a viable disclosure claim under Delaware law, however,

that information must be material, not merely helpful. Ramtron‟s stockholders were

given summaries of multiple financial analyses performed by the Company‟s financial

advisor to help them make their decision, and were informed explicitly that one of those

analyses indicated that the transaction consideration was below what the Company‟s

internal projections would imply its value to be. Here, the details of those projections

would not significantly alter the total mix of information available to the Company‟s

stockholders. Therefore, the fact that the projections were omitted from the Proxy does

not constitute a viable disclosure claim under Delaware law.

d. Summary of Needham’s financial analyses

Recognizing the questionable strength of his remaining disclosure claims, Dent

spent less than two pages in his brief discussing the proverbial laundry list of issues he

raised in the Complaint, and devoted much of that limited discussion simply to quoting

the claims made in the Complaint itself. Unsurprisingly, none of these alleged disclosure

violations can serve as the basis for a viable claim against the Individual Defendants.

51 Skeen v. Jo-Ann Stores, Inc., 750 A.2d 1170, 1174 (Del. 2000).

26 First, Dent challenges the completeness of the “Selected Company Analysis”

included as part of Needham‟s fairness opinion. The Proxy discloses the names of the

eight publicly traded companies used in that analysis, the high, low, mean, and median

multiples of those eight companies, as a group, for certain valuation metrics, and

Ramtron‟s projected multiple for each of those valuation metrics based on the proposed

transaction with Cypress. Dent argues that a material omission exists as to the summary

of this analysis because it does not provide the multiples for each of the eight individual

companies, and without that information, stockholders cannot determine whether the

eight companies actually are comparable to Ramtron.

This assertion is both inaccurate and irrelevant. It is inaccurate because the Proxy

identified the eight publicly traded companies used in the analysis and any Ramtron

stockholder that wished to determine independently the “comparability” of those

companies simply had to access their public filings with the SEC. It is irrelevant because

stockholders are entitled only to a fair summary of a financial advisor‟s work, not the

data to make an independent determination of fair value. Dent has not articulated

sufficiently in what way the reasonably comprehensive disclosures relating to the

Selected Company Analysis fall short of providing a fair summary of the analysis

Needham conducted in that regard. Moreover, Dent has not offered any cogent

explanation as to how the additional granularity he seeks is anything more than helpful or

cumulative to the information already disclosed, or how the individual company

multiples would alter significantly the total mix of information available to Ramtron‟s

27 stockholders. Therefore, Dent‟s allegations of a disclosure violation as to the Selected

Company Analysis fail as a matter of law.

Second, Dent challenged the adequacy of the Proxy‟s description of Needham‟s

“Selected Transaction Analysis.” He argues, as he did regarding the Selected Company

Analysis, that the relevant valuation multiples are presented as a range and not on an

individual company or transaction basis. Dent‟s attempt to retread his unpersuasive

argument in this context is unavailing for the same reasons discussed above. The Proxy

disclosed the acquirer and publicly traded target for each of the 13 deals Needham used

in its analysis, as well as the range of two relevant valuation multiples over those same

transactions. Dent has not cited any Delaware case law that supports his contention that

the valuation multiples of each individual transaction needed to be disclosed here.

Accordingly, I conclude it is not reasonably conceivable that Dent could prove on a full

evidentiary record that the Selected Transaction Analysis contains a material omission

because it does not include the valuation multiples for each of the individual deals on

which the analysis is based.

Third, Dent disputes the completeness of the summary of Needham‟s “Stock Price

Premium Analysis.” According to Plaintiff this analysis contains material omissions

because it “fails to disclose which transactions were analyzed, what information was

relied upon and how Needham chose the sources of information upon which it chose to

rely.”52 As to the allegation that the Proxy does not disclose what information Needham

52 Compl. ¶ 75(c).

28 relied on, I find that allegation to be false. The Proxy states that “[Needham] analyzed

the premium of consideration offered to the acquired company‟s stock price one trading

day and five trading days prior to the announcement of the transaction.”53 Regarding

