PRIVILEGED AND CONFIDENTIAL — ATTORNEY-CLIENT PRIVILEGE / ATTORNEY WORK PRODUCT
CALDERWOOD & HARKNESS LLP
Attorneys at Law
3960 Howard Hughes Parkway, Suite 1400 Las Vegas, Nevada 89169
1200 Market Street, Suite 3100 Wilmington, Delaware 19801
December 5, 2022
MEMORANDUM
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I. EXECUTIVE SUMMARY
This memorandum presents a comprehensive review of the defensive provisions contained in the governing documents of Redstone Gaming Corp. ("RGC," the "Company," or "Redstone"), a Delaware corporation headquartered at 8700 Las Vegas Boulevard South, Suite 2200, Las Vegas, Nevada 89123, in connection with the board-seat campaign initiated by Pinnacle Harbor Capital Partners, LP ("Pinnacle Harbor," "PHCP," or the "Activist"). Calderwood & Harkness LLP ("C&H" or "we") was engaged by the Company, at the direction of the Board of Directors (the "Board"), on November 15, 2022, to provide legal counsel in connection with the Activist's campaign and to perform this defensive review of the Company's governing documents.
Documents Reviewed. In preparing this memorandum, we have reviewed the following primary corporate governance documents of the Company:
(1) The Amended & Restated Certificate of Incorporation of Redstone Gaming Corp. (filed with the Delaware Secretary of State, file no. 5734821) (the "Charter"); and
(2) The Amended & Restated Bylaws of Redstone Gaming Corp. (last amended September 12, 2021) (the "Bylaws").
These documents together constitute the Company's "governing documents" and are the primary instruments that establish the defensive architecture available to the Board.
Context. Pinnacle Harbor is a Delaware limited partnership with approximately $4.2 billion in assets under management, led by Managing Partner & Chief Investment Officer Viktor S. Kessler. According to Pinnacle Harbor's preliminary Schedule 13D filing with the Securities and Exchange Commission (the "SEC") on November 10, 2022, the Activist has accumulated a 6.8% ownership stake in the Company, representing approximately 7,119,600 shares of common stock out of 104,700,000 shares of common stock outstanding. The Schedule 13D filing reported a weighted average purchase price per share of approximately $26.42. Pinnacle Harbor commenced accumulating its position in approximately June 2022.
In connection with its Schedule 13D filing, Pinnacle Harbor publicly articulated three principal demands: (i) the immediate appointment of two Pinnacle Harbor-designated nominees to the Board; (ii) a strategic review of the Company's interactive gaming division, which Pinnacle Harbor contends is undervalued and strategically misaligned; and (iii) a $300 million capital return program to stockholders, to be effected through a combination of share repurchases and a special dividend.
Prior to the public filing of the Schedule 13D, Board Chair Diane K. Sheridan received a private demand letter from Mr. Kessler dated October 28, 2022, in which Mr. Kessler previewed Pinnacle Harbor's intentions and requested a private meeting with the Board to discuss a "constructive path forward." The Board discussed this letter during an emergency meeting convened on November 14, 2022.
Formation of the Special Committee. At the November 14, 2022 emergency Board meeting, the Board of Directors — consisting of nine members, seven of whom are independent and two of whom are members of management — resolved to form a Special Committee of independent directors to oversee the Board's response to the Pinnacle Harbor campaign. The Special Committee is composed of Jim Delacroix (Chair), Carmen Vasquez, and Randall Morse, each of whom is independent within the meaning of the applicable Nasdaq listing standards and free of any material relationships with Pinnacle Harbor. The Special Committee was vested with the authority to retain independent legal counsel and financial advisors, and to make recommendations to the full Board regarding the Company's response to the Activist's campaign.
Calderwood & Harkness LLP was formally engaged effective November 15, 2022, and delivered an initial situational assessment on November 18, 2022, followed by a preliminary bylaw and charter review completed on November 22, 2022. This memorandum constitutes the full defensive analysis and amendment recommendations resulting from that review.
