IN THE COURT OF CHANCERY OF THE STATE OF DELAWARE IN RE APPRAISAL OF AOL INC. ) C.A. No. 11204

- VCG

MEMORANDUM OPINION Date Submitted : January 1 7 , 201 8 Date Decided : February 23, 2018 Stuart M. Grant, Mary S. Thomas, and Laina M. Herbert , of GRANT & EISENHOFER P.A. , Wilmington , Delaware, Attorneys for Petitioners

. Kevin R. Shannon, Berton W. Ashman, Jr., and Christopher N. Kelly, of POTTER ANDERSON & CORROON LLP, Wilmington, Delaware; OF COUNSEL: William Savitt, Ryan A. McLeod, Andrew J.H. Cheung, Nicholas Walter, and Courtney L. Shike, of WACHTELL, LIPTON, ROSEN & KATZ, New York, New York, Attorneys for Respondent

.

GLASSCOCK, Vice Chancellor1 Each block of marble, Michelangelo believed (or purported to believe) contained a sculpture; the sculptor’s job was merely to pitch the overburden to reveal the beauty within. Early jurists believed (or purported to believe) something similar about common law; that it existed in perfect form, awaiting “finding” by the judge

. 1 By contrast, even Blackstone would expect that statutory law would be an explicit,
if blu nt, tool of justice; manufactured , rather than revealed. Our appraisal statute, Section 262 of the DGCL, 2 is an exception. Broth of many cooks and opaque of intent, it provides every opportunity for judicial sculpting. 3 The latest pitching of stone from the underlying statutory body occurred in our Supreme Court’s recent decisions in DFC and De ll. 4 Those cases, in distilled form, provide that the statute requires that, where a petitioner is entitled to a determination of the fair value of her stock, the trial judge must consider “ all relevant
factors , ” 5 and that no presumption in favor of transaction price obtains. Where, however, transaction price represents a n unhindered, informed, and competitive market valuation, the trial judge must give particular and serious consideration to

1 E.g. , 1 William Blackstone, Commentaries , *38

– 62. 2 8 Del. C. § 262. 3 See Dell, Inc. v. Magnetar Global Event Driven Master Fund Ltd

. , 2017 WL 6375829, at *13 (Del. Dec. 14, 2017) (noting that although the appraisal remedy is “entirely a creature of statute,” statutory fair value has become a “jurisprud ential, rather than purely economic, construct.”)

. 4 DFC Global Corp. v. Muirfield Value Partners, L.P. , 172 A.3d 346 (Del. 2017) ; Dell , 2017 WL 6375 829. 5 8 Del. C. § 262 (h).2 transaction price as evidence of fair value. Where information necessary for participants in the market to make a bid is widely disseminated, and where the terms
of the transaction are not structurally prohibitive or unduly limiting to such market participation, the trial cou rt in its determination of fair value must take into consideration the transaction price as set by the market. I will refer to transactions complian t with such conditions by the shorthand “ Dell C omplian t .” In sum , while no presumption in favor of transac tion price obtains, a transaction that demonstrates an unhindered, informed, and competitive market value is at least first among equals of valuation methodologies in deciding fair value. Where a transaction price is used to determine fair value, synergie s transferred to the sellers must be deducted, to the extent they represent “element[s] of value arising from the . . . merger ” itself. 6 This matter is before me seeking a post

- trial finding of the fair value of AOL Inc. (“Respondent,” the “Company,” or “A OL”) under the appraisal statute. Because the seminal cases referenced above issued during the pendency of this matter, I asked the parties to supplement the briefing to reference the instruction that
DFC and Dell supply. I note that, throughout that helpful briefing, both the
Re spondent and Petitioners continue to advocate for my reliance on financial metrics rather than transaction price. 7 Applying the Dell criteria of information distribution

6 8 Del. C. § 262 (h). 7 The Respondent, however, argues strenuously that the transaction was Dell Compliant, and that I should accept their expert’s DCF valuation as consisten t with the “ceiling” of deal pri ce, from3 and barriers to entry with respect to market parti cipation in evaluating whether the transaction here is Dell C ompliant, I find the matter a close question. AOL was widely known to be in play, the Company talked to numerous potent ial purchasers in relation to the sale of part (or all) of AOL, the no - shop period running post

agreement was not protected by a prohibitive break

- up fee, and the actions of the AOL unaffiliated directors appear compliant with their fiduciary duties. No topping offer emerged. Nonetheless, the merger agreement was protected by a no - shop and matching right provisions. Moreover, the statements made by AOL’s CEO, who negotiated the deal, in my view signaled to potential market participants that the deal was “done,” and that they need not bother making an offer. Market participant s at this level are not shrinking violets, nor are they barnacles that are happy players during a favorable tide, but sh ut tight at its ebb

. Nonetheless, I find the unusually preclusive statements by the CEO , in light of the other attributes of this trans action, such that I cannot be assured that a less restrictive environment was unlikely to have resulted in a higher price for AOL. Accordingly, I am unable to ascribe fair value solely to market price. Having rejected transaction price as the sole deter minant of value, I find myself further unable, in a principled way, to assign it any weight as a portion of my

which the DCF excludes synergy value. Resp’t’s Br. Address ing the Supreme Court’s Decision in Dell . 1, 6.4 fair value determination . It is difficult, in other words, to ascribe to a non

- Dell

C ompliant sales price (on non

- arbitrary grounds) 25%, or 75% , or any particular weight in a fair value determination. Therefore, I take the parties’ suggestion to ascribe full weight to a discounted cash flow analysis. I relegate transaction price to a role as a check on that DCF valuation: any such valuation significantly departing from even the problematic deal price here should cause me to closely revisit my assumptions. After consideration of the experts’ reports provided by the parties, and after addressing the differences b etween the parties in the proper construction of a DCF valuation , in light of the evidence at trial, I find that the fair value of AOL stock at the time of the merger was $4 8

. 70 per share. This is my post

- trial decision on fair value; my reasoning follows

. I. BACKGROUND A. The Company AOL was a well

- known 8 global media technology company with a range of digital brands, services, and products that it provide d to advertisers, consumers, subscribers, and publishers. 9 AOL underwent significant changes in both perce ption and fortune after its apex in 2002 , when it had more than twenty

- six million

8 Famous among users of a certain age as a provider of email access, as announced by the grammatically questionable “You’ve Got Mail.” 9 Stipulated Joint Pre

- Trial Order ¶ 96.5 subscribers in the United States and $9 billion in revenues

. 10 AOL spun off as a public company from parent Time Warner i n 2009, with Tim Armstrong named as Chairman and CEO. 11 After the s pin

- off, AOL shrank , ultimately to five million subscribers

. 12 AOL faced substantial competition by 2014 and found itself in need of extensive consumer data to shift its desired focus to the online advertising industry

. 13 In order to comp ete, AOL purchased a number of “content” and “ad

tech” companies, such as the Huffington Post , TechCrunch , Thing Labs, Inc., Adapt.tv, and Vidible

. 14 These and other purchases allowed AOL to reposition itself

as an ad tech company . 15

10 JX26 (AOL 10

- K ending Decembe r 31, 2002) at F

- 13, F

- 16. 11 JX66 (AOL 10

- K ending December 31, 2010) at 2, 15. 12 Id

. at 46. 13 JX750 at 4 (quoting Armstrong message in January 29, 2015 board agenda that “[w]hile I believe our overall strategic value as a company will continue to increase, the Wall Street view of the company will be neutral to negative unless one of our products becomes a catalyst for increased growth in 2015.”) ; JX 1817 (quoting Armstrong in a March 26, 2015 email expressing concern about AOL’s ability to obtain t he required data and content to compete) ; JX 1079 (referring to a March 15, 2015 Armstrong email to the AOL Board about the lack of data and potential ways to address it, including a possible auction of the company) ; but see JX972 ( quoting Armstrong email of Feb ruary 28, 2015 to the AOL Board where Armstrong states that “[o]ur strategy and direction is dead on with the market and we have built a company that is strong and capable”). 14 JX2901 (describing AOL’s acquisition of the Huffington Post on AOL’s Form 8

- K filed February 6, 2011) ; JX0066 at 85

– 86 (containing AOL’s Form 10

- K filed on December 31, 2010) ; JX0199 at 80

– 82 (containing AOL’s Form 10

- K filed on December 31, 2013) ; JX0968 at 2, 85

– 87, 90 (containing AOL’s Form 10

- K filed on December 31, 2014)

. 15 JX2196 (Verizon CEO McAdam ) at 105:22

– 24 (“Q. Was AOL discussed as one of the few players that had scale and advertising technology? A. Yes.”) , 106:11

– 15 (“One of those markets was mobile advertising. And to deliver

— to participate in that market and to build capability, AOL was one of the opportunities we saw to enter the market quickly and to have a reasonable starting point.”) ; Trial Tr. 333:13

– 19 (Marni Walden , head of Verizon’s Product Innovation and New Businesses division, spoke with Armstrong abou t Verizon’s interest in AOL’s “ad tech capabilities”).6 AOL organized itself into three segments: Membership, Brands, and Platforms. 16 The Membership Group included the legacy dial

- up internet and search services. 17 The Brands Group included the Huffington Post, TechCrunch, MapQuest, and other content providers. 18 The Platforms Gro up provided automated online advertising services for advertisers and publishers across multiple device and media formats. 19 As with other companies of similar size, AOL was closely followed by numerous analysts. 20
B. Initial Discussions and Negotiation Simil ar to other boards of directors, the AOL board of directions (the “AOL Board” or the “Board”) “ regularly review[ed] and assess[ed] the Company’s business strategies and objectives,” in order to “enhanc [e] stockholder value

. ” 21 The AOL Board frequently considered many types of transactions and partnerships with other companies. 22 “In addition, the Company and its representatives [were] routinely approached by other companies and their representatives regarding possible transactions.” 23 Several of those included inquiries from Silver Lake, 24

