STEELE, Chief Justice:
On February 28, 2008, after a tender offer, Golden Telecom, Inc. merged into Lillian Acquisition, Inc., a wholly-owned subsidiary of Open Joint Stock Company Vimpel-Communications. Golden remained as the surviving entity, and all tendering Golden shareholders received $105 per share. Global GT LP and Global GT Ltd. (collectively, Global), Golden shareholders, sought appraisal. The Court of Chancery valued Golden at $125.49 per share. Golden appealed, Global cross-appealed, and we affirm.
Golden incorporated in Delaware in 1999, and has been traded on NASDAQ since going public in September 1999. Its two largest shareholders at all relevant times were Altimo and the Telenor Group, owning approximately 27% and 18% of Golden, respectively. In early 2007, VimpelCom notified Golden that VimpelCom wanted to acquire Golden. Altimo and the Telenor Group were also the two largest
On May 17, 2007, Golden formed a special committee of independent directors, unaffiliated with Altimo and Telenor, to assess and pursue potential transactions. In early September 2007, VimpelCom proposed a tender offer to Golden at $80 per share. In late September 2007, VimpelCom proposed a refined range of $80 to $95 per share, in conjunction with Golden's rising stock price. On November 12, 2007, VimpelCom again raised its offer to $100 per share. The special committee rejected the offer. On November 28, 2007, VimpelCom offered $103 per share, and the special committee again rejected the offer.
On December 1, 2007, VimpelCom offered $105 per share, and on December 3, 2007, the special committee recommended the merger at that price and the Board of Directors unanimously approved the recommendation. The special committee had never solicited other bidders or attempted to auction Golden, and it had received notice from Altimo that Altimo would not consent to any acquisition by any bidder other than VimpelCom. On December 20, Credit Suisse delivered a fairness opinion in support of the $105 per share price. Golden distributed that fairness opinion, along with Golden's business plan, to all shareholders. The companies signed a Merger Agreement on December 21, 2007, which called for a cash tender offer for all the outstanding shares of Golden's common stock and a backend merger in which all shares not tendered were converted into the right to receive the same amount per share in cash.
Ultimately, shareholders tendered 94.4% of Golden's shares before the tender offer expired, and another 2.2% accepted the $105 per share price shortly thereafter. Global, however, declined to tender their shares, and opted for an appraisal remedy under Delaware General Corporate Law Section 262(h). On April 23, 2010, the Court of Chancery issued an opinion in the appraisal proceeding that the fair value of Golden as of the merger date was $125.49 per share, and it awarded Global a judgment accordingly.
Golden now appeals the judgment. First, Golden argues that the Court of Chancery erred by failing to defer to the merger price. Supported by the arms-length nature of the merger and the efficient market price, Golden contends that the merger price indicated Golden's fair value for purposes of appraisal. In so contending, Golden requests that this Court adopt a standard requiring conclusive or, in the alternative, presumptive deference to the merger price in an appraisal proceeding. Second, Golden objects to the Court of Chancery's valuation. Specifically, Golden argues that the Vice Chancellor abused his discretion by giving no weight to the market evidence and by making factual findings unsupported by the record. Golden also contends that the Vice Chancellor erred as a matter of law and abused his discretion by considering a blended beta, accepting Global's expert's proffered Equity Risk Premium, and accepting Global's expert's proffered long term growth rate in its discounted cash flow calculation.
Global contests all of Golden's contentions and crossappeals the Court of Chancery's judgment. Specifically, Global contends that the Vice Chancellor erred by using the incorrect tax rate and by failing to consider the Barra beta.
Our review is de novo to the extent a trial court decision implicates the
In an appraisal proceeding, the Court of Chancery "shall determine the fair value of the shares . . . together with interest, if any, to be paid upon the amount determined to be the fair value."
Section 262(h) unambiguously calls upon the Court of Chancery to perform an independent evaluation of "fair value" at the time of a transaction. It vests the Chancellor and Vice Chancellors with significant
On crossappeal, Global argues that Golden should not have been allowed to disavow the tax rate set forth in the fairness opinion it distributed to its stockholders—an opinion procured by Golden and prepared by Golden's financial advisor using Golden's input, assistance, and approval. Global is correct that "[s]tockholders are entitled to rely upon the truthfulness of all information disseminated to them."
We decline to adopt a rule that binds public companies to previously prepared company specific data in appraisal proceedings. First, as we stated above, appraisal is, by design, a flexible process. The statute gives the Chancellor and Vice Chancellors significant discretion, and the adoption of strict rules to govern the process, as a general matter, likely would increase the price of an already expensive proceeding. Second, Section 262(h) controls, it is unambiguous, and it nowhere requires the appraising authority to require the parties to adhere to previously prepared data. Rather, it vests the court with significant discretion to consider "all relevant factors."
We expect many companies will advocate the same company specific data in appraisal proceedings that they have previously advocated in proxy materials. Delaware law does not require them to do so, however. Instead, we recognize that the Chancellor and Vice Chancellors can—and generally should—consider and weigh inconsistencies in data advocated by a company. Here, the Vice Chancellor had a rational basis for accepting Golden's proffered tax rate, albeit different than the tax rate in its proxy statement.
The Court of Chancery abuses its discretion only when either its factual findings do not have record support or its valuation is clearly wrong.
Against this background of deference, we find that the record supports the Vice Chancellor's findings of fact and valuation methods. In his opinion, he addressed each of these findings of fact and valuation methods, and he followed an orderly and logical deductive process in arriving at his conclusions with respect to the factual issues disputed on this appeal. The record supports his conclusions and he did not abuse his discretion.
The Vice Chancellor did not err by failing to defer to the deal price when conducting his appraisal valuation, and we decline to adopt a rule that the Chancellor or Vice Chancellors must defer conclusively or presumptively to the deal price as indicative of fair value in an appraisal proceeding. Also, the Vice Chancellor did not err by accepting Golden's proffered tax rate, which was different than the tax rate it advocated in its proxy materials, and we decline to adopt a rule binding public companies in appraisal proceedings to previously disseminated company specific data. Finally, the Vice Chancellor did not abuse his discretion in his valuation.
The judgment of the Court of Chancery is affirmed.