This HLS blog post from John Johnston of Vinson & Elkins and Christine O’Brien of Edelman Smithfield asks — and answers with examples — how boards know when settling with an activist is unlikely to be the right outcome and a proxy fight is necessary. Here are some scenarios they highlight:
– When the board believes the demands are unreasonable — for example, board composition changes that mean disproportionate influence for the activist, reduced independence or fewer key skillsets represented on the board
– When the board believes the outcome proposed by the activist is not in the best interest of shareholders — for example, when the activist is seeking a publicly disclosed sale process or strategic review, but the company has already privately tested the waters and the board believes a public process would destroy value
– When the activist seeks removal of a CEO and that CEO has full support of the board and no near-term viable successor
– When an activist insists that a member of their team join the board but the board expects this would materially disrupt board dynamics and vision
To avoid rushing to settle with a suboptimal outcome, the blog suggests that, before negotiations, a board may want to:
– Define clear non‑negotiables
– Align on what it will and will not accept
– Honestly assess their position
– Evaluate their relative strength
That includes taking into account TSR and financial results against peers, investor sentiment, analyst views, and management’s credibility on long-term strategy to assess what is in the best interests of the corporation.
As John has shared on TheCorporateCounsel.net, Prof. Ben Edwards has been tracking the status of all 2025 public company Nevada reincorporation proposals. In addition to his tabular scorecard, he’s also been highlighting stated rationales. For the four latest nano-cap companies, cost has been disclosed as a material factor.
His latest blog also addresses some common issues he’s seen from reviewing disclosures by the now 25 companies that have sought to reincorporate to Nevada. The issues largely stem from the fact that various versions of the Nevada Revised Statutes are incomplete or not up to date. Here are his tips for counsel drafting filings related to Nevada reincorporations:
– Nevada’s statute online is out of date. You can access the Nevada Revised Statutes online, but you shouldn’t trust them until they’re updated. The 2025 revisions to the Nevada statute went into effect on May 30, 2025 upon Governor Lombardo’s signature. Westlaw has updated its version of the Nevada Revised Statutes. As of today, LexisNexis has not yet updated and is just as out of date as the Nevada website.
– The Nevada statute exempts public companies from stockholder inspection actions so long as they keep making their securities filings. The 15% threshold is for private companies.
– The Nevada statute does define controlling stockholders. It’s NRS 78.240. It provides that a controlling stockholder is “a stockholder of a corporation having the voting power, by virtue of such stockholder’s relative beneficial ownership of shares or otherwise pursuant to the articles of incorporation, to elect at least a majority of the corporation’s directors.” The statutory duty “is to refrain from exerting undue influence over any director or officer of the corporation with the purpose and proximate effect of inducing a breach of fiduciary duty by such director or officer.” You will not currently find this on the Nevada website or LexisNexis. You should pull it up on Westlaw or use the legislative materials.
These disclosure issues have caused him to “develop concerns that not every firm reincorporating to Nevada has consulted with a Nevada lawyer about Nevada law.”
EY recently published its monthly report on M&A activity, and had a lot of positive things to say about the current deal environment. Here are some of the highlights:
– September 2025 saw overall deal value soar, driven by several high-value transactions, with private equity (PE) continuing to play a leading role. Deal value jumped 109.7% in the month compared with a year earlier, while M&A activity increased 41% in volume compared to the same period.
– Overall, mega deals (US$5b+) increased by 176.4% in value and 80% in volume compared to September 2024. The US led the market, representing about 72% of global deal value in September.
– The surge in mega deals during September set the stage for a record-breaking Q3 2025, which emerged as the most active period for M&A this year. Compared to Q3 2024, total deal value rose by 238.7% and deal volume increased by 163.6% for deals valued US$5b+, underscoring heightened investor confidence and a strong appetite for large-scale strategic transactions.
– PE was a major force behind the increase in US deal activity in the month, fueling both M&A and initial public offerings.
The report says that deal momentum moving into the fourth quarter remains strong. It cites a significant backlog of deals poised to move forward if market conditions continue to stabilize, and says that 48% of CEOs globally plan to pursue more deals. So, what could throw the proverbial turd in the year-end dealmaking punchbowl? The report cites unstable tariffs, new investigations and the federal government shutdown.
