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1
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DEFENDANTS OPPOSITION TO PLAINTIFFS APPLICATION FOR CERTIFICATION OF INTERLOCUTORY APPEAL
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EXTRACTED KEY WORDS
DELAWARE AZURIX INTERLOCUTORY DEL MOTION CERTIFICATION SUPREME COURT APPEALS TEXAS SUPR ORDER GRANTING EXHIBIT TRIAL COURT LITIGATION LAW CONCLUDING CRITERIA MEM DISCRETION STANDARD SATISFY SUPRA SYNAGRO CHRYSLER FIRST BUSINESS INTERLOCUTORY REVIEW EXERCISE FLEMING HALL PRIOR |
IN THE COURT OF CHANCERY OF THE STATE OF DELAWARE
IN AND FOR NEW CASTLE COUNTY
AZURIX CORP., )
Plaintiff, Civil Action No. 17509-NC
V.
SYNAGRO TECHNOLOGIES, INC., ;
Defendant.
DEFENDANT'S OPPOSITION TO PLAINTIFF'S
APPLICATION FOR CERTIFICATION
OF INTERLOCUTORY APPEAL
Defendant, Synagro Technologies, Inc. ("Synagro"), opposes the application'of
-, ._
Azurix Corp. ("Azurix"), pursuant to Supreme Court Rule 42, for certification of in-interlocutory
appeal to the Supreme Court of the State of Delaware from this Court's Memorandum Opinion
and Order dated February 3,200O granting Synagro's motion to stay this action. The bases for
Synagro's opposition to Azurix's application are set forth below:
I. INTRODUCTION
After fir11 briefing and oral argument, on February 3, 2000, this Court issued a
Memorandum Opinion and Order granting Synagro's Motion to Stay this action (the "Delaware
Action") while a contemporaneously filed, mirror-image action involving identical parties
proceeds in a Texas state court in Houston, Texas (the "Texas Action"). At the heart of the
Court's decision granting Synagro's motion to stay was the Court's factual conclusion that the
Delaware and Texas Actions were, for purposes offorum non conveniens analysis,
"contemporaneously tiled." (Mem. Op. at 9-10) The Court then concluded that the Delaware
Action was not entitled to the deference Delaware courts traditionally pay to first-filed actions,
and that Synagro need not establish that litigating in Delaware would cause it "overwhelming
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2
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OPINIONS
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EXTRACTED KEY WORDS
AZURIX DELAWARE COURT AGREEMENT TEXAS NEGOTIATIONS ACQUISITION CHANCERY PLAINTIFF JURISDICTION DEL DEFENDANT DELAWARE CORPORATIONS STANDSTILL MERGER CONVENIENS EQUITY JURISDICTION CONSIDERATIONS COMPLAINT WITNESSES UNDUE HARDSHIP WILMINGTON ATTORNEYS JAMES HITCHENS SEEMINGLY LAYING LITIGATION CONVENIENS ANALYSIS OVERWHELMING INCORPORATION |
- .I ;
IN THE COURT OF CHANCERY OF THE STATE OF DELAWARE
IN AND FOR NEW CASTLE COUNTY
AZURIX CORP.,
Plaintiff, >>
V. ) C.A. No. 17509
>
SYNAGRO TECHNOLOGIES, INC., )> :
Defendant. > `- : I. >
Submitted: December 30, 1999
Decided: February 3,200O
Alan J. Stone and David J. Teklits of Morris, Nichols, Arsht & Tunnell,
Wilmington, Delaware, Attorneys for Plaintiff.
P. Clarkson Collins, Jr., Joseph R. Slights, III and James IE. Drnec of Morris, James
Hitchens & Williams, Wilmington, Delaware. Attorneys for Defendant.
STEELE, V.C.
Two Delaware corporations, Azurix Corp. and Synagro Technologies, Inc.,
began merger talks that eventually proved fruitless. Elefore those talks began,
Synagro was allegedly in the midst of upwards of seventeen separate acquisition
negotiations. As part of a "Standstill" Agreement i-cached between the two
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3
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SYNAGRO TECHNOLOGIES REPLY BRIEF IN SUPPORT OF MOTION TO DISMISS OR STAY
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EXTRACTED KEY WORDS
DELAWARE ACTION SYNAGRO COURT TEXAS BURDENS DEL AGREEMENTS SYNAGRO TECHNOLOGIES PARTIES MOTION CHANCERY CONTRACT FORUM MEM CHRYSLER FIRST BUSINESS INJUNCTIVE RELIEF JURISDICTION DISPUTE OVERWHELMING HARDSHIP CREDIT CORPORATION COMPLAINT LITIGATION THOMAS AFF FIRST BUSINESS CREDIT BAHAMA PETROLEUM COMPANY NEGOTIATIONS CONTROVERSY PREFERRED STOCK PLAINTIFF |
IN THE COURT OF CHANCERY OF THE STATE OF DELAWA-@
MY
IN AND FOR NE;W CASTLE COUNTY
AZURIX CORP.,
Plaintiff, Civil Action No. 17509-NC
;
v.
