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NEAL, GERBER & EISENBERG LLP FIRST PUBLISHED: JULY 1, 2010 LAST UPDATED: APRIL 7, 2011

Copyright © Claudia H. Allen, 2010-2011. All rights reserved.

Study of Delaware Forum Selection in Charters and Bylaws

By

Claudia H. Allen

Overview. In In re Revlon Inc. Shareholders Litig.,1 Delaware Vice Chancellor Laster addressed, in dicta, the possibility of Delaware corporations adopting charter provisions providing for derivative actions and other intra-corporate disputes to be litigated exclusively in Delaware: “if boards of directors and stockholders believe that a particular forum would provide an efficient and value-promoting locus for dispute resolution, then corporations are free to respond with charter provisions selecting an exclusive forum for intra-entity disputes.”2 The Vice Chancellor’s suggestion echoed a nascent debate as to the advisability and enforceability of Delaware forum selection provisions. Exclusive Delaware forum selection provisions address concerns regarding plaintiffs’ lawyers rushing3 to sue “anywhere but Delaware”4 to avoid the predictability and speed of Delaware courts and potentially to obtain larger settlements. This phenomenon may result in corporations facing parallel, competing litigation in Delaware and another state or in federal court,5 often in connection with merger transactions.6 The degree to which other courts (often in a corporation’s headquarters state, where the court has personal jurisdiction over the corporation) will be willing to respect such a forum clause remains unpredictable.

This Study analyzes the 82 exclusive Delaware charter and bylaw forum selection provisions adopted to date (or which are in the process of being adopted), by Delaware corporations, and the legal issues associated with such provisions. While exclusive forum clauses generally provide for the Court of Chancery to be the sole and exclusive forum for enumerated categories of actions, the exact language and contours of such provisions are continuing to evolve.

1990 A.2d 940 (Del. Ch. Mar. 16, 2010) [hereinafter, “Revlon”]. 2Id. at 961. According to the Delaware Division of Corporations (http://corp.delaware.gov/ last visited Apr. 1, 2011), more than 50% of all U.S. publicly-traded companies and 63% of the Fortune 500 are incorporated in Delaware. 3Generally, courts will give first-filed complaints preference in determining the forum, absent overriding considerations, or near contemporaneous filing. See In re Topps Co. Shareholders Litig., 924 A.2d 951, 957 (Del. Ch. 2007). 4See e.g., Sara Lewis, Transforming the “Anywhere but Chancery” Problem into the “Nowhere but Chancery” Solution, 14 Stan. J.L. Bus. & Fin. 199 (2008-2009) [hereinafter, “Lewis”]; Ted Mirvis, Anywhere But Chancery: Ted Mirvis Sounds an Alarm and Suggests Some Solutions, 7 The M&A J 17 (2007); William Savitt, Exclusive Venue Provisions for Corporate Cases, Natl. L.J. Jun. 7, 2010 [hereinafter, “Savitt”]; Charles Nathan, Designating Delaware as the Exclusive Jurisdiction for Intra-Corporate Disputes, The Harvard Law School Forum on Corp. Gov. and Fin. Reg. (May 11, 2010) [hereinafter “Nathan”]; John Armour, Bernard Black and Brian Cheffins, Delaware’s Balancing Act (Mar. 1, 2011) ECGI - Law Working Paper 167/2010, Northwestern Law & Econ Research Paper No. 10-04, Oxford Legal Studies Research Paper No. 64/2010 (available at SSRN: http://ssrn.com/abstract=1677400) [hereinafter “Balancing Act”); Faith Stevelman, Regulatory Competition, Choice of Forum, and Delaware's Stake in Corporate Law, 34 Del. J. Corp. L. 57, 133-35 (2009); Joseph Grundfest, Choice of Forum Provisions in Intra-Corporate Litigation: Mandatory and Elective Approaches (The 2010 Pileggi Lecture), (Oct. 8, 2010), Rock Center for Corporate Governance at Stanford University Working Paper No. 91 (available at SSRN: http://ssrn.com/abstract=1690561) [hereinafter “Grundfest”]. See also Scully v. Nighthawk Radiology Holdings, Inc., C.A. No. 5890-VCL (Mar. 11, 2011)(Brief of Special Counsel)(addressing, among other issues, forum-shopping and potential collusion in the context of multi-jurisdictional class actions)(available at http://amlawdaily.typepad.com/DelawareSpecialCounsel.pdf). 5For example, a state law claim could potentially be filed in federal court on the basis of diversity jurisdiction. In addition, a plaintiff may bring a pendent state law claim for breach of fiduciary duty in connection with a federal securities law claim. See Balancing Act at 3. 6According to Savitt, “[r]oughly 50% of mergers and acquisitions transactions announced by Delaware-incorporated companies generates this sort of duplicative litigation.”

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Key Findings and Recommendations.

51.2% of the companies in this Study have adopted (or are in the process of adopting) a forum selection provision through a charter amendment. These amendments are being adopted by companies as they go public, emerge from bankruptcy protection or reincorporate in Delaware. In these situations, shareholder approval is generally not required, and shareholders will not have the unilateral ability to amend such clauses.

Rather than seek shareholder approval of a charter amendment, established public companies have generally adopted forum selection bylaws through board action. 43.9% of the companies in this Study have adopted such bylaws. While shareholders customarily retain power to amend bylaws, there have been no publicly disclosed shareholder efforts to amend or repeal such provisions to date.

As the 2011 proxy season got underway, four established public companies, all of which are S&P 500 constituents, broke new ground by including management forum selection charter amendment proposals in their proxy statements. Shareholder sentiment on these types of proposals remains difficult to gauge as of the date of this Study, and Institutional Shareholder Services has indicated that it will evaluate these management proposals on a case-by-case basis. Should any of these proposals pass, it is likely that additional companies considering a forum selection clause will consider the shareholder approval route.

In January 2011, in a case of first impression, the Federal District Court for the Northern District of California in Galaviz v. Berg, refused to dismiss shareholder derivative claims against Oracle Corporation based upon Oracle’s exclusive forum bylaw, citing federal common law. The court appears to have been strongly influenced by: (1) the adoption of this provision by the directors who were defendants in the case after the majority of the alleged wrongdoing had occurred, (2) the board taking this action after certain plaintiffs had purchased their Oracle shares and (3) the absence of shareholder approval. The court indicated, in dicta, that it would be more difficult to challenge the enforceability of a charter provision approved by shareholders.

Notwithstanding the Galaviz decision, the rate at which companies are adopting forum selection provisions has not slowed appreciably.

Based upon Galaviz, boards adopting bylaw forum selection provisions can lessen some of the potential grounds for attacking the enforceability of such bylaws if they are adopted at a time (for example, in connection with an annual governance review) when adoption cannot be characterized as a response to alleged corporate wrongdoing.

39.0% (32) of the companies in the Study have their principal place of business in California, followed by 7.3% (6) in Florida, 7.3% (6) in Illinois and 6.1% (5) in Colorado. There appears to be a correlation between these statistics and the perceived litigation climate in some of those states.

To maximize flexibility, boards adopting such provisions should consider including a carve-out stating that the board may “consent to the selection of an alternative forum.” This language takes into account situations where a board may believe that allowing litigation to proceed in another forum is in the best interests of the corporation. While such carve-outs were not included in the first generation of provisions, they have become increasingly common, and are included in the forum selection provisions adopted by 56.1% of the companies in this Study.

Future challenges by the plaintiffs’ bar to forum selection clauses seem likely, particularly following the Galaviz decision. The degree to which other courts will defer to the Delaware Court of Chancery remains unclear, and may well vary by jurisdiction. As a practical matter, and apart from questions relating to enforceability and investor perception, there does not appear to be a material downside to adopting a forum selection clause.


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Analysis of Provisions Adopted. Types of Actions Covered. The provisions in the Study generally cover four categories of actions:

o (1) any derivative action or proceeding brought on behalf of the corporation, with 6.1% (5) of the clauses specifically addressing derivative actions based upon “ other wrongdoing” in addition to breaches of fiduciary duty;

o (2) any action asserting a claim of breach of a fiduciary duty owed by any director or officer to the corporation or its stockholders, with 54.9% (45) of these provisions also addressing fiduciary duties owed by employees and 14.6% (12) also addressing duties owed by agents or advisors. In addition, one company, EverBank Financial Corp., took the more aggressive step of including fiduciary duties owed by officers, directors or the company to creditors;7

o (3) any action asserting a claim arising pursuant to any provision of the Delaware General Corporation Law, with 48.8% (40) of these provisions also covering claims pursuant to the corporation’s charter and bylaws or trust agreement, in the case of a statutory trust; or

o (4) any action asserting a claim governed by the internal affairs doctrine.8 Oracle Corporation, which was one of the first Delaware corporations in the Study to adopt an exclusive forum provision, limited its provision to derivative actions. Direxion Shares ETF Trust II included a fifth category of actions: “any other action over which the Court of Chancery of the State of Delaware could exercise subject matter and personal jurisdiction.” Altera Corporation, Furniture Brands International, Inc., LoopNet, Inc., SemiLEDs Corporation and Varian Medical Systems, Inc. each included an additional category of actions: “any action to interpret, apply, enforce, or determine the validity of” its charter or bylaws.9

7Creditors would likely argue that they are not bound by such a clause. 8The internal affairs doctrine is “a conflict of laws principle which recognizes that only one State should have the authority to regulate a corporation's internal affairs—matters peculiar to the relationships among or between the corporation and its current officers, directors, and shareholders . . . ." Edgar v. Mite Corp. 457 U.S. 624, 645 (1982). 9Apparently reflecting logic similar to that underlying Delaware forum selection provisions, on Aug. 26, 2010, AMERCO, a Nevada corporation, adopted a Nevada forum selection bylaw, effective Sept. 8, 2010, which covers the four enumerated categories of actions described above. See Item 5.03 and Article X of Exhibit 3.1 to the Current Report on Form 8-K filed on Sept. 10, 2010, and available at http://www.sec.gov/Archives/edgar/data/4457/000000445710000037/body.htm. Neuberger Berman Flexible High Income Fund Inc., adopted a Maryland forum selection charter provision on Jan. 21, 2011 which is similar to the prevailing model, although it provides for jurisdiction in state as well as federal courts:

The federal or state courts in Maryland shall be the sole and exclusive forum for (i) any derivative action or proceeding brought on behalf of the Corporation, (ii) any action asserting a claim of a breach of these Articles or the Corporation’s Bylaws or a claim of breach of fiduciary duty to the Corporation or the Corporation’s stockholders, (iii) any action asserting a claim against the Corporation arising under the Maryland General Corporation Law or these Articles or the Corporation’s Bylaws, (iv) any other action asserting a claim by stockholders which is governed by the internal affairs or an analogous doctrine, and (v) any other action over which the federal or state courts in Maryland could exercise subject matter and personal jurisdiction.

See Exhibit 99.2A of Form N-2 for Neuberger Berman Flexible High Income Fund, filed on Jan. 21, 2011, and available at http://www.sec.gov/Archives/edgar/data/1509664/000089843211000048/exhibit.htm.

On Jun. 14, 2010, Intrusion, Inc., a Delaware corporation, adopted a restated certificate of incorporation which includes New York forum selection clauses in two series of preferred stock. These clauses do not include the four enumerated categories. Rather, they appear to be transaction-specific:

Each party agrees that all legal proceedings concerning the interpretation [sic], enforcement and defense of the transactions contemplated by any of the Transaction Documents (whether brought against a party hereto or its respective affiliates, directors, officers, shareholders, employees or agents) shall be commenced in the state and federal courts sitting in the City of New York, Borough of Manhattan (the “New York Courts”).


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When Adopted. 92.7% (76) of the exclusive forum provisions were adopted (or are in the process of being adopted) following Vice Chancellor Laster’s suggestion in Revlon. Only six corporations cited in the Study, CKE Restaurants, Inc., Kennedy-Wilson Holdings, Inc., Netlist, Inc., Netsuite, Inc., Oracle Corporation and Standard Pacific Corporation, adopted exclusive forum provisions prior to 2010. Two corporations, Financial Engines, Inc. and Meru Networks, Inc., filed forms of charters including exclusive forum provisions as exhibits to their IPO registration statements prior to the Revlon decision, although the final provisions were adopted thereafter.

Circumstances of Adoption. 50.0% (41) of the provisions were adopted (or are in the process of being adopted) in connection with initial public offerings (“IPOs”), 6.1% (5) were (or are being) adopted in connection with a company emerging from bankruptcy protection, 6.1% (5) were (or are being) adopted in connection with reincorporation in Delaware, and 1.2% (1) were adopted immediately prior to announcement of a business combination (Figure 1).10 In July 2010, the comparable percentages were 61.5%, 15.4%, 0% and 3.8%, respectively. AMN Healthcare Services, Inc. adopted an exclusive forum bylaw effective the day prior to entering into a merger agreement. That timing is suggestive of a concern regarding strike suits being filed in jurisdictions other than Delaware following the transaction announcement. Apart from these event-driven adoptions, at least 10 bylaws were adopted by boards of public companies on a stand-alone basis, while at least 20 forum selection bylaws were adopted concurrently with other bylaw amendments, often in connection with annual bylaw reviews. These two groups represent 12.2% and 24.4%, respectively, of the forum selection provisions in this Study.

Charter vs. Bylaw. 51.2% (42) of the companies in the Study included forum selection provisions in their charters, 43.9% (36) in their bylaws,11 2.4% (2) in both charters and bylaws and 2.4% (2) in the trust agreements of statutory trusts (Figure 2). In July 2010, the comparable percentages were 69.2%, 23.1%, 0% and 7.7%, respectively. Of the 39 IPO12 corporations, 87.2% (34) included the forum selection clause in their charters, presumably because charter amendments require both board and shareholder action, meaning that shareholders would not have the unilateral ability to modify such charter provisions. In addition, as described below under “Enforceability Issues,” a stronger case can be made for the enforceability of charter provisions. All of the companies emerging from bankruptcy protection adopted charter provisions, while 80% (4) of the companies seeking to reincorporate in Delaware adopted (or are in the process of adopting) forum selection charter provisions.

See Section 3.10(d) and Section 4.10(d) of Exhibit 3.1 to the Current Report on Form 8-K filed on Jun. 15, 2010, and available at http://www.sec.gov/Archives/edgar/data/736012/000110465910033915/a10-12017_1ex3d1.htm.

A number of funds have adopted non-Delaware forum selection provisions that do not track the current prevailing model. Examples include: Destra Investment Trust (Chicago, Cook County, Illinois, or a court of competent jurisdiction within the State of Illinois); First Trust/FIDAC Mortgage Income Fund, First Trust Global Credit Strategies Fund, First Trust High Income Long/Short Fund, First Trust Active Dividend Income Fund, First Trust Global Credit Strategies Fund (prospectuses state: “The Declaration [of Trust] also includes a forum selection clause requiring that any shareholder litigation be brought in certain courts in Illinois.”); Oppenheimer Emerging Markets Debt Fund, Oppenheimer Hard Currency Fund, Oppenheimer Rising Dividends Fund, Oppenheimer Quest for Value Funds (U.S. District Court for the Southern District of New York, or NY state court); Pioneer Multi-Asset Floating Rate Trust (U.S. District Court for the District of Massachusetts, or Massachusetts Superior Court, in Boston, Massachusetts); Rochester Portfolio Series (U.S. District Court for the Southern District of New York, or NY state court); Wasatch Funds Trust (United States District Court, District of Utah, or State of Utah, Salt Lake City District Court). Certain of the forum selection provisions (e.g., First Trust Global Credit Strategies Fund, Oppenheimer Quest for Value Funds, Rochester Portfolio Series, Wasatch Funds Trust) predate the Revlon decision. 10Note that some companies may fall within more than one category (e.g., emerging from bankruptcy and IPO). Data concerning the circumstances of adoption of 7 forum selection bylaws, representing 8.5% of the provisions in the Study, were not available. 11While Vice Chancellor Laster discussed forum selection provisions in charters, but not bylaws, his discussion in Revlon nonetheless cited the forum selection clause contained in the bylaws of Oracle Corporation. 12This number excludes two statutory trusts otherwise included in the IPO category.


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Seeking Shareholder Approval. Perhaps in response to potential concerns as to the enforceability of forum selection bylaws, four corporations are seeking shareholder approval of forum selection charter amendments during the 2011 proxy season: The Allstate Corporation, Altera Corporation, DIRECTV and Life Technologies Corporation (which already had a forum selection bylaw in place). All four of these companies are members of the S&P 500. It remains to be seen how various shareholder groups and proxy advisory firms will view such management proposals. To date, Institutional Shareholder Services has indicated that it will evaluate such proposals on a case-by-case basis. Shareholder approval should theoretically help immunize such provisions against a successful shareholder challenge. Prior to the 2011 proxy season, the only corporation known to have sought and obtained shareholder approval of a charter forum selection provision was Charter Communications, Inc., which obtained such approval by written consent as it was emerging from bankruptcy protection. The arguments in proxy statements supporting these proposals include the following:

o Delaware offers a system of specialized Chancery Courts to deal with corporate law questions, with streamlined procedures and processes that help provide relatively quick decisions;

o These courts have developed considerable expertise in dealing with corporate law issues, as well as a substantial and influential body of case law construing Delaware’s corporate law and long-standing precedent regarding corporate governance;

o Delaware's well-developed body of case law provides stockholders with more certainty regarding the outcome of intra-corporate disputes; and

o Having intra-corporate disputes heard in a Delaware court, will help the company and its shareholders avoid costly and duplicative litigation, misapplication of Delaware law by another court and the possibility of inconsistent outcomes from courts in different jurisdictions.

Deemed Consent. 42.7% (35) of the provisions provide that those acquiring shares or any interest therein will be deemed to have notice of and to have consented to exclusive forum. Most commonly, these provisions were adopted (or are in the process of being adopted) in connection with IPOs and are in charters. Breaking the data down further, 71.4% (25) of these clauses are in charters, compared to 28.6% (10) in bylaws, and 68.6% (24) were or are being adopted in connection with IPOs. Of the initial four companies putting charter provisions to a shareholder vote, both The Allstate Corporation and Altera Corporation chose to include “deemed consent” language. The deemed notice and consent clauses raise the question of why exclusive forum provisions, unlike other provisions, such as those in advance notice bylaws, should merit such treatment. Theoretically, by including deemed notice and consent provisions within exclusive forum clauses, but in no (or few) other provisions of charters or bylaws, companies could face an argument that shareholders did not have notice of and have not consented to other operative provisions in charters and bylaws. Charter and bylaw provisions are, however, generally viewed as binding upon all shareholders.13 Shareholders who purchase shares prior to the adoption of a Delaware forum selection bylaw might argue that they did not consent to the board’s adoption of such a provision, and have a vested right to sue in other jurisdictions. However, this argument is undercut by the provisions in bylaws which generally grant the board authority to amend bylaws, and put shareholders on notice of such possibility.14 Nonetheless, in Galaviz v. Berg, discussed below under “Enforceability Issues,” the Federal District Court for the Northern District of California, in a case of first impression, appears to have accepted such a vested rights argument.

Opt-Out and Limitations.

13See e.g., Centaur Partners, IV v. National Intergroup, Inc. 582 A.2d 923, 927 (Del. 1990); Frantz Mfg. Co. v. EAC Indus., 501 A.2d 401 (Del. 1985)(as to bylaws). 14See Lewis at 212-214, Nathan and Kidsco Inc. v. Dinsmore, 674 A.2d 483, 492 (Del. Ch. 1995)(”Where a corporation’s by-laws put all on notice that the by-laws may be amended at any time, no vested rights can arise that would contractually prohibit an amendment.”).


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o Option to Select Alternative Forum. 56.1% (46) of the provisions specify that the corporation may consent in writing to the selection of an alternative forum (“elective forum provisions”). The earliest forum selection provisions were mandatory, rather than elective. Mandatory provisions limit the ability of the company to proceed in an alternative forum where a suit has been filed, even if the board believes such an alternative might be advantageous, unless the forum selection clause is in the bylaws—and thus subject to amendment by the board. Elective forum provisions first appeared in the charters of companies such as Financial Engines, Inc. and Primerica, Inc., beginning in March 2010, and began to appear in bylaws in September 2010, when Chevron Corporation adopted an elective forum selection bylaw. The percentage of companies adopting elective, rather than mandatory, forum clauses has steadily increased since July 2010 when the comparable percentage was 30.8%.

o Absence of Jurisdiction; Federal Jurisdiction. 4.9% (4) of the provisions provide for the Delaware Chancery Court to be the exclusive forum “to the fullest extent“ permitted by law, while 4.9% (4) specifically recognize the possibility of a federal court having jurisdiction; and

o Personal Jurisdiction. 15.9% (13) of the provisions make explicit the requirement that the Chancery Court have personal jurisdiction over the indispensable parties.