16 JX1180 at 3. 17 JX0968 (AOL 10K filed on December 31, 2014) at 8. 18 Id. at 8. 19 JX1180 at 4. 20 See, e.g. , JX1803 ( examining JMP Securities, Our Thoughts on Verizon’s $50 per share Offer for AOL: Maintain Market Perform Rating , May 12, 2015). 21 JX1851 (the “Solicitation” or “AOL Schedule 14D

- 9”) at 16. 22 Id

. 23 Id

. 24 JX1180 at 4.7 Tomorrow Focus, 25 Axel Springer, 26 Providence Equity , 27 and Hellman & Friedman. 28 In June 2014, at the request of Verizon Communications Inc. (“Verizon”) , AOL CEO Armstrong and Verizon CEO Lowell McAdam “discussed ongoing and emerging trends in their respective industries” at a media finance conference

. 29 In October 2014, Verizon management contacted AOL to propose an initial meeting regarding “pote ntial pa rtnership opportunities ” and the two CEOs met again that November. 30 A Verizon subsidiary and AOL entered into a confidentiality agreement in late November. 31 In early December, representatives of AOL and Verizon met over three days to discuss “several po tential collaborative opportunities,” although McAdam informed Armstrong that “Verizon had no interest in the acquisition of the entire Company or of a majority interest in the Company.” 32 In addition, AOL held a preliminary discussion with Comcast, a glob al telecommunications conglomerate, “regarding a potential transaction involving all or part of AOL’s businesses” on

25 JX140. 26 JX0155. 27 JX293. 28 JX0155

. 29 Id

. 30 Id

. 31 Id

. 32 Id . at 16

– 17.8 December 9, 2014. 33 McAdam and Armstrong spoke again by phone in mid

December 2014 and met in mid

- January 2015 to “explore a joint venture .” 34 AOL management discussed a potential Verizon transaction with the AOL Board during their January 2015 meeting. 35 In January 2015, rumors about a potential transaction involving AOL leaked and caused AOL’s stock price to rise. 36 In February 2015, Ve rizon presented AOL with a high

- level term sheet for a potential joint venture and the parties met several times to discuss it that February and March and continue with due diligence

. 37 Verizon was not the only suitor for a deal with AOL. An AOL executive emailed Armstrong on February 20, 2015 that: Given the [Verizon] news in the press, the [AT&T] President of Advertising has express [sic] a very strong interest in having broader strategic conversation with us. They want a bite at the apple and don't want to be boxed out by [Verizon] . If we are going to move forward here we should engage at the CEO level is my view

. 38 Armstrong responded: I know . . . the [AT&T] CEO well

- but we should discuss this

. . . . We need to be eth ical (not suggesting you were suggesting that

– and know this is natural with press and BD

- but me calling CEO of AT&T feels like a bridge too far). 39

33 AOL Schedule 14D

- 9 at 17. 34 Id . at 17. 35 Id

. 36 Stipulated Joint Pre

- Trial Order, Ex. A; JX1974 (quoting AOL CEO Armstrong about rumors surrounding AOL). 37 Id . at 18. 38 JX0902 at 1. 39 Id

.9 Armstrong described his rationale for this answer during trial: Q. And why did you say that calling the CEO of AT&T in these circumstances was a bridge too far? A. Well, I think that from where we were at the time period and knowing what we knew about AT&T and knowing what we knew about Verizon, the risk of having Verizon walk away at this point was much h igher than the upside of trying to get AT&T involved when they were clearly outsourcing their core business in our core area to us, overall. So it just did not seem like a smart move. Q. Why were you concerned that a contact with AT&T might cause Verizon to walk away? A. I think one is Verizon was upset about the leak. And I think in the situation in a deal negotiation where, you know, we're in negotiations with Verizon, AT&T is not a real candidate, and we go to them, [Verizon CEO and Chairman McAdam] , I think, is a very ethical person and somebody that, you know, he would take this the wrong way and we would risk losing the deal. 40 Armstrong explained during his deposition that the AT&T overture was no t

“ somebody senior at AT&T speaking for AT&T. This [w as] somebody at the division that [AT&T was] looking to outsource to us, talking to one of our lower

level [business development] people. ” 41 In a later explanation to Verizon executive Marni Walden about these discussions with AT&T, Armstrong described the se as

“ advanced discussions to launch a new strategic partnership. At the core of the

40 Trial Tr. 490:1

– 20 (Armstrong). 41 Id. at 543:16

– 19.10 discussions was AT&T's content and service portal, which has been powered for Yahoo for many years. ” 42 Fox, a multinational mass media corporation , also contacted AOL to express interest in AOL’s platforms and brands businesses on February 26, 2015

. 43 Private equity firm General Atlantic contacted AOL in March 2015 “ to discuss an acquisition of certain of the Company's assets ” and entered into a confidentiality
agreemen t on March 7, 2015. 44 General Atlantic conducted limited preliminary diligence on these assets. 45 Fox entered into a confidentiality agreement with AOL and listened to a presentation by AOL on March 9, 2015. 46
C. Sales Process On March 25, 2015, Verizon prop osed obtaining majority ownership of AOL for the first time. 47 The AOL Board began to meet weekly to “review the deal landscape, including the potential transaction with Verizon.” 48
AOL declined to conduct an auction. Fredric Reynolds, AOL’s lead directo r , explained why AOL did not pursue an auction during his deposition: Q: Could you please explain why, in your view or in the view of the board as a whole, you thought it was not desirable for AOL to run an auction?

42 JX1958 at 1 (June 22, 2015 email from Armstrong to Walden ). 43 AOL Schedule 14D

- 9 at 18. 44 Id. 45 Id

. 46 Id

. 47 Id

. 48 Id . at 19.11 A: Again, I think, if I wasn't clear, I think in a business that has to do with technology and content, that it's a very fragile business, and letting the world know that you're for sale impacts your relationship with your

-- with your competitors for sure, but also with your pa rtners, be they publishers, being the search companies, being the talent that you want to attract. Those are all very difficult relationships that I think are almost impossible to be managed if a media company or a technology company is for sale.
I

-- I don't recall any large technology or large media company ever putting itself up for sale. I think, as evidenced last week, AT&T buys Time Warner. There was not an auction of that. It's just a very, very

-- it's unusual, but technology and media companies don't have hard assets, they don't have long

- term contracts that make airplanes or iPhones or anything like that. It's all ephemeral. 49 Reynolds stated that “the company was not for sale and it was pur poseful that it not
be for sale ” 50 and that the Board did “ not auction [] the company. We had had no intention of auctioning the company.” 51
Discussions between AOL and Verizon continued in early April , and McAdam “raised the possibility of a 100% acquisition of the Company with Mr. Armstrong” on April 8, 2015. 52 Comcast entered into a confidentiality agr eement wit h AOL that day, but declined to proceed any further with a transaction. 53

49 JX2210 (Reynolds Dep.) at 119:8

– 120:4. 50 Id. at 84:17

– 18. 51 Id

. at 85:5

– 8. 52 Id

. 53 AOL Schedule 14D

- 9 at 19.12 On April 12, 2015, AOL management discussed the Verizon transaction with the Board, includi ng “the emphasis that [ Verizon ] . . . put on their ability to retain the Company’s management.” 54 The Board “requested that Mr. Armstrong keep the Board apprised of these discussions as they progressed” but authorized further discussions with Verizon regarding both the transaction and manageme nt retention. 55 AOL opened a data room to Verizon on April 13, 2015. 56 Verizon’s counsel engaged AOL’s counsel in a discussion on April 14, 2015 about “the importance to Verizon of retaining the Company’s CEO and others on its management team and Verizon’ s desire to engage in a discussion with Mr. Armstrong r egarding such future employment arrangements.” 57 AOL’s counsel informed Verizon that “Verizon’s views had been discussed with the Board and that the Board had authorized Mr. Armstrong to engage in such discussions.” 58 McAdam and Armstrong met again on April 17, 2015 to “discuss the potential integration of AOL and its personnel into Verizon’s business.” 59 During this period, Fox made several di ligence calls to AOL, but did not contact AOL for further information. 60

54 JX1293 at 3. 55 Id

. 56 AOL Schedule 14D

- 9 at 19. 57 Id

. 58 Id

. 59 Id

. 60 Id

.13 Verizon sent a draft m erger a greement to AOL on April 22, 2015. 61 The AOL Board met on April 26, 20 15 to discuss the draft a greement, the deal landscape, “the possibility of seeking alternative offers,” Verizon’s “emphasi[s] . . . [ on ] th e retention of the Company’s management team,” and AOL’s continued retention of Allen & Company (“Allen & Co.”) as its financial advisor. 62 AOL returned a revised
draft m erger a greement to Verizon on April 27, 2015 that proposed chang es to a number of term s, including termination rights, the non

- solicitation provision, antitrust approval, and others. 63 Verizon management spoke with Armstrong on April 30, 2015 about “ the importance to Verizon that AOL's talent continue at the Company following the Merger and indicated that employment arrangements would be structured by Verizon to include compensation opportunities tied to the performance of the Company and in aggregate amounts at least comparable to current compensation opportunities .” 64 However, “[n] o specif ic details of such compensation arrangements were discussed .” 65 AOL and Verizon exchanged draft a greem ents on May 1 and May 3, 2015. 66
The AOL Board discussed these drafts and “the importance that Verizon was placing

61 Id. at 20. 62 Id

. 63 Id

. 64 Id

. 65 Id

. 66 Id . at 20

– 21.14 on the retention of the Company's management team and Verizon's desire for employment and retention arrangements ” on May 3, 2015. 67 On May 4, 2015, a consortium including, among others, General Atlantic, Axel Spring SE, and Huffington Post CEO and founder Arianna Huffington, submitted a l etter to AOL indicating its willingnes s to purchase a 51% stake in
AOL’s Huffington Post asset for approximately $500 million. 68 On a May 7, 2015 phone call, Verizon informed AOL that Verizon “was planning to submit a formal offer to acquire the entire Comp any.” 69 The AOL representative indicated that AOL expected a price per share “in the 50s” but the Verizon representative indicated that it would be “in the high 40s.” 70 Verizon also indicated that it would present Armstrong with a specific employment propo sal. 71 AOL reported financial results that beat analysts’ expectations on May 8, 2015. 72 On May 8, 2015, a Verizon representative made an oral offer of $47.00 per
share for AOL. 73 A n AOL representative countered and Verizon agreed to pay $50.00 per share in cash

