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Articles by Oderah C. Nwaeze
Royalties In Hybrid Licensing Agreements: Careful Drafting Is Critical
Guest Column | October 27, 2025 By Oderah C. Nwaeze and Amy Farris Wolfe Royalty-bearing license agreements are a cornerstone of commercialization in the life sciences and technology industries. Companies often use them to expand their business into new markets while generally avoiding the exorbitant financial commitments (and risk) required to research, develop, and launch a new product in a new territory or country.
Before Sealing the Deal, Advise and Collaborate With a Litigator Original
Most transactional attorneys have probably heard of the “deal tax,” the idea that most major mergers and acquisitions transactions prompt litigation. In fact, approximately 82% of deals lead to litigation. That means that the country’s most sophisticated M&A lawyers largely are unsuccessful in avoiding litigation.
Advance Notice Bylaws and Proxy Contests: A Balancing Act | JD Supra
Advance notice bylaws have become a common feature in the corporate governance landscape of Delaware corporations. They establish timeframes within which stockholders must submit nominations for directors or proposals for business at annual meetings. While advance notice bylaws can promote orderly proxy contests and ensure that the current board has ample time to evaluate potential nominees, they also raise concerns about limiting stockholder voting rights.
Ratification of Defective Corporate Acts: An Overview | JD Supra
This guide provides a high-level summary of the circumstances, under Sections 204 and 205 of the Delaware General Corporation Law (DGCL), where a corporation, its shareholders and/or the Court of Chancery can ratify or validate defective corporate acts that would be void or voidable due to a failure of authorization.1 Defective Corporate Acts are acts or transactions that are within the corporation’s powers to effect but are “defective” because management failed to obtain proper...
Annual Stockholder Meetings – Some Basics | JD Supra
This article was originally published on January 13, 2022, and has been updated as of July 24, 2024. This guide outlines some of the basics about preparing for and conducting an annual stockholder meeting of a Delaware corporation.1 Does My Company Have to Have a Stockholder Meeting Every Year? A stockholder meeting should be held annually to elect directors and to transact any other proper business. DGCL §211(b).
Like Delaware, the Third Circuit Will Now Apply De Novo Review to Demand-Futility Decisions | JD Supra
With In re Cognizant Technology Solutions Corp. Derivative Litig., the Third Circuit adopted de novo review for district courts’ demand-futility rulings. Although the applicable standard of review in federal court is an issue of federal law, the Third Circuit found it important to be cognizant (no pun intended) of Delaware law (where most public companies are incorporated) so as to minimize any anomalies resulting from separate federal and state demand requirements.
Closing the Circle: A Stockholder That Nominates a Board Member Is Not Within the Company’s Circle of Confidentiality or Entitled to the Company’s Privileged Communications | Faegre Drinker Biddle & Reath LLP - JDSupra
In Hyde Park Venture Partners Fund III, L.P. v. FairXchange, LLC, the Delaware Court of Chancery determined that stockholder plaintiffs with a board-designee are deemed to be within the corporation’s circle of confidentiality, even with respect to communications covered by the attorney-client privilege. One year later, in Icahn Partners, LP, et al. v.
Understanding Delaware's MFW Process
It is common for company managers to enter into a transaction with people or entities they know or with whom they have a close relationship. There are many reasons for this: trust, familiarity with the business or industry, or a track record of success. But as corporate directors know, transactions involving a controlling stockholder or control group come with unique risks.
Two Models of Leadership and Service
Directors should embody the traits and values of Martin Lipton and the late Ann Korologos. As we have learned in this edition of Directors & Boards, there are several types of bad decisions that boards can make. They can fail to learn from the struggles and experiences of other boards. They can overlook a key aspect of the board’s role, as Silicon Valley Bank did when the company’s management was allowed to operate for an extended time without a chief risk officer.
Delaware Chancery MFW Framework Does Not Require Best Deal | JD Supra
As Kahn v. M&F Worldwide Corp. (MFW) establishes, the Business Judgment Rule must be applied to a transaction involving a controlling shareholder, if the deal is conditioned upon the approval of: (1) an independent special committee, which satisfied its duty of care; and (2) the uncoerced, informed vote of a majority of the minority shareholders. However, SMART Local Unions & Councils Pension Fund v. BridgeBio Pharma, Inc., et al., No. 2021-1030-PAF, opinion (Del. Ch. Dec.