To some degree, all three categories of clauses reflect concerns as to the permissible scope of an enforceable forum selection clause, with the first clause offering the board additional flexibility and the second and third categories reflecting an implicit acknowledgement that a forum selection clause cannot confer jurisdiction which does not otherwise exist.

Principal Place of Business of Companies in Study. Notably, 39.0% (32) of the companies in the Study have their principal place of business in California, followed by 7.3% (6) in Florida, 7.3% (6) in Illinois and 6.1% (5) in Colorado, seemingly reflecting concerns about the litigation climate in some of those states.15 The companies in the Study have their headquarters in 22 states and one foreign jurisdiction, Taiwan (Figure 3).

Industries in Study. Based upon North American Industry Classification System (“NAICs”) codes, 31.7% (26) of the companies in the Study are in manufacturing, followed by 17.1% (14) in finance and insurance, 9.8% (8) in information, 8.5% (7) in professional, scientific and technical services, 6.1% (5) in transportation and warehousing and 6.1% (5) in real estate, rental and leasing (Figure 4).

Enforceability Issues. In Revlon, Vice Chancellor Laster noted: “The issues implicated by an exclusive forum selection provision must await resolution in an appropriate case.”16 The extent to which federal courts and state courts in other jurisdictions will defer to the courts in Delaware on the basis of such provisions remains uncertain, with only one challenge to such a clause having been litigated to date.

First Challenge in Federal Court. The first challenge to such a provision took place in connection with a shareholder derivative action against Oracle Corporation,17 alleging breach of fiduciary duty, abuse of control and unjust enrichment based upon the False Claims Act. The suit was brought in the Federal District Court for the Northern District of California where Oracle is headquartered. Oracle unsuccessfully sought to have the suit dismissed on the basis of improper venue, in light of the forum selection bylaw adopted by the company in 2006. Analyzing the issue from the viewpoint of contractual forum clauses, the court focused upon the fact that the bylaw was adopted without shareholder approval:

15For example, in 2010, a study ranking each of the 50 states, conducted for the Institute for Legal Reform, an affiliate of the US Chamber of Commerce, ranked: California-46, Illinois-45 and Florida-42 in terms of lawsuit climate. Ranking the States: Lawsuit Climate 2010, available at http://www.instituteforlegalreform.com/images/stories/documents/pdf/lawsuitclimate2010/2010LawsuitClimateReport.pdf (conducted for the U.S. Chamber Institute for Legal Reform by Harris Interactive Inc.). 16Revlon at 961, n.8. 17Galaviz v. Berg, C 10-3392 (N.D. Cal, Jan. 3, 2011)[hereinafter “Galaviz”].


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the venue provision was unilaterally adopted by the directors who are defendants in this action, after the majority of the purported wrongdoing is alleged to have occurred, and without the consent of existing shareholders who acquired their shares when no such bylaw was in effect. Under these circumstances, there is no basis for the Court to disregard the plaintiffs’ choice of forum, which Oracle does not contend is otherwise improper on any ground, or so inconvenient as to warrant a transfer to another federal court. . . .

Having reached this conclusion on the basis of federal common law,18 the Court did not address the underlying question of whether the adoption of the bylaw was within the power of Oracle’s directors under Delaware corporate law. The opinion also leaves open the question of whether subsequent purchasers of Oracle stock would be bound by the bylaw amendment. The Court did, however, indicate in dicta that it might be more difficult to challenge the enforceability of a charter amendment:

Certainly were a majority of shareholders to approve such a charter amendment, the arguments for treating the venue provision like those in commercial contracts would be much stronger, even in the case of a plaintiff shareholder who had personally voted against the amendment.19

While some practitioners expected the Galaviz decision to slow down the rate of adoption of forum selection provisions or counseled clients to consider the unsettled state of the law before adopting such provisions,20 the pace does not appear to have changed materially (Figure 5). At least 20 such provisions were adopted in the first three months of 2011, and, based upon SEC filings, at least 18 other companies are seeking to adopt forum selection provisions. Seemingly addressing some of the issues raised in Galaviz, Air Lease Corporation took the additional step of putting shareholders on notice of its forum selection bylaw by including a risk factor relating to the bylaw in its 2011 IPO registration statement, in addition to providing disclosure of the clause in its “Description of Capital Stock.”

Allegations of Invalidity in State Court. In connection with a purported class action brought in the Superior Court of New Jersey with respect to an exchange offer by Medquist Holdings, Inc. for shares of its subsidiary, shareholders of the subsidiary alleged that the forum selection clause adopted by Medquist Holdings, Inc. is invalid. However, the complaint indicates that the validity of such provision is “an issue for another day” to be raised by a parent company shareholder.

Delaware Upholds Non-Delaware Forum Selection Clause in Stockholders’ Agreement. In May 2010, in Baker v. Impact Holding, Inc., 21 the Delaware Chancery Court upheld a forum selection clause in a stockholders’ agreement, providing for exclusive jurisdiction in the federal and state courts located in Texas. In the opinion, the Court noted: “there is no statute or other clear indication of a legislative intent to limit the scope of forum selection clauses with respect to corporations and Delaware courts routinely enforce such forum selection clauses, even where they mandate exclusive foreign jurisdiction.” Thus, Delaware has shown a willingness to enforce provisions which provide for a forum outside Delaware.

Permissible Scope. As to the permissible scope of a Delaware bylaw, Section 109(b) of the Delaware General Corporation Law (“DGCL”) provides that “bylaws may contain any provision not inconsistent with law or with the certificate of incorporation, relating to the business of the corporation, the conduct of its affairs, and its rights or powers or the rights or powers of its stockholders, directors, officers, or employees.”

18“Oracle has not shown federal law requires or even permits the federal courts to defer to any provision of state corporate law that might purport to give a corporation’s directors the power to control venue under the circumstances discussed above.” Galaviz at 7. 19Acknowledging the higher likelihood of a charter provision being enforceable, plaintiffs’ attorney Gregg S. Levin of Motley Rice commented: “If the forum selection clause is in a corporate charter and has been approved by the shareholders, I wouldn’t ignore it when trying to decide where to bring suit.” Allison Grande, Calif. Ruling Hands Shareholders Forum Selection Power, Law360 Mar. 22, 2011. 20See e.g., Wilson Sonsini Goodrich & Rosati, Restricting Shareholder Derivative Suits to Delaware: Stop, Look, and Listen (Jan. 2011). 212010 WL 1931032 (Del.Ch.) at *5-6 [hereinafter “Baker”].


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Section 102(b)(1) of the DGCL provides that the charter may contain: Any provision for the management of the business and for the conduct of the affairs of the corporation, and any provision creating, defining, limiting and regulating the powers of the corporation, the directors, and the stockholders, or any class of the stockholders . . . if such provisions are not contrary to the laws of this State. Any provision which is required or permitted by any section of this chapter to be stated in the bylaws may instead be stated in the certificate of incorporation.

In determining what is “inconsistent with law” or “contrary” to laws, courts generally presume that forum selection clauses are enforceable and that this presumption may only be overcome if the challenging party can meet the “heavy burden” of showing that enforcement of the clause is unreasonable, unfair or unjust.22

Provisions Adopted by Alternative Entities. Although this Study focuses upon corporations, Appendix A hereto includes an analysis of Delaware forum selection provisions adopted by public limited partnerships (“LPs”) and public limited liability companies (“LLCs”). 71.4% (10) of the companies are in energy-related businesses, consistent with the origins of master limited partnerships. All 14 of the provisions on Appendix A were adopted in connection with IPOs. These provisions resemble, in general terms, those contained in charters and bylaws. Such forum selection provisions often cover claims, suits, actions and proceedings: (1) arising out of or relating in any way to the partnership agreement (including any claims, suits or actions to interpret, apply or enforce the provisions of such agreement or the duties, obligations or liabilities among partners or of partners to the partnership or the rights or powers of, or restrictions on, the partners or partnership), (2) brought in a derivative manner on behalf of the partnership, (3) asserting a claim of breach of a fiduciary duty owed by any director or officer of the partnership or the general partner, or owed by the general partner, to the partnership or the partners (with 64.3% (9) of the provisions also addressing fiduciary duties of employees), (4) asserting a claim arising pursuant to any provision of the Delaware Revised Uniform Limited Partnership Act or (5) asserting a claim governed by the internal affairs doctrine. The provisions in LLC operating agreements are modified to include LLC-specific language.23

22M/S Bremen v. Zapata Off-Shore Co., 407 U.S. 1 (1972) and Carnival Cruise Lines v. Shute, 499 U.S. 585 (1991). Delaware courts have adopted this presumption of validity. Ingres Corp. v. CA, Inc., (Del. Dec. 1, 2010) No. 105 at 3 (“Consistent with the ruling of the United States Supreme Court in M/S Bremen v. Zapata Off-Shore Co., we hold that where contracting parties have expressly agreed upon a legally enforceable forum selection clause, a court should honor the parties’ contract and enforce the clause”). See also Baker at *8. Note that these cases involved contractual forum selection provisions which were not included in bylaws or charters. 23Alternative entities formed in other jurisdictions have adopted forum selection provisions. See e.g., The Jones Financial Companies, L.L.L.P, Seventeenth Amended and Restated Agreement of Registered Limited Liability Partnership, dated as of Mar. 26, 2010, filed as Appendix D to Amendment No. 1 to Registration Statement on Form S-1 filed on Sep. 3, 2010 (“venue for litigation shall be laid exclusively in the Circuit Court of the County of St. Louis, Missouri or in the United States District Court for the Eastern District of Missouri. . . “).

In addition, the limited partnership agreement of Golar LNG Partners LP, a Marshall Islands limited partnership, provides for exclusive jurisdiction in the Delaware Court of Chancery. According to pages 206-207 of its registration statement on Form F-1 filed on Mar. 30, 2011, and available at http://www.sec.gov/Archives/edgar/data/1415916/000104746911002863/a2202966zf-1.htm:

Our partnership agreement requires that any claims, suits, actions or proceedings:

arising out of or relating in any way to the partnership agreement (including any claims, suits or actions to interpret, apply or enforce the provisions of the partnership agreement or the duties, obligations or liabilities among limited partners or of limited partners to us, or the rights or powers of, or restrictions on, the limited partners or us);

brought in a derivative manner on our behalf;

asserting a claim of breach of a fiduciary duty owed by any director, officer or other employee of us or our general partner, or owed by our general partner, to us or the limited partners;

asserting a claim arising pursuant to any provision of the Marshall Islands Limited Partnership Act; and


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At least 42.9% (6) of the provisions (Chesapeake Midstream Partners, L.P., Niska Gas Storage Partners LLC, Oxford Resource Partners LP, QR Energy LP, Rhino Resource Partners LP and Tesoro Logistics LP) include all five categories, and are identical apart from: (a) references specific to the form of entity and (b) the qualifying language, “[t]o the fullest extent permitted by applicable law,” which is included in the Oxford provision.

Existing Delaware authority supports the enforceability of forum selection clauses in the context of a Delaware LLC. For example, in Elf Atochem N. Am. Inc. v. Jaffari24 the Delaware Supreme Court held that a forum selection clause in an LLC agreement providing for arbitration or litigation of intra-party disputes exclusively in California was permissible because the Delaware Limited Liability Company Act, which is intended to give maximum effect to the principle of freedom of contract and to the enforceability of LLC agreements, does not expressly bar such clauses.25

What Lies Ahead? In view of the steadily increasing number of forum selection provisions in charters and bylaws and the unsettled state of the law, it seems likely that additional plaintiffs will challenge the enforceability of such provisions, particularly if they are included in bylaws, and that practitioners will continue to refine the prevailing model in response to case law. With a view toward potential challenges, companies adopting such provisions should:

Consider whether obtaining shareholder approval of a charter amendment is a realistic possibility;

Consider the timing of adoption in relation to other events at the company which could result in potential litigation;

Consider an elective (rather than mandatory) forum provision, in order to maximize the board’s flexibility;

Provide appropriate disclosure in SEC filings, including, as appropriate, in risk factors, so that shareholders are on notice of the forum selection provision and the associated limitation on their right to sue in other jurisdictions; and

Recognize the real-world possibility that, although the company believes litigating in the Court of Chancery is in the best interests of the company and its shareholders, state courts in other jurisdictions or federal courts may not be willing to defer to the Court of Chancery.

In comparison to July 2010, when this Study was initially published, the percentage of companies in the Study adopting forum selection provisions in connection with IPOs has declined, while the percentage of established companies adopting such a provision has increased—underscoring that a larger number of established companies are adopting forum selection bylaws, or are willing to put a charter amendment to a shareholder vote. As of the date of this Study, 12 S&P 500 constituents have adopted or are seeking to adopt forum selection provisions, and four of those companies are putting a forum selection charter amendment to a shareholder vote during the 2011 proxy season.

asserting a claim governed by the internal affairs doctrine

shall be exclusively brought in the Court of Chancery of the State of Delaware, regardless of whether such claims, suits, actions or proceedings sound in contract, tort, fraud or otherwise, are based on common law, statutory, equitable, legal or other grounds, or are derivative or direct claims. By purchasing a common unit, a limited partner is irrevocably consenting to these limitations and provisions regarding claims, suits, actions or proceedings and submitting to the exclusive jurisdiction of the Court of Chancery of the State of Delaware in connection with any such claims, suits, actions or proceedings.

24727 A.2d 286, 296 (Del. 1999). 25See also Dizounas v. Am. Bureau of Shipping, Inc., 888 A.2d 1146, 1149 (Del. Ch. 2006)(court upheld Texas forum selection provision in the LLC agreement of a Delaware LLC).


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List of Companies Analyzed in Study of Delaware Forum Selection in Charters and Bylaws

Affinia Group Holdings, Inc.

Air Lease Corporation

The Allstate Corporation

Altera Corporation

AMN Healthcare Services Inc.

Apache Design Solutions, Inc.

Applied Micro Circuits Corporation

Aurora Diagnostics, Inc.

AutoNation, Inc.

Berkshire Hathaway Inc.

Blount International, Inc.

Booz Allen Hamilton Holding Corporation

Caesar’s Entertainment Corporation (f/k/a Harrah’s Entertainment, Inc.)

Charter Communications, Inc.

Chemtura Corporation

Chevron Corporation

CKE Restaurants, Inc.

CTPartners Executive Search, Inc.

Delphi Financial Group, Inc.

Demand Media, Inc.

diaDexus, Inc. (f/k/a VaxGen, Inc.)

DIRECTV

Direxion Shares ETF Trust II

Domus Holdings Corp.

Envestnet, Inc.

EverBank Financial Corp.

ExamWorks Group, Inc.

FedEx Corporation

Financial Engines, Inc.

Franklin Resources, Inc.

FS Energy & Power Fund

Furniture Brands International, Inc.

FXCM Inc.

General Growth Properties, Inc.

Gevo, Inc.

GNC Acquisition Holdings, Inc.

Gordmans Stores, Inc.

Grand Canyon Education, Inc.

Howard Hughes Corporation

ImmunoCellular Therapeutics, Ltd.

Inphi Corporation

InsWeb Corporation

Intrepid Potash, Inc.

Kennedy-Wilson Holdings

Landstar System Inc.

Liberty Mutual Agency Corporation

Liberty Splitco, Inc. (Liberty Media Corporation)

Life Technologies Corporation

LinkedIn Corporation

LoopNet, Inc.

LPL Investment Holdings Inc.

Mattson Technology, Inc.

MedQuist Holdings Inc. (f/k/a CBay Systems Holdings Limited)

Meru Networks, Inc.

MetroPCS Communications, Inc.

ModusLink Global Solutions, Inc.

Navistar International Corporation

NeoPhotonics Corporation

Netlist, Inc.

Netsuite, Inc.

Nexcore Healthcare Capital Corporation (f/k/a CapTerra Financial Corporation)

Oracle Corporation

Pandora Media, Inc.

Primerica, Inc.

PURE Bioscience, Inc.

Roper Industries, Inc.

RPX Corporation

Sagent Pharmaceuticals, Inc. (f/k/a Sagent Holding Co.)

SemiLEDs Corporation

The Spectranetics Corporation

Spirit Airlines, Inc.

Standard Pacific Corp.

Superior Energy Services, Inc.

Swift Transportation Company

TMS International Corp.

United Rentals, Inc.

USA Truck, Inc.

U.S. Concrete, Inc.

Varian Medical Systems, Inc.

VMware, Inc.

Williams-Sonoma, Inc.

Zebra Technologies Corporation


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List of LLCs and LPs Included in Appendix A

American Pacific Investcorp LP

Chesapeake Midstream Partners, L.P.

Compressco Partners, L.P.

CVR Partners, LP

KKR & Co. L.P.

Magnachip Semiconductor LLC

NGL Partners LP

Niska Gas Storage Partners LLC

Oiltanking Partners, L.P.

Oxford Resource Partners LP

Pioneer Southwest Energy Partners L.P.

QR Energy LP

Rhino Resource Partners LP Tesoro Logistics LP

Comments, questions or requests for an updated Study should be directed to: Claudia H. Allen

Partner and Chair, Corporate Governance Practice Group Neal, Gerber & Eisenberg LLP

Two North LaSalle Street, Suite 1700 Chicago, Illinois 60602

Tel: (312) 269-8406 [email protected]

www.ngelaw.com

NEAL, GERBER & EISENBERG LLP FIRST PUBLISHED: JULY 1, 2010 LAST UPDATED: APRIL 7, 2011

Copyright © Claudia H. Allen, 2010-2011. All rights reserved.

Study of Delaware Forum Selection in Charters and Bylaws

Company (Date Adopted)

Charter or Bylaw

IPO Text of Provision

Affinia Group Holdings, Inc.26

Charter Yes Page 112 of Amendment No. 4 to Registration Statement on Form S-1 filed on 3/18/11 references charter “provisions providing for Delaware as the exclusive forum for certain actions.”

Air Lease Corporation (2/15/11)27

Bylaw Yes Section 8.6 Forum for Adjudication of Disputes. Unless the Corporation consents in writing to the selection of an alternative forum, the Court of Chancery of the State of Delaware shall be the sole and exclusive forum for (i) any derivative action or proceeding brought on behalf of the Corporation, (ii) any action asserting a claim of breach of a fiduciary duty owed by any director, officer or other employee of the Corporation to the Corporation or the Corporation’s stockholders, (iii) any action asserting a claim arising pursuant to any provision of the DGCL or the Corporation’s Certificate of Incorporation or these Bylaws, or (iv) any other action asserting a claim governed by the internal affairs doctrine. Any person or entity purchasing or otherwise acquiring any interest in shares of capital stock of the Corporation shall be deemed to have notice of and to have consented to the provisions of this Section 8.6.