. 74 Verizon stated that “there was no further room for negotiation with respect to the offer price and that if this price was not of interest,

67 Id. at 21. 68 JX1582 at 6. 69 Id

. 70 Id

. 71 Id

. 72 Id. 73 Id

. 74 Id

.15 Verizon was prepared to withdraw its offer .” 75 Verizon submitted a written offer at $50 later that day. T he AOL Board discussed the offer , and counsel from the two companies negotiated certain terms. 76 Armstrong phoned a Verizon representative on May 9, 2015 to request a higher price but was told “ that there was no further room for negotiation with respect
to the offer price,” although Verizon agreed to lower the termination fee from 4.5% to 3.5%. 77 The AOL Board discussed the developments that same day. 78 The part ies exchanged additional draft a greements and Verizon delivered a draft employment letter offer to Armstrong on May 10, 2015. 79 “ Mr. Armstrong had no conversations with Verizon regarding the draft letter prior to the conclusion of the Company's next Board meeting. ” 80 On May 11, 2015, the AOL Board discussed the Verizon m erger a greement with management and its legal and financial advisors. 81 The Board then “unanimously voted to approve the Merger Agreement

. ” 82 Later that day, “Verizon

75 Id

. 76 Id . at 21

– 22. 77 Id . at 22; JX1755 at 3 ( May 11, 2015 Verizon internal slideshow about the sales process stated that “Verizon did not communicate any flexibility on price, but signaled flexibility on break fee.” Verizon submitted an offer of $47 per share but later submitted an offer for $50 per share “after significant verbal negotiations.”). 78 Id

. 79 Id

. 80 Id

. 81 Id

. 82 Id

.16 informed Mr. Armstrong that they were unwilling to proceed with a transaction without his agreement to terms ” of employme nt and Armstrong and Verizon came to an agreement. 83
The Verizon board of directors als o approved the m erger a greement, which was executed on May 11, 2015 (the “Merger Agreement” or “Agreement”)

. 84 The deal was announced on May 12, 2015. 85 According to Ar mstrong, “ a couple of days after [the] Verizon acquisition was announced, AT&T terminated contract negotiations and asked us to stop all development on product and content based on general sensitivities to competitor concerns, data separation , etc.” 86
In a CNBC television intervie w on the day the merger was announced , Armstrong gave this account of how the Verizon deal came together : Interviewer: Hey , Tim, couple of quick things. H elp us with this first. Was there an auction? Give us back story here. Meanin g, who went to whom? How did this happen? Armstrong: You know, basically, this happened in a very natural way and no auction. Basically over the course of time I sat down last summer at the Sun Valley conference and we talked about where the world was goi ng and we have been big partners and we were kind of reviewing what the companies were doing together. That sort of kicked off sort of a natural progression to where we are today and I think facilitated by Nancy of Allen and Company and David Shapiro we we re able to basically bring this deal together in a way that I think was

83 Id

. 84 Id . at 23. 85 Id

. 86 JX1958 at 1 (June 22, 2015 email from Armstrong to Walden).17 incredibly natural. If you look at the two visions on the companies and the platforms and both companies were doing the same thing. Interviewer: It's trading slightly above the premiu m right now. you didn't shop this to anybody else? Armstrong: No, I'm committed to doing the deal with Verizon and I think that as we chose each other because that's the path we're on. I gave the team at Verizon my word that, you know, [w] e're in a place where this deal is going to happen and we're excited about it

.

. . . Interviewer: Not to push you on it, but why not pursue an auction? Armstrong: You know, Andrew, I think the process of where we are as a company right now and the process we went through and knew you guys covered, lots of rumors about AOL in general. So, if somebody, we have always been a public company and been available. If somebody wanted to come do a deal with us, they would have done it. The Verizon deal was built around the strategy of where we're going. 87
D. Merger and Subsequent Events T he Merger Agreement contained a no

- shop provision, a 3.5% termination fee of $150 million, and unlimited three

- day matching rights. 88 Stockholders were informed that t he Merger Agreement allowed for the “ability to accept a superior proposal.” 89 Verizon was “[p]repared for market action but expect[ed] limited interest from media/technology strategics and fina ncial sponsors” due to its

87 JX1794 at 6. 88 AOL Schedule 14D

- 9 at 222, 24

– 25; Trial Tr. 796:13

– 20 (Reynolds) (“ We we re encouraged that there

– the deal was draft ed in a way that would allow an unfettered bid from a t hird party and it would enhance our shareholders' value .”). 89 AOL Schedule 14D

- 9 at 21.18 assessment of a “limited interloper risk given [the] current sale status with [a] lack of full company buyers.” 90 No topping bidder emerged. 91 More than 60% of AOL’s outstanding common shares were tendered and the merger closed on June 23, 2015 (the “Valuation Date”). 92 The Petitioners filed for appraisal rights under Section 262 of the DGCL. 93 Six appraisal petitions were filed, which are consolidated in this action. 94 The parties and experts agree that a DCF analysis is the m ost appropriate valuation method in this matter. 95 My analysis follows.
II. WAS THE SALES PROCES S DELL COMPLIANT ? The appraisal remedy was created by statute to allow dissenting stockholders an “independent judicial determination of the fair value of their sh ares.” 96 Because neither party bears the burden of proof, “in reality, the ‘ burden ’ falls on the judge to determine fair value, using ‘ all relevant factors. ’” 97 T he fair value of those shares is

“ exclusive of any element of value arising from the accomplishment or expectation of the merger or consolidation , ” 98 and calculated based on the “operative reality of

90 JX1755 at 14 (including a Verizon internal presentation from May 1 1, 2015). 91 Trial Tr. 796:21

– 22 (Reynolds). 92 Stipulated Joint Pre

- Trial Order ¶¶ 8

– 9. 93 8 Del. C. § 262. 94 Stipulated Joint Pre

- Trial Order ¶ 2

– 3. 95 Sept. 19, 2017 Oral Arg. Tr. 25:4

– 8. 96 Dell, Inc. , 2017 WL 6375829, at *12 (citing Ala

. By

- Products Corp. v. Cede & Co. ex rel. Shearson Lehman Bros., Inc. , 657 A.2d 254, 258 (Del. 1995 ) ). 97 In re Appraisal of Ancestry.com, Inc. , 2015 WL 399726, at *1 (Del. Ch. Jan. 30, 2015) (citations omitted). 98 8 Del. C. § 262

.19 the company” 99 as of “the date of the merger.” 100 The court should view the company as a standalone “going concern” 101 or an “ on - going enterprise, occupying a particular market position in the light of future prospects .” 102 Because the court values the “corporation itself,” a minority discount 103 and “ any synergies or other value expected from the merger giving rise to the appraisal proceeding itself m ust be disregarded .” 104 Accordingly, petitioning stockholders are given their

“ proportionate interest ” of the value of the corporation on the date of the merger, plus interest. 105 Because each transaction is unique, “[a] ppraisal is, by design, a flexible
process .” 106 However, “t he clash of contrary, and often antagonistic, expert opinions ” with “widely divergent views” is a common feature of the genre. 107 As further described below, there is “ no perfect methodology for arriving at fair value for a given set of facts

. ” 108

99 M.G. Bancorporation, Inc. v. Le Beau , 737 A.2d 513, 525 (Del. 1999). 100 Cavalier Oil Corp. v. Harnett , 564 A.2d 1137, 1142 (Del. 1989)

. 101 Id. at 1145. 102 In re Appraisal of Shell Oil Co. , 607 A.2d 1213, 1218 (Del. 1992)

. 103 Cavalier Oil Corp. , 564 A.2d at 1144

. 104 Global GT LP v. Golden Telecom, Inc. , 993 A.2d 497, 50 7 (Del. Ch. 2010) , aff'd , 11 A.3d 214 (Del. 2010)

. 105 Cavalier Oil Corp. , 564 A.2d at 1144. 106 Golden Telecom, Inc. , 11 A.3d at 218. 107 In re Appraisal of Shell Oil Co. , 607 A.2d at 1222. 108 Dell, Inc. , 2017 WL 6375829, at *15 (citing DFC Global Corp. , 172 A.3d at 348

– 49, 351)

.20 The Supreme Court has “r eject [ed] requests for the adoption of a presumption that the deal price reflects fair value if certain preconditions are met, such as when the merger is the product of arm's

- length negotiation and a robust, non

- conflic ted market check, and where bidders had full information and few, if any, barriers to bid for the deal .” 109 Indeed, the Supreme Court doubts its ability “to craft, on a general basis, the precise pre

- conditions that would be necessary to invoke a presumptio n of that kind. 110 That said, the Supreme Court in DFC stated: Although there is no presumption in favor of the deal price, under the conditions found [in DFC ] by the Court of Chancery, economic principles suggest that the best evidence of fair value was the deal price, as it resulted from an open process, informed by robust public information, and easy access to deeper, non

- public information, in which many partie s with an incentive to make a profit had a chance to bid. 111
A. The Sales Process Was Not “ Dell Compliant ” The question before me is whether the sales process here is Dell C ompliant

. A transaction is Dell Compliant where (i) information was sufficiently dis seminated to potential bidders, so that (ii) an informed sale could take place, (iii) without undue impediments imposed by the deal structure itself. In other words, before I may consider the deal price as persuasive evidence of statutory fair value, I mu st find that the deal process developed fair market value. I conclude that, under the unique

109 Dell, Inc. , 2017 WL 6375829, at *14 (citing DFC Global Corp. , 172 A.3d at 348 )

. 110 DFC Global Corp. , 172 A.3d at 366

. 111 Id. at 349.21 circumstances of this case, the sales process was insufficient to this task, and the deal price is not the best evidence of fair value. The AOL Board made a de liberate decision that stockholder value would not be maximized through an auction , and instead decided to pursue potential bidders individually by direct contact through bankers and other sources. Given the dynamics of AOL’s particular industry, this decision appears reasonable. However, if front