Dent‟s assertion that the Proxy should have disclosed how Needham selected the sources

of information it relied on, he cites no authority nor provides any rationale in support of

his argument that such information would be material to Ramtron‟s stockholders in

considering whether to accept the transaction consideration or seek appraisal. This is

simply a “tell me more” request that, unlike a viable disclosure claim, fails to identify

how the analysis is misleading or incomplete if it does not disclose specifically which

publicly available source of information Needham used to do its work.54

Additionally, the allegation that the identity of the companies in the 22

transactions that were used in the analysis is material ignores the disclosures actually

made in the Proxy. Ramtron‟s stockholders were informed that Needham “analyzed

publicly available financial information for 22 merger and acquisition transactions that

represent transactions involving publicly-traded technology and technology-enabled

services companies completed since January 1, 2010 with transaction equity values of

53 Proxy 38. In that regard, I note that all of the transactions in the analysis involved publicly traded companies for which certain financial information is readily available. 54 See In re Best Lock Corp. S’holder Litig., 845 A.2d 1057, 1073 (Del. Ch. 2001) (“Delaware courts have held repeatedly that a board need not disclose specific details of the analysis underlying a financial advisor‟s opinion.”).

29 between $50 million and $200 million.”55 Thus, the universe of companies that were

included in the analysis was sufficiently defined that those companies were readily

identifiable through publicly available information. While conceivably it might have

been helpful to Ramtron‟s stockholders to identify the companies involved on an

individual basis, such supplemental disclosures would not have significantly altered the

total mix of information available to them. Accordingly, Dent‟s allegations with respect

to the Stock Price Premium Analysis fail to state a viable disclosure claim.

Fourth, Dent avers that the summary of Needham‟s DCF analysis failed

impermissibly to disclose the manner in which stock-based compensation was treated and

how any Net Operating Losses (“NOLs”) were treated. The Complaint does not allege

that Ramtron actually had any NOLs, nor does Dent allege that Needham used either of

these potential inputs in an inconsistent, atypical, or unexpected manner, such as, for

example, by treating stock-based compensation as a cash expense.56 Here, stockholders

were informed that the transaction consideration fell well below the valuation range of

Ramtron implied by Needham‟s DCF analysis. Plaintiff has not explained how knowing

the details of how Needham treated those two inputs would be material to Ramtron‟s

stockholders.

In fact, Dent made no effort, in his Complaint, in briefing, or at argument, to

explain how the non-disclosed information would significantly alter the total mix of

55 Id. 56 See Laborers Local 235 Benefit Funds v. Starent Networks, Corp., 2009 WL 4725866, at *1 (Del. Ch. Nov. 18, 2009).

30 information available to stockholders other than making the conclusory assertion that,

without that information, Ramtron‟s stockholders “are unable to determine whether the

DCF is reliable.”57 This, however, appears to be a transparent attempt to repackage the

argument that disclosures must contain enough information to enable a stockholder to

make an independent determination of fair value. But, this argument has been rejected

explicitly by our Supreme Court.58 Having failed to adduce any cogent explanation that

the increased granularity he seeks is material, and not simply helpful, to Ramtron‟s

stockholders, Dent‟s allegations fail to state a legally cognizable claim for the breach of

the duty of candor.

Finally, Dent argues that the summary of Needham‟s DCF is materially

incomplete because the Proxy does not explain how Needham determined to use discount

rates ranging from 20% to 23% or why it applied multiples ranging from 5x to 7x to

calculate a range of illustrative terminal values. This assertion ignores settled Delaware

law and lacks merit for at least two reasons. First, this Court has held repeatedly that

asking “why” does not state a meritorious disclosure claim.59 Second, the exact details of

57 Compl. ¶ 75(d). 58 Skeen v. Jo-Ann Stores, Inc., 750 A.2d 1170, 1174 (Del. 2000) (“Appellants are advocating a new disclosure standard in cases where appraisal is an option. They suggest that stockholders should be given all the financial data they would need if they were making an independent determination of fair value. Appellants offer no authority for their position and we see no reason to depart from our traditional standards.”). 59 In re Sauer-Danfoss Inc. S’holders Litig., 65 A.3d 1116, 1131 (Del. Ch. 2011); see also Loudon v. Archer–Daniels–Midland Co., 700 A.2d 135, 145 (Del. 1997) 31 how and why a financial advisor chooses certain discount rates or multiple ranges when

conducting a DCF analysis goes well beyond the “fair summary” that is required under

our law. In essence, Dent seeks additional disclosures that would support his belief that