Summary of Findings. RGC's governing documents contain several meaningful defensive provisions that provide the Board with important procedural protections in the face of an activist campaign. These include advance-notice provisions for director nominations, restrictions on stockholder action by written consent, limitations on the calling of special meetings, and Board authority to fill vacancies. However, our review has also identified specific gaps and vulnerabilities in the Company's defensive architecture that could be exploited by a sophisticated activist such as Pinnacle Harbor. In particular, the advance-notice provisions, while substantively sound, do not reflect the most current market practices with respect to disclosure of derivative and synthetic equity positions, compensation arrangements between activists and their nominees, or compliance with the SEC's recently effective universal proxy rules under Rule 14a-19. Additionally, certain provisions relating to board classification, director removal, and supermajority voting requirements warrant close analysis and, in some cases, amendment.
We set forth our detailed analysis and specific recommendations in the sections that follow. It is our view that timely action by the Board to adopt the recommended bylaw amendments — which may be effected without stockholder approval — will materially strengthen the Company's defensive posture in advance of the 2023 annual meeting and any contested election.
II. SCOPE AND METHODOLOGY
The scope of our engagement and the methodology employed in this defensive review are set forth below.
Document Review. We reviewed the Charter as currently on file with the Delaware Secretary of State (file no. 5734821), including all amendments thereto. We also reviewed the Bylaws as last amended September 12, 2021, and confirmed with General Counsel Patricia Nakamura that no further amendments to the Bylaws have been adopted since that date. We obtained certified copies of both governing documents from the Company's records and independently confirmed the Charter filing with the Delaware Secretary of State's office.
Statutory Cross-References. We analyzed the governing documents against the relevant provisions of the Delaware General Corporation Law (Title 8, Delaware Code) (the "DGCL"), with particular attention to the following sections:
• DGCL § 109 — Power to amend bylaws;
• DGCL § 141 — Board of directors, including subsections addressing board classification (§ 141(d)) and removal of directors (§ 141(k));
• DGCL § 211 — Meetings of stockholders, including special meetings (§ 211(d));
• DGCL § 212 — Voting rights of stockholders;
• DGCL § 213 — Fixing a record date for stockholder action;
• DGCL § 216 — Quorum and required vote;
• DGCL § 223 — Vacancies and newly created directorships; and
• DGCL § 242 — Amendment of the certificate of incorporation.
Listing Standards. We analyzed the Company's governing documents for consistency with applicable Nasdaq Stock Market LLC listing standards, including rules regarding board independence, audit committee composition, director qualifications, and corporate governance requirements. RGC's common stock is listed on the Nasdaq Global Select Market under the ticker symbol "RDST."
Delaware Case Law. We considered recent precedent from the Delaware Court of Chancery and the Delaware Supreme Court regarding defensive measures and fiduciary duties in contested elections, with particular attention to the evolving judicial treatment of advance-notice bylaws adopted or amended in the face of activist campaigns. Key decisions reviewed include, among others, Blasius Industries, Inc. v. Atlas Corp., 564 A.2d 651 (Del. Ch. 1988); Unocal Corp. v. Mesa Petroleum Co., 493 A.2d 946 (Del. 1985); Unitrin, Inc. v. American General Corp., 651 A.2d 1361 (Del. 1995); Schnell v. Chris-Craft Industries, Inc., 285 A.2d 437 (Del. 1971); Coster v. UIP Companies, Inc., 255 A.3d 952 (Del. 2021); and Salzberg v. Sciabacucchi, 227 A.3d 102 (Del. 2020).
Review Team. This review was conducted by Douglas Fairchild (Engagement Partner), Claire Dempsey (Lead Associate), and Marcus Leung (Working Associate). Angela Fontaine, a Partner in our Wilmington office specializing in Delaware corporate governance matters, provided supplemental guidance on certain fiduciary duty and statutory analysis issues.
Coordination with Advisors. In connection with this review, we coordinated with the Company's financial advisor, Calloway Pinnacle Trust Bank (Thomas V. Ashford, Managing Director), and the Company's proxy solicitor, Whitfield Morrow Partners, LLC (Denise Cavanaugh, Senior Vice President), to obtain market-practice context regarding current trends in advance-notice bylaws, defensive provisions among gaming-industry peers, and the likely responses of institutional stockholders and proxy advisory firms to potential defensive amendments. We also consulted with the Company's investor relations advisor, Harlan Ridge Communications, LLC (Philip Navarette), regarding stockholder communication considerations. Our analysis incorporates the market context provided by these advisors but reflects our independent legal judgment.
