"we caution the incumbent Board members against taking any action to further entrench themselves or otherwise to the detriment of the Company. Any attempts by the incumbents to delay the upcoming annual meeting, further enrich themselves or engage in a material transaction without stockholder approval will not be tolerated. We encourage you to let Mr. King and the other members of the Board know that you feel the same way. .. .."
Do all material transactions require stockholder approval ?
....I imagine a material transaction is close but all financial details will be not disclosed. Ronin may be playing this and calling out a deal in anticipation they would allow it only after governance changes ==> which would ideally just possibly be a ploy to weaken the Poison will, place more BP friendly BODs in place ..etc that would more easily accept a middle of the road offer.
Here is what I was thinking may be at play .....
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SEC Guidance on Voting During M&A Transactions Posted by David W. Bernstein, Ettore Santucci, & John Haggerty, Goodwin Procter LLP, on Sunday, November 29, 2015
.... .....
The SEC requirement of a separate vote is limited to “material” amendments to the acquiror’s organizational documents. However, its view of what is material is very broad. The SEC guidance says that governance and control provisions such as classified or staggered boards, limitations on removal of directors, supermajority voting provisions, delaying the annual meeting by more than a year, eliminating the ability to act by written consent or changes in minimum quorum requirements would meet the standard. It says that provisions such as changes in name, or technical changes such as those resulting from antidilution provisions would likely be immaterial. Also, if the merger is into a new entity, provisions required by law in the jurisdiction where the new entity is incorporated will not require a separate vote.
The new SEC guidance makes it clear that it requires a separate vote even if a separate vote is not required by state law. It does not describe the source of the SEC’s authority to require a shareholder vote that is not required by state law. It says that parties are free to condition completion of a transaction on shareholder approval of any separate proposals, if that is clearly disclosed and indicated on the form of proxy. If completion of the merger is not conditioned on shareholder approval of governance changes required by the merger agreement, there is a substantial argument that a negative shareholder vote that is not required by state law would not prevent the governance changes from taking effect.
It is unlikely that there will be many instances in which shareholders will vote in favor of a merger but vote against governance changes that are a condition to the merger’s taking place. Therefore, the principal effect of the new SEC guidance is likely to be to focus attention on governance changes, and possibly to offer plaintiffs’ attorneys an opportunity to challenge governance changes rather than (or in addition to) challenging the adequacy of merger consideration.
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