Needham erred in conducting its DCF analysis. The issue of whether Needham used the

correct rates and multiples, however, is an entirely distinct issue from whether the Proxy

contains a fair summary of the analysis that Needham actually conducted. Ramtron‟s

stockholders undeniably were told what ranges Needham used in its analysis and, thus,

were given sufficient information to understand what Needham did in its DCF analysis.

Therefore, I dismiss Dent‟s disclosure claim predicated on a lack of information

concerning how and why Needham used the discount rates and multiples that it did in its

DCF analysis.

e. Summary of events leading up to the transaction

Dent also has challenged the completeness of the disclosures in the Proxy

regarding the events leading up to the Board‟s recommendation that the Company‟s

stockholders approve the transaction with Cypress. The Proxy contains seventeen single-

spaced pages of detailed descriptions of the key events leading up to the Cypress

transaction. Plaintiff nevertheless alleges four deficiencies. Having reviewed carefully

the Proxy, I conclude that Dent has failed to allege a viable disclosure claim as to the key

events leading up to the Ramtron-Cypress transaction.

(affirming dismissal of a claim that did not identify disclosure violations but rather “pose[d] a question”).

32 The first purported omission relates to a January 28, 2011 meeting between

Cypress executives and certain Ramtron directors in which “the potential synergies

between a business combination of Ramtron and Cypress was discussed.” 60 According to

Dent, the Proxy is deficient because it does not disclose what, if any, discussions

Ramtron and Cypress had about potential business combinations before January 28,

2011, and the amount of the synergies that were discussed at the January 28 meeting.

Dent offers no explanation as to why this requested information is material. There are no

allegations that Ramtron and Cypress ever had any meaningful merger-related

discussions before January 2011, and even if they had, it is not reasonably conceivable

that preliminary conversations that occurred over eighteen months before the transaction

was agreed to would significantly alter the total mix of information available to

Ramtron‟s stockholders. This is particularly true in this case, because between January

2011 and September 2012, Ramtron rebuffed Cypress‟s takeover efforts on numerous

occasions. That fact alone suggests that the January 2011 (or earlier) discussions,

including any discussion of potential synergies, had little, if any, impact on what Cypress

and Ramtron agreed to well over a year and a half later. Consequently, Dent has failed to

state a viable disclosure claim in this regard.

Next, Dent argues that the Proxy is deficient because it fails to disclose the exact

nature of the “several tactical considerations” the Board discussed with Needham during

a June 13, 2012 meeting. The June 2012 meeting was one of several in which the Board

60 Proxy 15.

33 discussed its strategy for conducting the sales process, generally, and dealing with

Cypress, specifically, with its financial advisor. Because the Board had a number of

similar meetings, it is unclear why a more granular understanding of the particular

“tactical considerations” discussed at one specific meeting would be material to

Ramtron‟s stockholders. Moreover, “Delaware law does not require management „to

discuss the panoply of possible alternatives to the course of action it is proposing,‟” in

part because “stockholders have a veto power over fundamental corporate changes (such

as a merger) but entrust management with evaluating the alternatives and deciding which

fundamental changes to propose.”61 Therefore, the lack of specificity in the Proxy as to

the “several tactical considerations” discussed during the June 13, 2013 meeting is

insufficient to support a viable disclosure claim.