Limitations. This memorandum addresses solely the defensive provisions contained in the Company's governing documents. It does not address the Company's stockholder rights plan options (which are the subject of a separate, forthcoming memorandum), operational or strategic responses to the Activist's campaign, or gaming regulatory considerations other than as they bear directly on director qualification requirements in the governing documents. We have not independently verified the accuracy of the factual information provided to us by the Company, including share ownership data, and have relied upon representations of management and the Company's transfer agent, Continental Share Services, Inc.
III. CURRENT BOARD STRUCTURE AND COMPOSITION
A. Board Size and Classification
RGC's Board of Directors currently consists of nine (9) directors. Article IV, Section 4.01 of the Charter provides that the business and affairs of the Company shall be managed by or under the direction of the Board of Directors. A threshold question for this defensive analysis is whether the Company has a classified (staggered) board structure under DGCL § 141(d).
Classification Status. Upon review, the Charter does not provide for a classified board. Article IV, Section 4.02 of the Charter states that "[e]ach director shall be elected at each annual meeting of stockholders and shall hold office until the next annual meeting of stockholders and until his or her successor shall be elected and qualified, or until his or her earlier resignation, removal, or death." Accordingly, all nine directors stand for election at each annual meeting of stockholders, and the Board is fully declassified.
Implications for the Activist Campaign. The absence of a classified board is the single most significant structural vulnerability in the Company's defensive posture. In a declassified board structure, all nine directors stand for election at the 2023 annual meeting, which is expected to be held in approximately May 2023 (the prior annual meeting was held on May 11, 2022). This means that Pinnacle Harbor has the theoretical ability to seek to replace the entire Board in a single election cycle, rather than being limited to contesting only one-third of the Board seats (approximately three seats) as would be the case with a classified board.
In practical terms, however, Pinnacle Harbor has publicly demanded only two board seats, not a wholesale replacement of the Board. Nevertheless, the declassified structure affords the Activist maximum tactical flexibility: it can expand its slate at any time before the proxy filing deadline if it perceives an opportunity to do so, and the mere threat of a broader contest enhances its bargaining leverage in any settlement negotiations.
We note that adopting a classified board structure would require a Charter amendment under DGCL § 242, which necessitates stockholder approval. Given prevailing institutional investor sentiment strongly disfavoring board classification, and the positions of proxy advisory firms such as Centurion Governance Services, Inc. and Hartley Shareholder Advisory Group, LLC, we do not recommend pursuing board classification at this time. The proposal would almost certainly fail to garner the requisite stockholder vote and would likely generate significant negative publicity for the Company. We do, however, recommend strengthening other defensive provisions to partially compensate for the absence of a classified board, as detailed in Sections IV through XI below.
Annual Meeting Timing. The 2023 annual meeting is anticipated to be held on or about May 11, 2023, consistent with the Company's historical practice. The exact date has not yet been set by the Board. The timing of the annual meeting, in conjunction with the advance-notice window (discussed in Section IV below), will be critical to the procedural defense against Pinnacle Harbor's nominations.
B. Board Size Determination Authority
Article IV, Section 4.03 of the Charter provides that "[t]he number of directors which shall constitute the whole Board shall be determined from time to time exclusively by resolution of the Board of Directors, but in no event shall the number be less than five (5) or more than thirteen (13)." This provision vests the authority to fix the number of directors exclusively in the Board, not in the stockholders. The permissible range of five to thirteen directors provides the Board with meaningful flexibility.
Defensive Significance. The Board's exclusive authority over its own size is an important defensive provision. It means that Pinnacle Harbor cannot unilaterally increase or decrease the size of the Board through stockholder action. At the same time, this provision affords the Board flexibility to expand the Board as a potential settlement mechanism — for example, by creating one or more newly created directorships and appointing mutually agreed-upon directors to fill those new seats. We understand that, in fact, this mechanism was ultimately employed when the Board was expanded to ten directors in connection with the appointment of Franklin Chu under the Cooperation Agreement with Pinnacle Harbor. The current Charter provision supports that flexibility, as ten directors falls within the permissible range of five to thirteen.