Delaware Court of Chancery Applies MFW Analysis to a Nonmerger Transaction and Dismisses Stockholders’ Claims With Prejudice | JD Supra
In City Pension Fund for Firefighters and Police Officers in the City of Miami v. The Trade Desk, Inc., et al., the Delaware Court of Chancery dismissed the plaintiff’s challenge to a transaction that extended the controlling stockholder’s voting control, after concluding that the company’s board adhered to the MFW framework, which entitled the defendants to the benefit of the lenient business-judgment review rather than the onerous entire-fairness standard. Background The Trade Desk, Inc.
The Corporate Guide: Directors Obligations During a Change in Control Under Revlon | JD Supra
Revlon Duties Generally Described The sale of a company or other change of control situations give rise to Revlon duties, requiring a company’s board to take reasonable steps to obtain the best price available for the benefit of the company’s stockholders. Revlon duties do not give rise to a new type of fiduciary duty, nor do they alter the fiduciary duties that generally apply.
The Corporate Guide: Avoiding Enhanced Scrutiny of Transactions Involving Controlling Stockholders | JD Supra
How does Delaware law define a controlling stockholder? Typically, a stockholder is “controlling” if the stockholder owns more than 50% of the voting power in a corporation or “exercises control over the business affairs of the corporation.” Kahn v. Lynch Communc’n Sys., Inc., 638 A.2d 1110, 1113-14 (Del. 1994). Exercising control does not have a fixed legal meaning.
The Corporate Guide: Rule 23.1 and Dealing With Stockholders Demanding Derivative Action | JD Supra
What should our board do first when served with a stockholder demand under Rule 23.1? Directors must determine the legal, financial and factual issues relevant to the board’s response. Determine whether the directors are adequately informed of those issues. Review meeting minutes, board presentations and other board materials to see if they contain sufficient information regarding the subject of the demand to respond to it.
The Corporate Guide: You’re a Corporate Director. What’s Next? | JD Supra
What duties apply to directors? In managing and controlling a company’s business and affairs, directors and officers of a Delaware corporation owe the simultaneous fiduciary obligations of acting with due care and loyalty to the corporation and its stockholders. Over time, and largely through case law, those obligations have given birth to the duty to disclose material information and conflicts, as well as for board-level oversight of the company and its functions.
The Corporate Guide: Keeping Board Actions Conflict-Free | JD Supra
Why is director independence important? A court’s conclusion of whether the majority of a company’s board is independent could affect: The standard of review applicable to a challenged transaction: A plaintiff may rebut the presumptions under the business-judgment rule by showing that most of the directors approving the challenged transaction were either interested in the transaction or not independent of a person with an interest in the transaction.
The Corporate Guide: Directors’ and Officers’ Indemnification Rights | JD Supra
How do advancement or indemnification rights arise? Section 145 of the Delaware General Corporation Law (DGCL) allows corporations to protect present and former directors and officers from expenses incurred in connection with proceedings arising from actions taken in service to the company or at the company’s direction.
The Corporate Guide: Protecting Emails from Production | JD Supra
Last week’s Corporate Guide discussed one circumstance — in the context of stockholder litigation — where directors’ and officers’ emails may be requested and produced, a books and records demand under Section 220 of the Delaware General Corporation Law. While this Corporate Guide provides some explanation of books and records demands that is not the sole focus. Thus, please refer to last week’s Corporate Guide for more detail regarding demands under Section 220. What is a books and records demand?
Delaware Supreme Court Finds COVID-19 Business Adjustments Entitle Company’s Buyer to Terminate Contract | JD Supra
One consequence of the COVID-19 pandemic is that many businesses were forced to adjust their operations in an effort to slow the spread of the virus. In many ways such adjustments are a routine business response to external factors, similar to a factory switching from steel to aluminum when the price of steel gets too high, or an airline reducing the number of flights to a particular city in response to a decline in demand.
Delaware Court of Chancery Holds Number of Members in LLC Does Not Determine Whether Claims Are Direct or Derivative | JD Supra
In Clifford Paper, Inc. v. WPP Investors, LLC, et al., C.A. No. 2020-0448-JRS (Del. Ch. June 1, 2021), the Delaware Court of Chancery held that plaintiff Clifford Paper, Inc.’s (“CPI”) asserted derivative (as opposed to direct) claims against defendants WPP Investors (“Investors”) and Edgar L. Smith, thus necessitating the dismissal of those claims because CPI no longer was a member of World Pac Paper, LLC (“WPP”) when CPI filed suit.
