Bylaw Protection against Dissident Director Conflict/Enrichment Schemes

By Martin Lipton, May 10 2013, The Harvard Law School Forum on Corporate Governance and Financial Regulation

This year, the practice of activist hedge funds engaged in proxy contests offering special compensation schemes to their dissident director nominees has increased and become even more egregious. While the terms of these schemes vary, the general thrust is that, if elected, the dissident directors would receive large payments, in some cases in the millions of dollars, if the activist’s desired goals are met within the specified near-term deadlines.

These special compensation arrangements pose a number of threats, including:


  • undermining Board prerogatives to set director pay and select the timeframe over which corporate goals are to be achieved;
  • creating a multi-tiered, dysfunctional Board in which a subset of directors are compensated and motivated significantly differently from other directors;
  • creating economic incentives to take the corporation in the specified direction, and within the timeframe, that would trigger outsized compensation, whether or not doing so would be in the best interests of all shareholders, would engender inappropriate and excessive risk, or would sacrifice long-term value for short-term gain; Continue reading…



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