The Allstate Corporation (2011 management charter amendment proposal)28

Charter No ARTICLE TENTH

Unless the corporation consents in writing to the selection of an alternative forum, the Court of Chancery of the State of Delaware shall be the sole and exclusive forum for (i) any derivative action or proceeding

26Affinia Group Holdings, Inc., Amended and Restated Certificate of Incorporation. See Amendment No. 4 to Registration Statement on Form S-1 filed on Mar. 18, 2011, and available at http://www.sec.gov/Archives/edgar/data/1495064/000119312511071262/ds1a.htm. 27Air Lease Corporation, Amended and Restated Bylaws as of Feb. 15, 2011. Filed as Exhibit 3.2 to Amendment No. 2 to Registration Statement on Form S-1 filed on Feb. 22, 2011, and available at http://www.sec.gov/Archives/edgar/data/1487712/000095012311016530/v57988a2exv3w2.htm. Air Lease Corporation, CKE Restaurants, Inc., Netlist, Inc., SemiLEDS Corporation and Standard Pacific Corporation appear to be the only IPO companies to include forum selection clauses in their bylaws, rather than charters. To put shareholders on notice of the forum selection provision and the associated limitation on the right of shareholders to sue in other jurisdictions, the company included a risk factor in its IPO registration statement, captioned “Our amended and restated bylaws designate the Court of Chancery of the State of Delaware as the sole and exclusive forum for certain litigation that may be initiated by our stockholders, which could limit our stockholders’ ability to obtain a favorable judicial forum for disputes with the Company.” See page 41 of Amendment No. 7 to Registration Statement on Form S-1 filed on Apr. 4, 2011, and available at http://www.sec.gov/Archives/edgar/data/1487712/000095012311032302/a57988a7sv1za.htm. 28The Allstate Corporation, Form of Charter Amendment. See Exhibit B to definitive proxy statement filed on Apr. 1, 2011, and available at http://www.sec.gov/Archives/edgar/data/899051/000104746911003100/a2202610zdef14a.htm. The Allstate Corporation is the second company to seek shareholder approval at an annual meeting of a forum selection charter amendment. According to page 24 of the definitive proxy statement:

The proposed amendment provides numerous benefits to the corporation and its stockholders. Specifically, the corporation and its stockholders benefit from having disputes resolved by the Delaware Court of Chancery, which is widely regarded as the preeminent court for the determination of disputes involving a corporation's internal affairs in terms of precedent, experience, and focus. The Delaware Chancery Court is comprised of experienced jurists who have a deep understanding of Delaware corporate law and long standing precedents regarding corporate governance. Delaware's well-developed body of case law provides stockholders with more certainty with respect to the outcome of intra-corporate disputes. By ensuring that intra-corporate disputes are heard in a Delaware court, the corporation and its stockholders avoid costly and duplicative litigation, the risk that Delaware law would be misapplied by a court in another jurisdiction, and the risk of inconsistent outcomes


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Charter or Bylaw


brought on behalf of the corporation, (ii) any action asserting a claim of breach of a fiduciary duty owed by any director, officer or other employee of the corporation to the corporation or the corporation's stockholders, (iii) any action asserting a claim against the corporation arising pursuant to any provision of the General Corporation Law of the State of Delaware or the corporation's certificate of incorporation or bylaws or (iv) any action asserting a claim against the corporation governed by the internal affairs doctrine. Any person or entity purchasing or otherwise acquiring any interest in shares of capital stock of the corporation shall be deemed to have notice of and consented to the provisions of this ARTICLE TENTH.

Altera Corporation (2011 management charter amendment proposal)29

Charter No Unless the Corporation consents in writing to the selection of an alternative forum, the Court of Chancery of the State of Delaware shall be the sole and exclusive forum for (i) any derivative action or proceeding brought on behalf of the Corporation, (ii) any action asserting a claim of breach of a fiduciary duty owed by, or other wrongdoing by, any director, officer, or other employee of the Corporation to the Corporation or the Corporation's stockholders, (iii) any action asserting a claim against the Corporation arising pursuant to any provision of the General Corporation Law of the State of Delaware, this Amended and Restated Certificate of Incorporation or the Corporation's By-Laws, or (iv) any action to interpret, apply, enforce or determine the validity of this Amended and Restated Certificate of Incorporation or the Corporation's By-Laws, or (v) any action asserting a claim against the Corporation governed by the internal affairs doctrine. Any person or entity purchasing or otherwise acquiring any interest in shares of stock of the Corporation shall be deemed to have notice of and consented to the provisions of this Article Ninth.

when two similar cases proceed in different courts. Lastly, the Delaware Court of Chancery is typically able to resolve corporate disputes on an accelerated schedule, limiting the time, cost, and uncertainty of protracted litigation.

29Altera Corporation, Form of Amendment to Certificate of Incorporation. See definitive proxy statement filed on Mar. 23, 2011 at 59, available at http://www.sec.gov/Archives/edgar/data/768251/000076825111000018/proxystatement2010def14a.htm. The company provides the following rationale for the proposed charter amendment on page 59:

The board of directors believes that our stockholders will benefit from having disputes of this nature litigated in the Delaware Chancery Courts. Although some plaintiffs could prefer to litigate matters in a forum outside of Delaware because another court may be more convenient to them (among other reasons), the board believes that the proposed provision provides substantial benefits to the company and its stockholders as a whole. Delaware offers a system of specialized Chancery Courts to deal with corporate law questions, with streamlined procedures and processes that help provide relatively quick decisions. This accelerated schedule can limit the time, cost and uncertainty of litigation for all parties. These courts have developed considerable expertise in dealing with corporate law issues, as well as a substantial and influential body of case law construing Delaware's corporate law and long-standing precedent regarding corporate governance. This provides stockholders and the company with more certainty with respect to the outcome of intra-corporate disputes. In addition, adoption of the provision would reduce the risk that the company could be involved in duplicative litigation in more than one forum, as well as the risk that the outcome of cases in multiple forums could be inconsistent, even though each forum purports to follow Delaware law. In addition, the provision would give the board the flexibility to consent to an alternative forum.


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Charter or Bylaw


AMN Healthcare Services Inc. (effective 7/27/10)30

Bylaw No

ARTICLE 13 FORUM

The Court of Chancery of the State of Delaware shall be the sole and exclusive forum for (i) any derivative action or proceeding brought on behalf of the Corporation, (ii) any action asserting a claim of breach of a fiduciary duty owed by any Director or Officer of the Corporation to the Corporation or the Corporation’s Stockholders, (iii) any action asserting a claim against the Corporation arising pursuant to any provision of the Delaware General Corporation Law or the Corporation’s Certificate of Incorporation or By-laws, or (iv) any action asserting a claim against the Corporation governed by the internal affairs doctrine.

Apache Design Solutions, Inc.31

Charter Yes ARTICLE IX. FORUM FOR ADJUDICATION OF DISPUTES

Unless the Corporation consents in writing to the selection of an alternative forum, the Court of Chancery of the State of Delaware shall be the sole and exclusive forum for: (i) any derivative action or proceeding brought on behalf of the Corporation; (ii) any action asserting a claim of breach of a fiduciary duty owed by any director, officer or other employee of the Corporation to the Corporation or the Corporation’s stockholders; (iii) any action asserting a claim arising pursuant to any provision of the Delaware General Corporation Law; or (iv) any action asserting a claim governed by the internal affairs doctrine. Any person or entity purchasing or otherwise acquiring any interest in shares of capital stock of the Corporation shall be deemed to have notice of and consented to the provisions of this Article IX.

Applied Micro Circuits Corporation (10/27/10, effective 11/3/10)32

Bylaw No 8.13 FORUM FOR ADJUDICATION OF DISPUTES. Unless the corporation consents in writing to the selection of an alternative forum, the Court of Chancery of the State of Delaware shall be the sole and exclusive forum for (i) any derivative action or proceeding brought on behalf of the corporation, (ii) any action asserting a claim for breach of a fiduciary duty owed by any director, officer or other employee of the corporation to the corporation or the corporation’s stockholders, (iii) any action asserting a claim arising pursuant to any provision of the General Corporation Law of Delaware or the corporation’s certificate of incorporation or Bylaws, or (iv) any action asserting a claim governed by the internal affairs doctrine.

30AMN Healthcare Inc., Seventh Amended and Restated Bylaws, effective Jul. 27, 2010. Filed as Exhibit 3.1 to Quarterly Report on Form 10-Q filed on Jul 30, 2010, and available at http://www.sec.gov/Archives/edgar/data/1142750/000119312510172105/dex31.htm. According to Item 5 of Part II of the Form 10-Q, the only change to the bylaws effected on Jul. 27, 2010 involved the adoption of a forum selection provision. On Jul. 28, 2010, the Company entered into a Merger Agreement pursuant to which it acquired the parent company of Nursefinders, Inc. See Item 1.01 of the Current Report on Form 8-K filed on Jul. 28, 2010. The timing of the bylaw amendment suggests it was adopted with a view toward potential litigation which might arise following the announcement of the merger transaction. The merger closed on Sep. 1, 2010. See Item 1.01 of Current Report on Form 8-K filed on Sep. 1, 2010. 31Apache Solutions, Inc., Form of Amended and Restated Certificate of Incorporation. Filed as Exhibit 3.1 to Registration Statement on Form S-1 filed on Mar. 14, 2011, and available at http://www.sec.gov/Archives/edgar/data/1280363/000119312511065181/dex31.htm. 32Applied Micro Circuits Corporation, Amended and Restated Bylaws, effective Nov. 3, 2010. Filed as Exhibit 3.2 to Quarterly Report on Form 10-Q filed on Nov. 3, 2010, and available at http://www.sec.gov/Archives/edgar/data/711065/000119312510246370/dex32.htm. According to Item 5 of the Form 10-Q, the only change to the bylaws adopted on Oct. 27, 2010 involved the adoption of a forum selection provision.


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Charter or Bylaw


Aurora Diagnostics, Inc.33

Charter Yes 17. Forum. Unless the Corporation consents in writing to the selection of an alternative forum, the Court of Chancery of the State of Delaware shall, to the fullest extent permitted by law, be the sole and exclusive forum for (i) any derivative action or proceeding brought on behalf of the Corporation, (ii) any action asserting a claim of breach of a fiduciary duty owed by any director, officer or other employee of the Corporation to the Corporation or the Corporation’s stockholders, (iii) any action asserting a claim arising pursuant to any provision of the General Corporation Law, or (iv) any action asserting a claim governed by the internal affairs doctrine, in each such case subject to said Court of Chancery having personal jurisdiction over the indispensable parties named as defendants therein. Any person or entity purchasing or otherwise acquiring any interest in shares of capital stock of the corporation shall be deemed to have notice of and consented to the provisions of this Section 17.

AutoNation, Inc. (2/2/11)34

Bylaw No ARTICLE VIII

EXCLUSIVE FORUM

Section 1. Exclusive Forum. The Court of Chancery of the State of Delaware shall be the sole and exclusive forum for (a) any derivative action or proceeding brought on behalf of the Corporation, (b) any action asserting a claim of breach of a fiduciary duty owed by any director, officer, or other employee of the Corporation to the Corporation or the Corporation’s stockholders, (c) any action asserting a claim arising pursuant to any provision of the General Corporation Law of the State of Delaware, the Certificate of Incorporation or these By-Laws, or (d) any other action asserting a claim governed by the internal affairs doctrine.

Berkshire Hathaway Inc. (11/5/10)35

Bylaw No SECTION 14

Forum for Adjudication of Disputes

14.1. Unless the corporation consents in writing to the selection of an alternative forum, the Court of Chancery of the State of Delaware shall be the sole and exclusive forum for (i) any derivative action or proceeding brought on behalf of the corporation, (ii) any action asserting a claim of breach of a fiduciary duty owed by any director, officer or other employee of the corporation to the corporation or the corporation’s stockholders, (iii) any action asserting a claim arising pursuant to any provision of the Delaware General Corporation Law or the corporation’s certificate of incorporation or by-laws, or (iv) any other action asserting a claim governed by the internal affairs doctrine.

33Aurora Diagnostics, Inc., Form of Amended and Restated Certificate of Incorporation. Filed as Exhibit 3.1 to Amendment No. 5 to Registration Statement on Form S-1 filed on Oct. 25, 2010, and available at http://www.sec.gov/Archives/edgar/data/1490304/000095012310095354/g22658a5exv3w1.htm. 34AutoNation, Inc., Amended and Restated Bylaws, effective Feb. 2, 2011. Filed as Exhibit 3.1 to Current Report on Form 8-K filed on Feb. 3, 2011, and available at http://www.sec.gov/Archives/edgar/data/350698/000119312511023309/dex31.htm. According to Item 5.03 of the Form 8-K, the exclusive forum bylaw was adopted concurrently with a number of other bylaw amendments, including a bylaw providing for majority voting in uncontested director elections. 35Berkshire Hathaway, Inc., Bylaws as amended Nov. 5, 2010. Filed as Exhibit 3.1 to Current Report on Form 8-K filed on Nov. 9, 2010, and available at http://www.sec.gov/Archives/edgar/data/1067983/000119312510254196/dex31.htm. According to Item 5.03 of the Form 8-K, the bylaws were amended for the sole purpose of including the forum selection provision.


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Charter or Bylaw


Blount International, Inc. (7/14/10, effective 1/25/11)36

Bylaw No SECTION 4. Exclusive Forum. The Court of Chancery shall be the sole and exclusive forum for (i) any derivative action or proceeding brought on behalf of the Corporation, (ii) any action asserting a claim of breach of a fiduciary duty owed by any director or officer of the Corporation to the Corporation or the Corporation’s stockholders, (iii) any action asserting a claim against the Corporation arising pursuant to any provision of the DGCL or the Certificate or these By-laws, or (iv) any action asserting a claim against the Corporation governed by the internal affairs doctrine.

Booz Allen Hamilton Holding Corporation (11/8/10)37

Charter Yes TWELFTH. Forum. The Court of Chancery of the State of Delaware shall be the sole and exclusive forum for (i) any derivative action or proceeding brought on behalf of the Corporation, (ii) any action asserting a claim of breach of a fiduciary duty owed by any director or officer of the Corporation to the Corporation or the Corporation’s stockholders, (iii) any action asserting a claim against the Corporation arising pursuant to any provision of the General Corporation Law of the State of Delaware or the Corporation’s Second Amended and Restated Certificate of Incorporation or By-Laws, or (iv) any action asserting a claim against the Corporation governed by the internal affairs doctrine.

Caesar’s Entertainment Corporation (f/k/a Harrah’s Entertainment, Inc.) (11/22/10)38

Charter Yes ARTICLE XI

FORUM SELECTION

Unless the Corporation consents in writing to the selection of an alternative forum, the Court of Chancery of the State of Delaware shall be the sole and exclusive forum for (a) any derivative action or proceeding brought on behalf of the Corporation, (b) any action asserting a claim of breach of a fiduciary duty owed by any director, officer, employee or agent of the Corporation to the Corporation or the Corporation’s stockholders, (c) any action asserting a claim arising pursuant to any provision of the DGCL, or (d) any action asserting a claim governed by the internal affairs doctrine, in each such case subject to such Court of Chancery having personal jurisdiction over the indispensable parties named as defendants therein. Any person or entity purchasing or otherwise acquiring any interest in shares of capital stock of the Corporation shall be deemed to have notice of and consented to the provisions of this Article XI.

36Blount International, Inc., Amended and Restated Bylaws, as adopted on Jul. 14, 2010, effective Jan. 25, 2011. Filed as Exhibit 3.1 to Current Report on Form 8-K filed on Jan. 25, 2011, and available at http://www.sec.gov/Archives/edgar/data/1001606/000095015711000035/ex3-1.htm. According to Item 5.03 of the Form 8-K, the forum selection bylaw was adopted concurrently with a number of other bylaw amendments. 37Booz Allen Hamilton Holding Corporation, Second Amended and Restated Certificate of Incorporation as of Nov. 8, 2010. Filed as Exhibit 3.1 to Quarterly Report on Form 10-Q filed on Feb. 11, 2011, and available at http://www.sec.gov/Archives/edgar/data/1443646/000095012311012167/w81463exv3w1.htm. 38Caesar’s Entertainment Corporation, Amended and Restated Certificate of Incorporation, dated as of Nov. 22, 2010. Filed as Exhibit 3.1 to Current Report on Form 8-K filed on Nov. 24, 2010, and available at http://www.sec.gov/Archives/edgar/data/858339/000119312510268903/dex31.htm.


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Charter or Bylaw


Charter Communications, Inc. (8/20/10)39

Charter No ELEVENTH: FORUM

The Court of Chancery of the State of Delaware shall be the sole and exclusive forum for (i) any derivative action or proceeding brought on behalf of the Corporation, (ii) any action asserting a claim of breach of a fiduciary duty owed by any director or officer of the Corporation to the Corporation or the Corporation’s stockholders, (iii) any action asserting a claim against the Corporation arising pursuant to any provision of the GCL or this Certificate of Incorporation or the Corporation’s Bylaws or (iv) any action asserting a claim against the Corporation governed by the internal affairs doctrine.

Chemtura Corporation (11/10/10)40

Charter No ARTICLE ELEVEN

The Court of Chancery of the State of Delaware shall be the sole and exclusive forum for (i) any derivative action or proceeding brought on behalf of the Corporation, (ii) any action asserting a claim of breach of a fiduciary duty owed by any director or officer of the Corporation to the Corporation or the Corporation’s stockholders, (iii) any action asserting a claim against the Corporation arising pursuant to any provision of the Delaware General Corporation Law or the Corporation’s Certificate of Incorporation or by-laws or (iv) any action asserting a claim against the Corporation governed by the internal affairs doctrine.

Chevron Corporation (9/29/10)41

Bylaw No ARTICLE VII


Unless the Corporation consents in writing to the selection of an alternative forum, the Court of Chancery of the State of Delaware shall be the sole and exclusive forum for (i) any derivative action or proceeding brought on behalf of the Corporation, (ii) any action asserting a claim of breach of a fiduciary duty owed by any director, officer or other employee of the Corporation to the Corporation or the Corporation’s stockholders, (iii) any action asserting a claim arising pursuant to any provision of the Delaware General Corporation Law, or (iv) any action asserting a claim governed by the internal affairs doctrine. Any person

39Charter Communications, Inc., Amended and Restated Certificate of Incorporation, dated Aug. 20, 2010. Filed as Exhibit 3.1 to Current Report on Form 8-K filed on Aug. 20, 2010, and available at http://www.sec.gov/Archives/edgar/data/1091667/000109166710000128/exhibit3_1.htm. According to Item 5.03 of the Form 8-K, the amended and restated charter was adopted by the board, and by the shareholders by written consent in lieu of a meeting. The amendments to the charter also included changes to the provisions relating to trading restrictions on the company’s common stock designed to preserve net operating losses, and clean–up changes. The company emerged from bankruptcy protection on Nov. 30, 2009. 40Chemtura Corporation, Amended and Restated Certificate of Incorporation. Filed as Exhibit 3.1 to Amendment No. 1 to Registration Statement on Form S-1 filed on Aug. 27, 2010, and available at http://www.sec.gov/Archives/edgar/data/1091862/000119312510199559/dex31.htm. The Registration Statement was filed by the Company as debtor-in-possession, and relates to a rights offering in connection with its emergence from bankruptcy protection. According to Item 5.03 of the Current Report on Form 8-K filed on Nov. 12, 2010, the company filed its Amended and Restated Certificate of Incorporation with the Secretary of State of Delaware on the Nov. 10, 2010 effective date of its plan of reorganization. 41Chevron Corporation, Bylaws, as amended Sep. 29, 2010. Filed as Exhibit 3.1 to Current Report on Form 8-K filed on Sep. 30, 2010, and available at http://www.sec.gov/Archives/edgar/data/93410/000095012310090397/f56977exv3w1.htm. According to Item 5.03 of the Form 8-K, the bylaws were amended for the sole purpose of including the forum selection provision.


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Charter or Bylaw


or entity purchasing or otherwise acquiring any interest in shares of capital stock of the Corporation shall be deemed to have notice of and consented to the provisions of this Article VII.

CKE Restaurants, Inc. (1994)42

Bylaw Yes SECTION 8.5 Jurisdiction for Stockholder Suits. Any action brought by any stockholder against the Corporation or against any officer, director, employee, agent or advisor of the Corporation, including without limitation any such action brought on behalf of the Corporation, shall be brought solely in a court of competent jurisdiction located in the State of Delaware.

CTPartners Executive Search, Inc. (12/2/10)43

Charter Yes D. Venue. Unless the corporation consents in writing to the selection of an alternative forum, the Court of Chancery of the State of Delaware shall be the sole and exclusive forum for (i) any derivative action or proceeding brought on behalf of the corporation, (ii) any action asserting a claim of breach of a fiduciary duty owed by any director, officer or other employee of the corporation to the corporation or the corporation’s stockholders, (iii) any action asserting a claim arising pursuant to any provision of the DGCL, or (iv) any action asserting a claim governed by the internal affairs doctrine. Any person or entity purchasing or otherwise acquiring any interest in shares of capital stock of the corporation shall be deemed to have notice of and consented to the provisions of this Article VII, Paragraph D.

Delphi Financial Group, Inc. (11/4/10)44

Bylaw No FORUM FOR LEGAL ACTIONS

Section 6. The Court of Chancery of the State of Delaware shall be the sole and exclusive forum for (a) any derivative action or proceeding brought on behalf of the corporation; (b) any action asserting a claim of breach of fiduciary duty owed by any director or officer of the corporation to the corporation or to the stockholders of the corporation; (c) any action asserting a claim against the corporation arising pursuant to any provision of the DGCL, the Certificate of Incorporation or these By-laws; or (d) any action asserting a claim against the corporation that is governed by the internal affairs doctrine.