- end information sharing is truncated or limited, the post

- agreement period should be correspondingly robust, so to ensure that information is sufficiently disseminated tha t an informed sale can take plac e and bids can be received without disabling impediments. Despite statements by AOL ’s leadership that AOL was not for sale , the persistent market rumor s seem to indicate that the market understood that the
C ompany was likely in play. AOL was well

- covered by analysts , traded frequently, and generally known in the market. AOL approached , and was approached by , a number of potential buyers of some (or all ) of the Company , several of whom entered into confidentiality agreements and conducted due diligence.22 AOL appears to have engaged with anyone that indicated a serious interest in doing a deal. 112 On the front end, the market canvas appears sufficient so long as interested parties could submit bids on the back end without disabling impediments. However, here my concern arises

. Immediately after announcement of the transaction, Armstrong gave a public interview and stated: I'm committed to doing the deal with Verizon and I think that as we chose each other because that's the path we're on. I gave the team at Verizon my word that, you know, [w] e're in a place where this deal is going to happen and we're excited about it. 113
Arm strong’s post

- Agreement statements to the press about giving his “word” to Veriz on c ould reasonably cause potential bidders to pause w hen combined with the deal protections here . In Dell , by comparison, the merger agreement included

one - time matching righ ts until the stockholder vote; a forty

- five day go

- shop period; and termination fees of approximately 1% of the equity value during the go

- shop or approximately 2% afterward. 114 Here, a termination fee of 3.5% and a forty

- two day window between agreement an d closing would probably not deter bids by themselves. But that period was constrained by a no - shop provision, combined with : (i) the declared intent of the acting CEO to consummate a deal with Verizon, (ii) the

112 The Petitioners point to the fact that AT&T’s potential approach was rebuffed. H owever, given the circumstances here, including the record evidence that there was a fear that engaging with AT&T would discourage or endanger the developing deal with Verizon, lack of engagement with AT&T, pre

- Agreement, appears reasonable. 113 JX1794 at 6. 114 Dell, Inc. , 2017 WL 6375829, at *6

– 7

.23 CEO’s prospect of post

- merger employment with Verizon, (iii) unlimited three

- day matching rights, and (iv) the fact that Verizon already had ninety days between expressing interest in acquiring the enti re company and signing the M erger A greement, including seven ty

- one days of data room access. Cumulatively, these factors make for a considerable risk of informational and structural disadvant age s dissuading any prospective bidder.
In Dell , after the “ bankers canvassed the interest of sixty

- seven parties,
i ncluding twenty possible strategic acquirers during the go

- shop ,” the “ more likely explanation for the lack of a higher bid [was] that the deal market was already robust and that a topping bid involved a serious risk of overpayment ,” which “ suggest [ed] the price [was] already at a level that [was] fair .” 115 Here, given Armstrong’s statements and situation, together with significantly less canvassing and strong er post

- agreement protections than in Dell , I am less confident that is true. I cannot say that, under these conditions , deal price is the “ best evidence of fair value

. . . as it resulted from an open process, informed by robust public information, and easy access to deeper, non

- public information, in which many parties with an incentive to make a p rofit had a chance to bid .” 116

115 Dell, Inc. , 2017 WL 6375829, at *21, 24

. 116 DFC Global Corp. , 172 A.3d at 349

.24 B. Deal Price as a Check

“ The dependability of a transaction price is only as strong as the process by which it was negotiated .” 117 I find the deal price is not sufficient evidence of fair value to warrant deference , but it is still useful to an extent

. I will use it as a “check” in my determination of fair value , although I decline to give the deal price explicit weight in that determination. Given the process here, a determination of fair value via financial metrics that results in a valuation grossly deviant from deal price , under
t hese circumstance s, should give me reason to revisit my assumptions

. In this way, the deal price operates as a check in my determination of fair value. 118 The partie s have not suggested a principled way to use deal price under the circumstances here, in a blended valuation of deal price and other valuation metrics, and none occurs to me. Instead, t he parties agree , and I concur, that a discounted cash flow analysis i s the best way to value the Company. 119 I turn to that now.

117 Merlin Partners LP v. AutoInfo, Inc. , 2015 WL 2069417, at *11 (Del. Ch. Apr. 30, 2015). 118 AOL stock publicly traded on the New York Stock Exchange . The unaffected stock price was $42.59, and the merger price was thus at a premium to the unaffected trading price. As with deal price, an efficiently derived stock trading price can serve as a check on a fair value analysis. Recently, th is Court in Verition Partners Master Fund Ltd. v. Aruba Networks, Inc. , 2018 WL 922139 (Del. Ch. Feb. 15, 2018) , found an efficiently derived trading price to be fair value. I note that no party has advocated such here, and that no evidence concerning the efficiency of the market for AOL stock is before me. Moreover, the use of trading price to determine fair value requires a number of assumptions that, to my mind, are best made or rejected after being subject to a forensic and adversarial presentation by interested parties. Thus, I do not consider stock trading price further. 119 See supra note 7. Because I do not explicitly give weight to the deal price, I need not address certain related issues, such as the calculation of synergies.25 III. FAIR VALUE AND DISCOUNTED CASH FLOW ANALYSIS A. Use of Discounted Cash Flow Analysis Under 8 Del. C. § 262, t o determine “fair value,” a c ourt must value a corporation as a “ going concern ” according to the corporation’s “operative reality” as of the date of the merger

. 120 Further, a c ourt “must take into consideration all factors and elements which reasonably might enter into the fixing of value,” and consider “facts which were known or which could be ascertained as of the date of merger.” 121 The court retains discretion to use “ different valuation methodologies ” so long as the court justifies that exercise of discretion “ in a manner supported by the record before it. ” 122 The court must derive the fair va lue of the shares “exclusive of any element arising from the accomplishment or expectation of the merger.” 123 When using a DCF analysis, “ this Court has recognized that management is, as a general proposition, in the best position to know the business and, therefore, prepare projections ” in the “ordinary course of business.” 124 With these general principles in mind, I turn to my valuation of AOL. I rely primarily upon a DCF analysis, as “[b]oth experts agree that the DCF is the best and most reliable way to v alue AOL as a going concern as of the merger

120 M.G. Bancorporation, Inc. , 737 A.2d at 525. 121 Weinberger v. UOP, Inc. , 457 A.2d 701, 713 (Del. 1983) (quoting Tri

- Continental Corp. v. Battye , 74 A.2d 71, 72 (Del. 1950)). 122 DFC Global Corp. , 172 A.3d at 35 1. 123 8 Del. C. § 262(h). 124 In re Appraisal of Ancestry.com, Inc. , 2015 WL 399726, at *18.26 date.” 125 A DCF analysis , “ although complex in practice, is rooted around a simple principle: the value of the company at the time of the merger is simply the sum of its future cash flows discounted back to present value .” 126 Further, a DCF analysis

“ is only as reliable as the inputs relied upon and the assumptions underlying those inputs.” 127 However, “the use of math should not obscure the necessarily more subjective exercise in judgment that a valuation exer cise requires.” 128 I also acknowledge the Dell court’s recent delineation of the weaknesses of the method: Although widely considered the best tool for valuing companies when there is no credible market information and no market check, DCF valuations invol ve many inputs

— all subject to disagreement by well

compensated and highly credentialed experts

— and even slight differences in these inputs can produce large valuation gaps. 129 The Petitioners hired a well

- qualified academic, Dr. Bradford Cornell, a visiting professor at the California Institute of Technology, as their expert witness. Cornell performed a financial analysis, and concluded that the fair value of AOL stock was $68.98 per share. 130 For reasons not necessary to detail, however, the Respondent quest ioned Dr. Cornell’s impartiality in this matter, and the Petitioners seem content to use the DCF mo del presented by the Respondent ’ s expert as a starting point for my analysis. Accordingly, I start with the DCF valuation provided

125 Sept. 19, 2017 Oral Arg. Tr. 25:5

– 8. 126 In re of SWS Grp., Inc. , 2017 WL 2334852, at *11 (Del. Ch. May 30, 2017)

. 127 Id

. 128 Agranoff v. Miller , 791 A.2d 880, 896 (Del. Ch. 2001). 129 Dell, Inc ., 2017 WL 6375829, at *28. 130 Trial Tr. 108:17

– 21 (Cornell).27 by that expert, Professor Daniel Fischel, and consider the Petitioners’ limited arguments that certain assumption or inputs in that valuation must be changed. Fischel opined that the fair value of AOL stock was $44.85 per share

. 131 The Petitioners’ disagreements with th e Fischel analysis are limited, although the effects of that disagreement on the calculation of fair value are vast. The pa rties dispute only four items: (1) the proper cash flow projections for the DCF; (2) the operative reality assumed in the DCF with r egard to two deals with Microsoft and one deal with Millennial Media Inc. ; (3) the proper projection period and terminal growth rate; and (4) how much of AOL’s cash balance must be added back after the DCF

. I discuss each in turn

. B. Disputed Addition and In puts 1. Cash Flow Projections “The most important input necessary for performing a proper DCF is a projection of the subject company's cash flows. Without a reliable estimate of cash flows, a DCF analysis is simply a guess.” 132 The parties point to three potential sets of cash flow projections. The projections relied on by Fischel in his analysis, which I use as a starting point, are management’s long

- term plan for 2015 (the “Management Projections” or the “LTP”). 133 Fischel selected these projectio ns

131 Trial Tr. 1065:6

– 9 (Fischel). 132 Del. Open MRI Radiology Assoc s. , P.A. v. Kessler , 898 A.2d 290, 332 (Del. Ch. 2006). 133 JX0917; JX0921 at 46.28 because they were “ described as the ‘ best cu rrently available estimates and judgements of [AOL]'s management as to the future operating and financial performance of [AOL], ’ and were used by AOL's financial advisor Allen in its May 11, 2015 fairness opin ion .” 134 The Petitioners encourage me to use either of two other projections relied on by Cornell. The first is based on ten

