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WeWork Board Factions Head for Clash Over New Directors

Jef Feeley

(Bloomberg) -- WeWork’s board is scheduled to vote on appointing two new directors on Friday, a critical step in a clash between shareholder SoftBank Group Corp. and a rival faction at the troubled co-working startup.

A lawyer for WeWork told Delaware Chancery Court Judge Andre Bouchard in a letter that the company plans a May 29 meeting to fill two empty independent director seats. The nominees are Alex Dimitrief, General Electric Co.’s ex-top lawyer, and Frederick Arnold, the former chief financial officer for Convergex Group.

SoftBank and the rival board faction are feuding over the Japanese conglomerate’s decision to scrap a $3 billion deal to buy stock from WeWork’s former Chief Executive Officer Adam Neumann and other shareholders. SoftBank agreed to the purchase last year as it bailed out the struggling startup, but then notified stockholders in March that some of the deal’s conditions hadn’t been met.

Two independent WeWork directors then sued SoftBank for not following through on the transaction. One of them, Bruce Dunlevie, is a partner at the venture firm Benchmark Capital, which had planned on selling WeWork shares to SoftBank as part of the agreement.

The new directors, who are expected to butt heads with the pair who filed the suit, will be on a special board committee tasked with deciding whether Dunlevie and another board member, Lew Frankfort, can properly represent the company in the SoftBank suit.In a court hearing Wednesday, Bouchard rejected bids by Dunlevie and Frankfort to block WeWork from adding new directors. Dunlevie and Frankfort were the only members of the earlier special committee that made the decision to sue. They had sought a so-called “status quo” order to maintain the company’s operations during the SoftBank litigation.“We believe SoftBank has no basis to question the special committee’s authority to bring this action and we are pleased by the court’s recognition that any effort by SoftBank to challenge that authority must be presented” to Bouchard, a spokesman for Dunlevie and Frankfort said Wednesday.SoftBank-backed WeWork officials said they are acting in the best interest of the company.

“WeWork is pursuing best practices of corporate governance to determine what role if any WeWork should have in this contractual dispute among its shareholders,” Sarah Lubman, a SoftBank spokeswoman, said in an emailed statement. “The court’s decision today allows that process to go forward.”

In their suit, Dunlevie and Frankfort contend SoftBank had “buyer’s remorse” and reneged on promises to “use its reasonable best efforts to consummate” the stock-purchase agreement.

They also noted the agreement doesn’t contain a so-called “material adverse effect” provision or similar termination right that is common in such deals. Two years ago, a Delaware judge found such a provision permitted Germany’s Fresenius SE to walk away from its takeover of U.S. rival generic drugmaker Akorn Inc.In a message to shareholders in March, Softbank cited nearly a half-dozen conditions for the deal that WeWork officials hadn’t met, including a failure to renegotiate some leases in the wake of the economic havoc caused by the Covid-19 pandemic.Neumann -- who would have reaped the biggest windfall from the deal -- filed his own suit earlier this month claiming SoftBank is relying on legally faulty pretexts to scuttle the deal.The dispute is among several busted-deal cases tied to Covid-19 that landed in Delaware’s business court. The state is the corporate home to more than half of U.S. public companies and more than 60% of Fortune 500 firms. Chancery judges hear cases without juries and can’t award punitive damages.Dunlevie’s and Frankfort’s suit is The We Company v. SoftBank Group Corp, No. 2020-0258, Delaware Chancery Court (Wilmington). Neumann’s case is Neumann v. SoftBank Group Corp, Delaware Chancery Court.

(Updates with judge’s denial of status-quo order in sixth paragraph)

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