Demand Media, Inc. (1/28/11)45

Charter Yes C. Unless the Corporation consents in writing to the selection of an alternative forum, the Court of Chancery of the State of Delaware shall be the sole and exclusive forum for (i) any derivative action or

42CKE Restaurants, Inc., Bylaws. Filed as Exhibit 4.2 to Registration Statement on Form S-8 filed on Sep. 1, 1994, and available at http://www.sec.gov/Archives/edgar/data/919628/0000892569-94-000253.txt. See Grundfest at 7. The forum selection clause adopted by the company is identical to those adopted by Kennedy-Wilson, Inc. and Standard Pacific Corp. Note that the CKE provision provides for forum in “a court of competent jurisdiction located in the State of Delaware,” unlike more recent provisions, which specify the Court of Chancery. This bylaw was adopted in connection with the reincorporation of the company from California to Delaware. 43CTPartners Executive Search, Inc., Certificate of Incorporation. Filed as Exhibit 3.1 to Amendment No. 2 to Registration Statement on Form S-1 filed on Oct. 14, 2010, and available at http://www.sec.gov/Archives/edgar/data/1439199/000095012310093046/l40449cexv3w1.htm. According to Item 5.03 of the Current Report on Form 8-K filed on Dec. 9, 2010, the company’s charter was filed in the State of Delaware on Dec. 2, 2010. In connection with its IPO, the company was converted from an LLC to a corporation. 44Delphi Financial Group, Inc., Amended and Restated Certificate of Incorporation, as adopted Nov. 4, 2010. Filed as Exhibit 3.1 to Quarterly Report on Form 10-Q filed on Nov. 9, 2010, and available at http://www.sec.gov/Archives/edgar/data/859139/000095012310103206/w79878exv3w1.htm. It is not clear whether the board approved other bylaw amendments concurrently with the adoption of a forum selection bylaw.


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Charter or Bylaw


proceeding brought on behalf of the Corporation, (ii) any action asserting a claim of breach of a fiduciary duty owed by any director, officer or other employee of the Corporation to the Corporation or the Corporation’s stockholders, (iii) any action asserting a claim arising pursuant to any provision of the Delaware General Corporation Law, or (iv) any action asserting a claim governed by the internal affairs doctrine. Any person or entity purchasing or otherwise acquiring any interest in shares of capital stock of the Corporation shall be deemed to have notice of and consented to the provisions of this Section C of Article V.

diaDexus, Inc. (f/k/a VaxGen, Inc.) (effective 11/1/10)46

Bylaw No 7.13 FORUM SELECTION.

The Court of Chancery of the State of Delaware shall be the sole and exclusive forum for (i) any derivative action or proceeding brought on behalf of the Corporation, (ii) any action asserting a claim of breach of a fiduciary duty owed by any director or officer of the Corporation to the Corporation or the Corporation’s stockholders, (iii) any action asserting a claim against the Corporation arising pursuant to any provision of the DGCL or the Corporation’s Certificate of Incorporation or bylaws, or (iv) any action asserting a claim against the Corporation governed by the internal affairs doctrine.

DIRECTV (2011 management charter amendment proposal)47

Charter No ARTICLE XIII

Section 13.1 Forum for Adjudication of Disputes

Unless the Corporation consents in writing to the selection of an alternative forum, the Court of Chancery of the State of Delaware shall be the sole and exclusive forum for (i) any derivative action or proceeding brought on behalf of the Corporation, (ii) any action asserting a claim of breach of a fiduciary duty owed by any director, officer, employee or other agent of the Corporation to the Corporation or the Corporation's stockholders, (iii) any action asserting a claim arising pursuant to any provision of the DGCL, or (iv) any action asserting a claim governed by the internal affairs doctrine, in each case subject to said Court of Chancery having personal jurisdiction over the indispensable parties named as defendants therein.

45Demand Media, Inc., Amended and Restated Certificate of Incorporation, dated Jan. 28, 2011. Filed as Exhibit 3.01 to Annual Report on Form 10-K filed on Mar. 1, 2011, and available at http://www.sec.gov/Archives/edgar/data/1365038/000104746911001615/a2202318zex-3_01.htm. 46diaDexus, Inc., Amended and Restated Bylaws, effective Nov. 1, 2010. Filed as Exhibit 3.2 to Current Report on Form 8-K filed on Nov. 5, 2010, and available at http://www.sec.gov/Archives/edgar/data/1036968/000114036110044033/ex3_2.htm. According to the Form 8-K, the advance notice and director removal provisions in the company’s bylaws were amended concurrently with the adoption of the forum selection bylaw. 47DIRECTV, Form of Second and Amended and Restated Certificate of Incorporation. See definitive proxy statement filed on Mar. 18, 2011, and available at http://www.sec.gov/Archives/edgar/data/1465112/000104746911002290/a2202371zdef14a.htm. Management’s forum selection charter amendment proposal is described on page 75 and in Annex A. DIRECTV is the first company to seek shareholder approval at an annual meeting for an exclusive forum charter amendment. The company’s proxy statement was filed following the decision of the Federal District Court for the Northern District of California in Galaviz, which


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Charter or Bylaw


Direxion Shares ETF Trust II (7/9/10)48

Trust Agree-ment of statutory trust

Yes Section 12. DERIVATIVE LITIGATION. . . . To the fullest extent permitted by law, the Court of Chancery of the State of Delaware shall be the sole and exclusive forum for (i) any derivative action or proceeding brought on behalf of the Trust, (ii) any action asserting a claim of a breach of this Trust Agreement or a claim of breach of fiduciary duty to the Trust or the Trust’s shareholders, (iii) any action asserting a claim against the Trust arising pursuant to the Delaware Trust Statute or this Trust Agreement, (iv) any other action asserting a claim by the Shareholders or against the Trust governed by the internal affairs doctrine or analogous doctrines, and (v) any other action over which the Court of Chancery of the State of Delaware could exercise subject matter and personal jurisdiction.

Domus Holdings Corp. (1/5/11)49

Charter Yes ARTICLE X

Unless the Corporation (through approval of the Board) consents in writing to the selection of an alternative forum, the Court of Chancery of the State of Delaware shall be the sole and exclusive forum for (i) any actual or purported derivative action or proceeding brought on behalf of the Corporation, (ii) any action asserting a claim of breach of a fiduciary duty owed by any director or officer of the Corporation to the Corporation or the Corporation’s stockholders, (iii) any action asserting a claim arising pursuant to any

held that an exclusive forum selection bylaw which had not been approved by the shareholders was not valid. According to page 75 of the definitive proxy statement:

This amendment is intended to assist the Company in avoiding multiple lawsuits in multiple jurisdictions regarding the same matter. The ability to require such claims to be brought in a single forum will help to assure consistent consideration of the issues, the application of a relatively known body of case law and level of expertise, and should promote efficiency and costs-savings in the resolution of such claims. The Board believes that Delaware courts are best suited to address disputes involving such matters given that the Company is incorporated in Delaware and that the Delaware courts have a reputation for expertise in corporate law matters. The Board also believes that the Delaware courts have more experience and expertise in dealing with complex corporate issues than many other jurisdictions. For these reasons, the Board believes that providing for Delaware as the exclusive forum for the types of disputes listed above is in the best interests of the Company and its stockholders. At the same time, the Board believes that the Company should retain the ability to consent to an alternative forum on a case-by-case basis where the Company determines that its interest and those of its stockholders are best served by permitting such a dispute to proceed in a forum other than Delaware Chancery Court.

Such a provision requires that state courts in which such claims are asserted in contravention of the proposed amendment be willing to enforce its terms. It cannot be assured that all state courts will determine such a provision to be enforceable or will be willing to force the transfer of such proceedings to the Delaware courts.

Management is also seeking shareholder approval of charter amendments to declassify the board, implement a majority vote director election standard and permit special meetings of shareholders to be called by 25% or more of the stockholders in certain circumstances. 48Direxion Shares ETF Trust II, Trust Agreement, dated Jul. 9, 2010, creating Delaware statutory trust. Filed as Exhibit 4.1 to Registration Statement on Form S-1 filed on Jul. 20, 2010, and available at http://www.sec.gov/Archives/edgar/data/1496646/000089418910002506/trst_agmnt.htm. 49Domus Holdings Corp., Amended and Restated Certificate of Incorporation, dated Jan. 5, 2011. Filed as Exhibit 3.3 to Registration Statement on Form S-1 filed on Apr. 1, 2011, and available at http://www.sec.gov/Archives/edgar/data/1355001/000119312511086527/dex33.htm. The company is registering shares of its Class A Common Stock which are issuable upon conversion of notes being issued by its subsidiary, Realogy Corporation. For purposes of analysis in this Study, the company’s forum provision is categorized as being adopted in connection with an IPO.


-10-


Charter or Bylaw


provision of the GCL, or (iv) any action asserting a claim governed by the internal affairs doctrine. Any person or entity purchasing or otherwise acquiring any interest in shares of capital stock of the Corporation shall be deemed to have notice of and to consented to the provisions of this Article X.

Envestnet, Inc. (8/10)50

Charter Yes 8. Unless the corporation consents in writing to the selection of an alternative forum, the Court of Chancery of the State of Delaware shall be the sole and exclusive forum for (i) any derivative action or proceeding brought on behalf of the corporation, (ii) any action asserting a claim of breach of a fiduciary duty owed by any director, officer or other employee of the corporation to the corporation or the corporation’s stockholders, (iii) any action asserting a claim arising pursuant to any provision of the DGCL, or (iv) any action asserting a claim governed by the internal affairs doctrine. Any person or entity purchasing or otherwise acquiring any interest in shares of capital stock of the corporation shall be deemed to have notice of and consented to the provisions of this Article V, Paragraph 8.

EverBank Financial Corp.51 Charter Yes NINTH: The Court of Chancery of the State of Delaware shall be the sole and exclusive forum for (a) any actual or purported derivative action or proceeding brought on behalf of the Corporation, (b) any action asserting a claim of breach of a fiduciary duty owed by any director or officer of the Corporation to the Corporation or the Corporation’s stockholders or creditors, (c) any action asserting a claim against the Corporation or any director or officer of the Corporation arising pursuant to any provision of the DGCL, this Amended and Restated Certificate of Incorporation or the By-laws of the Corporation, or (d) any action asserting a claim against the Corporation or any director or officer of the Corporation governed by the internal affairs doctrine.

ExamWorks Group, Inc. (11/2/10)52

Charter Yes E. Unless the Corporation consents in writing to the selection of an alternative forum, the Court of Chancery of the State of Delaware shall be the sole and exclusive forum for (i) any derivative action or proceeding brought on behalf of the Corporation, (ii) any action asserting a claim of breach of a fiduciary duty owed by any director, officer or other employee of the Corporation to the Corporation or the Corporation’s stockholders, (iii) any action asserting a claim arising pursuant to any provision of the Delaware General Corporation Law, or (iv) any action asserting a claim governed by the internal affairs doctrine. Any person or entity purchasing or otherwise acquiring any interest in shares of capital stock of the Corporation shall be deemed to have notice of and consented to the provisions of this Article FIFTH, Section E.

50Envestnet, Inc., Restated Certificate of Incorporation. Filed as Exhibit 3.1 to Amendment No. 3 to Registration Statement on Form S-1 filed on Jul. 1, 2010, and available at http://www.sec.gov/Archives/edgar/data/1337619/000119312510151843/dex31.htm. The Registration Statement was declared effective on Jul. 28, 2010. 51EverBank Financial Corp., Form of Amended and Restated Certificate of Incorporation. Filed as Exhibit 3.1 to Amendment No. 3 to Registration Statement on Form S-1 filed on Feb. 7, 2011, and available at http://www.sec.gov/Archives/edgar/data/1502749/000095012311009755/y04003a3exv3w1.htm. EverBank Financial Corp. is the first company to seek to include creditors within the scope of parties to be bound by a forum selection clause. Including creditors could raise enforceability issues. Note that the company also included “any director or officer” within each of clauses (c) and (d). 52ExamWorks Group, Inc., Amended and Restated Certificate of Incorporation as of Nov. 2, 2010. Filed as Exhibit 3.1 to Annual Report on Form 10-K filed on Mar. 11, 2011, and available at http://www.sec.gov/Archives/edgar/data/1498021/000118811211000563/ex3-1.htm.


-11-


Charter or Bylaw


FedEx Corporation (3/14/11)53

Bylaw No Section 10. Forum for Adjudication of Disputes. Unless the corporation consents in writing to the selection of an alternative forum, the Court of Chancery of the State of Delaware shall be the sole and exclusive forum for (a) any derivative action or proceeding brought on behalf of the corporation, (b) any action asserting a claim of breach of a fiduciary duty owed by any director, officer or other employee of the corporation to the corporation or the corporation’s stockholders, (c) any action asserting a claim arising pursuant to any provision of the Delaware General Corporation Law, or (d) any action asserting a claim governed by the internal affairs doctrine. Any person or entity purchasing or otherwise acquiring any interest in shares of capital stock of the corporation shall be deemed to have notice of and consented to the provisions of this Section.

Financial Engines, Inc. (3/19/10)54

Charter Yes D. Unless the corporation consents in writing to the selection of an alternative forum, the Court of Chancery of the State of Delaware shall be the sole and exclusive forum for (i) any derivative action or proceeding brought on behalf of the corporation, (ii) any action asserting a claim of breach of a fiduciary duty owed by any director, officer or other employee of the corporation to the corporation or the corporation's stockholders, (iii) any action asserting a claim arising pursuant to any provision of the DGCL, or (iv) any action asserting a claim governed by the internal affairs doctrine. Any person or entity purchasing or otherwise acquiring any interest in shares of capital stock of the corporation shall be deemed to have notice of and consented to the provisions of this Article VII, Paragraph D.

Franklin Resources, Inc. (12/16/10)55

Bylaw No Section 7.9 Forum Selection. Unless the Board of Directors consents in writing to the selection of an alternative forum, the Court of Chancery of the State of Delaware shall be the sole and exclusive forum for (i) any derivative action or proceeding brought on behalf of the Corporation, (ii) any action asserting a claim of breach of a fiduciary duty owed by any director, officer, employee or agent of the Corporation to the Corporation or the Corporation’s stockholders, (iii) any action asserting a claim arising pursuant to any provision of the General Corporation Law of the State of Delaware, or (iv) any action asserting a claim governed by the internal affairs doctrine, in each such case subject to said Court of Chancery having personal jurisdiction over the indispensable parties named as defendants therein. Any person or entity purchasing or otherwise acquiring any interest in shares of capital stock of the corporation shall be deemed to have notice of and consented to the provisions of this Section 7.9.

53FedEx Corporation, Amended and Restated Bylaws, as of Mar. 14, 2011. Filed as Exhibit 3.1 to Current Report on Form 8-K filed on Mar. 15, 2011, and available at http://www.sec.gov/Archives/edgar/data/1048911/000095012311025622/c13708exv3w1.htm. According to Item 5.03 of the Form 8-K, the bylaws were amended for the sole purpose of including the forum selection provision. 54Financial Engines, Inc., Restated Certificate of Incorporation, dated Mar. 19, 2010. Filed as Exhibit 3.1 to Quarterly Report on Form 10-Q filed on May 13, 2010, and available at http://www.sec.gov/Archives/edgar/data/1430592/000095012310048881/f55783exv3w1.htm. The company filed a form of the Restated Certificate of Incorporation including a forum selection clause prior to the Revlon decision. See Exhibit 3.(i)1 to Registration Statement on Form S-1 filed on Dec. 9, 2009, and available at http://www.sec.gov/Archives/edgar/data/1430592/000095012309069405/0000950123-09-069405-index.htm. The Registration Statement was declared effective on Mar. 15, 2010. 55Franklin Resources, Inc., Amended and Restated Bylaws, effective Dec. 16, 2010. Filed as Exhibit 3.1 to Current Report on Form 8-K filed on Dec. 22, 2010, and available at http://www.sec.gov/Archives/edgar/data/38777/000119312510286506/dex31.htm. According to Item 5.03 of the Form 8-K, the forum selection provision was adopted concurrently with other bylaw amendments in connection with a general corporate governance review.


-12-


Charter or Bylaw


FS Energy & Power Fund56 Trust Agreement of statutory trust

Yes Section 14.5 Exclusive Forum. To the fullest extent permitted by law, including Section 3804(e) of the Statutory Trust Act, and unless the Fund consents in writing to the selection of an alternative forum, the Court of Chancery of the State of Delaware shall be the sole and exclusive forum for (i) any derivative action or proceeding brought on behalf of the Fund, (ii) any action asserting a claim of breach of a fiduciary duty owed by any trustee or officer of the Fund or the Fund’s shareholders, (iii) any action asserting a claim arising pursuant to any provision of the Statutory Trust Act, the DGCL or the Fund’s Declaration of Trust or Bylaws, or (iv) any action asserting a claim governed by the internal affairs doctrine.

Section 14.6 Agreement to be Bound. EVERY PERSON, BY VIRTUE OF HAVING BECOME A SHAREHOLDER IN ACCORDANCE WITH THE TERMS OF THIS DECLARATION OF TRUST AND THE BYLAWS, AS THE SAME MAY BE AMENDED FROM TIME TO TIME, SHALL BE DEEMED TO HAVE EXPRESSLY ASSENTED AND AGREED TO THE TERMS OF, AND SHALL BE BOUND BY, THIS DECLARATION OF TRUST AND THE BYLAWS.

Furniture Brands International, Inc. (8/5/10)57

Bylaw No Forum Selection

Section 11. The Court of Chancery of the State of Delaware shall be the sole and exclusive forum for (i) any derivative action or proceeding brought on behalf of the Corporation against directors or officers of the Corporation alleging breaches of fiduciary duty or other wrongdoing by such directors or officers, (ii) any action asserting a claim for breach of a fiduciary duty owed by any director or officer of the Corporation to the Corporation or the Corporation’s stockholders, (iii) any action asserting a claim against the Corporation arising pursuant to any provision of the General Corporation Law of the State of Delaware or the Restated Certificate of Incorporation or these By-Laws, (iv) any action to interpret, apply, enforce, or determine the validity of the Restated Certificate of Incorporation or these By-Laws, or (v) any action asserting a claim against the Corporation governed by the internal affairs doctrine.

56FS Energy and Power Fund, Form of Amended and Restated Declaration of Trust. Filed as Exhibit 99(A)(3) to Amendment No. 1 to Registration Statement on Form N-2 filed on Dec. 12, 2010, and available at http://www.sec.gov/Archives/edgar/data/1501729/000104746910010328/a2201371zex-99_a3.htm. It appears that clause (ii) of the bylaw should refer to the fiduciary duties owed ”to” the Fund or its shareholders. Note that Section 14.6 extends the deemed consent concept to all provisions of the declaration of trust and bylaws. 57Furniture Brands International, Inc., Bylaws, as amended, effective Aug. 5, 2010. Filed as Exhibit 3.1 to Current Report on Form 8-K filed on Aug. 10, 2010, and available at http://www.sec.gov/Archives/edgar/data/50957/000095012310075428/c59637exv3w1.htm. According to Item 5.03 of the Form 8-K, the exclusive forum provision was adopted in connection with a more comprehensive updating of the bylaws, including provisions relating to special meetings, indemnification, access to books and records and the business to be conducted at shareholders meetings.


-13-


Charter or Bylaw


FXCM Inc. (12/1/10)58

Charter Yes ARTICLE X

Section 10.1. Forum. Unless the Corporation consents in writing to the selection of an alternative forum, the Court of Chancery of the State of Delaware shall be the sole and exclusive forum for (i) any derivative action or proceeding brought on behalf of the Corporation, (ii) any action asserting a claim of breach of a fiduciary duty owed by any director, officer, employee or agent of the Corporation to the Corporation or the Corporation’s stockholders, (iii) any action asserting a claim arising pursuant to any provision of the DGCL, or (iv) any action asserting a claim governed by the internal affairs doctrine, in each such case subject to said Court of Chancery having personal jurisdiction over the indispensable parties named as defendants therein. Any person or entity purchasing or otherwise acquiring any interest in shares of capital stock of the corporation shall be deemed to have notice of and consented to the provisions of this Article X.

General Growth Properties, Inc. (11/9/10)59


The Court of Chancery of the State of Delaware shall be the sole and exclusive forum for (i) any derivative action or proceeding brought on behalf of the Corporation, (ii) any action asserting a claim of breach of fiduciary duty owed by any director or officer of the Corporation to the Corporation or the Corporation’s stockholders, (iii) any action asserting a claim against the Corporation arising pursuant to any provision of the DGCL or this Certificate of Incorporation or the Bylaws or (iv) any action asserting a claim against the Corporation governed by the internal affairs doctrine.

