QVC Network over the weekend defended the decision of the Delaware Chancery Court that last month threw out key lockup agreements between Paramount and Viacom and created a level playing field in the battle to control Paramount.In a 50-page brief filed Saturday with the Delaware Supreme Court, which is hearing Paramount and Viacom’s appeal, QVC argues that the lower court’s decision “was correct and well-reasoned.” The brief is QVC’s answer to opening briefs filed by Paramount and Viacom last week. While the QVC brief attacks the agreements as measures “clearly granted to … Viacom for the improper purpose of deterring and penalizing competing bids …” it focuses mainly on the assertion that Par had put itself up for sale and, under the landmark case Revlon vs. MacAndrews & Forbes, was obligated to consider QVC’s offer — something it still has not done. Paramount and Viacom have argued that a change in shareholder control — Viacom chairman Sumner Redstone will become majority shareholder of the merged companies — should not necessarily trigger “Revlon” rules. But QVC contends Paramount chairman Martin Davis knew QVC was interested and did everything in his power to rush through a deal with Viacom, without considering rival offers. QVC supports the lower court’s contention that the lockups — valued at about $ 350 million — were designed not to induce superior bids, but to impede them. The brief attacks Par’s “discriminatory use” of a “poison pill,” and QVC rejects as false Paramount’s assertion that the lower court’s injunction against the selective use of the rights plan was premature because Par had not formally agreed to lift it for the Viacom offer. In support of its charge, QVC’s brief cites notes made by a Par officer at an Oct. 24 meeting, in which the board agreed to Viacom’s conversion of its one-step merger agreement into a two-step transaction that begins with a partial tender offer. Those notes characterize Viacom’s offer for 43% of the stock as “a coercive tender offer … (that) stampedes stockholders into taking the front end.” While Paramount and Viacom have attempted to use the Delaware Supreme Court’s earlier ruling on Time Warner in their defense, QVC says the case does not pertain because Time Inc. was not transferring control of the company from its shareholders, unlike Par, which will give Redstone control. Paramount shareholders, who are plaintiffs in a class action suit, echoed QVC arguments in a separate brief filed with the court. Par and Viacom will respond to QVC and the shareholders in a brief to be filed Tuesday.
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