We also note, however, that the Board's authority to increase its own size could theoretically be used as a defensive tactic — by increasing the size of the Board and filling the newly created seats with directors aligned with incumbent management, the Board could dilute the impact of any activist nominees who succeed in the election. Such a tactic, however, would face heightened fiduciary scrutiny under the Blasius standard and could generate significant stockholder backlash. We do not recommend this approach but note the theoretical availability of the mechanism.
Recommendation. The current provision is well-drafted and favorable to the Company. We recommend no changes to the board-size determination provisions at this time.
C. Director Qualifications
Article II, Section 2.12 of the Bylaws sets forth certain eligibility requirements for director nominees. Each nominee must: (i) be a natural person; (ii) be at least twenty-one (21) years of age; (iii) not have been convicted of a felony involving moral turpitude; and (iv) be willing and able to serve as a director for the full term if elected. These requirements are relatively standard but not particularly robust from a defensive standpoint.
Gaming Regulatory Considerations. Notably, the Bylaws do not currently contain any requirement that director nominees be suitable for licensure under the gaming regulatory frameworks of the jurisdictions in which the Company operates. RGC holds gaming licenses in Nevada (through the Nevada Gaming Commission and the Nevada Gaming Control Board), New Jersey (through the New Jersey Division of Gaming Enforcement), and Pennsylvania (through the Pennsylvania Gaming Control Board), among other jurisdictions. Each of these jurisdictions imposes licensing, suitability, and background investigation requirements on key persons associated with gaming licensees, which may include directors.
The absence of a regulatory suitability requirement in the Bylaws represents a meaningful gap. If Pinnacle Harbor's nominees — Dr. Sandra Trevelyan, the former Chief Operating Officer of Meridian Interactive Holdings, Inc., and Hugh Desmond Grayson, the former Chief Financial Officer of Atlas Leisure Group, Inc. — are unable or unwilling to submit to the requisite gaming regulatory background investigations, or if they are found unsuitable by any applicable gaming regulatory authority, the Company could face regulatory consequences ranging from fines to, in extreme cases, jeopardy to its gaming licenses. A bylaw provision requiring regulatory suitability as a precondition to director service would provide a legitimate, non-pretextual basis for ensuring that all director nominees meet these requirements.
Recommendation. We recommend amending the director qualification provisions in the Bylaws to include a requirement that all director nominees be suitable for licensure (or be willing to submit to suitability proceedings) under the gaming regulatory frameworks of each jurisdiction in which the Company holds gaming licenses. This amendment would serve a legitimate corporate purpose and would be defensible under fiduciary duty principles, as it would apply equally to all nominees, including those nominated by incumbent management. The amendment would also require Pinnacle Harbor's nominees to affirm their willingness and ability to satisfy gaming regulatory requirements, creating an additional procedural hurdle and information obligation.
IV. ADVANCE-NOTICE BYLAW PROVISIONS (ARTICLE II, SECTION 2.11)
A. Overview of the Advance-Notice Framework
The advance-notice provisions are among the most important procedural defenses available to a public company facing an activist campaign. Article II, Section 2.11 of the Bylaws (the "Advance-Notice Provisions"), adopted in connection with the September 12, 2021 bylaw amendment, establishes a framework that requires any stockholder intending to nominate one or more persons for election to the Board at an annual meeting of stockholders, or to bring any other business before an annual meeting, to deliver written notice to the Corporate Secretary of the Company within a specified time window and containing specified information.
The purpose of the Advance-Notice Provisions is twofold. First, they ensure an orderly director nomination process by providing the Board and management with adequate time to evaluate nominees, conduct due diligence, and prepare a response. Second, they create a procedural framework that, when properly enforced, can serve as a meaningful defense against activist nominations that fail to comply with the applicable requirements. A nomination notice that does not satisfy the Advance-Notice Provisions — either because it is untimely or because it fails to contain the required information — may be declared invalid by the Board (or its designee, typically the Corporate Secretary), and the purported nominees may be excluded from the ballot at the annual meeting.