This Torys memo notes that the size of sponsor commitments has grown significantly in recent years in response to limited partners’ desire to see general partners have more skin in the game. The memo discusses the various strategies sponsors are using to fund these commitments. This excerpt discusses alternatives available to emerging fund sponsors:
Early-stage managers often lack the personal liquidity or track record to borrow against future management fees or carry. As such, emerging managers tend to use creative internal solutions:
– Employee participation. Founders may spread the GP commitment across a broader team, requiring managing directors, principals or even senior associates to contribute. This builds alignment internally while easing the burden on any one individual. Some sponsors may tie an employee’s carry allocation to the size of their contribution to the GP commitment.
– Revenue-based loans or personal guarantees. In some cases, principals borrow personally using commercial loans backed by expected fee income or other collateral, though this comes with risk.
The memo also discusses financing alternatives available to mid-sized and established sponsors, and the considerations and trade-offs associated with those alternatives. It also offers some thoughts on how financing alternatives for sponsor commitments are likely to evolve.
“Withhold” campaigns in which in lieu of launching a proxy contest, an activist publicly urges shareholders to withhold votes from a director or to vote no on a particular proposal are becoming increasingly popular. This recent Cooley blog discusses this strategy and its implications for corporate boards:
The year’s stealth disruptor is the low-cost “vote no” campaign. As Cooley partner Bill Roegge explained, “Instead of an activist running a competing slate, … they just go out and publicly say ‘don’t support the company’s directors.’” For companies with director resignation policies (i.e., policies stating that if a director receives less than a majority vote at an annual meeting, that director will tender their resignation to the board), significant withhold tallies can force resignations – or create public relations (PR) and governance crises if boards decline resignations from affected directors, often laying the groundwork for subsequent campaigns by the activist.
– 2025 examples: While Harley-Davidson (activist: H Partners) narrowly avoided failed elections amid a full-throated PR battle, its CEO (who was a target of the campaign) later stepped down from the role. Forward Air (activist: Ancora) saw one director fail and two barely clear a majority, with all three ultimately resigning. At WEX (activist: Impactive Capital), a single press release drove razor-thin margins for several incumbents.
– Why they work: As Collected Strategies’ Jim Golden put it, withhold campaigns drive “a true PR narrative campaign,” cheaper than a slate and potent when activists have lined up sympathetic institutions. Even activist losses can be costly for issuers. “While [the activist] didn’t win,” Golden noted of Harley-Davidson, “the CEO ended up having to resign because of the vote results.”
The blog also points out that withhold campaigns also illustrate that “activism season” is a dated concept, because these campaigns “extend the threat beyond nomination windows and keep the pressure on boards to engage early.
This Wachtell memo discusses ten trends in shareholder activism to keep an eye on for the upcoming year. Here’s what the memo has to say about M&A-focused activism:
M&A remains a persistent theme of activism. The returns from operational improvements are generally less attractive to activists than the prospect of an immediate transaction premium. Over the last few years, however, a challenging regulatory and macroeconomic environment limited activists’ ability to credibly push for full-company sales or strategic carve-outs. With the significant M&A rebound in 2025, we expect activists to increase their focus on event-driven M&A outcomes. While pushing for full-company sales will remain a key objective for many activist campaigns, we also expect to continue to see activists arguing for break-ups that purportedly shed underperforming divisions or capitalize on trading multiple arbitrage for different businesses.
The memo suggests that companies that want to consider potentially transformative M&A in a more deliberate fashion may consider establishing a strategic review committee that includes one or more activist-nominated directors. It stresses that while such a committee may make sense in particular situations, deciding whether to sell or break up the company should remain a full board decision, and the committee’s authority should be appropriately limited.
The September-October issue of the Deal Lawyers newsletter was just sent to the printer. It is also available online to members of DealLawyers.com who subscribe to the electronic format. This issue includes the following articles:
– Integrated Agreements: It’s Not Always About Conflicts
– Biotech Spin-Off Transactions
– New State Notification Requirements for Mergers and Acquisitions
– Advance Notice Bylaws: Delaware Court of Chancery Gives Dissidents Another Bite at the Apple
– Renewal Season is Here! Is It Time to Renew Your Membership?
The Deal Lawyers newsletter is always timely & topical – and something you can’t afford to be without to keep up with the rapid-fire developments in the world of M&A. If you don’t subscribe to Deal Lawyers, please email us at info@ccrcorp.com or call us at 800-737-1271.
