NASHVILLE, Tenn. — Opening statements between Genesco Inc., Finish Line Inc. and its financier UBS AG began yesterday here in Davidson County Chancery Court.
Chancellor Ellen Hobbs Lyle presided over a full courtroom as lawyers from the three sides presented evidence in the ongoing dispute involving a corporate merger agreement between the two footwear companies.
Genesco Chairman and CEO Hal Pennington and President Robert Dennis each took the stand during the afternoon’s proceedings. Looking on was Finish Line CEO Alan Cohen (whose brother Gary Cohen is the company’s general counsel). The former Cohen is not expected to testify until Wednesday.
At issue in the trial is the June $1.5 billion merger agreement between Genesco and Finish Line. The latter, along with its lender UBS, claim they can no longer enter into the contract because of a “material adverse change” in Genesco’s recent financial performance.
According to Genesco lawyer Overton Thompson III, “a deal is a deal.” The footwear industry overall is in the midst of a “general market downturn” and any so-called “blips” in Genesco’s finances are in no way evidence of long-term problems. If Finish Line had concerns, argued Thompson, the company should not have initially signed the merger agreement.
It’s a simple case of “buyer’s remorse on the part of Finish Line,” Thompson said. And because UBS stands to lose money, as well, “the whole lawsuit is an attempt to renegotiate the price of the merger.”
Countering, UBS lawyers presented a string of detailed memos, e-mails and financial statistics attempting to prove that a MAC did occur. In the view of the UBS lawyer, Genesco never provided the full story financially and withheld information that hid the month of May’s low sales numbers. Therefore, Genesco management committed fraud, the UBS lawyers contend.
Giving color to the day’s proceedings was Finish Line lawyer Robert Walker. In his opening statement, he addressed the court by declaring; “We feel we are a Chihuahua in a three-dog fight.”
Walker described Finish Line as a company half the size of Genesco and in a position where, from a business perspective, the firm had “to get bigger or get out.” Finish Line’s merger with Genesco was “the deal of a lifetime,” he said. With it, the company hoped to increase the scope and size of its operations and generate more cash flow.
Concerns over Genesco’s earnings potential and a possible MAC emerged in July, but Finish Line was “loathe to jump to conclusions,” Walker said. Portraying Finish Line as victims of its own virtue, Walker said the company exercised “extreme care” in broaching the subject with Genesco, and their actions were not, as Genesco claims, the result of a lack of concern on Finish Line’s part.
Walker concluded by observing that for Finish Line, “the deal of a lifetime turned into a life-or-death lawsuit.”
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