; REDACTED VERSION -
SYNAGRO TECHNOLOGIES, INC., )
MORRIS, JAMES, HITCHENS & WILLIAMS LLP
P. Clarkson Collins, Jr., Esquire (I.D. $! 739)
Joseph R. Slights, III, Esquire (I.D. # 2559)
James E. Dmec, Esquire (I.D. #3789 )
222 Delaware Avenue
P.O. Box 2306
Wilmington, Delaware 19899
(302) 888-6800
Attorneys for Defendant
Dated: December 17, 1999
TABLE OF CONTENTS
TABLE OF AUTHORITIES . . . . . . . . . . . . . . . . . . . . . ~. . . . . . . . . . . . . . . . .
INTRODUCTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
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4
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SYNAGRO TECHNOLOGIES OPENING BRIEF IN SUPPORT OF MOTION TO DISMISS OR STAY
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EXTRACTED KEY WORDS
DELAWARE COURT AZURIX TEXAS AGREEMENT DEL MOTION JURISDICTION CHANCERY PARTIES DEFENDANT SYNAGRO TECHNOLOGIES LAW FORUM DISMISS SUPR STANDSTILL AGREEMENT ACQUISITION INJUNCTIVE RELIEF FIRST-FILED DELAWARE ACTION WITNESSES SYNAGRO TECHNOLOGIES PREFERRED STOCK CONFIDENTIALITY OVERWHELMING HARDSHIP WAIVER AGREEMENT NEGOTIATIONS PLAINTIFF COMPLAINT DECLARATORY JUDGMENT |
IN THE COURT OF CHANCERY OF THE STATE OF DELAWARE
IN AND FOR NEW CASTLE COUNTY
AZURIX CORP., >) *
Plaintiff, )1
v. 1 Civil Action No. 17509NC
1
SYNAGRO TECHNOLOGIES, INC., ) REDACTED VERSION -. i
-1,+_ L.3
1 P `7
5; c, :`?
Defendant. ) vl,, : .-, f
`vlr T3
_ b-1
r:
/ *
_? I
., .
I, P
i, `_
-" ,
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5
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COMPLAINT
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EXTRACTED KEY WORDS
AZURIX AGREEMENT PURCHASE PLAINTIFF PARTIES ACQUISITION WAIVER NEGOTIATIONS REPRESENTATIONS CONFIDENTIALITY AGREEMENT SATISFY OBLIGATIONS MERGER BUSINESS SHARES STANDSTILL FUNDS DECLARING INTENT SUBSCRIPTION AGREEMENT DELAWARE CORPORATION DEFENDANT SYNAGRO EXCHANGE DEMAND INVESTMENT INTERFERE TRANSACTION HOUSTON TEXAS |
IN THE COURT OF CHANCERY OF THE STATE OF DELAWARE
IN AND FOR NEW CASTLE COUNTY
AZURIX CORP. >
>
Plaintiff, >)
V. ) Civil Action No. ,`T&c'[
tJG -
>
SYNAGRO TECHNOLOGIES, INC., )
>
Defendant. >
COMPLAINT
Plaintiff Azurix Corp. ("Azurix"), by its undersigned attorneys, alleges for its
complaint against defendant as follows:
Nature Of The Action
1 . This is an action to enforce the terms of an agreement between Azurix and
defendant Synagro Technologies, Inc. ("Synagro"). Specifically, on September 28, 1999,
Synagro waived standstill obligations under a confidentiality agreement with Azurix in exchange
for Azurix agreeing, upon the satisfaction of certain conditions by Synagro, to purchase equity
securities of Synagro and, then, either to offer to acquire Synagro by merger or to pay Synagro a
fixed sum.
2. However, Synagro has reneged on both aspects of its agreement. First,
Synagro has refused to sign a written confirmation of its waiver yet and has taken the position
that Azurix continues to be bound by the standstill provisions of the confidentiality agreement.
Second, despite having not satisfied the conditions to the purchase of its equity securities by
Azurix, Synagro has demanded that Azurix fund the first stage of its investment in Synagro.
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