M & A Law Prof Blog

Editor: Brian JM Quinn
Boston College Law School

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Wednesday, July 3, 2013

Adoption of exclusive forum bylaw provisions

As sure as night follows day, now that the Chancery Court has blessed exclusive forum bylaws, firms are starting to adopt them again.  Remember there was an initial surge last year, but most of the firms that adopted , except Chevron and FedEx, them pulled them in the face of shareholder pressure and pending resolution of the Chevron challenge.  Now that that is over, firms are starting to adopt them again.  First up: Jos. A. Bank (Form 8-K)

On Monday, the board of Jos. A. Bank amended its bylaws to include the following provision:

ARTICLE VIII
EXCLUSIVE FORUM
Unless the Corporation consents in writing to the selection of an alternative forum, the sole and exclusive forum for (i) any derivative action or proceeding brought on behalf of the Corporation, (ii) any action asserting a claim of breach of a fiduciary duty owed by any director or officer or other employee of the Corporation to the Corporation or the Corporation’s stockholders, (iii) any action asserting a claim against the Corporation or any director or officer or other employee of the Corporation arising pursuant to any provision of the Delaware General Corporation Law or the Corporation’s Certificate of Incorporation or Bylaws (as either may be amended from time to time), or (iv) any action asserting a claim against the Corporation or any director or officer or other employee of the Corporation governed by the internal affairs doctrine shall be the Court of Chancery of Delaware or, if the Court of Chancery does not have jurisdiction, another state court located within the State of Delaware or, if no state court located within the State of Delaware has jurisdiction, the federal district court for the District of Delaware.
I understand that Chancellor Strine's decision in Chevron may be appealed.  If it is, then we aren't quite done with this subject. 
-bjmq

http://lawprofessors.typepad.com/mergers/2013/07/adoption-of-exclusive-forum-bylaw-provisions-.html

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