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SAN ANTONIO FIRE v. AMYLIN PHARMACEUTICALS

C.A. No. 4446-VCL.

983 A.2d 304 (2009)

SAN ANTONIO FIRE & POLICE PENSION FUND, on behalf of itself and all other similarly situated, Plaintiff, v. AMYLIN PHARMACEUTICALS, INC., Bank of America, N.A., Bank of New York Trust Company, N.A., Daniel M. Bradbury, Joseph C. Cook, Jr., Adrian Adams, Steven R. Altman, Teresa Beck, Karin Eastham, James R. Gavin, Ginger L. Graham, Howard E. Greene, Jr., Jay S. Skyler, Joseph P. Sullivan, and James N. Wilson, Defendants. Amylin Pharmaceuticals, Inc., Cross-Claimant, v. The Bank of New York Trust Company, N.A., as Trustee for Indenture dated as of June 8, 2007, Cross-Claim Defendant.

Court of Chancery of Delaware.

Decided: May 12, 2009.

Attorney(s) appearing for the Case

Andre C. Bouchard, Esquire, Joel Friedlander, Esquire, Bouchard Margules & Friedlander, P.A., Wilmington, Delaware, J. Travis Laster, Esquire, T. Brad Davey, Esquire, Abrams & Laster LLP, Wilmington, Delaware; Mark Lebovitch, Esquire, Samuel J. Lieberman, Esquire, Amy Miller, Esquire, Bernstein Litowitz Berger & Grossmann LLP, New York, New York; Frank Burney, Esquire, Martin & Drought, P.C., San Antonio, Texas, Attorneys for the Plaintiff.

Raymond J. DiCamillo, Esquire, Margot F. Alicks, Esquire, Richards Layton & Finger, P.A., Wilmington, Delaware; Thad J. Bracegirdle, Esquire, Wilks Lukoff & Bracegirdle, LLC, Wilmington, Delaware; Richard H. Morse, Esquire, Elena C. Norman, Esquire, Emily V. Burton, Esquire, Young Conaway Stargatt & Taylor, LLP, Wilmington, Delaware; Peter B. Ladig, Esquire, Scott G. Wilcox, Esquire, Stephen B. Brauerman, Esquire, Bayard P.A., Wilmington, Delaware; Robert A. Sacks, Esquire, Diane L. McGimsey, Esquire, Orly Z. Elson, Esquire, Damion D.D. Robinson, Esquire, Sullivan & Cromwell LLP, Los Angeles, California, Attorneys for the Defendants, Cross-Claimant, and Cross-Claim Defendant.

OPINION

LAMB, Vice Chancellor.

The principal issue addressed in this opinion is whether a commonplace provision found in a trust indenture governing publicly traded notes prevents the issuer's board of directors from "approving" as "continuing directors" persons nominated by stockholders in opposition to the slate nominated by the incumbent directors. Both the corporation and its stockholders take the position that it does not and that, instead, the...

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