Kistefos AS v. Trico Marine Services, Inc.

Kistefos AS (plaintiff) was a minority shareholder of Trico Marine Services, Inc. (Trico) (defendant), a publicly-traded Delaware corporation. Trico’s bylaws provided that directors were to be elected by majority vote. However, the bylaws permitted a director who was only elected by a plurality to continue to serve at the board’s discretion. Kistefos submitted a number of proposed bylaw amendments to Trico to be voted on at Trico’s 2009 annual meeting. One of these, Proposal Eight, provided that a director who receives a plurality but not a majority of the vote is immediately disqualified from serving on the board. The board of Trico rejected Proposal Eight and stated that it would be disregarded if Kistefos presented it for a vote at the meeting. Trico argued that Proposal Eight was inconsistent with Trico’s certificate of incorporation and several provisions of the Delaware General Corporation Law. The meeting was scheduled to take place sometime between April 17 and June 16, 2009. Kistefos sued Trico on April 8, 2009, seeking a declaratory judgment that Proposal Eight is consistent with the articles of incorporation and Delaware law. Kistefos then moved to expedite the proceedings. At a hearing on the motion to expedite, Kistefos stated that expedited proceedings would be unnecessary if it was permitted to present Proposal Eight to the shareholders at the annual meeting. Trico argued that it must “disregard” the proposal in order to preserve its position that the proposal is invalid.