Monthly Archives: June 2015

June 30, 2015

Delaware Bans “Loser Pays” Bylaws & Authorizes Exclusive Forum Bylaws

The Delaware Governor has signed the latest Delaware amendments into law, taking effect on August 1st. We’re posting memos in our “Exclusive Forum Bylaws” Practice Area (also see this blog about whether the new law impacts federal class actions). And here’s the intro from this Cooley blog:

On June 24, 2015, the Governor of Delaware signed into law amendments to the Delaware General Corporation Law proposed by the Delaware Bar’s Corporation Law Council and overwhelmingly passed by the Legislature regarding fee-shifting and forum selection provisions in Delaware governing documents. (See this post and this post.) More specifically, the amendments invalidate, in Delaware charters and bylaws, fee-shifting provisions in connection with internal corporate claims. “Internal corporate claims” are claims, including derivative claims, that are based on a violation of a duty by a current or former director or officer or stockholder or as to which the corporation law confers jurisdiction on the Court of Chancery. These claims include claims arising under the DGCL and claims of breach of fiduciary duty by current or former directors or officers or controlling stockholders of the corporation, or persons who aid and abet those breaches. However, as discussed in this post, federal securities class actions are not included. In addition, the new provision is not intended to prevent these types of provisions in a stockholders agreement or other writing signed by the stockholder against whom the provision is to be enforced.

The amendments also expressly authorize the adoption of exclusive forum provisions for internal corporate claims, as long as the exclusive forum is in Delaware. Although the amendment does not address the validity of a provision that selects, as an additional forum, a forum other than Delaware, the synopsis indicates that it “invalidates such a provision selecting the courts in a different State, or an arbitral forum, if it would preclude litigating such claims in the Delaware courts.” A different result is possible where there is a provision in a stockholders’ agreement or other writing signed by the stockholder against whom the provision is to be enforced. In addition, an exclusive forum may not be “enforceable if the Delaware courts lack jurisdiction over indispensable parties or core elements of the subject matter of the litigation,” and the amendment in not intended to preclude evaluation of whether the terms or manner of adoption of the exclusive forum provisions “comport with any relevant fiduciary obligation or operate reasonably in the circumstances presented.” Deputy Secretary of State Richard J. Geisenberger said 99.6% of companies that have a forum-selection bylaw choose Delaware as the preferred venue. And, no surprise, Delaware wants cases involving Delaware corporations to be tried in Delaware.

June 26, 2015

SEC Chair Speaks: Universal Proxy Ballots Coming?

As reported by this WSJ article, SEC Chair White delivered this speech yesterday at the Society’s National Conference. In her speech – which focused on proxy-related matters – Chair White advised that she “asked the staff to bring appropriate rulemaking recommendations before the Commission on universal proxy ballots.” A universal proxy ballot provides security holders a means to vote for management & proponent nominees on a single ballot in an election contest. This allows a security holder to mix & match votes between nominees of the company & the proponent – without attending & voting in person at the meeting. Chair White also encouraged companies & proponents to voluntarily use “some form” of universal proxy ballot while the SEC Staff prepares its rulemaking recommendation. Here’s an excerpt from her speech:

All of the participants [of a roundtable held on ways to improve the proxy voting process] agreed that if the Commission were to revise the proxy rules to implement a universal proxy ballot, the “devil would be in the details.” Questions include when a universal ballot could be used, whether it would be optional or mandatory and under what circumstances, whether any eligibility requirements should be imposed on shareholders to use universal ballots, what the ballot would look like, and whether both sides must use identical universal ballots.

Chair White’s speech also covered the topics of preliminary voting results & “unelected” directors and called for “more thoughtful treatment of shareholder proposals” by companies & proponents.

June 23, 2015

Proxy Contests: Activist Influence Rising Despite Higher Company Win Rate

According to this analysis by FactSet, proxy fight statistics so far for 2015 reveals an ongoing increase in activist influence. While the company win rate for proxy contests is up, so are settlements and non-proxy fight campaigns resulting in board seats, including:

– Company win rate for board seat proxy contests that went to a shareholder vote is approximately 62% – a 57% increase over 2014’s win rate of only 39%.
– Of the proxy contests that went to a shareholder vote where vote results have been disclosed, activist candidates have received support from approximately 33% of the votes outstanding – compared to an average of 42% in 2014.
– The number of proxy fight settlements or withdrawals after the company has made material concessions is the highest in any year since FactSet began tracking proxy fights in 2001.
– The number of non-proxy fight activist campaigns that have resulted in a board seat is the most in any comparable period – 46 as June 1, compared to 34 and 11 such campaigns resulting in board seats in the same periods in 2014 and 2013, respectively.

