Page 131 - מיזוגים ורכישות - פרופ' אהוד קמר 2022
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stockholders an information statement at least 20 days before any corporate action is
taken by written consent.
An open door? The majority Supreme Court opinion emphasizes that the majority
NCS stockholders were a "cohesive group acting together to exercise majority voting
powers," with the result that "minority stockholders lost the power to influence corporate
direction through the ballot.” It is possible the court would have had a different view if
voting commitments had been separately negotiated with stockholders not affiliated with
each other, since that sounds more like a vote: no single person or group would control
the outcome. However, this would require compliance with the proxy rules — though
the exception for solicitations of no more than 10 persons could be helpful in some cases.
Not every company is incorporated in Delaware. While courts of other states
historically have been influenced by decisions of Delaware courts on corporate law
matters, it is possible that courts outside Delaware would be more likely to defer to the
business judgment of an informed and disinterested board to grant a lock-up.
127
taken by written consent.
An open door? The majority Supreme Court opinion emphasizes that the majority
NCS stockholders were a "cohesive group acting together to exercise majority voting
powers," with the result that "minority stockholders lost the power to influence corporate
direction through the ballot.” It is possible the court would have had a different view if
voting commitments had been separately negotiated with stockholders not affiliated with
each other, since that sounds more like a vote: no single person or group would control
the outcome. However, this would require compliance with the proxy rules — though
the exception for solicitations of no more than 10 persons could be helpful in some cases.
Not every company is incorporated in Delaware. While courts of other states
historically have been influenced by decisions of Delaware courts on corporate law
matters, it is possible that courts outside Delaware would be more likely to defer to the
business judgment of an informed and disinterested board to grant a lock-up.
127
