Advance notice bylaws, requiring stockholders to give a corporation timely notice of their nominees to the board before a stockholder meeting for the election of directors, are a proper corporate governance tool. The purpose of advance notice bylaws for board nominations is to give a corporation sufficient time to vet the board nominees, their backgrounds, and qualifications prior to the stockholder meeting. Advance notice bylaws are frequently the subject of stockholder-corporation disputes during proxy season when stockholder annual meetings to elect directors often occur. To avoid irreparable harm to stockholders from the loss of the opportunity to vote on a board nominee, the Delaware Court of Chancery will enjoin a stockholder meeting for the election of directors if a corporation rejects the board nominee of a stockholder, who has complied with the advance notice bylaw for such nominations. While untimely notice of a proposed nominee to the board is a proper basis for a corporation to reject the nominee under an advance notice bylaw, a corporation must first have given proper notice of the stockholder meeting. The Delaware Supreme Court recently had the opportunity to address whether a stockholder had timely provided notice of its board nominees to a corporation after receiving notice of the stockholder meeting under an advance notice bylaw.
In Hill International v. Opportunity Partners L.P., C.A. No. 305, 2015, ___ A.3d ___ (Del. July 2, 2015), the Delaware Supreme Court held that the plaintiff stockholder, Opportunity Partners L.P., had given timely notice of its board nominees under the defendant Hill International Inc.’s advance notice bylaw for nominations to the board. In Hill, the Supreme Court affirmed the judgment of the Court of Chancery, which had enjoined the conduct of any business at Hill’s annual meeting, other than to adjourn or reschedule the meeting for at least three weeks, and directed Hill to allow Opportunity Partners to present its board nominees at the rescheduled annual meeting.