June 22, 2015

Survey Results: Fee-Shifting Bylaws

Here’s survey results from Thomson Reuters about fee-shifting bylaws adopted by Delaware companies since the ATP Tour decision. Two weeks ago, the Delaware House joined the Senate in passing changes to the DGCL that invalidate fee-shifting provisions – and it’s expected that the Delaware Governor will soon sign that into law. But according to the survey results, this amendment may not have as wide a peacemaking effect as anticipated…

June 18, 2015

Value of Proxy Voting: A Pension Fund’s “Proxy Contest” Analysis

Here’s an excerpt of this blog by “The Activist Investor”:

Especially around this time of the year, portfolio managers sometimes wonder about the impact of all this proxy stuff. Reading proxy materials, meeting with companies and investors, paying for and reviewing ISS and Glass Lewis reports, researching and tracking votes – does it make a difference?

One investor set out to understand this question. The Florida State Board of Administration (SBA) manages $185 billion of pension funds and other state investments. It has long advocated for good corp gov as a leading member of the Council of Institutional Investors. It helped found the Shareholder Rights Project, and supports the Boardroom Accountability Project. Among pension funds, it also has a sophisticated strategy and organization. It has dedicated research, direct equity investment, and alternative investment units. It also allocates funds to activist investors such as Starboard Value. While it supports and votes for activist investors, it does not initiate or lead proxy contests.

Like other large pension funds that must vote every single proxy, its Investment Programs and Governance (IPG) group researches, tracks, and votes on thousands of proxy statements each year. With a typically small staff, IPG retains proxy advisor ISS for proxy vote research support and administration. IPG sought to understand the impact that its work has on the SBA portfolio. The result, Valuing the Vote, shows how proxy research and voting can improve investment returns. We worked with SBA on designing the research, compiling the needed data, and executing the analyses.

We helped SBA put together a sample of 107 proxy contests for SBA portfolio companies from 2006-2014. FactSet provided data on proxy outcomes and financial performance, while ISS provided ISS voting records. We limited the sample to companies with a market cap of over $100 million at the time the proxy contest began, since IPG researches larger cap situations much more often than small cap ones. Overall, the analysis shows that for the sample, the aggregate value of the SBA investment increased $572 million in the five years following a portfolio company proxy contest. SBA had aggregate investment of $1.9 billion in these companies at the announcement of a proxy contest, so the portfolio return was approximately 25%. Returns depended critically on whether SBA supports investors or management, and whether investors or management prevail in the proxy contest. In proxy contests, SBA supported investors about two-thirds of the time. And, SBA supported the prevailing side (investor or management) about two-thirds of the time. Returns improved when SBA supported investors and investors prevailed, or when SBA supported management and management prevailed.

The report also features a cool data visualization that helps illustrate the key findings.

June 17, 2015

Are Companies Impermissibly Bundling Proposals for Shareholder Votes?

Here’s the abstract from this new study entitled “Are Companies Impermissibly Bundling Proposals for Shareholder Votes?”:

The integrity of shareholder voting is critical to the legitimacy of corporate law. To help protect investors’ rights, since 1992, SEC rules clearly prohibit corporate management from distorting shareholders’ choices by the artifice of joining in a single resolution multiple items. SEC rules require corporate management to make individual management proposals on “separate” items.

In this paper, we provide the first comprehensive evaluation of the SEC bundling rules. We begin with a careful dissection of the rules themselves as well as the courts’ interpretation of them. We provide an analysis of the contrasting, less vigorous, interpretation of the rule by the SEC itself. We find that while the courts have carefully developed several useful approaches to the rules scope and proper application, the SEC’s efforts have been in stark contrast with the rules’ mission. In fact, we find that the most recent SEC interpretive guidance has undercut the effectiveness of the existing rules and created unnecessary ambiguity about their proper application.

