The Bankruptcy Court and the U.S. District Court for the Southern District of New York have turned down claims by an investment banking firm to a one-year "tail provision" fee on a reorganization plan for its former client company in a bankruptcy filed 13 months after the investment banking firm sent written notice of termination of its engagement (and 21 months after the firm completed its work). Peter J. Solomon Company, L.P., v. Oneida, Ltd., Case No. 09-CIV-2229, 2010 WL 234827 (S.D.N.Y. Jan. 22, 2010), aff'g, Case No. 06-10489 (ALG) (Bkrtcy. S.D.N.Y. Feb. 6, 2009). Wojciech F. Jung and S. Jason Teele, of Lowenstein Sandler PC, have provided a thorough analysis of the decision in a client alert (.pdf).
The claim seemed doomed by the facts and the contract language almost no matter where you looked, and the gist of the decisions seems obvious — that a provision to protect the investment banker from providing most or all of the services but being denied a completed-transaction fee when the client terminates the arrangement before the transaction is complete should not apply when the transaction has been completed and the fee paid. There are, however, two minor points to show how hard it is to make a contract "clear," that plain-language construction can lead to widely different conclusions.
One is in the agreement's provision that either party "may terminate this Agreement upon 30 days notice delivered in writing...." The Bankruptcy Court opinion (.pdf) treats the permissive "may" as referring to the way (by written notice) termination was to be accomplished (slip op. p.11). Yet it seems obvious to me that the provision permits a party to terminate the agreement (rather than wait for its expiration or completion), but the only way to do so is by written notice.
The other is in the timing of the one-year tail provision:
PJSC shall be entitled to its full fee ... in the event that any Transaction is consummated at any time prior to the expiration of one year after such termination.
So what is the period covered by "any time prior to the expiration of one year after such termination"? Is it that a transaction be consummated during
- the one year following "such termination"? or
- any time before the one-year anniversary of "such termination"?
The latter is a stricter, more literal construction of the language, but the former is probably what the parties had intended. It would make a difference, for example, if the agreement covered 3 possible transactions — A, B, C —, had a one-year "tail provision," and the factual sequence was roughly as in the Oneida case. Assume that 6 months after the investment banker's engagement began, transaction A closed. The investment firm continued to work for 6 more months, at which time the client firm gave written notice of termination. Two to three years later, transaction B closed. Under
- the first construction, the fee for transaction B — which occurred outside the year following termination — is not owed to the investment banker.
- the second construction, a fee for transaction B fee is owed to the investment banker because, although transaction B occurred beyond the one-year anniversary, "any Transaction" — namely, transaction A — did occur before that one-year anniversary.
