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Harbor Business Compliance Corp v. Firstbase IO Inc
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Caleb McGillvary v. United States Department of Homeland Security
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Against Activist Cooperation Agreements
Get PDFShareholder activism is at record levels. In a typical campaign, the activist threatens to launch a proxy fight unless the board of directors agrees to take certain actions to increase shareholder value, such as selling off company assets or replacing the CEO. Increasingly, however, there are no proxy fights. Instead, the activist and the board, behind closed doors, quickly agree to settle. The activist withdraws the proxy fight threat, and, in return, the board appoints individuals designated by the activist to sit on the company board. This Cooperation Agreement allows the incumbent di- rectors to keep their positions and allows the activist to claim victory. It profoundly interferes,however, with the voting interests of the non-activist shareholders-who are not given the opportunity to vote on the designated directors and who lose the chance to vote in a contested election.
Cooperation Agreements, therefore, raise serious issues of board entrenchment and shareholder disenfranchisement. Yet, despite these concerns, there are no scholarly articles addressing whether a board\u27s approval of a Cooperation Agreement comports with its fiduciary duties. This question is especially important today given the Dela- ware Supreme Court\u27s recent decision in Coster v. UIP Cos., which adopted a new approach to reviewing board actions that interfere with the shareholder franchise. This Article is one of the first to address the new standard and is the first to address Cooperation Agreements through the fiduciary lens. This Article demonstrates that, following Coster, Cooperation Agreements that permit activists to designate directors are a violation of the board\u27s fiduciary duties and are therefore invalid. This conclusion will radically change the landscape of shareholder activism