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Hill Int’l, Inc. v. Opportunity Partners L.P., No. 305, 2015 (Del. July 2, 2015)

July 2, 2015

In this opinion, the Delaware Supreme Court affirmed the Court of Chancery’s entry of an injunction, barring appellants Hill International, Inc.’s (“Hill”) from conducting any business at its June 9, 2015 Annual Meeting, other than convening the meeting for the sole purpose of adjourning it for a minimum of 21 days in order to permit Appellee, Opportunity Partners L.P. (“Opportunity”), to present certain items of business and director nominations at Hill’s 2015 annual meeting. 

On April 30, 2014, Hill publicly disclosed in its 2014 Definitive Proxy Statement (the “2014 Proxy Statement”) that it anticipated holding its 2015 annual meeting “on or about June 10, 2015.”  The 2014 Proxy Statement stated that stockholders who wished to submit a proposal for the 2015 annual meeting would be required to submit their proposal no earlier than March 15, 2015 and no later than April 15, 2015. 

On May 7, 2015, Opportunity delivered a letter to Hill, giving notice of its intent to present two stockholder proposals for consideration and two nominees for election to the Board of Directors at Hill’s 2015 Annual Meeting.  On May 11, 2015, Hill asserted that Opportunity’s May 7 letter was untimely under the 70-day advance notice section of Hill’s bylaws.  The 70-day advance notice provision of Hill’s bylaw provides:

… in the event that less than seventy (70) days notice or prior public disclosure of the dateof the annual meeting is given or made to stockholders, notice by a stockholder, to be timely, must be received no later than the close of business on the tenth (10th) day following the day on which such notice of the date of the annual meeting was mailed or such public disclosure was made, whichever first occurs.

The issue on appeal was whether Hill’s public disclosure in its 2014 Proxy Statement that its 2015 Annual Meeting would be held “on or about June 10, 2015” constituted “prior public disclosure of the date” of the annual meaning within the meaning of the 70-day advance notice provision in Hill’s bylaws.  Because the issue involved the interpretation of a corporation’s bylaws, the Supreme Court reviewed the Court of Chancery’s holding de novo.

The Court found Hill’s advance notice bylaws “clear and unambiguous.”  The Court held that the plain meaning of “the date” means a specific day—not a range of possible days.  Thus, the 2014 Proxy Statement’s reference to “on or about June 10, 2015” did not refer to the date of Hill’s 2015 annual meeting and, consequently did not provide “prior public disclosure of the date” of Hill’s 2015 Annual Meeting within the meaning of the bylaws. 

On March 12, 2015, Hill’s board of directors fixed the date of the annual meeting for June 9, 2015.  This date was not publicly disclosed until April 30, 2015, when Hill filed its 2015 definitive proxy statement.  Because Hill’s April 30, 2015 notice to stockholders was 40 days before the June 9, 2015 annual meeting date, the 10-day notice period contained in the 70-day advance notice provision was triggered.  Accordingly, Opportunity was required to submit its shareholder proposals and director nominees no later than the close of business ten days following April 30, 2015.  Since Opportunity delivered its notice on May 7, its notice was timely.

Therefore, the Court concluded that the Court of Chancery’s imposition of a mandatory injunction was proper. 

The full opinion is available here