Delaware Supreme Court Reinforces the Importance of Precision in Drafting ADR Provisions in Merger Agreements
The Delaware Supreme Court upheld that an arbitration clause covering earn‑out calculations also encompasses bad‑faith claims about those calculations in the Fortis Advisors v. Stillfront merger dispute. The case involved Stillfront’s 2019 $90 million acquisition of Kixeye, with an earn‑out tied to $15 million adjusted EBITDA. Both the Court of Chancery and the Supreme Court ruled the dispute must be arbitrated, rejecting the seller’s argument that the claim fell outside the ADR provision. The decision underscores the need for precise drafting of ADR clauses in merger agreements.
Activist That Encouraged Merger Only To Change Its Mind Denied “Extraordinary Remedy” Of A Deal Injunction
The Delaware Court of Chancery rejected HoldCo’s request for an injunction to block Comerica’s merger with Fifth Third, finding the deal‑protection provisions lawful and not coercive. HoldCo, which had initially championed the transaction, could not demonstrate a colorable claim or irreparable...
Shareholder Engagement in Flux: Recent Developments and Practical Implications
The SEC’s recent clarification of Rule 14a‑8 reshapes how companies must handle shareholder proposals, while regulators intensify scrutiny of proxy advisors. Concurrently, vote‑no/withhold campaigns and new retail voting programs are gaining traction, adding complexity to the 2026 proxy season. Updated guidance...
