Olson v. Halvorsen

986 A.2d 1150, 2009 Del. LEXIS 651, 2009 WL 4846616
CourtSupreme Court of Delaware
DecidedDecember 15, 2009
Docket338, 2009
StatusPublished
Cited by20 cases

This text of 986 A.2d 1150 (Olson v. Halvorsen) is published on Counsel Stack Legal Research, covering Supreme Court of Delaware primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Olson v. Halvorsen, 986 A.2d 1150, 2009 Del. LEXIS 651, 2009 WL 4846616 (Del. 2009).

Opinion

STEELE, Chief Justice:

Brian Olson, the plaintiff below appellant, claims that his investing partners orally amended their LLC’s compensation provisions. The Vice Chancellor held that Olson failed to prove an amendment, and that the statute of frauds applies to LLC operating agreements, making the alleged oral amendment nonenforceable. Olson asserts that applying the statute of frauds to LLC agreements contravenes the General Assembly’s intent to give LLC agreements maximum effect. Because the trial court committed no legal error and the record supports the Vice Chancellor’s contractual interpretation, we AFFIRM.

FACTS AND PROCEDURAL HISTORY

Andreas Halvorsen, David Ott, and Olson worked together at Tiger Management, a hedge fund. In early 1999, Halvorsen left Tiger Management and contacted Olson and Ott about forming a new hedge fund, Viking Global.

I.The February 1999 Meeting and the “Cap and Comp” Agreement

In February 1999, Halvorsen, Olson, and Ott orally agreed upon Viking’s fundamental operating terms. They agreed that the three founders would operate Viking, and divide all of its profits annually. If any one of them left Viking, he would receive only his capital account balance and earned compensation. 1

II. Formation of the Viking Entities

To carry on the Viking business, the founders created three Delaware entities: (1) Viking Global Performance LLC to collect Viking’s performance fees; (2) Viking Global Investors LP to pay Viking’s expenses, employ Viking’s staff, enter into operational contracts on Viking’s behalf, and collect management fees; and (3) Viking Global Partners LLC to serve as the general partner for Investors. They executed certificates of formation on April 8, 1999, and filed them with the Secretary of State of Delaware the next day.

III. Operating Agreements for the Viking Entities

Olson directed Viking’s counsel to draft operating agreements for the Viking entities. In April 1999, Viking’s counsel provided the first drafts of the operating agreements for Investors, Partners, and Performance. These long-form operating agreements reflected the founders’ earlier oral agreements.

Viking’s counsel, at Olson’s direction, also drafted short-form operating agreements for Investors, Partners, and Performance. 2 After Olson requested, and counsel made, a few modifications, the three founders signed all three short-form agreements. 3 The short-form operating *1153 agreements do not contain all of the terms agreed upon by the founders at the February meeting, but each short-form agreement does provide that a departing member will receive only his capital account balance and accrued compensation.

After the founders executed the short-form agreements, Olson and Viking’s attorneys continued to refíne the long-form agreements. They produced more than a dozen drafts between April 1999 and October 1,1999 when Viking was launched. As a result of a potential dispute with an employee, the founders decided to supersede the Performance short-form agreement, by signing the Performance long-form agreement, dated September 28, 1999. The founders never signed long-form operating agreements for Investors and Partners, however, the unsigned Investors and Partners long-form agreements, and the signed Performance long-form agreement all provide that a departing member of Viking will receive only his capital account balance and accrued compensation.

IV. Founders and the Earnout Provision

In mid-1999, Olson proposed that a new entity, Viking Global Founders LLC, pay a founder an earnout upon his departure from Viking. Olson did not explain the details of the earnout at the founders’ first meeting, but Halvorsen and Ott considered the idea interesting, and the three founders left the issue open for discussion. 4

Olson continued to direct Viking’s attorneys, who prepared nine drafts of the Founders operating agreement over roughly a year and a half. The draft agreement provided that each founder would receive a declining percentage of his interest in Viking for six years upon retirement or death (the earnout provision). During the drafting process, Olson never discussed changes to the Founders agreement. 5 Between 1999 and 2001, Halvorsen and Ott received several drafts of the Founders agreement, but Halvorsen and Ott never discussed the drafts or the earn-out concept with Olson after meeting briefly in the summer of 1999. None of the three founders ever signed a Founders operating agreement, and Halvorsen and Ott testified that they never reached an agreement with, or made promises to, Olson regarding the Founders earnout concept.

Outside counsel, at Olson’s direction, filed a certificate of formation for Founders on September 28, 1999. Olson also instructed Founders to become a member of Performance, and directed certain portions of the founders’ year 2000 to 2005 residual income through Founders.

V. Renegotiation of Compensation Percentages

By the end of 2001, when Olson’s compensation dissatisfied him, Halvorsen refused to pay him more, and Olson announced his exit from Viking. Halvorsen and Olson decided to negotiate a mutually acceptable solution that decreased Halvor-sen’s share and increased Olson’s share of Viking profits.

*1154 Olson admitted that the three founders did not discuss how the changes in compensation percentages would affect the earnout provision he claims was agreed to or their purported entitlement to the fair value of Founders. Halvorsen and Ott thought that these changes would only affect annual compensation. Both Halvor-sen and Ott testified that they would never have agreed to increase Olson’s retirement benefits without requiring him to stay at Viking for a substantial period of time. Otherwise, Olson could have immediately walked away with a substantial amount of additional money, without conveying any corresponding additional benefit for Viking.

VI. The Liquidation Agreement

On November 1, 2002, Halvorsen, Olson, and Ott signed a letter agreement to govern any future liquidation of the Viking entities. The liquidation agreement references the “Limited Liability Company Agreement for VGFounders, as amended from time to time.” The founders did not discuss the Founders agreement for another two years.

VII. The Founders Agreement and Earnout Resurface

Daniel Cahill, who became Viking’s president in 2003, discovered the draft Founders agreement in the summer of 2004. The earnout provision surprised him, because the founders had told him on several occasions that employees would only get paid while they were actively employed at Viking. Cahill also testified that Olson had told him several times that a departing Viking founder could only receive his capital account balance and accrued compensation.

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Bluebook (online)
986 A.2d 1150, 2009 Del. LEXIS 651, 2009 WL 4846616, Counsel Stack Legal Research, https://law.counselstack.com/opinion/olson-v-halvorsen-del-2009.