Third, Dent avers that the Proxy lacks sufficient details regarding the strategic

alternatives the Company considered, how the Company evaluated those alternatives, and

as to the 24 entities that were contacted, what types of entities made an offer and what the

value of those offers were. As acknowledged in the Complaint itself, the Proxy states

that the Board convened “many times” to discuss developments in the sales process and

possible strategic alternatives to the Cypress deal. Here, too, Dent has not advanced any

persuasive rationale for asserting that more details regarding these “many” meetings

would be material to the Company‟s stockholders. The details provided in the Proxy

61 In re 3Com S’holders Litig., 2009 WL 5173804, at *5 (Del. Ch. Dec. 18, 2009) (quoting Seibert v. Harper & Row, Publishers, Inc., 1984 WL 21874, at *5 (Del. Ch. Dec. 5, 1984).

34 sufficiently describe the sales process and potential strategic alternatives to allow the

stockholders to draw their own conclusions about the transaction. Because I do not

consider it reasonably conceivable that the “blow-by-blow” disclosures that Dent requests

would significantly alter the total mix of information available to Ramtron‟s

stockholders, the absence of those disclosures from the Proxy does not constitute an

actionable disclosure violation.62

The same holds true for Dent‟s allegations regarding the 24 companies that

Ramtron contacted during the sales process. Because Cypress had gained majority

control of Ramtron through its tender offers, the close of the long-form merger was a fait

accompli. Thus, when the Proxy was disseminated to Ramtron‟s stockholders, the only

question they faced was whether to accept the merger consideration or seek appraisal.

The types of companies that may or may not have made an offer for Ramtron during the

sales process has no bearing on the issue of whether or not to seek appraisal.

Furthermore, there are no allegations that any company made an offer for Ramtron that

was of equal or greater value to the Cypress offer. Dent has failed to allege adequately

how including the details of rejected offers that offered less value for the Company than

the Cypress bid would be material to a Ramtron stockholder in determining whether or

not to seek appraisal. Accordingly, I conclude that this aspect of Dent‟s disclosure claim

also fails to state a claim upon which relief can be granted.

62 Matador Capital Mgmt. Corp. v. BRC Hldgs., Inc., 729 A.2d 280, 295 (Del. Ch. 1998) (“The application of [the reasonable investor] standard does not require a blow-by-blow description of events leading up to the proposed transaction.”).

35 Finally, Dent complains that the Proxy fails to disclose the members of a subset of

the Board that authorized Needham to deliver a counterproposal to Cypress and the

process by which those Board members were authorized to take such actions.63 It is

dubious whether the information Dent seeks here even is relevant or helpful, let alone

material. At best, the additional disclosures Dent requests on this subject amount to

needlessly cumulative “play-by-play” information that this Court repeatedly has

eschewed requiring companies to disclose.64 Thus, these allegations also fail to state a

legally sufficient claim for a disclosure violation.

Overall, Dent‟s challenges to the adequacy of the summary of key events leading

up to the Cypress transaction are premised on a fallacy that this Court has long

recognized and long rejected -- i.e., that increasingly detailed disclosure is always

material and beneficial disclosure.65 The allegations in the Complaint and the content of

63 The Complaint also alleges that the Proxy fails to disclose the amount of the counterproposal. Compl. ¶ 74. This allegation, however, is demonstrably false as the Proxy explicitly states that Ramtron made a counterproposal of $3.25 per share. Proxy 29. 64 Globis P’rs, L.P. v. Plumtree Software, Inc., 2007 WL 4292024, at *14 (Del. Ch. Nov. 30, 2007) (“a full and fair characterization [of background to a transaction] does not require . . . a „play-by-play description of merger negotiations.‟”). 65 Abrons v. Maree, 911 A.2d 805, 813 (Del. Ch. 2006) (stating that this Court must “guard against” such a fallacy); Zirn v. VLI Corp., 1995 WL 362616, at *4 (Del. Ch. June 12, 1995), aff’d, 681 A.2d 1050 (Del. 1996) (same). See also In re 3Com S’holders Litig., 2009 WL 5173804, at *5 (recognizing “that too much information can be as misleading as too little.”); Ryan v. Lyondell Chem. Co., 2008 WL 2923427, at *19 n.115 (Del. Ch. July 29, 2008), rev’d on other grounds, 970 A.2d 235 (Del. 2009) (“[A] lenient standard for materiality poses the risk that the corporation will bury the shareholders in an avalanche of trivial information, a 36 the Proxy do not support a reasonable inference that the unnecessary “play-by-play”

disclosures Dent seeks would significantly alter the total mix of information available to

the Company‟s stockholders. Therefore, Dent has not advanced a viable disclosure claim

regarding the Proxy‟s summary of the key events leading up to the Ramtron-Cypress

transaction.