- year projections that AOL submitted to Deloitte for a tax impairment analysis (the “Deloitte Projections”). 135 The second , (the “Disputed Projections”) , contained substantial differences , compared to the Management Projections, in working capital requirements and was sent by AOL to Verizon’s advisors in April 2015 . I find that the best estimate of cash flow projections is the Management Projections , made in the regular course of business, for the reasons that follow. The Management Projections were completed in mid

- February 2015 and presented to the AOL Board. 136 The AOL Board created four

- year long

- term plans as a part of its annual int ernal budgeting process. 137 AOL executives testified that the LTP did not include costs or risks from specific acquisitions or transactions ; 138 however, the LTP assumed that AOL would fill strategic gaps in areas such as

134 JX2255 (Fischel Report) ¶ 41; AOL Schedule 14D

- 9 at 24

. 135 Trial Tr. 649:19

– 650:3 (Dykstra). 136 JX0917; JX0921 at 46. 137 Trial Tr. 355:17

– 22 (AOL CFO of Platforms Bellomo) , 641:17

– 642:10 (AOL CFO Dykstra). 138 Id. at 363:10

– 13 (quoting AOL CFO of Platforms Bellomo’s response that the LTP did not “account for the cost of acquiring Millennial Media or integrating it”); JX1248 ( quoting an email from AOL CFO of Platforms Bellomo to another AOL employee: “[I]s our LTP a tough case to achieve on an organic basis?” “[T]he current LT P does not assume any acqu isitions . . . .”).29 mobile supply, shifting demographics, and consumer data. 139 AOL financial advisor Allen & Co. sent the Management Projections to Verizon, albeit without AOL management’s sign off. 140 The Deloitte Projections were created after AOL hired Deloitte to perform a goodwill impairment valuation of the Company using a set of ten

- year projections developed by AOL for this purpose. 141 AOL CFO Dykstra testified that she did not
create the Deloitte Projections for non

- tax purposes. 142 These projections were created through inputs provided by AOL Senior Vice P resident of Financial Planning and Analysis Michael Nolan , 143 after which “[Deloitte]

. . . r [a] n it through their standard model.” 144 According to Cornell, a DCF analysis based on the Deloitte Projections

― instead of the Management Projections

― values AOL sto ck at $55.36 per share. 145 The Disputed Projections were created when Allen & Co. expressed concern , i n April 2015 , that AOL’s projected working capital “appear[ed] to be materially

139 Trial Tr. 361:19

– 364:16 (Bellomo); JX1712 at 3 (“Major Product/Solution Improvement Assumptions”). 140 Trial Tr. 889:13

– 22 (Rosz kowski); JX1332; JX1457; JX2991; JX1286

. 141 Trial Tr. 6 49:19

– 650:3 (Dykstra). 142 Id. at 653:22

– 654:10 (Dykstra) (“ I wouldn't use them for formal valuation purposes for a different purpose. I mean, this goodwill impairment testing is a different purpose, to just judge whether you have a non

- cash impairment charge for that period

. . . I t was a different process, different people involved .”). 143 Trial Tr. 650:12

– 13 (Dykstra). 144 Id. at 650:21

– 23 (Dykstra). 145 Pet’rs’ Opening Br. Ex. A.30 different from research estimates” 146 AOL prepared and sent another version o f the working capital projections

— the Disputed Projections

— with different ass umptions to Verizon’s advisors

. 147 AOL CFO of Platforms Nick Bellomo stated that he “reviewed the numbers that were shared [with Verizon] to “mak[e] them more optimistic” in order to “decrease[] the change in working capital, which would have had an increase in cash flow for the business, which would ultimately increase the valuation of the business under certain valuation methodologies.” 148 Bellomo stated that it was his “understand ing that the valuation that was initially floated to AOL for the purchase of AOL may [have] be [en] taken down unless these numbers were improved.” 149 Allen & Co. director Isani explained to AOL Senior Vice President Mark Roszkowski on February 8, 2015 that: I think we should be presenting a robust opportunity case to [Verizon]―and as is typical for these processes, it will vary from budget. For internal purposes and record keeping, we should have the bridge btw that case and the board budget as well as docum ent the rationale for the gap.

146 JX1266 ( quoting email from Allen & Co. that “[w]e have included [net working capital] from the LRP as w ell, which appears to be materially different from research estimates, are we sure the numbers we have for NWC are correct?”) ; see also JX2473 ( quoting an internal AOL email from May 8, 2015 that the “increase in wor king capital seems crazy high”). 147 Trial Tr. 371:5

– 15 (Bellomo); Id. at 832:16

– 83 3:7, 835:22

– 836:2 (Allen & Co. d irector Isani) (“Q. And wha t do you understand the purpose of these [Disputed] cash flow projections to be? A

. To make a case to Verizon on how the cash flow could be improved o ver time, should the company successfully deploy certain efforts. ”); but see id. at 827:7

– 828:2 (Isani) (agreeing that “it was typical in these processes to present a robust opportunity case to a potential buyer ”). 148 Id. at 370:14

– 18 (Bellomo). 149 Id. at 3 71:1

– 4.31 However, for the dialogue with [Verizon], we present only the robust case and completely own it as "the" plan. Typically we would not show board minutes as this is not a corporate deal (this case is tricky as the asset re presents a large portion of total value). They will ask is this budget and we will have to rehearse the answer. But for a process like this it is not typical for the financials to be revised upwa rd from the conservative board/ budget ones (Should probably also connect w/ legal to get their input into the caveats for documenting the gap). 150 AOL management sometimes referred to the Disputed Projections as “aspirational” in their internal correspondence. 151 There is also contemporaneous correspondence and trial testimony that the Disputed Projections were created with the assumption that AOL would become part of Verizon

. 152

150 JX0819 at 1

– 2 (citing emails between AOL and Allen & Co. executives); accord Trial Tr. 311:7

– 312:3 (Doherty). 151 Trial Tr. 656:19

– 21 (Dykstra) (“So we did that exercise and came up with a more aspirational set of working capital projections.”) ; JX1691 (quoting a May 10, 2015 email from Dykstra to Roszkowski that “[w] e are going to note to the board at the meeting tomorrow that we provided a more aspirational cash flow to the [Verizon] team as part of the process and we'll need to note the differe nces at a very high level to the cash flow we provide to the board ”) ; JX1748 (quoting an email from AOL Senior Vice President of Financial Planning & Analysis Michael Nolan to Dykstra on May 10, 2015 that “[b]elow [financial projections] compare [] base cas e vs aspiration as well as revised tax comment” and refer [] to an assumption that “improved work capital driven by DSO [days sales outstanding] and DPO [days payable outstanding] improvement initiatives planned in LRP,” which allegedly could only be achiev ed by a Verizon acquisition of AOL )

. 152 Trial Tr. 656:5

– 21, 658:23

– 659:8 (Dykstra) (“I believe they were talking about the exercise of taking a . . . stretch or aspirational approach to looking to see what numbers we could tweak in the model, and things tha t would be impacted by Verizon if they were there with us . . . . )”, 662:4

– 663:12 (“[W]e went back and said what if we could stretch and Verizon could help us improve some of the dynamics in our cash flow, a nd collections in particular.”); Id. at 896:20

– 8 97:20 (Roszkowski); JX1690 (quoting same email as JX1691); Trial Tr. 371:16

– 373:15 (Bellomo); Id. at 656:5

– 657:20 , 662:4

– 663:16 (“Q. And when you wrote about the "more aspirational cash flow given to Verizon," to what are you referring? A. I'm ref erring to that exercise that we talked about, where w e went back and said what if we could stretch and Ver izon could help us improve some of the dynamics in ou r cash flow, and collections in particular .”), 695:3

– 9 (Dykstra) (“Again, I've said that the additional assumpt ions were assuming we would get better leverage with Verizon. ”) ;32 I note that o ther evidence challenges this narrative. The Disputed Projections

were c reated after a rigorous internal process that involved input from a variety of departments within AOL. 153 Certain of AOL’s employees signed off on the projections while they were unaware of a potential or likely sale to Verizon. 154 The Disputed Projections w ere submitted to Verizon and explained to AOL’s Board, apparently as though they were current projections. 155 There are emails between AOL employees that refer to the LRP as being “incorrect” and outdated. 156 The

Trial Tr. 835:4

– 836:2 (Isani); Id. at 892:2

– 10, 893:11

– 23 (Roszkowski); JX1286 (working capital would improve if AOL had “more leverage on both payment terms and ability to collect

. . . . ”); JX1452 a t 1 ( quoting internal LionTree emails in April 2015 that “AOL is assuming . . . more scale” would lead to “a faster collection time”); JX1306 (April 14, 2015 email from Allen & Co. to AOL executives that an assumed change in working capital would be due to “[m] ore leverage over advertisers and publishers ”) ; JX1419 (April 18, 2015 email from Allen & Co. to Verizon financial advisors including a “Net Working Capital Overview” with a “[c]hange in net working capital projections by segment”). 153 JX1280 ( noting the Disputed Projections were prepared after “an internal review of the LRP” ); JX1423 (quoting an internal AOL email chain discussing the change in projection assumptions in advance of a call) ; JX1414 (detailing the extensive internal input into the Disputed Projections from Corporate Development, Financial Planning & Analysis , and Allen & Co. ); JX1398 at 1 (quoting an AOL finance team email of April 17, 2015 that the updated working capital projections resulted in “no change i n AOIB DA [free cash flow] or end cash ”). 154 JX1437 ( quoting Allen & Co. director Isani in an April 20, 2015 email that: “FYI

– [AOL] will also have their controller Lara sweet [sic] join the call at noon. PLEASE NOTE: Lara is not aware of the change in the structure to a 100% deal. As such, please continue to provide the context that the discussion is re: a deal with the last 80/20 public minority structure”); JX1434 at 1 ( citing email to show that Lara Sweet, AOL’s Controller was unaware of the potential V erizon transaction when she endorsed the Updated Projection); JX1411 at 1 (Armstrong e