Gevo, Inc. (2/11/11)60

Charter Yes E. Unless the Corporation consents in writing to the selection of an alternative forum, the Court of Chancery of the State of Delaware shall be the sole and exclusive forum for (i) any derivative action or proceeding brought on behalf of the Corporation, (ii) any action asserting a claim of breach of a fiduciary duty owed by any director, officer or other employee of the Corporation to the Corporation or the Corporation’s stockholders, (iii) any action asserting a claim arising pursuant to any provision of the Delaware General Corporation Law, or (iv) any action asserting a claim governed by the internal affairs doctrine, in each case subject to said Court of Chancery having personal jurisdiction over the indispensible parties named as defendants therein. Any person or entity purchasing or otherwise acquiring any interest in shares of capital stock of the Corporation shall be deemed to have notice of and consented to the provisions of this Article FIFTH, Section E.

58FXCM Inc., Amended and Restated Certificate of Incorporation. Filed as Exhibit 3.1 to Registration Statement on Form S-1 filed on Sep. 3, 2010, and available at http://www.sec.gov/Archives/edgar/data/1499912/000095012310083924/y86406exv3w1.htm. According to Item 5.03 of the Current Report on Form 8-K filed on Dec. 7, 2010, the Amended and Restated Certificate of Incorporation became effective on Dec. 1, 2010. 59General Growth Properties, Inc., Amended and Restated Certificate of Incorporation. Filed as Exhibit 3.1 to the Current Report on Form 8-K filed on Nov. 12, 2010, and available at http://www.sec.gov/Archives/edgar/data/895648/000110465910058191/a10-21125_1ex3d1.htm. The forum selection clause was added to the corporation’s charter in connection with its emergence from bankruptcy protection. See also the exclusive forum selection clause adopted by Howard Hughes Corporation, which corporation was spun-off from General Growth Properties, Inc., in connection with General Growth’s reorganization in bankruptcy. 60Gevo, Inc., Amended and Restated Certificate of Incorporation, dated Feb. 11, 2011. Filed as Exhibit 3.2 to Annual Report on Form 10-K filed on Mar. 29, 2011, and available at http://www.sec.gov/Archives/edgar/data/1392380/000119312511080096/dex31.htm.


-14-


Charter or Bylaw


GNC Acquisition Holdings, Inc.61

Charter Yes ARTICLE FOURTEENTH. Unless the Corporation consents in writing to the selection of an alternative forum, the Court of Chancery of the State of Delaware shall be the sole and exclusive forum for (a) any derivative action or proceeding brought on behalf of the Corporation, (b) any action asserting a claim of breach of a fiduciary duty owed by any director, officer, employee or agent of the Corporation to the Corporation or the Corporation’s stockholders, (c) any action asserting a claim arising pursuant to any provision of the DGCL, or (d) any action asserting a claim governed by the internal affairs doctrine, in each such case subject to said Court of Chancery having personal jurisdiction over the indispensable parties named as defendants therein. Any person or entity purchasing or otherwise acquiring any interest in shares of capital stock of the Corporation shall be deemed to have notice of and consented to the provisions of this ARTICLE FOURTEENTH.

Gordmans Stores, Inc. (8/4/10)62

Charter Yes ARTICLE TWELVE

The Court of Chancery of the State of Delaware shall be the sole and exclusive forum for (i) any derivative action or proceeding brought on behalf of the Corporation, (ii) any action asserting a claim of breach of a fiduciary duty owed by any director or officer of the Corporation to the Corporation or the Corporation’s stockholders, (iii) any action asserting a claim against the Corporation arising pursuant to any provision of the Delaware General Corporation Law or the Corporation’s Certificate of Incorporation or by-laws or (iv) any action asserting a claim against the Corporation governed by the internal affairs doctrine.

Grand Canyon Education, Inc. (7/29/10)63

Bylaw No 6.13 Forum for Disputes. The Court of Chancery of the State of Delaware shall be the sole and exclusive forum for (i) any derivative action or proceeding brought on behalf of the Corporation, (ii) any action asserting a claim of breach of a fiduciary duty owed by any director or officer of the Corporation to the Corporation or to the Corporation’s stockholders, (iii) any action asserting a claim against the Corporation arising pursuant to any provision of the DGCL, the Certificate, or the Bylaws, or (iv) any action asserting a claim against the Corporation governed by the internal affairs doctrine.

61GNC Acquisition Holdings, Inc., Form of Amended and Restated Certificate of Incorporation. Filed as Exhibit 3.4 to Amendment No. 3 to Registration Statement on Form S-1 filed on Feb. 25, 2011, and available at http://www.sec.gov/Archives/edgar/data/1502034/000104746911001423/a2202079zex-3_4.htm. 62Gordmans Stores, Inc., Amended and Restated Certificate of Incorporation, dated Aug. 4, 2010. Filed as Exhibit 3.1 to Amendment No. 5 to Registration Statement on Form S-1, filed on Aug, 3, 2010, and available at http://www.sec.gov/Archives/edgar/data/1490636/000119312510174399/dex31.htm. 63Grand Canyon Education, Inc., Second Amended and Restated Bylaws, dated Jul. 29, 2010. Filed as Exhibit 3.1 to Current Report on Form 8-K filed on Aug. 2, 2010, and available at http://www.sec.gov/Archives/edgar/data/1434588/000095012310071014/c04074exv3w1.htm. According to Item 5.03 of the Form 8-K, the company concurrently amended its advance notice bylaws.


-15-


Charter or Bylaw


Howard Hughes Corporation (11/9/10)64


The Court of Chancery of the State of Delaware shall be the sole and exclusive forum for (i) any derivative action or proceeding brought on behalf of the Corporation, (ii) any action asserting a claim of breach of fiduciary duty owed by any director or officer of the Corporation to the Corporation or the Corporation’s stockholders, (iii) any action asserting a claim against the Corporation arising pursuant to any provision of the DGCL or this Certificate of Incorporation or the Bylaws or (iv) any action asserting a claim against the Corporation governed by the internal affairs doctrine.

ImmunoCellular Therapeutics, Ltd. (9/27/10)65

Bylaw No ARTICLE XI

GENERAL PROVISIONS. . .

Section 3. Forum Selection. The Court of Chancery of the State of Delaware shall be the sole and exclusive forum for (i) any derivative action or proceeding brought on behalf of the Corporation, (ii) any action asserting a claim of breach of a fiduciary duty owed by any director or officer of the Corporation to the Corporation or the Corporation’s stockholders, (iii) any action asserting a claim against the Corporation arising pursuant to any provision of the DGCL or the Corporation’s Certificate of Incorporation or Bylaws, or (iv) any action asserting a claim against the Corporation governed by the internal affairs doctrine.

Inphi Corporation (11/16/10)66

Charter Yes D. Unless the Corporation consents in writing to the selection of an alternative forum, the Court of Chancery of the State of Delaware shall be the sole and exclusive forum for (i) any derivative action or proceeding brought on behalf of the Corporation, (ii) any action asserting a claim of breach of a fiduciary duty owed by any director, officer or other employee of the Corporation to the Corporation or the Corporation’s stockholders, (iii) any action asserting a claim arising pursuant to any provision of the DGCL, or (iv) any action asserting a claim governed by the internal affairs doctrine. Any person or entity purchasing or otherwise acquiring any interest in shares of capital stock of the Corporation shall be deemed to have notice of and consented to the provisions of this Article VII, Paragraph D.

64Howard Hughes Corporation, Amended and Restated Certificate of Incorporation. Filed as Exhibit 3.1 to Current Report on Form 8-K filed on Nov. 12, 2010, and available at http://www.sec.gov/Archives/edgar/data/1498828/000110465910058178/a10-21087_1ex3d1.htm. The company was spun-off from General Growth Properties, Inc. as a stand-alone company, in connection with the emergence of General Growth Properties, Inc. from bankruptcy protection. In connection with its creation as a stand-alone company, the company filed a resale registration statement with the SEC. 65ImmunoCellular Therapeutics, Ltd., Bylaws, as amended Sep. 27, 2010. Filed as Exhibit 3.1 to Current Report on Form 8-K filed on Oct. 1, 2010, and available at http://www.sec.gov/Archives/edgar/data/822411/000119312510222193/dex31.htm. According to Item 5.03 of the Form 8-K, the bylaws were amended for the sole purpose of including the forum selection provision. 66Inphi Corporation, Restated Certificate of Incorporation, dated Nov. 16, 2010. Filed as Exhibit 3(i) to Annual Report on Form 10-K filed on Mar. 7, 2011, and available at http://www.sec.gov/Archives/edgar/data/1160958/000119312511056594/dex3i.htm.


-16-


Charter or Bylaw


InsWeb Corporation (2/2/11)67

Bylaw No ARTICLE X


Unless the corporation consents in writing to the selection of an alternative forum, the Court of Chancery of the State of Delaware will be the sole and exclusive forum for (i) any derivative action or proceeding brought on behalf of the corporation, (ii) any action asserting a claim of breach of a fiduciary duty owed by any director, officer or other employee of the corporation to the corporation or the corporation’s stockholders, (iii) any action asserting a claim arising pursuant to any provision of the Delaware General Corporation Law, or (iv) any action asserting a claim governed by the internal affairs doctrine. Any person or entity purchasing or otherwise acquiring any interest in shares of capital stock of the corporation is deemed to have notice of and consented to the foregoing provision.

Intrepid Potash, Inc. (11/17/10)68

Bylaw No Section 8.08 Forum for Adjudication of Disputes. Unless the Corporation consents in writing to the selection of an alternative forum, the Court of Chancery of the State of Delaware shall be the sole and exclusive forum for (i) any derivative action or proceeding brought on behalf of the Corporation, (ii) any action asserting a claim of breach of fiduciary duty owed by any director, officer or other employee of the Corporation to the Corporation or the Corporation’s stockholders, (iii) any action asserting a claim pursuant to any provision of the DGCL or the Corporation’s Certificate of Incorporation or these Bylaws or (iv) any action asserting a claim against the Corporation governed by the internal affairs doctrine.

Kennedy-Wilson Holdings, Inc. (2009)69

Bylaw No SECTION 8.5 Jurisdiction for Stockholder Suits. Any action brought by any stockholder against the Corporation or against any officer, director, employee, agent or advisor of the Corporation, including without limitation any such action brought on behalf of the Corporation, shall be brought solely in a court of competent jurisdiction located in the State of Delaware.

Landstar System Inc. (2/21/11)70

Bylaw No Section 8.09 Exclusive Forum. Unless the corporation consents in writing to the selection of an alternative forum, the Court of Chancery of the State of Delaware will be the sole and exclusive forum for (i) any

67InsWeb Corporation, Bylaws as amended Feb. 2, 2011. Filed as Exhibit 3.1 to Current Report on Form 8-K filed on Feb. 7, 2011, and available at http://www.sec.gov/Archives/edgar/data/1077370/000107737011000005/exhibit.htm. According to Item 5.03 of the Form 8-K, the bylaws were amended for the sole purpose of adopting a forum selection provision. 68Intrepid Potash, Inc., Amended and Restated Bylaws, dated Nov. 17, 2010. Filed as Exhibit 3.2 to Current Report on Form 8-K filed on Nov. 19, 2010, and available at http://www.sec.gov/Archives/edgar/data/1421461/000110465910059367/a10-21548_1ex3d2.htm. According to Item 5.03 of the Form 8-K, the forum selection bylaw was adopted concurrently with bylaw amendments providing for a majority vote standard in uncontested director elections, a related director resignation provision and provisions clarifying that abstentions and broker non-votes should not be counted as votes cast. 69Kennedy-Wilson Holdings, Inc., Bylaws. Filed as Exhibit 3.11 to Registration Statement on Form S-4, filed on Sep. 24, 2009, and available at http://www.sec.gov/Archives/edgar/data/1408100/000104746909008529/a2194546zex-3_11.htm. The forum selection clause adopted by the company is identical to those adopted by CKE Restaurants, Inc. and Standard Pacific Corp. Kennedy-Wilson Holdings, Inc. is the successor to Prospect Acquisition Corp., a blank-check development corporation.


-17-


Charter or Bylaw


derivative action or proceeding brought on behalf of the Corporation, (ii) any action asserting a claim of breach of a fiduciary duty owed by any director, officer or other employee of the Corporation to the Corporation or the Corporation’s stockholders, (iii) any action asserting a claim arising pursuant to any provision of the Delaware General Corporation Law or the Corporation’s certificate of incorporation or by-laws, or (iv) any other action asserting a claim governed by the internal affairs doctrine.

Liberty Mutual Agency Corporation71

Charter Yes ARTICLE XIII

EXCLUSIVE FORUM AND CONSENT

A. The Court of Chancery of the State of Delaware shall be the sole and exclusive forum for (i) any derivative action or proceeding brought on behalf of the Corporation, (ii) any action asserting a claim of breach of a fiduciary duty owed by any director or officer of the Corporation to the Corporation or the stockholders of the Corporation, (iii) any action asserting a claim against the Corporation arising pursuant to any provision of the DGCL, this Certificate of Incorporation or the Bylaws, or (iv) any action asserting a claim against the Corporation governed by the internal affairs doctrine.

B. Any Person purchasing or otherwise acquiring any interest in shares of Stock of the Corporation shall be deemed to have notice of and consented to the provisions of this Article.

Liberty Splitco, Inc. (Liberty Media Corporation)72

Charter Yes SECTION G

FORUM SELECTION

Unless the Corporation consents in writing to the selection of an alternative forum, the Court of Chancery of the State of Delaware shall be the sole and exclusive forum for (i) any derivative action or proceeding brought on behalf of the Corporation, (ii) any action asserting a claim of breach of a fiduciary duty owed by any director, office or other employee of the Corporation to the Corporation or the Corporation's stockholders, (iii) any action asserting a claim arising pursuant to any provision of the DGCL, or (iv) any action asserting a claim governed by the internal affairs doctrine. Any person or entity purchasing or otherwise acquiring any interest in shares of capital stock of the Corporation shall be deemed to have notice of and consented to the provisions of this Article V, Section G.

70Landstar System, Inc., Amended and Restated Bylaws as of Feb. 21, 2011. Filed as Exhibit 3.1 to Annual Report on Form 10-K filed on Feb. 23, 2011, and available at http://www.sec.gov/Archives/edgar/data/853816/000095012311016941/g25406exv3w2.htm. According to Item 9B of the Form 10-K, the forum selection bylaw was adopted concurrently with other bylaw amendments. 71Liberty Mutual Agency Corporation, Form of Amended and Restated Certificate of Incorporation. Filed as Exhibit 3.1 to Amendment No. 5 to Registration Statement on Form S-1 filed on Sep. 13, 2010, and available at http://www.sec.gov/Archives/edgar/data/1491041/000095012310085412/b80759a5exv3w1.htm. Acknowledging issues as to the enforceability of forum selection provisions, page 286 of the Registration Statement states: “There can be no guarantee that courts will enforce this provision.” 72Liberty Splitco, Form of Certificate of Incorporation. Filed as Exhibit 3.1 to Registration Statement on Form S-4 filed on Jan. 28, 2011, and available at http://www.sec.gov/Archives/edgar/data/1507934/000104746911000339/a2201598zex-3_1.htm. Liberty Splitco Inc. will be split off from Liberty Media, Inc.


-18-


Charter or Bylaw


Life Technologies Corporation (2011 management charter amendment proposal; 10/15/10 Bylaw)73

Mgt. Charter Amend Proposal and Bylaw

No Proposed Charter Amendment:

ARTICLE IX Except for (1) actions in which the Court of Chancery in the State of Delaware concludes that an indispensable party is not subject to the jurisdiction of the Delaware courts, and (2) actions in which a Federal court has assumed exclusive jurisdiction of a proceeding, any derivative action brought by or on behalf of the corporation, and any direct action brought by a stockholder against the Corporation or any of its directors or officers, alleging a violation of the Delaware General Corporation Law, the Corporation’s certificate of incorporation or bylaws or breach of fiduciary duties or other violation of Delaware decisional law relating to the internal affairs of the Corporation, shall be brought in the Court of Chancery in the State of Delaware, which shall be the sole and exclusive forum for such proceedings; provided, however, that the Corporation may consent to an alternative forum for any such proceedings upon the approval of the Board of Directors of the Corporation.

Bylaw:

Section 7.6 Forum Selection. Except for (1) actions in which the Court of Chancery in the State of Delaware concludes that an indispensable party is not subject to the jurisdiction of the Delaware courts, and (2) actions in which a Federal court has assumed exclusive jurisdiction of a proceeding, any derivative

73Life Technologies Corporation, Sixth Amended and Restated Bylaws, dated Oct. 15, 2010. Filed as Exhibit 3.2 to Current Report on Form 8-K filed on Oct. 18, 2010, and available at http://www.sec.gov/Archives/edgar/data/1073431/000095012310093878/a57592exv3w2.htm. According to Item 5.03 of the Form 8-K, the amendment and restatement also “included provisions regarding communication and disclosure by stockholders to the Company in connection with the Company’s annual meeting, as well as certain enhanced procedural and forum mechanics.” The company’s forum selection bylaw specifically excludes actions in which the Court of Chancery does not have jurisdiction over an indispensable party, and actions in which a Federal court has assumed exclusive jurisdiction.

In addition to addressing forum selection, the 2011 management charter amendment proposal also addresses board declassification and removal of obsolete provisions. Life Technologies Corporation is the first company to adopt a forum selection bylaw, and then seek shareholder approval of a forum selection charter amendment. See pages 49-50 of the definitive proxy statement filed on Mar. 18, 2011, and available at http://www.sec.gov/Archives/edgar/data/1073431/000095012311026578/a58520dedef14a.htm. The bylaw and charter provisions are identical. According to pages 49-50 of the definitive proxy statement:

The Board believes that our stockholders will benefit from having intra-company disputes litigated in the Delaware Chancery Courts. Although some plaintiffs could prefer to litigate matters in a forum outside of Delaware because another court may be more convenient to them (among other reasons), the Board believes that the benefits to the Company and its stockholders outweigh these concerns. Delaware offers a system of specialized Chancery Courts to deal with corporate law questions, with streamlined procedures and processes which help provide relatively quick decisions. This accelerated schedule can limit the time, cost and uncertainty of litigation for all parties. These courts have developed considerable expertise in dealing with corporate law issues, as well as a substantial and influential body of case law construing Delaware’s corporate law and long-standing precedent regarding corporate governance. This provides stockholders and the Company with more certainty with respect to the outcome of intra-corporate disputes. In addition, adoption of the provision would reduce the risk that the Company could be involved in duplicative litigation in more than one forum, as well as the risk that the outcome of cases in multiple forums could be inconsistent, even though each forum purports to follow Delaware law. In addition, the provision gives the Board the flexibility to consent to an alternative forum.


-19-


Charter or Bylaw


action brought by or on behalf of the Corporation, and any direct action brought by a stockholder against the Corporation or any of its directors or officers, alleging a violation of the Delaware General Corporation Law, the Corporation’s Certificate of Incorporation or bylaws or breach of fiduciary duties or other violation of Delaware decisional law relating to the internal affairs of the Corporation, shall be brought in the Court of Chancery in the State of Delaware, which shall be the sole and exclusive forum for such proceedings; provided, however, that the Corporation may consent to an alternative forum for any such proceedings upon the approval of the Board of Directors of the Corporation.

LinkedIn Corporation74 Charter Yes ARTICLE IX

Unless the Corporation consents in writing to the selection of an alternative forum, the Court of Chancery of the State of Delaware shall be the sole and exclusive forum for (i) any derivative action or proceeding brought on behalf of the Corporation; (ii) any action asserting a claim of breach of a fiduciary duty owed by any director, officer or other employee of the Corporation to the Corporation or the Corporation’s stockholders; (iii) any action asserting a claim against the Corporation arising pursuant to any provision of the General Corporation Law, the Restated Certificate or the Bylaws of the Corporation; or (iv) any action asserting a claim against the Corporation governed by the internal affairs doctrine. Any person or entity purchasing or otherwise acquiring any interest in shares of capital stock of the Corporation shall be deemed to have notice of and to have consented to the provisions of this Article IX.