The Advance-Notice Provisions are a standard feature of the governing documents of virtually all publicly traded Delaware corporations. However, the specific requirements and level of detail vary significantly from company to company, and the adequacy of a company's advance-notice bylaws is frequently at issue in contested election situations. For this reason, our analysis of the Advance-Notice Provisions is particularly detailed.
B. Nomination Notice Window — Timing Mechanics
Article II, Section 2.11(a)(ii) of the Bylaws establishes the following timing requirements for stockholder nominations at annual meetings:
The window for delivery of a valid nomination notice opens not earlier than one hundred fifty (150) days before the first anniversary of the date of the Company's annual meeting of stockholders held in the immediately preceding year.
The window for delivery of a valid nomination notice closes not later than one hundred twenty (120) days before the first anniversary of the date of the Company's annual meeting of stockholders held in the immediately preceding year.
Applying these timing mechanics to the current situation:
• Prior annual meeting date: May 11, 2022
• First anniversary of prior annual meeting: May 11, 2023
• 150 days before May 11, 2023: December 12, 2022 (window opens)
• 120 days before May 11, 2023: January 11, 2023 (window closes)
Accordingly, the advance-notice window for director nominations at the 2023 annual meeting runs from December 12, 2022 through January 11, 2023 (inclusive). Any nomination notice delivered before December 12, 2022 or after January 11, 2023 would be untimely and therefore invalid under the Bylaws, unless the Bylaws provide for an alternative timing mechanism (such as an adjustment in the event the annual meeting date is changed by more than a specified number of days from the anniversary date, which Section 2.11(a)(iii) does address).
Current Status. As of the date of this memorandum (December 5, 2022), the advance-notice window has not yet opened. It will open on December 12, 2022.
Pinnacle Harbor's Pre-Window Notice. We have been advised that Hargrove Sloane & Birch LLP, outside counsel to Pinnacle Harbor (Jonathan Birch III, lead partner), delivered a formal notice of intent to nominate directors on December 8, 2022 — four days before the advance-notice window opens. This notice purports to nominate Dr. Sandra Trevelyan and Hugh Desmond Grayson for election to the Board at the 2023 annual meeting.
The delivery of a nomination notice before the opening of the advance-notice window raises a significant procedural question: whether such a pre-window notice satisfies, or fails to satisfy, the timing requirements of the Advance-Notice Provisions. Article II, Section 2.11(a)(ii) is unambiguous in its requirement that the notice be delivered "not earlier than" 150 days before the anniversary of the prior annual meeting. A notice delivered four days before the window opens is, on its face, untimely.
However, we anticipate that Pinnacle Harbor will argue that the early delivery of the notice is a technical deficiency that does not prejudice the Company and should be excused, or alternatively, that Pinnacle Harbor intends to deliver a supplemental or conforming notice within the advance-notice window. This issue requires careful analysis under both the specific language of the Bylaws and applicable Delaware case law. We are preparing a separate, detailed compliance analysis of Pinnacle Harbor's December 8 notice, which we expect to deliver to the Board on December 14, 2022 — two days after the advance-notice window opens, allowing us to assess whether Pinnacle Harbor delivers a supplemental or conforming notice on or after December 12.
Recommendation. We recommend that General Counsel Nakamura acknowledge receipt of the December 8 notice but expressly reserve the Company's rights to challenge its timeliness and sufficiency under the Bylaws. A draft acknowledgment letter, reviewed by C&H, should be delivered to Hargrove Sloane & Birch LLP promptly. We also recommend that the Corporate Secretary maintain a detailed log of all correspondence and notices received from Pinnacle Harbor or its counsel, with contemporaneous date and time stamps, to preserve a clean evidentiary record.