- mail to the Board, outside counsel, Allen & Co

. , and Dykstra, and Roszkowski, stating “[i]t is really important you know that the main people represented on this email a re the limited set of people tha t have information on our deals ”). 155 Trial Tr. 715:20

– 716:24 (Dykstra ) (agreeing that Dykstra “t[old] the board the difference in cash flows at a very high level” after the Disputed Projections had been sent to Verizon). 156 JX2451 at 2 ( quoting an internal AOL email that “AJ can send you the LRP

– caveat being that it is incorrect and does not reflect the updated numbers per all discussions since that time ”); JX1406 (quoting internal email from Allen & Co. on April 18, 2015 t hat “[w]e have already told33 Petitioners contend that AOL’s goal for more leverage to decrease day sales outstanding ( thus decreasing the required working capital and thereby improving cash flow) could have occurred outside of an anticipated deal with Verizon, although an exact method is left unspecified. 157
I find that the Managemen t Projections are in fact management’s best estimate as of the Valuation Date

. While a close call, t he r ecord indicates that the Disputed Projections were most likely created as a marketing tool in AOL’s attempted sale of itself to Verizon. My purpose he re is to determine the fair value of AOL , and not AOL’s value as - advertised. I am not persuaded that the Disputed Projections represent the most recent and valid projections used by AOL management prior to the Valuation Date. Finally, I find that the go odwill impairment projections are not pertinent to my DCF analysis here. The purpose behind any set of projections matters because it determines the appropriateness of various assumptions that must be made. The Deloitte Projections were made for the good will impairment analysis―a tax

- driven
assessment with a host of required assumptions that should not , in these circumstances, be used for a DCF analysis

. While certain assumptions may be

[Verizon] all old numbers should be disregarded as they are not correct, however they wou ld still like to have a call ”). 157 Pet’rs Answering Post

- Trial Br. 17 (“The documents cited by Respondent generally assert that working capi tal would improve if AOL had more scale or leverage (which AOL could obtain in ways other than an acquisition by Verizon) among several other strategies AOL had employe d to improve working capital.”).34 appropriate for a tax analysis, those same assumptions may be nonsen sical for valuation purposes. Consequent ly, I use the Management Projections in my DCF analysis.
2. Pending Transactions as of the Merger I start with the following assumptions. “The determination of fair value must be based on all rel evant factors, including . . . elements of future value, where appropriate.” 158 “[A]ny . . . facts which were known or which could be ascertained as of the date of the merger and which throw any light on [the] future prospects of the merged corporation ” mu st be considered in fixing fair value. 159 A corporation “must be valued as a going concern based upon the ‘operative reality’ of the company as of the time of the merger.” 160 I must exclude speculative costs or

revenues , however. 161 Mere “actions in furthe rance” of a potential transaction, without a manifest abilit y to proceed, should not be valued as part o f a company’s operative reality. 162

158 Glassman v. Unocal Exploration Corp. , 777 A.2d 242, 248 (Del. 2001). 159 Montgomery Cellular Holding Co. , 880 A.2d 206 at 222 (Del. 2005). 160 Ala. By

- Prods. Corp. v. Neal , 588 A.2d 255, 256

– 67 (Del. 1991) ; M.G. Bancorp oration , Inc , 737 A.2d at 525; LongPath Capital, LLC v. Ramtron Int'l Corp. , 2015 WL 4540443, at *9 (Del. Ch. June 30, 2015)

. 161 Ramtron , 2015 WL 4540443, at *13 & n.113; see also M.G. Bancorporation , Inc. , 737 A.2d at 525 ; Ala. By

- Prods. Corp. , 588 A.2d at 256

– 67. 162 Gearreald v. Just Care, Inc. , 2012 WL 1569818, at *6 (Del. Ch. Apr. 30, 2012 ).35 The Petitioners argue that three potential deals were part of AOL’s operative reality, and that any fair value analysi s of AOL must include these transactions

. 163
These include : (i) AOL’s acquisition of Millennial, a programmatic mobile advertising platform; 164 (ii) a deal for Microsoft’s Bing search engine to replace Google in powering search results on AOL properties (the “Search Deal”), 165 and (iii) a ten

- year commercial partnership for AOL to run the sales of display, mobile, and video ads on Microsoft properties in the U nited S tates and eight international markets (the “Display Deal”) (the Display Deal and Search Deal are together referred to as the “Microsoft Deals”). 166 Fischel did not ascribe value to these transactions in his DCF analysis

. 167 For each of these transactions I ask: (i) if the transaction was part of the “operative reality” of the Company as of the Valuation Date, and (ii) if so, was the transaction appropriately valued in the LTP. I will adjust
my Fischel

- based DCF analysis to i nclude the financial impact of those transactions that were part of the Company’s operative reality on the Valuation Date but which

were not included in the LTP.

163 Pet’rs’ Answering Br. 47. 164 JX2076 at 2

– 3 (citing August 25, 2015 internal Verizon proposal for merger agreement with Millennial); Trial Tr. 48:6

– 7 (“Millennial Media . . . is basically a programmatic mobile platform

. . . . ”). 165 JX2008 (including an “Ad vertising Sales and Services Agreement” executed on June 30, 2015)

. 166 JX2441 (including a “Sales Partnership Agreement for AOL’s Operation of [Microsoft’s] Display and Video Advertising Monetization” executed on June 23, 2015)

. 167 See JX2346 (LTP) at Tab I. A.2 Key assumptions ( displaying unawareness of Search Deal in statement that “ [n] ew search deal terms set in for 2016. This will negatively impact r evenue and bottom line for Core ”).36 a. Operative Reality i. Description of the Deal s As mentioned, the Display Deal allowed AOL to run the sale of display, mob ile, and video ads on Microsoft properties such as Xbox, Skype, Outlook, MSN, and others in the United States and eight other markets. 168 After months of negotiation, 169 Microsoft and AOL traded draft term sheets at least through May
2015. 170 Armstrong testifi ed that the Display Deal “could have blown up at any time” because of, among other things, uncertainty surrounding the customers and the Microsoft employees AOL would need to onboard. 171 Armstrong confirmed in a May 14, 2015 email that AOL expected to close the Display Deal on May 27,
2015. 172 Nevertheless , AOL pushed back the Microsoft announcement until after the Verizon announcement. 173 AOL signed an agreement for the Display Deal with Microsoft on June 28, 2015 and announced the transaction on June 30, 201 5. 174 The

168 JX2441. 169 JX2009 at 1 (quoting AOL executive that the MSFT deal “was 9 months of long drawn out in ternal and external negotiation ”). 170 JX2412 (citing May 7, 2015 email from Bain to AOL: “ Deal terms are still in flux; we anticipate having final terms on Frid ay 5/8, with some work still to be done on PMP terms .”); JX2413 (quoting May 8, 2015 internal AOL email with “the latest term sheet” with updates about “[AOL’s] latest reconciliation on terms with [Microsoft]”). 171 Trial Tr. 510:4

– 8, 12

– 13 (Armstrong). 172 JX1816 at 1 (email from Armstrong to AOL executives on May 14, 20 15). 173 JX2425 (quoting email from AOL executive Roszkowski to another AOL employee on June 2, 2015 to hold off on announcing the Display Deal until after the Verizon announcement). 174 JX2008 at 38

– 39 (Display); JX1997.37 Petitioners imply that t he Display Deal contributes $2. 57 per share if included under Fischel’s DCF Model. 175 The Search Deal replaced a soon

- to

- expire contract with Google to allow Microsoft’s Bing search engine to power advertising and results on AOL’s properties. 176 Similar to the Display Deal, AOL planned to close the Search Deal on May 27, 2015 but delayed until after the Verizon announcement. 177 An AOL presentation from June 10, 2015 included the key terms, financial projections, and other busine ss implications of the Search Deal. 178 The Search Deal closed on June 26, 2015. 179 Microsoft and AOL announced the Microsoft Deals on June 30,
2015. 180 T he Petitioners do not quantify the impact of the Search Deal but instead urge me to “ select a DCF value s lightly above the median to account for the value added by the Microsoft Search Deal, which was accretive to free cash flow beginning in 2016. ” 181

175 Pet’rs’ Answering Br. 46

– 47 (statin g that the Millennial and Display Deals contribute $6.71 per share and that the Millennial Deal accounts for $4.14 per share of that contribution). I note that Cornell examines the Millennial and Display Deals as combined. Pet’rs’ Post

- Trial Answering Br ., Ex

. A

. 176 JX2008; Trial Tr. 512:12

– 20 (Armstrong); JX2146

. 177 JX1816 at 1 (email from Armstrong to AOL executives on May 14, 2015); JX2425 (quoting email from AOL executive Roszkowski to another AOL employee on June 2, 2015 to hold off on announcing the D isplay Deal until after the Verizon announcement). 178 JX2433. 179 JX2146 at 1

– 2 ( including a copy of the Search Deal agreement ) ; JX1997 (including an internal AOL email circulating the signature pages). The parties dispute whether the Search Deal closed on June 26 or 28, 2015; the distinction is not material to my decision here. 180 JX2008; JX2146. 181 Pet’rs’ Answering Br. 47.38 The path of Millennial Media, Inc. (“Millennial”) to an acquisition by AOL ( the “ Millennial Deal ”) was more cir cuitous than the Microsoft Deals. After conducting initial diligence, AOL passed on buying Millennial in late 2014 but resumed preliminary diligence in February 2015. 182 AOL paused its diligence in April 2015 until Millennial announced its quarterly earnin gs. 183 In May 2015, Armstrong told the AOL Board that Millennial might “secure another offer in the near term, but we are willing to take that risk.” 184 Armstrong made a non - binding offer to Millennial for $2.10 per share on June 5, 2015, “conditioned on exclusivity , ” and stated that “AOL was prepared to move expeditiously to negotiate and sign a definitive agreement to effect the transaction.” 185 AOL sent a “written, non