LoopNet, Inc. (2/2/11)75

Bylaw No 8.12 Forum Selection

The Court of Chancery of the State of Delaware shall be the sole and exclusive forum for (i) any derivative action or proceeding brought on behalf of the Corporation against directors or officers of the Corporation alleging breaches of fiduciary duty or other wrongdoing by such directors or officers, (ii) any action asserting a claim for breach of fiduciary duty owed by any director or officer of the Corporation to the Corporation or the Corporation’s stockholders, (iii) any action asserting a claim against the Corporation arising pursuant to any provision of the DGCL or the Certificate of Incorporation or these Bylaws, (iv) any action to interpret, apply, enforce, or determine the validity of the Certificate of Incorporation or these Bylaws, or (v) any action asserting a claim against the Corporation governed by the internal affairs doctrine.

74LinkedIn Corporation, Form of Amended and Restated Certificate of Incorporation, to be in effect upon completion of IPO. Filed as Exhibit 3.2 to Amendment No. 1 to Registration Statement on Form S-1 filed on Mar. 11, 2011, and available at http://www.sec.gov/Archives/edgar/data/1271024/000119312511064249/dex32.htm. 75LoopNet, Inc., Amended and Restated Bylaws as of Feb. 2, 2011. Filed as Exhibit 3.1 to Current Report on Form 8-K filed on Feb. 4, 2011, and available at http://www.sec.gov/Archives/edgar/data/1353209/000095012311009228/f58197exv3w1.htm. According to Item 5.03 of the Form 8-K, the forum selection bylaw was adopted concurrently with other amendments to the bylaws addressing matters relating to annual and special meetings.


-20-


Charter or Bylaw


LPL Investment Holdings Inc. (11/23/10)76

Charter Yes ARTICLE XI — EXCLUSIVE JURISDICTION OF CERTAIN ACTIONS

The Court of Chancery of the State of Delaware shall, to the fullest extent permitted by applicable law, be the sole and exclusive forum for (i) any derivative action or proceeding brought on behalf of the Corporation, (ii) any action asserting a claim of breach of a fiduciary duty owed by any director, officer or other employee of the Corporation to the Corporation or the Corporation’s stockholders, (iii) any action asserting a claim against the Corporation arising pursuant to any provision of the DGCL or the Corporation’s Amended and Restated Certificate of Incorporation or bylaws or (iv) any action asserting a claim against the Corporation governed by the internal affairs doctrine, in each such case subject to said Court of Chancery having personal jurisdiction over the indispensable parties named as defendants therein. Any person or entity purchasing or otherwise acquiring any interest in shares of capital stock of the Corporation shall be deemed to have notice of and consented to the provisions of this Article XI.

Mattson Technology, Inc. (12/19/10)77


The Court of Chancery of the State of Delaware shall be the sole and exclusive forum for (i) any derivative action or proceeding brought on behalf of the Corporation, (ii) any action asserting a claim of breach of a fiduciary duty owed by any director or officer of the Corporation to the Corporation or the Corporation's stockholders, (iii) any action asserting a claim against the Corporation arising pursuant to any provision of the DGCL or the Corporation's Certificate of Incorporation or bylaws, or (iv) any action asserting a claim against the Corporation governed by the internal affairs doctrine.

MedQuist Holdings Inc. (f/k/a CBay Systems Holdings Limited) (1/27/11)78

Charter Yes ARTICLE XII FORUM

Unless the Corporation consents in writing to the selection of an alternative forum, the Court of Chancery of the State of Delaware shall be the sole and exclusive forum for (i) any derivative action or proceeding brought on behalf of the Corporation, (ii) any action asserting a claim of breach of a fiduciary duty owed by any director, officer, employee or agent of the Corporation to the Corporation or the Corporation’s stockholders, (iii) any action asserting a claim arising pursuant to any provision of the DGCL, or (iv) any action asserting a claim governed by the internal affairs doctrine, in each such case subject to said Court of Chancery having personal jurisdiction over the indispensable parties named as defendants therein. Any Person purchasing or otherwise acquiring any interest in shares of capital stock of the Corporation shall be deemed to have notice of and consented to the provisions of this Article XII.

76LPL Investment Holdings Inc., Amended and Restated Certificate of Incorporation, dated Nov. 23, 2010. Filed as Exhibit 3.1 to Amendment No. 2 to Registration Statement on Form S-1 filed on Jul. 9, 2010, and available at http://www.sec.gov/Archives/edgar/data/1397911/000095012310064557/b80825a2exv3w1.htm. 77Mattson Technology, Inc., Amended and Restated Bylaws, dated Dec. 19, 2010. Filed as Exhibit 3.1 to Current Report on Form 8-K filed on Dec. 22, 2010, and available at http://www.sec.gov/Archives/edgar/data/928421/000113626110000346/exh3-1.htm. According to Item 5.03 of the Form 8-K, the forum selection bylaw was adopted concurrently with bylaw amendments addressing, among other things, advance notice periods for stockholder proposals and nominations, the disclosure stockholders must provide when submitting proposals and nominations for consideration at a meeting and electronic technology.


-21-


Charter or Bylaw


Meru Networks, Inc. (4/6/10?)79

Charter Yes D. Unless the corporation consents in writing to the selection of an alternative forum, the Court of Chancery of the State of Delaware shall be the sole and exclusive forum for (i) any derivative action or proceeding brought on behalf of the corporation, (ii) any action asserting a claim of breach of a fiduciary duty owed by any director, officer or other employee of the corporation to the corporation or the corporation’s stockholders, (iii) any action asserting a claim arising pursuant to any provision of the DGCL, or (iv) any action asserting a claim governed by the internal affairs doctrine. Any person or entity purchasing or otherwise acquiring any interest in shares of capital stock of the corporation shall be deemed to have notice of and consented to the provisions of this Article VII, Paragraph D.

78Medquist Holdings, Inc., Certificate of Incorporation, dated Jan. 27, 2011. Filed as Exhibit 3.1 to Annual Report on Form 10-K filed on Mar. 16, 2011, and available at http://www.sec.gov/Archives/edgar/data/1441567/000095012311025779/w81804exv3w1.htm.

In connection with an exchange offer by the Company for shares of its subsidiary, Medquist, Inc., on or about Feb. 11, 2011, a plaintiff filed a purported shareholder class action in the Superior Court of New Jersey against Medquist Holdings, Inc., Medquist, Inc. and directors of Medquist, Inc. The complaint alleges that the forum selection clause is invalid:

62. According to the Prospectus, the certificate of incorporation of Holdings requires that all stockholder litigation involving Holdings or its directors must be adjudicated in the Delaware Court of Chancery (the “Forum Selection Provision”). According to the Prospectus:

Our certificate of incorporation provides that unless we consent to the selection of an alternative forum, the Court of Chancery of the State of Delaware shall be the sole and exclusive forum for any (i) derivative action or proceeding brought on behalf of our company, (ii) action asserting a claim of breach of a fiduciary duty owed by any director, officer, employee or agent of our company to the company or the company’s stockholders, (iii) action asserting a claim arising pursuant to any provision of the DGCL, or (iv) action asserting a claim governed by the internal affairs doctrine, in each such case subject to said Court of Chancery having personal jurisdiction over the indispensable parties named as defendants therein. Any person or entity purchasing or otherwise acquiring any interest in shares of capital stock of our company shall be deemed to have notice of and consented to the forum provisions in our certificate of incorporation.

63. This disclosure is materially misleading and incomplete. Although some scholars and judges have suggested that a certificate provision requiring intra-corporate disputes be adjudicated in the state of incorporation might be valid, no court has adjudicated the validity of such a provision or a provision imposing a mandatory forum to adjudicate individual or statutory claims asserted by a stockholder. While the validity of the Forum Selection Provision may be an issue for another day to be raised by a Holdings stockholder, a reasonable MedQuist stockholder would want to know that no court has ruled on the validity of such a Forum Selection Provision and that they cannot be held to have consented to a provision that may be invalid. Furthermore, simply burying this disclosure on page 167 of the Prospectus cannot be deemed to constitute a knowing and voluntary relinquishment of a stockholder’s known right to assert claims in a forum other than the Delaware Court of Chancery.

See Exhibit 99(A)(9)2 to Schedule 14D-9 of Medquist, Inc. filed on Feb. 16, 2011, and available at http://www.sec.gov/Archives/edgar/data/884497/000095012311014597/w89691exv99waw9.htm. Contrary to the statement in paragraph 63, in Jan. 2011, prior to the date of the complaint, the Federal District Court for the Northern District of California, found a forum selection clause to be unenforceable in Galaviz. 79Meru Networks, Inc., Restated Certificate of Incorporation. Filed as Exhibit 3.1(B) to Amendment No. 4 to Registration Statement on Form S-1 filed on Mar. 12, 2010, and available at http://www.sec.gov/Archives/edgar/data/1167294/000119312510055582/dex31b.htm. While the Restated Certificate of Incorporation was adopted subsequent to the Revlon decision, a Form of Restated Certificate of Incorporation, including an exclusive forum selection clause, was filed prior to the decision. The Prospectus filed pursuant to Rule 4234(b)(4) contemplated that the IPO would close on Apr. 6, 2010.


-22-


Charter or Bylaw


MetroPCS Communications, Inc. (3/14/11)80

Bylaw No GOVERNING LAW; FORUM FOR ADJUDICATION OF DISPUTES

7. These Bylaws and the internal affairs of the Corporation shall be governed by and interpreted under the laws of the State of Delaware, excluding its conflict of laws principals. Unless the Corporation consents in writing to the selection of an alternative forum, the Court of Chancery of the State of Delaware shall be the sole and exclusive forum for (i) any derivative action or proceeding brought on behalf of the Corporation, (ii) any action asserting a claim of breach of a fiduciary duty owed by any director, officer or other employee of the Corporation to the Corporation or the Corporation’s stockholders, (iii) any action asserting a claim arising pursuant to any provision of the Delaware Corporation Law or the Corporation’s Certificate of Incorporation or Bylaws, or (iv) any other action asserting a claim arising under, in connection with, and governed by the internal affairs doctrine.

ModusLink Global Solutions, Inc. (3/2/11)81

Bylaw No ARTICLE XI. DELWARE FORUM

The Court of Chancery of the State of Delaware shall be the sole and exclusive forum for (i) any derivative action or proceeding brought on behalf of the Corporation, (ii) any action asserting a claim of breach of a fiduciary duty owed by any director or officer of the Corporation to the Corporation or the Corporation’s stockholders, (iii) any action asserting a claim against the Corporation arising pursuant to any provision of the Delaware General Corporation Law or the Corporation’s Certificate of Incorporation or Bylaws (as each may be amended from time to time), or (iv) any action asserting a claim against the Corporation governed by the internal affairs doctrine.

Navistar International Corporation (effective 12/14/10)82

Bylaw No ARTICLE XV.


Unless the Corporation consents in writing to the selection of an alternative forum, the Court of Chancery of the State of Delaware shall be the sole and exclusive forum for (i) any derivative action or proceeding brought on behalf of the Corporation, (ii) any action asserting a claim of breach of a fiduciary duty owed by any director, officer or other employee of the Corporation to the Corporation or the Corporation’s stockholders, (iii) any action asserting a claim arising pursuant to any provision of the Delaware General

80MetroPCS Communications, Inc., Fourth Amended and Restated Bylaws. Filed as Exhibit 3.1 to Current Report on Form 8-K filed on Mar. 18, 2011, and available at http://www.sec.gov/Archives/edgar/data/1283699/000119312511071292/dex31.htm. According to Item 5.03 of the Form 8-K, the forum selection bylaw was adopted concurrently with bylaw amendments addressing voting standards, shareholder review of the company’s stock ledger and certain administrative changes. 81ModusLink Global Solutions, Inc., Amended and Restated Bylaws, as of Mar. 2, 2011. Filed as Exhibit 3.1 to Current Report on Form 8-K filed on Mar. 4, 2011, and available at http://www.sec.gov/Archives/edgar/data/914712/000119312511056238/dex31.htm. According to Item 5.03 of the Form 8-K, the bylaws were amended for the sole purpose of adopting a forum selection provision. 82Navistar International Corporation, Amended and Restated Bylaws, effective Dec. 14, 2010. Filed as Exhibit 3.1 to Current Report on Form 8-K filed on Dec. 16, 2010, and available at http://www.sec.gov/Archives/edgar/data/808450/000119312510282563/dex31.htm. According to Item 5.03 of the Form 8-K, the bylaws were amended for the sole purpose of including the forum selection provision.


-23-


Charter or Bylaw


Corporation Law, or (iv) any action asserting a claim governed by the internal affairs doctrine. Any person or entity purchasing or otherwise acquiring any interest in shares of capital stock of the Corporation shall be deemed to have notice of and consented to the provisions of this Article XV.

NeoPhotonics Corporation (2/7/11)83

Charter Yes 5. FORUM

Unless the Corporation consents in writing to the selection of an alternative forum, the Court of Chancery of the State of Delaware shall be the sole and exclusive forum for (a) any derivative action or proceeding brought on behalf of the Corporation, (b) any action asserting a claim of breach of a fiduciary duty owed by any director, officer or other employee of the Corporation to the Corporation or the Corporation’s stockholders, (c) any action asserting a claim arising pursuant to any provision of the DGCL, or (d) any action asserting a claim governed by the internal affairs doctrine. Any person or entity purchasing or otherwise acquiring any interest in shares of capital stock of the Corporation shall be deemed to have notice of and consented to the provisions of this Article V, Section (B)5.

Netlist, Inc. (2006)84

Bylaw Yes 5.12 Delaware Forum. The corporation, its directors and officers shall be deemed to have consented to the personal jurisdiction of the state or federal courts located in the State of Delaware for purposes of resolving all controversies or claims among them. The Delaware Chancery Court shall be the sole forum and venue for any lawsuit or legal proceeding by the corporation against any of its directors or officers within the jurisdiction of that court. The state or federal courts located in the State of Delaware shall be the sole forum and venue for any lawsuit or legal proceeding by the corporation against any of its directors or officers not within the jurisdiction of the Delaware Chancery Court.

Netsuite, Inc. (5/21/07)85

Charter Yes 8. Delaware shall be the sole and exclusive forum for (i) any derivative action or proceeding brought on behalf of the Corporation, (ii) any action asserting a claim of breach of a fiduciary duty owed by any director, officer or other employee of the Corporation to the Corporation or the Corporation's stockholders, (iii) any action asserting a claim arising pursuant to any provision of the DGCL, (iv) or any action asserting a claim governed by the internal affairs doctrine.

83NeoPhotonics Corporation, Amended and Restated Certificate of Incorporation, dated Feb. 7, 2011. Filed as Exhibit 3.1 to Current Report on Form 8-K filed on Feb. 10, 2011, and available at http://www.sec.gov/Archives/edgar/data/1227025/000119312511030700/dex31.htm. 84Netlist, Inc., Amended and Restated Bylaws. Filed as Exhibit 3.2 to Amendment No. 2 to Registration Statement on Form S-1 filed on Oct. 23, 2006, and available at http://www.sec.gov/Archives/edgar/data/1282631/000104746906012991/a2173766zex-3_2.htm. See Grundfest at 7. Note that this forum selection clause provides for the state and federal courts in Delaware to be the forum for enumerated categories of actions if the Delaware Chancery Court does not have jurisdiction, and also stipulates that the corporation and its directors and officers are deemed to have consented to the personal jurisdiction of the state and federal courts in Delaware. 85Netsuite, Inc., Amended and Restated Certificate of Incorporation as of Dec. 21, 2007. Filed as Exhibit 3.1 to Current Report on Form 8-K filed on December 26, 2007, and available at http://www.sec.gov/Archives/edgar/data/1117106/000119312507271425/dex31.htm. The Netsuite, Inc. provision has served as the template for the current generation of provisions, although, as discussed in this Study, the prevailing model is continuing to evolve.


-24-


Charter or Bylaw


Nexcore Healthcare Capital Corporation (f/k/a CapTerra Financial Corporation)86

Charter No B. Unless the corporation consents in writing to the selection of an alternative forum, the Court of Chancery of the State of Delaware shall be the sole and exclusive forum for (i) any derivative action or proceeding brought on behalf of the corporation, (ii) any action asserting a claim of breach of a fiduciary duty owed by any director, officer or other employee of the corporation to the corporation or the corporation’s stockholders, (iii) any action asserting a claim arising pursuant to any provision of the DGCL, or (iv) any action asserting a claim governed by the internal affairs doctrine. Any person or entity purchasing or otherwise acquiring any interest in shares of capital stock of the corporation shall be deemed to have notice of and consented to the provisions of this Article VII, Paragraph B.

Oracle Corporation (7/10/06)87

Bylaw (limited to derivative actions)

No Section 9.07. Derivative Action. The sole and exclusive forum for any actual or purported derivative action brought on behalf of the Corporation shall be the Court of Chancery in the State of Delaware.

Pandora Media, Inc.88 Charter Yes ARTICLE IX

FORUM SELECTION

The Court of Chancery of the State of Delaware shall be the sole and exclusive forum for (i) any derivative action or proceeding brought on behalf of the Corporation, (ii) any action asserting a claim of breach of fiduciary duty owed by any director, officer or other employee of the Corporation to the Corporation or the Corporation’s stockholders, (iii) any action asserting a claim arising pursuant to any provision of the DGCL, or (iv) any action asserting a claim governed by the internal affairs doctrine. Any person or entity purchasing or otherwise acquiring any interest in shares of capital stock of the corporation shall be deemed to have notice of and consented to the provisions of this Article 9.

Primerica, Inc. (3/31/10)89

Charter Yes FOURTEENTH: Unless the Corporation (through approval of the Board of Directors) consents in writing to the selection of an alternative forum, the Court of Chancery of the State of Delaware shall be the sole and

86Nexcore Healthcare Capital Corporation, Form of Certificate of Incorporation. See Annex B to Definitive Information Statement filed on Mar. 7, 2011, and available at http://www.sec.gov/Archives/edgar/data/1233275/000082357911000043/def14c372011.htm. Capterra Financial Corporation is seeking to reincorporate from Colorado to Delaware, and has obtained sufficient written consents to effect the reincorporation. In connection with the reincorporation, the company proposed to adopt a certificate of incorporation that includes a Delaware forum selection provision. Upon reincorporation, the company will be renamed Nexcore Healthcare Capital Corporation. 87Oracle Corporation, Amended and Restated Bylaws as of Jul. 10, 2006. Filed as Exhibit 3.02 to Current Report on Form 8-K, filed on Jul. 14, 2006, and available at http://www.sec.gov/Archives/edgar/data/1341439/000119312506147003/dex302.htm. The exclusive forum provision was added in connection with what appears to have been an updating of the bylaws, and is limited to derivative actions. See “Enforceability Issues” section of this Study. 88Pandora Media, Inc., Form of Amended and Restated Certificate of Incorporation. Filed as Exhibit 3.1 to Amendment No. 2 to Registration Statement on Form S-1 filed on Apr. 4, 2011, and available at http://www.sec.gov/Archives/edgar/data/1230276/000119312511087171/dex31.htm.


-25-


Charter or Bylaw


exclusive forum for (i) any actual or purported derivative action or proceeding brought on behalf of the Corporation, (ii) any action asserting a claim of breach of a fiduciary duty owed by any director or officer of the Corporation to the Corporation or the Corporation’s stockholders, (iii) any action asserting a claim arising pursuant to any provision of the GCL, or (iv) any action asserting a claim governed by the internal affairs doctrine. Any person or entity purchasing or otherwise acquiring any interest in shares of capital stock of the Corporation shall be deemed to have notice of and to have consented to the provisions of this Article FOURTEENTH.

PURE Bioscience, Inc. (11/19/10 for Bylaw; 2/28/11 for Charter and Bylaw)90

Charter and Bylaw

No Except for (a) actions in which the Court of Chancery in the State of Delaware concludes that an indispensable party is not subject to the jurisdiction of the Delaware courts, and (b) actions in which a federal court has assumed exclusive jurisdiction of a proceeding, any derivative action brought by or on behalf of the Corporation, and any direct action brought by a stockholder against the Corporation or any of its directors or officers, alleging a violation of the Delaware General Corporation Law, the Corporation’s Certificate of Incorporation or Bylaws or breach of fiduciary duties or other violation of Delaware decisional law relating to the internal affairs of the Corporation, shall be brought in the Court of Chancery in the State of Delaware, which shall be the sole and exclusive forum for such proceedings; provided, however, that the Corporation may consent to an alternative forum for any such proceedings upon the approval of the Board of Directors of the Corporation.