f. Defendant George’s alleged conflict

In the Complaint, Dent alleges that the Proxy failed to disclose that Defendant

George served on a “manufacturing advisory board” associated with Cypress, and, thus,

that he had a material conflict as to the Ramtron-Cypress transaction. In support of this

allegation, the Complaint cites to a June 2009 public filing of Power Integrations, Inc., an

entity not otherwise involved in this dispute.66 Nowhere in the Complaint is it alleged

that George was a member of the manufacturing board at the time he was appointed to

the 2012 Committee or when the Proxy was disseminated to Ramtron‟s stockholders.

Instead, the Complaint misleadingly alleges that George was “retained as a member of

Cypress‟ Manufacturing Advisory Board,” “while acting in his role as a Ramtron Board

member.”67 Moreover, Defendants argue that George resigned from the Cypress

result that is hardly conducive to informed decisionmaking.”) (internal quotation marks and citation omitted). 66 Compl. ¶ 67. 67 Id. ¶ 66. Because George was on the Ramtron Board from 2005 until at least 2012, he was simultaneously a member of the Ramtron and Cypress manufacturing advisory boards in 2009. It does not follow, however, that he was a member of both boards in 2012, when he had a role on behalf of Ramtron in the events relevant to this litigation.

37 advisory board in April 2011, over a year before he was appointed to the 2012

Committee, and that Defendants provided Dent with documentary evidence to that

effect.68 Although Defendants discussed this issue in their opening brief, Dent did not

address this issue in either his answering brief or at argument. As such, I find that Dent

effectively has conceded that George was no longer a member of the Cypress advisory

board after April 2011.

Because George was not a member of the Cypress advisory board after April

2011, Dent has failed to allege adequately that George‟s prior relationship with Cypress

is material to Ramtron‟s stockholders. There are no allegations in the Complaint that

would support a reasonable inference that George controlled, dominated, or otherwise

exercised disproportionate influence over Ramtron‟s sales process. George was one of

five members of the 2012 Committee. Because there are no allegations that he controlled

or directed the 2012 Committee, it is unclear why George‟s past association with Cypress

even would be relevant to stockholders weighing the choice between accepting the

transaction consideration and seeking appraisal. In any event, based on allegations in the

Complaint, it is not reasonably conceivable that such a prior relationship would have

significantly altered the total mix of information available to Ramtron‟s stockholders. 69

68 Defs.‟ Opening Br. 40–41. 69 See Weinberger v. Rio Grande Indus., Inc., 519 A.2d 116, 123 (Del. Ch. 1986) (holding that failure to disclose certain director‟s potentially conflicting board positions did not state a claim because “at the time of the [] merger agreement, there was no relationship . . . that might give rise to a potential conflict.”) Also as in Rio Grande, Dent has not shown here “in what manner such a potential conflict 38 In sum, the non-conclusory allegations in the Complaint do not support an

inference that it is reasonably conceivable that Dent could prove on a full evidentiary

record that any of the purported inadequate disclosures in the Proxy as to Ramtron‟s

management projections, the summary of Needham‟s analysis, the description of the

process leading to the Ramtron-Cypress transaction, and Defendant George‟s conflict are

actionable disclosure violations. Therefore, I dismiss Dent‟s breach of fiduciary duty

claim premised on the disclosures in the Proxy.70

C. Aiding and Abetting

1. Legal standard

To state a claim for aiding and abetting, a plaintiff must allege: (1) the existence of

a fiduciary relationship; (2) a breach of the fiduciary‟s duty; (3) knowing participation in

that breach by the defendants; and (4) damages proximately caused by the breach. 71 The

key inquiry in the aiding and abetting claim here is whether Dent has pled adequately the

second element, knowing participation. Although there is no requirement that knowing