- binding proposal . . . reflecting the terms of the June 5 Proposal, a nd which also included an exclusivity period to negotiate a transaction between the parties until July 17,
2015.” 186 On June 10, 2015, Millennial opened a data room to AOL and its advisors. 187 On June 15, 2015, Millennial and AOL signed an agreement to negot iate exclusively until July 17, 2015, and “ which contained a standstill provision that would terminate if the Company entered into a definitive agreement with a third

182 JX0663 at 1 ; JX2112 at 14. 183 JX1476 at 1. 184 JX1595 at 2. 185 JX2112 (Millennial Schedule 14D

- 9) at 17

. 186 Id. at 18. 187 Id.39 party to effect a business combination. ” 188 Representatives of AOL and Millennial
met on J une 17

– 19, 2015 to discuss Millennial’s “ financials, business operations, product and technology, real estate and security infrastructure .” 189 On June 23, 2015, Verizon closed the merger with AOL. 190 On June 30, 2015, AOL’s counsel “circulated a first draft o f the Merger Agreement,” followed by two weeks of meetings, discussions, and negotiations. 191 The parties discussed: [T] he scope of the representations and warranties, the benefits to be offered to the Company's employees following the transaction, the cond uct of the Company's business between signing and closing of the transaction, the parties' respective conditions to closing, AOL's obligation to indemnify and maintain insurance for the Company's directors and officers, the rights of the parties to termina te the transaction, and the amount and conditions of payment by the Company of the termination fee and expense reimbursement described above

. 192
The SEC sent Millennial a letter “notifying [Millennial] that the SEC was conducting an information investigatio n” for fraud starting in July 2015. 193 After the expiration of the exclusivity agreement, Millennial attempted to auction itself to six other buyers , but AOL was the only party to submit a proposal. 194 AOL, by then under Verizon, agreed to pay $1.75 per share to acquire Millennial on September 2,

188 Id. at 19. 189 Id. 190 Stipu lated Joint Pre

- Trial Order ¶ 9. 191 Id. 192 Id. ¶ 20. 193 JX2112 (Millennial Schedule 14D

- 9) at 19

– 20. 194 Id

. at 20

– 24, 26 (“AOL was the only party to submit a p roposal to acquire Millennial”);40 2015. 195 AOL signed the Millennial Deal on September 3, 2015. 196 The Millennial
D eal closed on October 23, 2015. 197 The Petitioners argue that the Millennial Deal
contribu tes $4.14 per share if included under Fischel’s DCF model. 198
ii. Conclusions I find that the Display Deal was part of the operative reality of AOL as of the Valuation Date. I am persuaded by the level of certainty in that transaction , given AOL’s internal correspondence a nd the concrete plans for an announcement date. I also find that the Search Deal was part of the oper ative reality of AOL as of the Valuation D ate. I am persuaded by the apparent certainty of the transaction , based on internal correspondence and presenta tions , that this transaction was one that both
sides fully expected to occur. However, I find that the Millennial Deal was not part of AOL’s operative reality as of the Valuation Date. AOL had taken a number of steps toward a transaction, such as sending a non - binding offer subject to an exclusivity period, beginning the due diligence process, and meeting with executives. However, no merger agreement drafts had been exchanged and weeks of negotiations, a robust due diligence process, and an entire auctio n yet remained. The actions taken by AOL before the Valuation Date showed substantial interest in

195 Id. at 23; JX2988

. 196 JX2112 at 25. 197 JX2130 at 2. 198 Pet’rs’ Answering Br. 47.41 a transaction but are not, to my mind, sufficient ly certain as to be part of the operative reality of AOL on the Valuation Date

. b. LTP Assumptions The second question is whether the operative reality of AOL as of the Valuation Date, including the relevant transactions mentioned above, was properly included in the LTP. Because I find that the Millennial Deal was not part of the operative reality of A OL on the Valuation Date, I need not answer the second question for that particular transaction. In essence, the question before me is this: what is the scope of the assumptions made in the LTP? The Petitioners urge me to view them narrowly―these specifi c deals were not assumed―making the Microsoft Deals additive to the Management Projections. The Respondent, by contrast, urges me to view them broadly―the LTP assumes that strategic gaps will be filled and these transactions merely fill that role―so that the LTP remains as management’s best prediction of future cash flow s and the Microsoft Deals should not be a dditive. My attempt to differentiate the new ingredients from those already baked in is below. i. T he Display Deal The Display Deal and its relation t o the LTP were specifically discussed internally after the AOL

- Verizon merger . AOL executive Roszkowski explained to Verizon executive Walden in a September 3, 2015 email tha t the Microsoft and Millennial D eals were “ accretive to [the LTP] , but should not be a straight addition42 to revenue and margin” and that “the [] LTP assumed deals like MSFT and that [AOL] would close [its] mobile technology/talent gap.” 199 Roszkowski later testified that AOL’s LTP was “optimistic . . . and . . . included assumptions tha t [AOL] [would] solve [] for key strategic capability gaps ” so that the Microsoft Deals

“ actually made the long

- term plan more certain ” and could not be a “straight . . . addition” to the LTP. 200 The Display Deal included a number of risks, including adding approximately 1,270 Microsoft employees in nine countries. 201 The parties also dispute smaller, non

- dispositive issues. 202 The parties give me two choices with regard to the Display Deal : add the full value of the Display Deal as urged by the Petitioners, implicitly worth $2. 57 , or decline to add it to the LTP, as the Respondent recommends. I find that the Display

199 JX2100 at 1 (emphases added); see also Trial Tr. 578:15

– 579:17, 582:7

– 18 (Doherty) (“Q. And in your view, Mr. Doherty, could you simply add the projections relating to the new Microsoft deal on top of the prior management projections? A. No. Not at all. I mean, two reasons. Number one, I felt it was already pretty much baked into their plan; and, number two, we didn' t have a set of projections.”). 200 Id. at 901:3

– 14 (AOL head of corporate development Roszkowski); see also id

. at 343:1

– 7 (Verizon EVP Walden); Id. at 314:1

– 19 (Verizon SVP Doherty). 201 Tr. 374 :15

– 375:12 (Bellomo); Tr. 512:2

– 513:8 (Armstrong) ; JX1993 at 6, 13

– 15 (quoting a June 25, 2015 internal Verizon slide deck explaining the deal and its risks and benefits to AOL and Verizon, including employee integration schedules); JX2008 at 9

– 16, 22

– 23 (“Advertising Sales and Services Agreement” between AOL and Microsoft dated June 30, 2015). 202 The parties dispute the meaning of “delivered value” in an exhibit (JX2436) as either “ revenue that is delivered to AOL and Microsoft on account of the deal” (Resp’t’s Answering Br. 57) or “by definition . . . addi tive” (Pet’rs’ Opening Br. 59). The parties also dispute a slide (JX2441 at 8) that was either “ apparently put together by a Bain consultant and never shared outside a small group of AOL’s management, showing how AOL might be able to perform as part of Ve rizon, with illustrative numbers added on to AOL’s long

- term plan ” (Resp’t’s Answering Br. 57) or as evidence that AOL viewed the Display and Millennial Deals as directly additive to the LTP (Pet’rs’ Opening Br. 59

– 60).43 Deal was , at least , partially accretive. I am convinced that AOL internally viewed it as at least partially additive to its LTP as evidenced by its internal presentations and
communications , but I also suspect that it should not be entirely additive. B ecause I lack the information necessary to cut a finer slice in this instance , I add the full $2. 57 per share to my DCF analysis. In other words, the record gives me no basis that another value for the display deal is less arbitrary than $2. 57 per share. ii. T he Search Deal Neither Fischel nor Cornell included the Search Deal in their DCF analyses, 203 purportedly because “AOL did not produce detailed forecasts for the Search Deal.” 204 The LTP initially assumed that a new search deal with Google would be less favorable to AOL than the previous deal. 205 Armstrong testified that the Search Deal, together wi th the Display Deal, was “meant as a mitigation to the search money that we would lose when we switched from Google at the end of that year to Microsoft. But it was unlikely that the Microsoft deal would make up for the search loss that we were going to e xperience overall .” 206 However, a June 10, 2015 AOL presentation included financial projections that explicitly portrayed the Search Deal

203 Trial Tr. 232:18

– 19 (Cornell); JX2 255 ¶ 41 n.90 (Fischel Report). 204 Pet’rs’ Opening Br. 56. 205 JX2346 at Tab I. A.2 Key assumptions [for AOL’s LTP] (“New search deal terms set in for 2016. This will negatively impact revenue and bottom line for Core.”). 206 Trial Tr. 512:12

– 20 (Armstrong).44 as additive to AOL’s OIBDA in comparison with the LTP. 207 I find that the preponderance of the evidence shows that the Search Deal is , at least minimally, additive to the LTP. The record is lacking in a principled way to account for the Search Deal, however. The Petitioner s do no more than urge me to

“ select a number slightly higher than the mid

- point share price to acco unt for the Search Deal’s benefits

. ” 208 I find fair value, therefore, is best expressed by omitting any speculation as to the valu e to AOL of the pending Search D eal. In other words, the record gives me no basis to find that another value for the Search De al is less arbitrary than $0. I also note that I have included the full value of the Display Deal as accretive to value, potentially overstating fair value, and I find it prudent not to exaggerate that effect by adding speculative value here.
3. Projection P eriod Any DCF analysis must include a post

- projection period of valuation into perpetuity at a steady state. This case is a now

- classic appraisal story of “the tale of two companies.” AOL was divided into three segments: two parts small and rapidly growing; one senescent. The question before me is, in the context of four

- year projections, ending with two segments enjoying high growth rates a nd a quiescent
third segment , what is the bes t way to view the terminal period?