June 16, 2015

Is the SEC Investigating Potential 13(d) Group Violations?

Here’s an excerpt from this blog by Cooley’s Cydney Posner:

The WSJ reports that the SEC is investigating whether some hedge fund activists formed 13D “groups” but failed to make appropriate disclosure of their alliances. Under Rule 13d-5, when two or more persons agree to act together for the purpose of acquiring, holding, voting or disposing of equity securities, all of those persons together form a “group,” and are deemed to beneficially own all of securities owned by persons in the group. If the group together owns 5% or more of a company’s shares, all of the persons in the group may be required to make filings with the SEC. According to the WSJ report, SEC Enforcement has opened multiple investigations, sending requests for information to a number of hedge funds. The issue is whether, in targeting companies, they coordinated their efforts, or “acted in concert,” to target companies in a way that led to the formation of “groups,” but failed to make appropriate filings.

June 15, 2015

Delaware House Approves Curb on Fee-Shifting Bylaws

Here’s news from the Delaware Law Weekly (also see this memo):

The state House of Representatives on Thursday unanimously approved SB 75, the annual package of amendments to the Delaware General Corporation Law, which included a measure that would prevent stock corporations from enacting bylaws that impose attorney fees and costs on plaintiffs who lose after filing lawsuits alleging corporate waste or wrongdoing. The measure now goes to the desk of Gov. Jack Markell, who is expected to sign it into law.

“SB 75 helps preserve the balance between shareholders and management and ensures that shareholders in Delaware corporations have access to the Court of Chancery,” said Kelly Bachman, Markell’s press secretary. “The governor would like to thank the Corporation Law Council for its continued efforts to improve Delaware law and preserve Delaware’s place as the leading state of incorporation.”

Approval—which required a two-thirds vote—came on a 40-0 vote with one state representative absent.

Chief Deputy Secretary of State Richard J. Geisenberger came to the chamber before the vote to answer lawmakers’ questions and said its drafters were confident that the bill would maintain the delicate balance of Delaware’s franchise in corporate regulation, which he said is worth $1.1 billion annually to the First State. The state should aim, Geisenberger said, “to strike a balance between the attractiveness of our corporate statute to managers and [the needs of] raising capital from shareholders.”

He added that he did not think banning stock corporations from adopting fee-shifting bylaws posed a risk to Delaware’s attractiveness as a state of choice for incorporation. He stressed that another key provision of the act allows corporations to state in their bylaws that claims under the DGCL be brought only in the courts of Delaware.

June 11, 2015

M&A Transactions: Avoiding Unexpected (& Undesirable) Insurance Gaps

– by Randi Val Morrison

This recent Metropolitan Counsel article does a fine job of explaining some of the principle insurance issues arising out of M&A transactions – specifically, the effects of a transaction on the selling company’s insurance program and how to bridge the resulting insurance gaps. Insurance implications and considerations are addressed in the context of a range of potential M&A scenarios, including a sale of a substantial portion of assets or acquisition of stock by another company.

Additional memos are available in our “Transaction Insurance” Practice Area.

June 10, 2015

How to Achieve Post-Merger Integration Success

Deloitte’s recently released survey report focuses on post-merger integration based on the input of more than 800+ executives. The report examines common success and failure factors, and what companies can do to increase the likelihood of deal success. Additionally, the survey report reveals findings and success factors around synergies, integration readiness, organization, operating models and communication.

Key Findings

Almost 30% of respondents said that their post-merger integration fell short of success.
When asked about synergies, 29% of respondents indicated that they exceeded synergy targets, while 18% said they fell short. An additional 10% weren’t sure if they met their targets.
Respondents concurred on the key drivers for successful integration: executive leadership support, involvement of management from both sides, development of a project plan that often included creating a dedicated integration team, and communications.
Ensuring a smooth transition from beginning of the merger–the day the deal closed and the combined entity became operational–correlated very highly with overall success.
The inability to deal with unexpected challenges was the primary factor that doomed combinations. Delays and lack of preparedness also being key reasons that some integrations fail.
In the future, respondents said they would focus on a swifter and phased post-merger integration, better communication, and a more rigorous process to select an integration team. They also said they’d allocate more budget to the integration.

 See also this FEI article and additional resources in our “Integration” Practice Area.