C. Informational Requirements for Nomination Notices
Article II, Section 2.11(b) of the Bylaws sets forth detailed informational requirements that must be included in any valid nomination notice. The current requirements include the following:
(i) The full legal name, age, business address, and residence address of each proposed nominee;
(ii) The principal occupation or employment of each proposed nominee for the preceding five (5) years, including the name and principal business address of each employer;
(iii) The number of shares of the Company's common stock owned beneficially and of record by the nominating stockholder and by each proposed nominee, as of the date of the notice;
(iv) A description of all arrangements, agreements, or understandings between the nominating stockholder and each proposed nominee, and any other person or persons (naming such person or persons), pursuant to which the nomination or nominations are to be made by the nominating stockholder;
(v) Such other information regarding each nominee proposed by such stockholder as would be required to be included in a proxy statement filed pursuant to the proxy rules of the Securities and Exchange Commission had the nominee been nominated, or intended to be nominated, by the Board of Directors;
(vi) A completed and signed questionnaire, representation, and agreement, in such form as may be provided by the Corporate Secretary upon written request, with respect to the background, qualifications, independence, and suitability for service of each proposed nominee;
(vii) A representation as to whether the nominating stockholder intends to deliver a proxy statement and form of proxy to holders of at least the percentage of the Company's outstanding shares required to approve the nomination;
(viii) The consent of each proposed nominee to being named as a nominee and to serving as a director if elected; and
(ix) A description of all derivative positions, short interests, hedging transactions, borrowed shares, and other economic interests in the Company's securities held by the nominating stockholder and by each proposed nominee as of the date of the notice.
Assessment. The informational requirements contained in the current Bylaws are substantively reasonable and cover most of the standard categories of disclosure required by advance-notice bylaws among public companies. The inclusion of derivative position and hedging disclosure requirements (clause (ix) above) reflects a relatively modern approach; many companies' advance-notice provisions adopted before 2018 do not include such requirements. The questionnaire, representation, and agreement requirement (clause (vi)) is also a significant provision, as it gives the Company the ability to obtain detailed information from nominees and to require specific representations regarding independence, regulatory suitability, and willingness to comply with Company governance policies.
However, our review identifies several areas where the current informational requirements fall short of current best practices among mid-cap and large-cap public companies, particularly those that have recently updated their advance-notice provisions in response to the evolving activist landscape:
(a) Expanded Beneficial Ownership Disclosure. The current provisions require disclosure of beneficial and record ownership of Company common stock, but do not specifically require disclosure of beneficial ownership through swaps, contracts for difference, or other synthetic equity arrangements that provide economic exposure to the Company's securities without conferring voting rights. While clause (ix) addresses derivative positions generally, the language could be made more granular and explicit.
(b) Compensation Arrangements Between Activist and Nominees. The current provisions require disclosure of "arrangements, agreements, or understandings" between the nominating stockholder and nominees (clause (iv)), but do not specifically require disclosure of any compensation, indemnification, or reimbursement arrangements between the activist and its nominees, or any agreements regarding the payment of nominees' legal fees or other expenses. Activist investors commonly enter into such arrangements with their nominees, and stockholders are entitled to know the nature and extent of the economic relationship between the activist and the persons it proposes to serve on the Board.
(c) Plans and Proposals. The current provisions do not require the nominating stockholder to disclose any plans or proposals that it intends to pursue or cause the Company to pursue if its nominees are elected to the Board. Such disclosure is important because it allows the Board and stockholders to evaluate the activist's true objectives and to assess whether the activist's nominees may be expected to advocate for changes in the Company's strategy, capital allocation, or governance.
(d) Mandatory Updates and Supplements. The current provisions require disclosure "as of the date of the notice" but do not impose an affirmative obligation on the nominating stockholder to update or supplement the information contained in the nomination notice through a specified deadline prior to the annual meeting. This is a significant gap: information provided as of the date of the initial nomination notice may become stale or materially incomplete as the proxy contest progresses.
Recommendation. We recommend that the Board adopt amendments to Article II, Section 2.11(b) to address each of the foregoing gaps, as detailed in Section XV below.
D. Deficiency Cure Provisions
Article II, Section 2.11(d) of the Bylaws currently provides that, if the Corporate Secretary determines that a nomination notice does not satisfy the requirements of Section 2.11, the Corporate Secretary shall notify the nominating stockholder of the deficiency in writing, and the nominating stockholder shall have ten (10) business days from the date of such notification to cure the deficiency. If the deficiency is not cured within this period, the nomination notice shall be deemed invalid and the purported nominees shall not be eligible for election at the annual meeting.