would have been important to a [Ramtron] stockholder considering whether or not to tender his shares to [Cypress] . . . .” Id. 70 Because Dent has not alleged adequately a disclosure violation, I also dismiss Count III of the Complaint for the remedy of quasi-appraisal, which is based on the allegation that Ramtron‟s stockholders were not provided with adequate information in the Proxy to make an informed decision as to whether or not they should seek appraisal. Similarly, I dismiss the portion of Dent‟s aiding and abetting claim in Count II of the Complaint related to the Individual Defendants‟ alleged breach of their duty of candor because Dent has not alleged sufficiently an underlying breach of fiduciary duty. DiRienzo v. Lichtenstein, 2013 WL 5503034, at *36 (Del. Ch. Sept. 30, 2013). 71 Malpiede v. Townson, 780 A.2d 1075, 1096 (Del. 2001).

39 participation be pled with particularity, a plaintiff must allege facts from which knowing

participation may be inferred in order to survive a motion to dismiss.72 Significantly,

however, “[t]his Court has consistently held that evidence of arm‟s-length negotiation

with fiduciaries negates a claim of aiding and abetting, because such evidence precludes a

showing that the defendants knowingly participated in the breach by the fiduciaries.73

2. It is not reasonably conceivable that Cypress74 aided and abetted any failure by the Ramtron Board to maximize the Company’s sale price

At the outset, in terms of the sale process, I note the only reasonable inference that

the Complaint supports is that Cypress and Ramtron negotiated their transaction at arm‟s-

length. Dent has pled no non-conclusory facts that Cypress created or exploited conflicts

of interest in the Ramtron Board, conspired in any way with the Ramtron Board, used

knowledge of a breach of a fiduciary duty to gain an advantage in negotiations with

Ramtron, or participated in a transaction where the terms were so egregious or contained

side deals, the magnitude of which, were “so excessive as to be inherently wrongful.”75

Rather, the Complaint alleges that over a period of more than 19 months, Ramtron

engaged Cypress, an independent third party, in contentious arm‟s-length bargaining,

which resulted in Cypress increasing its offer for the Company numerous times.

72 In re Telecommunications, Inc., 2003 WL 21543427, at *2 (Del. Ch. July 7, 2003). 73 In re Frederick’s of Hollywood, Inc., 1998 WL 398244, at *3 n.8 (Del. Ch. July 9, 1998). See also In re Gen. Motors S’holder Litig., 2005 WL 1089021, at *26 (Del. Ch. May 4, 2005) (same). 74 For purposes of this Section, all references to Cypress are inclusive of Rain. 75 In re Telecommunications, Inc., 2003 WL 21543427, at *2.

40 Moreover, the Complaint acknowledges that Ramtron genuinely explored interest from

other potential acquirers, and contains no allegations that suggest that Cypress was

somehow favored over any of these other potential acquirers. In short, Dent faces a

heavy burden in arguing that Cypress knowingly participated in any breaches of fiduciary

duty by the Individual Defendants because there can be no dispute that the Cypress-

Ramtron deal was negotiated at arm‟s-length.

As discussed supra, to the extent the Complaint conceivably supports a reasonable

inference that the Individual Defendants breached their fiduciary duties by not

maximizing Ramtron‟s sale price, any such breach was of the duty of care only.76 Even

assuming the Complaint states a claim for breach of fiduciary duty in this regard, Dent‟s

aiding and abetting claim still fails because he has not alleged adequately that Cypress

knowingly participated in this alleged breach. From the allegations in the Complaint, it

does not appear that Cypress did anything more than engage Ramtron in arm‟s-length

bargaining, in which it had every right to pursue the best possible deal for itself. Before

reaching an agreement with Ramtron, Cypress did nothing to interfere with the

Company‟s pursuit of other strategic alternatives or the Company‟s ability to evaluate

sufficiently the adequacy of the offer it was making. In addition, none of the Board‟s

actions, either before or after the Company agreed to a transaction with Cypress, were so

76 Although the Individual Defendants are covered by the Company‟s exculpatory provision, Cypress, as an independent third party, is not. Consequently, it is possible for Cypress to be liable for monetary damages for aiding and abetting a breach of the duty of care even if the directors responsible for the breach itself cannot be held liable for such conduct. See generally In re Rural Metro Corp., 88 A.3d 54 (Del. Ch. 2014).

