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Court Considers Validity of Continuing Director Change of Control Provisions in Indentures
June 16, 2009 Full PDF
The recent decision of the Delaware Chancery court in San Antonio Fire & Police Pension Fund v. Amylin Pharmaceuticals, Inc. arose from a proxy contest in which two separate dissident stockholders, Icahn Partners LP and Eastbourne Capital Management, L.L.C., each sought the election of its slate of five director nominees to Amylin's 12-member board. The Court considers issues related to a continuing director change of control provision found in an Amylin indenture, including whether Amylin's board had the power to "approve" the dissident nominees as "continuing directors" for purposes of such provision after it had opposed their election and continued to offer an opposing slate of company nominees and certain fiduciary duty and contractual obligation matters.