89Primerica, Inc., Restated Certification of Incorporation, dated Mar. 31, 2010. Filed as Exhibit 3.1 to the Quarterly Report on Form 10-Q filed on May 17, 2010, and available at http://www.sec.gov/Archives/edgar/data/1475922/000119312510122169/dex31.htm. See also Exhibit 3.1 to Amendment No. 5 to Registration Statement on Form S-1 filed on Mar. 29, 2010, and available at http://www.sec.gov/Archives/edgar/data/1475922/000119312510069026/dex31.htm. 90PURE Bioscience, Inc. (Delaware), Certificate of Incorporation and Bylaws. Filed as Exhibits 3.1 and 3.2 to Current Report on Form 8-K filed on Mar. 25, 2011, and available at http://www.sec.gov/Archives/edgar/data/1006028/000107997311000213/ex3x1.htm and http://www.sec.gov/Archives/edgar/data/1006028/000107997311000213/ex3x2.htm , respectively. The company’s definitive proxy statement filed on Nov. 30, 2010, and available at http://www.sec.gov/Archives/edgar/data/1006028/000107997310001260/pure_def14a.htm, included a proposal to reincorporate from California to Delaware through the merger of PURE Resources, Inc., a California corporation, into its wholly-owned Delaware subsidiary. The charter and bylaws of the subsidiary became the charter and bylaws of the successor after the reincorporation was approved by the stockholders at the continuation of the company’s annual meeting on Feb. 10, 2011. The merger was consummated on Mar. 24, 2011. See Item 5.07 of Current Report on Form 8-K filed on Feb. 11, 2011 and Item 1.01 of the Current Report on Form 8-K filed on Mar. 25, 2011. The forum selection clauses in the charter and the bylaws are identical (with the provision appearing in Article 11 of the charter and Article 12 of the bylaws). In explaining the rationale for the forum selection provisions, the definitive proxy statement states as follows on page 16:

As stated above, the Board believes the Reincorporation is in the best interests of our shareholders in part because Delaware has adopted comprehensive and flexible corporate laws revised regularly to meet changing business circumstances. Delaware offers a system of specialized Chancery Courts to deal with corporate law questions, streamlined procedures and processes which help provide relatively quick decisions. These courts have developed considerable expertise in dealing with corporate law issues, as well as a substantial and influential body of case law construing Delaware’s corporate law. In contrast, California does not have a similar specialized court established to hear only corporate law cases. Rather, disputes involving questions of California corporate law are either heard by the California Superior Court, the general trial court in California that hears all manner of cases, or, if federal jurisdiction exists, a federal district court.


-26-


Charter or Bylaw


Roper Industries, Inc. (3/16/11)91

Bylaw No ARTICLE 12

Forum

SECTION 12.01. Forum. The Court of Chancery of the State of Delaware shall be the sole and exclusive forum for (i) any derivative action or proceeding brought on behalf of the corporation, (ii) any action asserting a claim of breach of fiduciary duty owed by any director, officer or other employee of the corporation to the corporation or the corporation’s stockholders, (iii) any action asserting a claim arising pursuant to any provision of the Delaware General Corporation Law, or (iv) any action asserting a claim governed by the internal affairs doctrine. Any person or entity purchasing or otherwise acquiring any interest in shares of capital stock of the corporation shall be deemed to have notice of and consented to the provisions of this Section 12.01.

RPX Corporation92 Charter Yes E. Unless the Corporation consents in writing to the selection of an alternative forum, the Court of Chancery in the State of Delaware shall be the sole and exclusive forum for (i) any derivative action or proceeding brought on behalf of the Corporation, (ii) any action asserting a claim of breach of fiduciary duty owed by any director, officer or other employee of the Corporation to the Corporation or the Corporation’s stockholders, (iii) any action asserting a claim arising pursuant to any provision of the Delaware General Corporation Law or the Corporation’s certificate of incorporation or bylaws or (iv) any action asserting a claim governed by the internal affairs doctrine.

Sagent Pharmaceuticals, Inc. (f/k/a Sagent Holding Co.)93

Charter Yes ARTICLE TEN The Court of Chancery of the State of Delaware shall be the sole and exclusive forum for (i) any derivative action or proceeding brought on behalf of the Corporation, (ii) any action asserting a claim of breach of a fiduciary duty owed by any director or officer of the Corporation to the Corporation or the Corporation’s stockholders, (iii) any action asserting a claim against the Corporation arising pursuant to any provision of the Delaware General Corporation Law or the Corporation’s Certificate of Incorporation or Bylaws or (iv) any action asserting a claim against the Corporation governed by the internal affairs doctrine.

91Roper Industries, Inc., Amended and Restated Bylaws as of Mar. 16, 2011. Filed as Exhibit 3.2 to Current Report on Form 8-K filed on Mar. 22, 2011, and available at http://www.sec.gov/Archives/edgar/data/882835/000095010311001070/dp21697_ex0302.htm. According to Item 5.03 of the Form 8-K, concurrently with adopting a forum selection bylaw, the board adopted bylaws relating to matters including majority voting in director elections, director and officer indemnification and the quorum for meetings of the directors. 92RPX Corporation, Form of Amended and Restated Certificate of Incorporation to be effective upon closing. Filed as Exhibit 3.2 to Registration Statement on Form S-1 filed on Jan. 21, 2011, and available at http://www.sec.gov/Archives/edgar/data/1509432/000119312511012087/dex32.htm. 93Sagent Pharamceuticals, Inc., Form of Certificate of Incorporation. Filed as Exhibit 3.3 to Amendment No. 3 to Registration Statement on Form S-1 filed on Apr. 5, 2011, and available at http://www.sec.gov/Archives/edgar/data/1369786/000119312511089495/dex33.htm. In connection with its IPO, the company, which is currently organized in the Cayman Islands, is: (a) reorganizing as a Delaware corporation by deregistering as a Cayman Islands corporation and registering by way of continuation in Delaware, and (b) changing its name form Sagent Holding Co. to Sagent Pharmaceuticals, Inc.


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Charter or Bylaw


SemiLEDs Corporation (12/10)94

Bylaw Yes 8.11 FORUM SELECTION.

The Court of Chancery of the State of Delaware shall be the sole and exclusive forum for (i) any derivative action or proceeding brought on behalf of the Corporation against directors or officers of the Corporation alleging breaches of fiduciary duty or other wrongdoing by such directors or officers, (ii) any action asserting a claim for breach of a fiduciary duty owed by any director or officer of the Corporation to the Corporation or the Corporation’s stockholders, (iii) any action asserting a claim against the Corporation arising pursuant to any provision of the General Corporation Law of the State of Delaware or the Restated Certificate of Incorporation or these Bylaws, (iv) any action to interpret, apply, enforce, or determine the validity of the Restated Certificate of Incorporation or these Bylaws, or (v) any action asserting a claim against the Corporation governed by the internal affairs doctrine.

The Spectranetics Corporation (3/8/11)95


The Court of Chancery of the State of Delaware shall be the sole and exclusive forum for (a) any derivative action or proceeding brought on behalf of the Corporation, (b) any action asserting a claim of breach of a fiduciary duty owed by any director or officer of the Corporation to the Corporation or the Corporation's stockholders, (c) any action asserting a claim against the Corporation arising pursuant to any provision of the DGCL or the Corporation's certificate of incorporation or bylaws, or (d) any action asserting a claim against the Corporation governed by the internal affairs doctrine.

Spirit Airlines, Inc.96 Charter Yes ARTICLE X

EXCLUSIVE FORUM

The Court of Chancery of the State of Delaware shall be the sole and exclusive forum for (i) any derivative action or proceeding brought on behalf of the Corporation, (ii) any action asserting a claim of breach of a fiduciary duty owed by any director or officer of the Corporation to the Corporation or the Corporation’s stockholders, (iii) any action asserting a claim against the Corporation arising pursuant to any provision of the DGCL or this Certificate of Incorporation or the Bylaws of the Corporation, or (iv) any action asserting a claim against the Corporation governed by the internal affairs doctrine.

94SemiLEDs Corporation, Amended and Restated Bylaws. Filed as Exhibit 3.2(b) to Amendment No. 8 to Registration Statement on Form S-1 filed on Nov. 22, 2010, and available at http://www.sec.gov/Archives/edgar/data/1333822/000104746910009975/a2201141zex-3_2b.htm. Although the company added the forum selection provision in connection with its IPO, it is one of the few IPO companies to include the provision in its bylaws, rather than its charter. 95The Spectranetics Corporation, Amended and Restated Bylaws as of Mar. 8, 2011. Filed as Exhibit 3.2 to Current Report on Form 8-K filed on Mar. 14, 2011, and available at http://www.sec.gov/Archives/edgar/data/789132/000078913211000008/ex32amendedbylaws.htm. According to Item 5.03 of the Form 8-K, the forum selection bylaw was adopted in connection with a comprehensive series of bylaw amendments which included changes to provisions addressing advance notice, shareholder action by written consent and indemnification. 96Spirit Airlines, Inc., Form of Amended and Restated Certificate of Incorporation. See Exhibit 3.1 to Amendment No. 4 to Registration Statement on Form S-1 filed on Feb. 28, 2011, and available at http://www.sec.gov/Archives/edgar/data/1498710/000119312511049608/dex31.htm.


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Charter or Bylaw


Standard Pacific Corp. (1991)97

Bylaw Yes Section 8.5 Jurisdiction for Stockholders Suits. Any action brought by any stockholder against the Corporation or against any officer, director, employee, agent or advisor of the Corporation, including without limitation any such action brought on behalf of the Corporation, shall be brought solely in a court of competent jurisdiction located in the State of Delaware.

Superior Energy Services, Inc. (2/23/11)98

Bylaw No 7.8 Forum Selection. Unless the Board of Directors consents in writing to the selection of an alternative forum, the Court of Chancery of the State of Delaware shall be the sole and exclusive forum for (a) any derivative action or proceeding brought on behalf of the Corporation, (b) any action asserting a claim of breach of a fiduciary duty owed by any director, officer, employee or agent of the Corporation to the Corporation or the Corporation’s stockholders, (c) any action asserting a claim arising pursuant to any provision of the General Corporation Law of the State of Delaware, or (d) any action asserting a claim governed by the internal affairs doctrine, in each such case subject to said Court of Chancery having personal jurisdiction over the indispensable parties named as defendants therein. Any person or entity purchasing or otherwise acquiring any interest in shares of capital stock of the Corporation shall be deemed to have notice of and consented to the provisions of this Section 7.8.

Swift Transportation Company (12/10)99

Charter Yes THIRTEENTH: Unless the Corporation otherwise consents to an alternative forum in writing, the Court of Chancery of the State of Delaware shall be the sole and exclusive forum for (i) any derivative action or proceeding brought on behalf of the Corporation, (ii) any action asserting a claim of breach of a fiduciary duty owed by any director or officer of the Corporation to the Corporation or the Corporation’s stockholders, (iii) any action asserting a claim against the Corporation arising pursuant to any provision of the DGCL or the Corporation’s Certificate of Incorporation or By-Laws or (iv) any action asserting a claim against the Corporation governed by the internal affairs doctrine. Any person or entity purchasing or otherwise acquiring any interest in shares of capital stock of the Corporation shall be deemed to have notice of and consented to the provisions of this Article THIRTEENTH.

TMS International Corp. (4/5/11)100

Charter Yes ARTICLE IX.

The Court of Chancery of the State of Delaware shall be the sole and exclusive forum for (i) any derivative

97Standard Pacific Corp, Bylaws. Filed as Annex D to Amendment No. 2 to Registration Statement on Form S-4 filed on Oct. 4, 1991. The forum selection clause adopted by the company is identical to those adopted by CKE Restaurants, Inc. and Kennedy-Wilson, Inc. 98Superior Energy Services, Inc., Amended and Restated Bylaws, as of Feb. 23, 2011. Filed as Exhibit 3.1 to Current Report on Form 8-K filed on Feb. 25, 2011, and available at http://www.sec.gov/Archives/edgar/data/886835/000095012311018313/h79938exv3w1.htm. According to Item 5.03 of the Form 8-K, the forum selection bylaw was adopted in connection with a general corporate governance review and related updating of bylaws concerning advance notice, elected and appointed officers and record dates. 99Swift Transportation Company, Amended and Restated Certificate of Incorporation. Filed as Exhibit 3.1 to Annual Report on Form 10-K filed on Mar. 29, 2011, and available at http://www.sec.gov/Archives/edgar/data/1492691/000095012311030355/c14360exv3w1.htm. 100TMS International Corp, Second Amended and Restated Certificate of Incorporation, dated as of Apr. 5, 2011. Filed as Exhibit 3.1 to Amendment No. 7 to Registration Statement on Form S-1, filed on Apr. 5, 2011, and available at http://www.sec.gov/Archives/edgar/data/1491501/000119312511089651/dex31.htm.


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Charter or Bylaw


action or proceeding brought on behalf of the Corporation, (ii) any action asserting a claim of breach of a fiduciary duty owed by any director or officer of the Corporation to the Corporation or the Corporation’s stockholders, (iii) any action asserting a claim against the Corporation arising pursuant to any provision of the DGCL or the Corporation’s Certificate of Incorporation or bylaws, or (iv) any action asserting a claim against the Corporation governed by the internal affairs doctrine.

United Rentals, Inc. (12/20/10)101

Bylaw No SECTION 5.05. Forum for Adjudication of Disputes. Unless the Corporation consents in writing to the selection of an alternative forum, the Court of Chancery of the State of Delaware shall be the sole and exclusive forum for (i) any derivative action or proceeding brought on behalf of the Corporation, (ii) any action asserting a claim of breach of a fiduciary duty owed by any director, officer, employee or agent of the Corporation to the Corporation or the Corporation’s stockholders, (iii) any action asserting a claim relating to the Corporation arising pursuant to any provision of the Delaware General Corporation Law or the Corporation’s certificate of incorporation or these By-laws or (iv) any action asserting a claim relating to the Corporation governed by the internal affairs doctrine.

USA Truck, Inc.102 Bylaw No Section 5. Forum for Adjudication of Disputes. Unless the Corporation consents in writing to the selection of an alternative forum, the Court of Chancery of the State of Delaware shall be the sole and exclusive forum for (a) any derivative action or proceeding brought on behalf of the Corporation, (b) any action asserting a claim of breach of a fiduciary duty owed by any director, officer, or other employee of the Corporation to the Corporation or the Corporation’s stockholders, (c) any action asserting a claim arising pursuant to any provision of the Delaware General Corporation Law or the Corporation’s Certificate of Incorporation or Bylaws, or (d) any other action asserting a claim governed by the internal affairs doctrine.

U.S. Concrete, Inc. (8/31/10) 103

Charter No Tenth: The Court of Chancery of the State of Delaware shall be the sole and exclusive forum for (i) any derivative action or proceeding brought on behalf of the Corporation, (ii) any action asserting a claim of

101United Rentals, Inc., Bylaws as amended as of Dec. 20, 2010. Filed as Exhibit 3.1 to Current Report on Form 8-K filed on Dec. 23, 2010, and available at http://www.sec.gov/Archives/edgar/data/1047166/000095012310116333/c09660exv3w1.htm. According to Item 5.03 of the Form 8-K, the bylaws were amended for the sole purpose of including the forum selection provision. 102USA Truck, Inc., Form of Amended Bylaws. See Annexes A and B to definitive proxy statement filed on Apr. 6, 2011, and available at http://www.sec.gov/Archives/edgar/data/883945/000100888611000045/def14a.htm. According to the definitive proxy statement, the company is seeking shareholder approval of certain bylaw amendments which require shareholder approval, and the board plans to adopt other bylaw amendments, which do not require shareholder approval, following the annual meeting. The forum selection bylaw is included in the latter category. The forum selection amendment is described as follows on page 15 of the definitive proxy statement:

Inserting a forum clause stating that the proper forum for "internal" corporate disputes shall be in Delaware, the Company's state of incorporation and where the Company believes that the corporate law is the most developed, which may have the effect of cutting down on legal uncertainties and additional costs of litigation resulting from such uncertainties.

Given that the shareholders will be voting on bylaw amendments, one can question why the forum selection clause was not included in the amendments to be voted on, since shareholder ratification would make a challenge to the forum selection provision more difficult. The definitive proxy statement does put shareholders on notice of the intended forum selection provision prior to board action.


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Charter or Bylaw


breach of a fiduciary duty owed by any director or officer of the Corporation to the Corporation or the Corporation’s stockholders, (iii) any action asserting a claim against the Corporation arising pursuant to any provision of the DGCL or the Certificate of Incorporation or Bylaws or (iv) any action asserting a claim against the Corporation governed by the internal affairs doctrine.

Varian Medical Systems, Inc. (11/12/10)104

Bylaw No Section 72. Forum Selection. The Court of Chancery of the State of Delaware shall be the sole and exclusive forum for (i) any derivative action or proceeding brought on behalf of the Corporation against directors or officers of the Corporation alleging breaches of fiduciary duty or other wrongdoing by such directors or officers, (ii) any action asserting a claim for breach of a fiduciary duty owed by any director or officer of the Corporation to the Corporation or the Corporation’s stockholders, (iii) any action asserting a claim against the Corporation arising pursuant to any provision of the General Corporation Law of the State of Delaware or the Restated Certificate of Incorporation or these By-Laws, (iv) any action to interpret, apply, enforce, or determine the validity of the Restated Certificate of Incorporation or these By-Laws, or (v) any action asserting a claim against the Corporation governed by the internal affairs doctrine.

VMware, Inc. (3/2/11)105

Bylaw No Section 6.10 Establishing Forum for Certain Actions. Except for (a) actions in which the Court of Chancery in the State of Delaware concludes that an indispensable party is not subject to the jurisdiction of the Delaware courts, and (b) actions in which a federal court has assumed exclusive jurisdiction of a proceeding, any derivative action brought by or on behalf of the Corporation, and any direct action brought by a stockholder against the Corporation or any of its directors or officers, alleging a violation of the Delaware General Corporation Law, the Corporation’s Certificate of Incorporation or Bylaws or breach of fiduciary duties or other violation of Delaware decisional law relating to the internal affairs of the Corporation, shall be brought in the Court of Chancery in the State of Delaware, which shall be the sole and exclusive forum for such proceedings; provided, however, that the Corporation may consent to an alternative forum for any such proceedings upon the approval of the Board of Directors of the Corporation.

103U.S. Concrete, Inc., Amended and Restated Certificate of Incorporation. Filed as Exhibit 1 to Amendment No. 1 to Form 8-A, available at http://www.sec.gov/Archives/edgar/data/1073429/000114420410047589/v195569_8-a12ga.htm. The Company amended its charter to include an exclusive forum provision in connection with its emergence from bankruptcy protection. 104Varian Medical Systems, Inc., Bylaws, as amended as of Nov. 12, 2010. Filed as Exhibit 3.2 to Current Report on Form 8-K/A filed on Nov. 17, 2010, and available at http://www.sec.gov/Archives/edgar/data/203527/000114420410061583/v203066_ex3-2.htm. According to Item 5.03 of the Current Report on Form 8-K filed on Nov. 16, 2010, the forum selection bylaw was adopted in connection with a comprehensive amendment and restatement of the bylaws. 105VMware, Inc., Bylaws as amended on Mar. 2, 2011. Filed as Exhibit 3.1 to Current Report on Form 8-K filed on Mar. 8, 2011, and available at http://www.sec.gov/Archives/edgar/data/1124610/000119312511059334/dex31.htm. According to Item 5.03 of the Form 8-K, the forum selection bylaw was adopted in connection with a general updating of the bylaws.


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Charter or Bylaw


Williams-Sonoma, Inc.106 Charter No ARTICLE XIV

Unless the Corporation consents in writing to the selection of an alternative forum, the Court of Chancery of the State of Delaware shall be the sole and exclusive forum for (A) any derivative action or proceeding brought on behalf of the Corporation, (B) any action or proceeding asserting a claim of breach of a fiduciary duty owed by any director or officer of the Corporation to the Corporation or the Corporation’s stockholders, (C) any action or proceeding asserting a claim against the Corporation arising pursuant to any provision of the DGCL or the Corporation’s Certificate of Incorporation or Bylaws, or (D) any action or proceeding asserting a claim against the Corporation governed by the internal affairs doctrine.