41 unreasonable that it would support an inference that Cypress knew the Board was

breaching its fiduciary duties and that it wished to facilitate any such breaches. Because

Dent has not alleged sufficiently knowing participation, a requisite element of his aiding

and abetting claim, his claim in this regard does not pass muster under Rule 12(b)(6).

Finally, Dent argues that Cypress knowingly participated in the Individual

Defendants‟ breach of their duty of care because Cypress knew that the consideration

being offered to Ramtron‟s stockholders was below the $3.57 to $5.01 per share

valuation range for the Company determined by Needham in its DCF. This assertion,

however, is without merit.

As an initial matter, I note that Dent has not alleged that Cypress had any

knowledge of Ramtron‟s projections or the results of Needham‟s analysis before signing

a merger agreement with Ramtron or that Needham‟s DCF analysis was the only method

used to value Ramtron. In fact, the allegations in the Complaint that Cypress expressly

declined to execute a confidentiality agreement with Ramtron and review its projections

and that Needham presented several different financial analyses to Ramtron‟s Board

support the opposite conclusion. Of greater significance, however, is the fact that the

Cypress-Ramtron transaction indisputably was an arm‟s-length transaction between

unrelated parties. In arguing that Cypress aided and abetted the Individual Defendants‟

breach of their fiduciary duties by obtaining a price below a financial advisor‟s valuation

range, Dent essentially is arguing that Cypress got too good a deal, and that such conduct

amounts to tortious conduct. Delaware courts expressly and repeatedly have rejected this

42 argument,77 and Dent has not stated any cogent reason to depart from settled Delaware

law on this point.

3. It is not reasonably conceivable that Cypress aided and abetted any breach of fiduciary duty by the Ramtron Board related to the deal protection measures

Even assuming, as Dent asserts, that the Ramtron Board breached its fiduciary

duties by agreeing to the deal protection measures that were used in the transaction with

Cypress, the Complaint falls well short of alleging adequately that Cypress knowingly

participated in any such breaches. Considered separately or together, Dent has failed to

identify any aspect of any of the deal protection devices that was so untoward or

egregious that it would support an inference that an independent third party, such as

Cypress, knowingly participated in the Individual Defendants‟ breach of fiduciary duty.

The Complaint supports a reasonable inference that Cypress and Ramtron negotiated

their transaction at arm‟s-length, with each attempting to obtain the greatest possible

benefit for themselves. The fact that Cypress may have obtained favorable deal

protection measures through bargaining in this instance does not support a reasonable

77 See Malpiede v. Townson, 780 A.2d 1075, 1097 (Del. 2001) (“a bidder‟s attempts to reduce the sale price through arm‟s-length negotiations cannot give rise to liability for aiding and abetting”); Morgan v. Cash, 2010 WL 2803746, at *8 (Del. Ch. July 16, 2010) (“Under our law, both the bidder‟s board and the target‟s board have a duty to seek the best deal terms for their own corporations when they enter a merger agreement. To allow a plaintiff to state an aiding and abetting claim against a bidder simply by making a cursory allegation that the bidder got too good a deal is fundamentally inconsistent with the market principles with which our corporate law is designed to operate in tandem.”); In re Lukens Inc. S’holders Litig., 757 A.2d 720, 735 (Del. Ch. 1999) (“it should be obvious that „an offeror may attempt to obtain the lowest possible price for stock through arm‟s-length negotiations.‟”).

43 inference that Cypress knowingly participated in any breach of fiduciary duty by

Ramtron‟s Board. Therefore, I conclude that Dent‟s aiding and abetting claim against

Cypress in this respect must be dismissed.

III. CONCLUSION

For the foregoing reasons, Defendants‟ motions to dismiss are granted in their

entirety. The Complaint is dismissed with prejudice.

IT IS SO ORDERED.