Make Sure the Language in Your Earnout Provision Accounts for the Obstacles to Receiving Those Future Payments | JD Supra
In M&A transactions, the buyer and seller often disagree about the value of the business or asset being sold. A popular solution is an earnout clause that entitles either the seller or buyer to future payments from the business’s post-closing revenues, typically in exchange for accepting the purchase price that the other party prefers.
Yes, Federal Investigations May Require Your Company to Comply With a Stockholder’s Books-and-Records Demands | JD Supra
Gross v. Biogen Inc., C.A. No. 2020-0096-PAF (Del. Ch. Apr. 14, 2021). On October 11, 2016, plaintiff Melvin Gross, served the first of four books-and-records demands on defendant Biogen Inc., under DGCL Section 220. Mr. Gross was a stockholder of Biogen at the time he made the demand.
A Stockholder Plaintiff Is Not Entitled To Fees For Pursuing Personal Interests That Happen To Provide Some Corporate Benefit
United States: A Stockholder Plaintiff Is Not Entitled To Fees For Pursuing Personal Interests That Happen To Provide Some Corporate Benefit 02 February 2021 Duane Morris LLP Your LinkedIn Connections with the authors To print this article, all you need is to be registered or login on Mondaq.com. On February 5, 2020, the Court of Chancery, in Martin v. Harbor Diversified, Inc., 2020 WL 568971 (Del. Ch. Feb.
Zooming Off To Trial: Tips & Thoughts For An Effective Virtual Trial
To print this article, all you need is to be registered or login on Mondaq.com. For the last ten years, I have had the pleasure of litigating before state and federal courts in Delaware (among other jurisdictions). The judges in Delaware are as advertised: whip smart, extremely hardworking, knowledgeable about the issues before them, and voracious readers of each submission to their court.
BETTER OVERSIGHT THAN HINDSIGHT: Hughes v. Xiaming Hu Demonstrates That Directors And Officers Who Fail To Adequately Oversee Their Company's Management Expose Themselves To Personal Liability - Corporate/Commercial Law - United States
To print this article, all you need is to be registered or login on Mondaq.com. Across the United States, the Coronavirus has caused widespread devastation, marking its arrival with debilitating symptoms and tens of thousands of deaths. The virus also is responsible for significant economic destruction, rendering 30 million Americans jobless requiring $660 billion in payroll loans, and necessitating a $2.2 trillion in stimulus package.
A Stockholder Owes No Fiduciary Duties When It Is Not In Control [Group]
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Delaware Supreme Court Permits Delaware Corporations To Include Federal Forum Provisions In Their Charters & Bylaws
To print this article, all you need is to be registered or login on Mondaq.com. On March 18, 2020, the Delaware Supreme Court reversed the Delaware Court of Chancery's decision in Sciabacucchi v. Salzberg, 2018 WL 6719718 (Del. Ch. Dec. 19, 2018), which had held that federal forum provisions (FFPs) for claims under the Securities Act of 1933 ('33 Act) are facially invalid and therefore cannot be included in a Delaware company's charter or bylaws.
A Plaintiff Cannot Satisfy The First Prong Of Aronson By Alleging That The Board's "Interest" In The Settlement At Issue Was To Avoid A Claim So Weak That Plaintiff Declined To Bring It - Corporate/Commercial Law - United States
To print this article, all you need is to be registered or login on Mondaq.com. On April 2, 2020, Vice Chancellor Slights dismissed a derivative lawsuit that alleged that a Company's Board breached its fiduciary duties by rushing to pay an "excessive" severance fee in order to facilitate the CEO's separation from the Company, and as a means to cover up the Board's slow and inadequate response to the CEO's pattern of wrongful conduct.
Delaware Supreme Court Permits Delaware Corporations to Include Federal Forum Provisions in Their Charters & Bylaws | Lexology
On March 18, 2020, the Delaware Supreme Court reversed the Delaware Court of Chancery’s decision in Sciabacucchi v. Salzberg, 2018 WL 6719718 (Del. Ch. Dec. 19, 2018), which had held that federal forum provisions (FFPs) for claims under the Securities Act of 1933 (’33 Act) are facially invalid and therefore cannot be included in a Delaware company’s charter or bylaws.
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