Power to the Franchise or the Fiduciaries?: An Analysis of the Limits On Stockholder Activist Bylaws

22 Pages Posted: 14 Dec 2008 Last revised: 9 Feb 2009

See all articles by Frederick H. Alexander

Frederick H. Alexander

Morris, Nichols, Arsht & Tunnell, Attorneys At Law - Corporation Law Counseling Group

James D. Honaker

affiliation not provided to SSRN

Date Written: December 2, 2008

Abstract

This article questions the validity of stockholder-proposed bylaws that attempt to limit the managerial power of boards of directors of Delaware corporations. The authors conclude that certain bylaw proposals violate both the letter and spirit of Delaware corporation law because they would allow a faction of stockholders (who do not owe fiduciary duties to advance the interests of their fellow stockholders) to prevent director fiduciaries from managing the corporation for the benefit of all stockholders. To support their conclusion, the authors discuss their concerns with three types of bylaw proposals urged by stockholder activists: bylaws that limit a board's power to adopt or continue a stockholder rights plan, bylaws that require a board to reimburse a stockholder for expenses incurred in conducting a proxy contest for director elections, and bylaws that require the board to include stockholder nominees on a corporation's proxy materials.

Keywords: Delaware, Journal, Corporate, Law, Bylaw Proposals, Stockholder-Proposed Bylaws

Suggested Citation

Alexander, Frederick H. and Honaker, James D., Power to the Franchise or the Fiduciaries?: An Analysis of the Limits On Stockholder Activist Bylaws (December 2, 2008). Delaware Journal of Corporate Law (DJCL), Vol. 33, No. 3, 2008, Available at SSRN: https://ssrn.com/abstract=1314048

Frederick H. Alexander (Contact Author)

Morris, Nichols, Arsht & Tunnell, Attorneys At Law - Corporation Law Counseling Group ( email )

1201 N. Market Street
P.O. Box 1947
Wilmington, DE 19899
United States
302-575-7228 (Phone)
302-425-4666 (Fax)

James D. Honaker

affiliation not provided to SSRN ( email )

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