In late September, I shared the results of a Spencer Stuart survey of public and private company directors about shareholder activism. That study included a data point — that 44% of public company directors would consider joining an activist slate — that surprised me. I thought that number would be lower due to concerns about “being on the other side of the table.” So I was interested to see the discussion under the heading “Normalization of Serving as a Dissident Nominee” in this Wachtell alert, which links this “normalization” to the trend of speedy settlements post-UPC.
The speed of settlements has also been facilitated by an increase in the quality of individuals willing to serve as dissident nominees, which can include sitting directors and former public company CEOs and CFOs (including those of the target itself). Many of these individuals are sourced through the same search firms used by companies in their own director refreshment process and some may have no prior relationships with the nominating activist.
Within this larger trend, however, we are seeing situations in which a potential dissident nominee has informed the activist that the nominee is willing to participate in a consensual settlement, but not in a publicly fought election contest. In these situations, the activist has extra incentive to reach a negotiated settlement.
While companies should scrutinize the qualifications and entanglements between activists and their nominees, if a company intends to settle, there are benefits to doing so before a fight becomes too acrimonious and relationships with prospective directors are harmed.
The alert also says you probably don’t want to hear that one of your sitting directors or officers has joined an activist slate at the same time as the rest of the world, even if at a totally unrelated company. It suggests:
One approach would be to revise director governance guidelines to require notice to the company, not just before a director or officer joining another board, but before a director or officer agreeing to be nominated as a candidate for another board.
If you’re involved in a SPAC IPO or de-SPAC transaction, take a look at this Woodruff Sawyer blog with a list of the top 5 insurance and risk questions SPAC teams should be asking. Here’s one that’s particularly timely:
Crypto-Treasury Strategies Are Popular Now. Are There More Risks or Costs If My SPAC or Operating Company Goes in That Direction?Yes, on both fronts.
Insurance implications: Carriers view crypto-related strategies in general and crypto-treasury strategies in particular as higher risk. Some won’t quote coverage for them at all, while others will require higher premiums or impose restrictive terms. If your SPAC or operating company is considering holding or investing in crypto assets or pursuing a target with the purpose of engaging in crypto-related activities, expect increased scrutiny from insurance underwriters and higher insurance premiums.
Litigation and regulatory risk: Crypto strategies carry elevated litigation and regulatory risk. Like any fast-moving trend, there are bound to be missteps in this developing area, especially as companies race to adopt new structures and strategies without fully understanding the regulatory framework or potential business risks around them. This can lead to shareholder suits, SEC investigations, and other costly legal challenges.
If you’re pursuing a crypto-treasury strategy, talk to your broker about increasing your coverage limits. Legal fees in these scenarios can escalate quickly, and a higher limit may be necessary to protect your directors and officers. You’ll also want to ensure that your policy includes coverage for regulatory investigations and defense costs. These new strategies are certainly interesting, innovative, and exciting, but they carry an increased level of risk. Make sure your insurance program reflects that reality.
It also discusses litigation risks for SPACs more generally, the status of premiums and picking the right coverage, both at the time of your SPAC IPO and de-SPAC.
This HLS blog penned by James Hu, J.T. Ho and Chase D. Kaniecki of Cleary Gottlieb points to “an emerging correlation of stockholder return and national security imperatives” and suggests that activist campaigns may start incorporating national security themes in the near future. The blog says companies should be proactive in both assessing their national security positioning and carefully communicating their strategy to protect shareholder value.
As with any activist situation, companies should consult with their advisors on whether and how to proactively communicate that they are consciously positioning their operations and developing contingency plans as new geopolitical patterns emerge in an effort to preserve shareholder value. Global companies must be particularly careful to communicate these messages in a balanced manner when operating in countries with competing national interests. Failure to do so could result in retaliatory actions, which could negatively affect a company’s operations, impair strategic transactions, and destroy shareholder value in the process.
It is also critical for companies to be aware of how their activities and relationships might be perceived by both governments and shareholders before undertaking them. Any appearance of activities and relationships which may be viewed as compromising national security interest could be catalyst for both government as well as activist activity, even if such activities and relationships are ultimately justified. Companies are advised to get ahead of such issues and undertake actions to control the narrative, before being compelled to undertake actions that they wouldn’t otherwise do.