New York State Appellate Division Denies Bid by Hedge Fund QVT LP to Establish that its Claim for Indemnification Pursuant to a Merger Agreement with Biosynexus Inc. Was Valid on its Face
Hedge Fund Law Report
In 2005, defendant hedge fund QVT Fund LP (Fund) entered into an agreement and plan of merger (the Merger Agreement) with target company Biosynexus Inc (Biosynexus). The target’s principal shareholder was plaintiff Orbimed Advisors, LLC (Orbimed). At closing, Orbimed and the other selling shareholders placed a portion of the proceeds of the sale into escrow to secure their duty to indemnify the Fund for certain breaches of the representations and warranties made in the Merger Agreement. The indemnification provision was to survive for one year and, if no claim was made, the escrow was to be released to the selling shareholders. Days before the indemnification provision was to expire, the Fund submitted a claim to Orbimed. After the expiration date, Orbimed commenced an action seeking a declaration that the Fund’s claim did not satisfy the requirements of the Merger Agreement and demanding release of the entire escrow to the selling shareholders. The Fund moved to dismiss the complaint on the grounds that its notice was sufficient as a matter of law. The trial judge determined that Orbimed had stated a valid cause of action against the Fund for release of the escrow. The Appellate Division affirmed. We summarize the facts surrounding the claim for indemnification and the court’s reasoning.