207 JX1906_VZ

- 0056420 at 5

– 6 (comparing difference in Search Deal projections to “AOL May 2015 Outlook + 2016

– 18 Long Term Plan”). 208 Pet’rs’ Opening Br. 56.45 Fischel selected 3.25% as the perpetuity growth rate for AOL. 209 Fischel noted that the “perpetuity growth rates reported by analysts and advisors ranged from 1.0% to 6.6%, with a median of 2.5% and an average of 2.9%.” 210 Fischel then averaged the 2.9% perpetuity growth rate given by analysts and advisors with the 4.6% long

- term GDP growth estimate and 2.3% long

- term inflation rate, resulting in an average rate of 3.28%. 211 Fischel reduced the perpetuity growth rate to 3.25 % due to his concern that “AOL's Membership segment was the largest contributor to AOIBDA and was declining, so this may overstate the expected growth rate for the firm.” 212 However, Fischel noted that because “AOL Projections do not provide estimates beyon d 2018 . . . there is some possibility that AOL could experience growth in the short term at a rate higher than inflation due to higher growth in the Platforms and Brands segments or even potential acquisitions.” 213 Lastly, Fischel
tested the “ sensitivity o f the implied value of AOL's common shares to the perpetuity growth rate by using a range of 3.0% to 3.5%. ” 214 Unsurprisingly, t he Petitioners characterize Fischel’s perpetuity growth rate of 3.25% as “flawed” because , they say, combined with his use of a tw o - stage model, Fischel insufficiently accounts for AOL’s high growth rate prior to reaching steady

209 JX2255 ¶ 5 4 (Fischel Report). 210 Id. ¶ 52. 211 Id. ¶ 5 4. 212 Id. ¶ 54 n.104. 213 Id. ¶ 53. 214 Id. ¶ 54 n.104.46 state. 215 The Petitioners argue that a three

- stage DCF is more appropriate here because “academic literature [such as that by Professor Damodaran] counsels th at if the growth in the final forecast year is well above the terminal growth rate, then a three

- stage model is preferred.” 216 The Petitioners point to Fischel’s agreement , that two of the AOL businesses were experiencing “hypergrowth” 217 at the end of the
two

- stage projection period used by Fischel , as evidence that a two

- stage model is inappropriate here. 218 The Petitioners illustrate this lost value using a chart: 219

215 Pet’rs’ Post -Trial Opening Br. 64. 216 Id. at 65. 217 Trial Tr. 1105:20– 1106:2 (Fischel) (“Q. Okay. Now, two of the AOL business segments experience d hypergrowth at the end of the projection period that you used. Correct? A. That's right

. Q. A nd AOL did not reach a steady state at the end of the projection period. Correct? A. I think that's fair. ”). 218 Pet’rs’ Post -Trial Answering Br. 50. 219 Pet’rs’ Post -Trial Opening Br. 66.47 As an alternative , t he Petitioners advocate using the ten

- year Deloitte projections used for the tax impairment a nalysis to account for the post

- Management Projections growth gap described above

. 220 I have already rejected this approach, for reasons set out above; I also note that AOL management did not believe it could reliab ly forecast beyond four years. 221
In a fast

- paced industry with significant fluctuations, where management is hesitant to project beyond four years, using a three

- stage DCF model or a ten

- year projection period seems particularly brazen . I find that a two

- stage model is appropri ate under these circumstances. However, I agree with the Petitioners that Fischel’s two

- stage model and perpetuity growth rate of 3.25% do not accurate ly capture the trajectories of the two divisions of AOL that were in hypergro wth at the end of the Management Projection period , despite the presence of the
afo rementioned senescent “Y ou’ve G ot M ail” laggard. I find a perpetuity growth rate of 3.5% more accurately captures AOL’s prospects after the Management

220 Id. at 66

– 67; JX2277 (Cornell Report) ¶¶ 89

– 92. 221 Resp’t’s Opening Post

- Trial Br. 74; Trial Tr. 642:11

– 23 (Dykstra) (“ Q. Wh y did you only project out four years as part of the long

- term planning process? A. It was very difficult to go beyond four years. You know, we were in businesses and markets where the world was changing pretty quickly. I mean, digital market ing really was just coming into play, so it was movin g fast. We

-- it's difficult to predict advertising trends to begin with. ”); JX2233 at 112:22

– 113:5 (Eoin Ryan Dep., former AOL head of investor relations a nd now AOL head of financial planning); Trial Tr. 642:11

– 23 (Dykstra); JX2233 at 112:22

– 113:5 (Ryan Dep.).48 Projection period end s . When a 3.5% perpetuity growth rate is applied to Fischel’s DCF model, the fair value of AOL stock increases by $1.2 8 per share. 222
4. Cash Balance The va lue of working capital that is required “ to fund [a company’s] ongoing operations . . . is already reflected in one sense in the discounted present value of those operations

. ” ; any balance of cash not so required is “‘excess’ and may be add ed to the discounted cash flow.” 223 Fischel and Cornell agree that any such balance should be added back to the valu ation for AOL after the DCF analysis. Fischel cites to Professor Aswath Damodaran for the financial valuation rule that “only cash in excess of the minimum cash balance needed for operations shoul d be included in a
DCF.” 224
The cash on hand of the Company on the Valuation Date was $554 million. 225 Fischel adds $404 million at t he end of the DCF but reserves $150 million as working

222 I use the Fischel model the parties provided to calculate my DCF. I note that Fischel’s model includes a broken reference (#REF!) in Ex. N on the “AOL Dilutive Results (lexicon)” tab at cell BJ4. The reference impacts calculations made in the “DCF” tab regarding the shares outstanding at cell B16. I input “85.1” into cell B16 in accordance with Fischel’s Report at JX2255 ¶ 57, which states that “A OL had approximately 85.1 million fully diluted shares outstanding as of the Valuation Date.” The result was a $1.28 per share difference when applying a 3.5% perpetuity growth rate, or $46.13 per share. The parties may address any concerns with this app roach before the Final Order. 223 Neal v. Ala

. By

- Products Corp. , 1990 WL 109243, at *16 (Del. Ch. Aug. 1, 1990), aff'd, 588 A.2d 255 (Del. 1991)

. 224 JX2255 at 36 (citing Aswath Damodaran, Dealing with Cash, Cross Holdings and Other Non

Operating Assets: Appr oaches and Implications , working paper, Sept. 2005 , at 12) (“Damodaran”). 225 JX2255 (Fischel Report) ¶ 55 (including “cash and equivalents of $530 million plus assets held for sale of $24 million ”).49 capital, an asset necessary to develop the return on investment that is represented in the DCF. 226 Cornell adds back AOL’s entire cash balance of $554 million

. 227 The Petitioners contend that the $150 million “minimum balance” is “litigation driven” 228 by pointing to (i) Verizon’s and AOL’s advisors purportedly opposit e position in their valuations 229 and (ii) AOL’s historic dips below $150 mi llion cash on hand in 2014. 230 They contend that none of this cash should be excluded and that

no working cash exclusion is appropriate. I am not persuaded that, in evaluating the fair value of AOL under these circumstances, I should add bac k all of the cash of AOL, implicitly assuming that zero working capital would be required to achieve the returns that the DCF analysis projec ts. While I recognize that AOL dropped below $150 million in cash in the recent past, which the Petitioners point to as evidence that the minimum cash balance is a litigation façade, I also acknowledge that historical dips in cash reserves pertain to a different time period with different capital requirements

. The preponderance of

226 Id. 227 JX2277 (Cornell Report) at 134. 228 Pet’rs Post

- Trial Opening Br. 69. 229 See JX1546 at 12 (Guggenheim) (showing $477 million cash in an enterprise value analysis ); JX2319 (Allen) at Tabs “WholeCo Multiple Val,” “ SOTP

- Mult ” (showing each as incorporating $493 million cash under a multiple

- based valuation analysis ) , “WholeCo DCF (Old CF),” (including $493 million cash in calculating the we ighted average cost of capital). I note that the Petitioners do not clearly point to an example of where Allen & Co. added back all of A OL’s cash balance after a DCF analysis. 230 See, e.g. , JX2267 (excerpt of AOL June 30, 2014 10

- Q showing cash and equivalents of $136.2 million); JX2268 ( excerpt of AOL March 31, 2014 10

- Q showing cash and equivalents of $123.5 million); Trial Tr. (Dykstra ) 764:1

– 2 (“I don’t remember when we first came up with the [$150 million] minimum cash [goal] .”).50 the evidence indicates that this no t a litigation

- driven argument. 231 I instead find that the withholding of $150 million as working capital is reasonable and decline to
add it back into the DCF.
IV. C ONCLUSION In arriving at fair value, for the reasons discussed above, I give full weight to my DCF valuation. I begin with Fischel’s DCF valuation of $44.85 and add $1.2 8 per share 232 for the adjustment to a 3.5% perpetuity growth rate and $2. 57 per share to include the Display Deal as part of AOL’s operative reality. My DCF analysis therefore results in a fair value of $48. 70 per share. While the deal process was not Dell Compliant and thus not entitled to deference as a reliable indicator of fair va lue,
it was sufficiently robust that I use the deal price as a “check” on my analysis, while granting it zero explicit weight. I note that value derived from my DCF does not deviate g rossly from the deal price of $50. I am cognizant , however, that I am saying two seemingly incongruent things; namely, that AOL’s deal process was insufficient to warrant deal price deference at $ 50 per share―because, due to d eal deficiencies, the sales price may not capture the full fair value of the Company―whi le also holding, based on my DCF analysis, that

231 Trial Tr. 765:4

– 7 (AOL CFO Karen Dykstra) (“I said we had a goal of maintaining $150 million. We felt that that should be our minimum cash balance. We fe lt that that was prudent.”); JX00921 at 31 (Feb. 27, 2015 AOL Board Agenda: “To balance our growth strategy with cash management objectives, our goals are to maintain . . . at least $150m of cash on hand, using the credit facility for strategic transaction s (share repurchases and M&A transactions).”). 232 See supra note 222.51 the value of AOL stock is even lower , at $48. 70 per sha re. One explanation for this incongruity is that a deal price may contain synergies that have been shared with the seller in the deal but that are not p roperly included in fair value. For the reasons described above, I hold that the fair value of AOL stock was $48. 70 per share on the Valuation Date. The Petitioners are entitled to the fair value of their shares together with interest at the statutory rate. The parties should confer and provide a form of order c onsistent with this Memorandum Opinion

.