Zebra Technologies Corporation (2/11/11)107

Bylaw No ARTICLE X

Forum

Unless the corporation consents in writing to the selection of an alternative forum, the Court of Chancery of the State of Delaware shall be the sole and exclusive forum for (i) any derivative action or proceeding brought on behalf of the corporation, (ii) any action asserting a claim of breach of a fiduciary duty owed by any director, officer, other employee or agent of the corporation to the corporation or the corporation’s stockholders, (iii) any action asserting a claim arising pursuant to any provision of the Delaware General Corporation Law, the corporation’s certificate of incorporation, as amended and restated from time to time, and the corporation’s bylaws, or (iv) any action asserting a claim governed by the internal affairs doctrine, in each such case subject to said Court of Chancery having personal jurisdiction over the indispensable parties named as defendants therein. Any person or entity purchasing or otherwise acquiring any interest

106Williams-Sonoma, Inc., Form of Amended and Restated Certificate of Incorporation. See Exhibit B to preliminary proxy statement filed on Mar. 15, 2011, and available at http://www.sec.gov/Archives/edgar/data/719955/000119312511067318/dpre14a.htm. The company, which is currently incorporated in California, is proposing to adopt a forum selection charter provision in connection with its proposed reincorporation in Delaware. According to page 19 of the preliminary proxy statement:

Highly Developed and Predictable Corporate Law. Delaware has adopted comprehensive and flexible corporate laws that are revised regularly to meet changing business circumstances. The Delaware legislature is particularly sensitive to issues regarding corporate law and is especially responsive to developments in modern corporate law. In addition, Delaware offers a system of specialized Chancery Courts to deal with corporate law questions, which have streamlined procedures and processes that help provide relatively quick decisions. These courts have developed considerable expertise in dealing with corporate issues, as well as a substantial and influential body of case law construing Delaware’s corporate law. In contrast, California does not have a similar specialized court established to hear only corporate law cases. Instead, disputes involving questions of California corporate law are either heard by the California Superior Court, the general trial court in California that hears all manner of cases, or, if federal jurisdiction exists, a federal district court. This lack of specialized courts in California has been known to result in lengthy delays in resolving cases and to produce outcomes that are inconsistent from court to court. In addition, the Delaware Secretary of State is particularly flexible, highly experienced and responsive in its administration of the filings required for mergers, acquisitions and other corporate transactions.

107Zebra Technologies Corporation, Amended and Restated Bylaws, dated Feb. 11, 2011. Filed as Exhibit 3.1 to Current Report on Form 8-K filed on Feb. 15, 2011, and available at http://www.sec.gov/Archives/edgar/data/877212/000119312511037777/dex3ii.htm. According to Item 5.03 of the Form 8-K, the forum selection bylaw was adopted in connection with a more comprehensive updating of the bylaws to address, among other things, issues associated with matters to be brought before the shareholders.


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Charter or Bylaw


in shares of capital stock of the corporation shall be deemed to have notice of and consented to the provisions of this Article X.


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APPENDIX A Exclusive Delaware Forum Provisions – LLCs and LPs



American Pacific Investcorp LP108 Yes According to page 48 of Amendment No. 1 to the Registration Statement on Form S-1 filed on 8/24/10:

Our partnership agreement is governed by Delaware law. Our partnership agreement requires that any claims, suits, actions or proceedings:

• arising out of or relating in any way to the partnership agreement (including any claims, suits or actions to interpret, apply or enforce the provisions of the partnership agreement or the duties, obligations or liabilities among limited partners or of limited partners to us, or the rights or powers of, or restrictions on, the limited partners or us,

• brought in a derivative manner on our behalf; and

• asserting a claim arising pursuant to any provision of the Delaware Act, shall be exclusively brought in the Court of Chancery of the State of Delaware, regardless of whether such claims, suits, actions or proceedings sound in contract, tort, fraud or otherwise, are based on common law, statutory, equitable, legal or other grounds, or are derivative or direct claims.

By purchasing additional common units, a limited partner is irrevocably consenting to these limitations and provisions regarding claims, suits, actions or proceedings and submitting to the exclusive jurisdiction of the Court of Chancery of the State of Delaware in connection with any such claims, suits, actions or proceedings.

Chesapeake Midstream Partners, L.P. (as of 8/3/10)109

Yes Section 16.9 Applicable Law; Forum, Venue and Jurisdiction. . . .

(b) Each of the Partners and each Person holding any beneficial interest in the Partnership (whether through a broker, dealer, bank, trust company or clearing corporation or an agent of any of the foregoing or otherwise):

(i) irrevocably agrees that any claims, suits, actions or proceedings (A) arising out of or relating in any way to this Agreement (including any claims, suits or actions to interpret, apply or enforce the provisions of this Agreement or the duties, obligations or liabilities among Partners or of Partners to the Partnership, or the rights or powers of, or restrictions on, the Partners or the Partnership), (B) brought in a derivative manner on behalf of the Partnership, (C) asserting a claim of breach of a fiduciary duty owed by any director, officer, or other employee of the Partnership or the General Partner, or owed by the General

108American Pacific Investcorp LP, Form of Partnership Agreement. See Amendment No. 1 to Registration Statement on Form S-1 filed on Aug. 24, 2010, and available at http://www.sec.gov/Archives/edgar/data/1498482/000114420410046424/v194121_s-1a.htm. Most of the provisions in this Appendix A provide that a limited partner (or its equivalent) agrees not to assert that actions covered by a forum selection clause have been brought in an inconvenient forum. 109Chesapeake Midstream Partners, L.P., First Amended and Restated Agreement of Limited Partnership, dated as of Aug. 3, 2010. Filed as Exhibit 3.1 to Current Report on Form 8-K filed on Aug. 5, 2010, and available at http://www.sec.gov/Archives/edgar/data/1483096/000119312510179550/dex31.htm.


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Partner, to the Partnership or the Partners, (D) asserting a claim arising pursuant to any provision of the Delaware Act or (E) asserting a claim governed by the internal affairs doctrine shall be exclusively brought in the Court of Chancery of the State of Delaware, in each case regardless of whether such claims, suits, actions or proceedings sound in contract, tort, fraud or otherwise, are based on common law, statutory, equitable, legal or other grounds, or are derivative or direct claims; . . . .

Compressco Partners, L.P.110 Yes According to page 140 of Amendment No. 2 to Registration Statement on Form S-1 filed on 2/9/11:


• arising out of or relating in any way to the partnership agreement (including any claims, suits or actions to interpret, apply or enforce the provisions of the partnership agreement or the duties, obligations or liabilities among limited partners or of limited partners to us, or the rights or powers of, or restrictions on, the limited partners or us);

• brought in a derivative manner on our behalf;

• asserting a claim of breach of a fiduciary duty owed by any director, officer or other employee of us or our general partner, or owed by our general partner, to us or the limited partners;

• asserting a claim arising pursuant to any provision of the Delaware Act; and

• asserting a claim governed by the internal affairs doctrine;


CVR Partners, LP111 Yes Section 16.8 Applicable Law; Forum, Venue and Jurisdiction.

(a) This Agreement shall be construed in accordance with and governed by the laws of the State of Delaware, without regard to the principles of conflicts of law.


110Compressco Partners, L.P., Form of Amended and Restated Agreement of Limited Partnership. See Amendment No. 2 to Registration Statement on Form S-1 filed on Feb. 9, 2011, and available at http://www.sec.gov/Archives/edgar/data/1449488/000095012311011201/h75396a2sv1za.htm. 111CVR Partners, LP, Form of Second Amended and Restated Agreement of Limited Partnership. See Appendix A to Amendment No. 4 to Registration Statement on Form S-1 filed on Mar. 31, 2011, and available at http://www.sec.gov/Archives/edgar/data/1425292/000095012311031362/y88230a4sv1za.htm.


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(i) irrevocably agrees that any claims, suits, actions or proceedings (A) arising out of or relating in any way to this Agreement (including any claims, suits or actions to interpret, apply or enforce the provisions of this Agreement or the duties, obligations or liabilities among Partners or of Partners to the Partnership, or the rights or powers of, or restrictions on, the Partners or the Partnership), (B) brought in a derivative manner on behalf of the Partnership, (C) asserting a claim of breach of a fiduciary duty owed by any director, officer, or other employee of the Partnership or the General Partner, or owed by the General Partner, to the Partnership or the Partners, (D) asserting a claim arising pursuant to any provision of the Delaware Act or (E) asserting a claim governed by the internal affairs doctrine shall be exclusively brought in the Court of Chancery of the State of Delaware, in each case regardless of whether such claims, suits, actions or proceedings sound in contract, tort, fraud or otherwise, are based on common law, statutory, equitable, legal or other grounds, or are derivative or direct claims; . . .

KKR & Co. L.P. (as of 7/14/10)112

Yes SECTION 16.9. Exclusive Jurisdiction.

Each of the Limited Partners and the Managing Partner and each Person holding any beneficial interest in the Partnership (whether through a broker, dealer, bank, trust company or clearing corporation or an agent of any of the foregoing or otherwise), to the fullest extent permitted by law, (i) irrevocably agrees that any claims, suits, actions or proceedings arising out of or relating in any way to this Agreement (including any claims, suits or actions to interpret, apply or enforce (A) the provisions of this Agreement, (B) the duties, obligations or liabilities of the Partnership to the Limited Partners or the Managing Partner, or of Limited Partners or the Managing Partner to the Partnership, or among Partners, (C) the rights or powers of, or restrictions on, the Partnership, the Limited Partners or the Managing Partner, (D) any provision of the Delaware Limited Partnership Act, or (E) any other instrument, document, agreement or certificate contemplated by any provision of the Delaware Limited Partnership Act relating to the Partnership (regardless of whether such claims, suits, actions or proceedings (x) sound in contract, tort, fraud or otherwise, (y) are based on common law, statutory, equitable, legal or other grounds, or (z) are derivative or direct claims)), shall be exclusively brought in the Court of Chancery of the State of Delaware or, if such court does not have subject matter jurisdiction thereof, any other court in the State of Delaware with subject matter jurisdiction; . . . .

112KKR & Co. L.P., Amended and Restated Agreement of Limited Partnership, dated as of Jul. 14, 2010. Filed as Exhibit 3.1 to Current Report on Form 8-K filed on Jul. 20, 2010, and available at http://www.sec.gov/Archives/edgar/data/1404912/000110465910038689/a10-14121_1ex3d1.htm. This provision provides for jurisdiction in “any other court in the State Delaware” with subject matter jurisdiction, if the Court of Chancery does not have subject matter jurisdiction.


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Magnachip Semiconductor LLC (2/12/10)113

Yes 13.8 Consent to Exclusive Jurisdiction. Each of the parties hereto agrees that any legal action or proceeding with respect to this Agreement or any agreement, certificate or other instrument entered into in contemplation of the transactions contemplated by this Agreement, or any matters arising out of or in connection with this Agreement or such other agreement, certificate or instrument, and any action for the enforcement of any judgment in respect thereof, shall be brought exclusively in the Delaware Court of Chancery of New Castle County, Delaware or the courts of the United States of America for the District of Delaware, unless the parties to any such action or dispute mutually agree to waive this provision. . . .

NGL Partners LP114 Yes According to page 143 of the Registration Statement on Form S-1 filed on 3/22/11:


arising out of or relating in any way to the partnership agreement (including any claims, suits or actions to interpret, apply or enforce the provisions of the partnership agreement or the duties, obligations or liabilities among limited partners or of limited partners, or the rights or powers of, or restrictions on, the limited partners or us);

brought in a derivative manner on our behalf;

asserting a claim of breach of a fiduciary duty owed by any director, officer, or other employee of us or our general partner, or owed by our general partner, to us or the limited partners;

asserting a claim arising pursuant to any provision of the Delaware LP Act; and

asserting a claim governed by the internal affairs doctrine shall be exclusively brought in the Court of Chancery of the State of Delaware, in each case regardless of whether such claims, suits, actions or proceedings sound in contract, tort, fraud or otherwise, are based on common law, statutory, equitable, legal or other grounds, or are derivative or direct claims.

By purchasing a common unit, a limited partner is irrevocably consenting to these

113Magnachip Semiconductor LLC, Fifth Amended and Restated Limited Liability Company Operating Agreement, dated as of Feb. 12, 2010. Filed as Exhibit 3 to Registration Statement on Form S-1 filed on Mar. 15, 2010, and available at http://www.sec.gov/Archives/edgar/data/1325702/000095012310024348/f54652orexv3w3.htm. Note that this provision provides for actions to be brought either in the Court of Chancery of the federal court for the District of Delaware, and does not specifically address the categories of actions which are covered by the current generation of forum selection provisions. The company converted into a corporation, Magnachip Semiconductor Corporation, on Mar. 10, 2011, and then went public. See Current Report on Form 8-K filed on Mar. 11, 2011, and available at http://www.sec.gov/Archives/edgar/data/1325702/000119312511062703/d8k.htm. The public corporation did not include a forum selection clause in its charter or bylaws. 114NGL Partners LP, Form of Partnership Agreement. See Amendment No. 1 to Registration Statement on Form S-1 filed on Mar. 22, 2011, and available at http://www.sec.gov/Archives/edgar/data/1504461/000104746911002489/a2202734zs-1a.htm#eg15201_applicable_law;_forum,_venue_and_jurisdiction.


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limitations and provisions regarding claims, suits, actions or proceedings and submitting to the exclusive jurisdiction of the Court of Chancery of the State of Delaware in connection with any such claims, suits, actions or proceedings.

Niska Gas Storage Partners LLC (5/17/10)115


(b) Each of the Members and each Person holding any beneficial interest in the Company (whether through a broker, dealer, bank, trust company or clearing corporation or an agent of any of the foregoing or otherwise):

(i) irrevocably agrees that any claims, suits, actions or proceedings (A) arising out of or relating in any way to this Agreement (including any claims, suits or actions to interpret, apply or enforce the provisions of this Agreement or the duties, obligations or liabilities among Members or of Members to the Company, or the rights or powers of, or restrictions on, the Members or the Company), (B) brought in a derivative manner on behalf of the Company, (C) asserting a claim of breach of a fiduciary duty owed by any director, officer, or other employee of the Company or the Manager, or owed by the Manager, to the Company or the Members, (D) asserting a claim arising pursuant to any provision of the Delaware Act or (E) asserting a claim governed by the internal affairs doctrine shall be exclusively brought in the Court of Chancery of the State of Delaware, in each case regardless of whether such claims, suits, actions or proceedings sound in contract, tort, fraud or otherwise, are based on common law, statutory, equitable, legal or other grounds, or are derivative or direct claims; . . . .

Oiltanking Partners, L.P.116 Yes According to page 135 of the registration statement on Form S-1 filed on 3/31/11:


• arising out of or relating in any way to the partnership agreement (including any claims, suits or actions to interpret, apply or enforce the provisions of the partnership agreement or the duties, obligations or liabilities among limited partners or of limited partners to us, or the rights or powers of, or restrictions on, the limited partners or us);

• brought in a derivative manner on our behalf;

• asserting a claim of breach of a fiduciary duty owed by any director, officer or other employee of us or our general partner, or owed by our general partner, to us or the limited partners;

• asserting a claim arising pursuant to any provision of the Delaware Act; and

• asserting a claim governed by the internal affairs doctrine

115Niska Gas Storage Partners LLC, First Amended and Restated Operating Agreement, dated as of May 17, 2010. Filed as Exhibit 3.1 to Current Report on Form 8-K filed on May 19, 2010, and available at http://www.sec.gov/Archives/edgar/data/1483830/000110465910029510/a10-3815_31ex3d1.htm. 116Oiltanking Partners, L.P. Form of Limited Partnership Agreement. See page 135 of Registration Statement on Form S-1 filed on Mar. 31, 2011, and available at http://www.sec.gov/Archives/edgar/data/1516007/000095012311031256/h80840sv1.htm#H80840209.


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Oxford Resource Partners LP (7/19/10)117


(b) To the fullest extent permitted by law, each of the Partners and each Person holding any beneficial interest in the Partnership (whether through a broker, dealer, bank, trust company or clearing corporation or an agent of any of the foregoing or otherwise):

(i) irrevocably agrees that any claims, suits, actions or proceedings (A) arising out of or relating in any way to this Agreement (including any claims, suits or actions to interpret, apply or enforce the provisions of this Agreement or the duties, obligations or liabilities among Partners or of Partners to the Partnership, or the rights or powers of, or restrictions on, the Partners or the Partnership), (B) brought in a derivative manner on behalf of the Partnership, (C) asserting a claim of breach of a fiduciary duty owed by any director, officer, or other employee of the Partnership or the General Partner, or owed by the General Partner, to the Partnership or the Partners, (D) asserting a claim arising pursuant to any provision of the Delaware Act or (E) asserting a claim governed by the internal affairs doctrine shall be exclusively brought in the Court of Chancery of the State of Delaware, in each case regardless of whether such claims, suits, actions or proceedings sound in contract, tort, fraud or otherwise, are based on common law, statutory, equitable, legal or other grounds, or are derivative or direct claims; . . . .

Pioneer Southwest Energy Partners L.P. (5/6/08)118


(b) Each of the Partners, each Assignee and each Person holding any beneficial interest in the Partnership (whether through a broker, dealer, bank, trust company or clearing corporation or an agent of any of the foregoing or otherwise) (i) irrevocably agrees that any claims, suits, actions or proceedings arising out of or relating in any way to this Agreement (including any claims, suits or actions to interpret, apply or enforce the provisions of this Agreement or the duties, obligations or liabilities among Partners or Assignees or of Partners or Assignees to the Partnership, or the rights or powers of, or restrictions on, the Partners, Assignees or the Partnership (regardless of whether such claims, suits, actions or proceedings (A) sound in contract, tort, fraud or otherwise, (B) are based on common law, statutory, equitable, legal or other grounds, or (C) are derivative or direct claims)), shall be exclusively brought in the Court of Chancery of the State of Delaware, . . . .

117Oxford Resource Partners LP, Third Amended and Restated Agreement of Limited Partnership, dated Jul. 19, 2010. Filed as Exhibit 3.1 to Current Report on Form 8-K filed on Jul. 19, 2010, and available at http://www.sec.gov/Archives/edgar/data/1412347/000095012310066184/h74409exv3w1.htm. 118Pioneer Southwest Energy Partners L.P., First Amended and Restated Agreement of Limited Partnership, dated May 6, 2008. Filed as Exhibit 3.1 to Current Report on Form 8-K filed on May 9, 2008, and available at http://www.sec.gov/Archives/edgar/data/1407463/000095013408009091/d56641exv3w1.htm.


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QR Energy LP (12/22/10)119




Rhino Resource Partners LP (as of 10/5/10)120




119QR Energy LP, First Amended and Restated Agreement of Limited Partnership, dated Dec. 22, 2010. Filed as Exhibit 3.1 to Current Report on Form 8-K filed on Dec. 22, 2010, and available athttp://www.sec.gov/Archives/edgar/data/1502012/000095012310115856/h78507exv3w1.htm. 120Rhino Resource Partners LP, First Amended and Restated Agreement of Limited Partnership, dated as of Oct. 5, 2010. Filed as Exhibit 3.1 to Current Report on Form 8-K filed on Oct. 8, 2010, and available at http://www.sec.gov/Archives/edgar/data/1490630/000110465910051856/a10-19067_1ex3d1.htm.


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Tesoro Logistics LP121 Yes Section 16.9 Applicable Law. . . .


(i) irrevocably agrees that any claims, suits, actions or proceedings (A) arising out of or relating in any way to this Agreement (including any claims, suits or actions to interpret, apply or enforce the provisions of this Agreement or the duties, obligations or liabilities among Partners or of Partners to the Partnership, or the rights or powers of, or restrictions on, the Partners or the Partnership), (B) brought in a derivative manner on behalf of the Partnership, (C) asserting a claim of breach of a fiduciary duty owed by any director, officer, or other employee of the Partnership or the General Partner, or owed by the General Partner, to the Partnership or the Partners, (D) asserting a claim arising pursuant to any provision of the Delaware Act or (E) asserting a claim governed by the internal affairs doctrine shall be exclusively brought in the Court of Chancery of the State of Delaware, in each case regardless of whether such claims, suits, actions or proceedings sound in contract, tort, fraud or otherwise, are based on common law, statutory, equitable, legal or other grounds, or are derivative or direct claims; . . .

Comments, questions or requests for an updated Study should be directed to: Claudia H. Allen

Partner and Chair, Corporate Governance Practice Group Neal, Gerber & Eisenberg LLP

Two North LaSalle Street, Suite 1700 Chicago, Illinois 60602

Tel: (312) 269-8406 [email protected]

www.ngelaw.com

NGEDOCS: 1717980.16

121Tesoro Logistics LP, Form of First Amended and Restated Agreement of Limited Partnership. See Appendix A to Amendment No. 4 to Registration Statement on Form S-1 filed on Apr. 4, 2011, and available at http://www.sec.gov/Archives/edgar/data/1507615/000095012311032228/h78279a4sv1za.htm.