Assessment. While the inclusion of a deficiency cure provision is not unusual, the current ten-business-day cure period is relatively generous. In a contested election, an activist may deliberately submit a nomination notice that is incomplete or deficient, knowing that it will receive a deficiency notice and an opportunity to cure. The cure period effectively extends the advance-notice window and gives the activist additional time to refine its nomination, gather additional information, and coordinate with its nominees.
We note that the cure provision does not distinguish between minor or technical deficiencies (such as a missing address or a formatting error) and material or substantive deficiencies (such as the failure to disclose required information about derivative positions or arrangements with nominees). The one-size-fits-all cure period may allow an activist to submit a skeletal notice and then use the cure period to supply the substantive information.
Additionally, the Bylaws do not clearly address whether the Corporate Secretary has discretion to waive deficiencies or deem a deficient notice valid notwithstanding the deficiency. The absence of a clear standard could create disputes about the exercise of such discretion.
Recommendation. We recommend amending the cure provisions to: (i) reduce the cure period from ten (10) business days to five (5) business days; (ii) limit the scope of curable deficiencies to minor or technical deficiencies, while providing that material deficiencies (such as the failure to include required substantive disclosures or the failure to obtain a nominee's consent) render the notice invalid without opportunity for cure; and (iii) clarify that the Corporate Secretary's determination of deficiency and the Board's determination of the validity of a nomination notice are final and binding, subject only to judicial review.
E. Sufficiency of Current Advance-Notice Provisions — Recommendations
Taking the current Advance-Notice Provisions as a whole, we assess them as providing a moderately strong procedural defense. The timing mechanics are clear and well-structured, and the informational requirements cover the core categories of required disclosure. However, the provisions do not reflect the most current best practices in several important respects, and the deficiency cure provisions are more generous to a nominating stockholder than necessary.
Comparison to Market Practice. Based on our review of advance-notice bylaws adopted by comparable mid-cap gaming, hospitality, and entertainment companies (including those reviewed by Whitfield Morrow Partners in its market-practice analysis), the Company's Advance-Notice Provisions rank in the middle of the market in terms of rigor and comprehensiveness. Approximately 65-70% of comparable companies have adopted one or more of the enhanced disclosure provisions we recommend. The trend is clearly in the direction of greater specificity and more robust informational requirements, particularly in light of the SEC's adoption of the universal proxy rules.
Universal Proxy Rules (Rule 14a-19). On November 17, 2021, the SEC adopted amendments to the federal proxy rules to require the use of universal proxy cards in contested director elections. The rules became effective on September 1, 2022. Under Rule 14a-19, a dissident stockholder who solicits proxies in support of director nominees other than the registrant's nominees must: (a) provide notice to the registrant at least sixty (60) days before the anniversary of the prior year's annual meeting, stating its intent to solicit proxies in support of director nominees other than the registrant's nominees, and identifying each such nominee; and (b) solicit holders of shares representing at least 67% of the voting power of shares entitled to vote at the meeting.
The current Bylaws do not contain any provisions specifically addressing the universal proxy rules. We recommend that the Board adopt a bylaw amendment requiring any nominating stockholder to comply with all applicable requirements of Rule 14a-19, and to provide evidence of such compliance to the Company at least five (5) business days before the annual meeting. This provision would give the Company a contractual basis (in addition to the regulatory basis) for challenging a dissident stockholder's failure to comply with the universal proxy requirements and would allow the Company to exclude the dissident's nominees from the universal proxy card if compliance is not demonstrated.
We set forth the full list of recommended amendments to the Advance-Notice Provisions in Section XV.A below.
V. BOARD VACANCY FILLING RIGHTS
A. Current Provisions
The authority to fill vacancies on the Board is a critical element of the Company's defensive architecture. Article IV, Section 4.05 of the Charter provides as follows:
"Any vacancy or vacancies on the Board of Directors, whether arising from death, resignation, removal, an increase in the authorized number of directors, or any other cause, shall be filled solely and exclusively by the affirmative vote of a majority of the remaining directors then in office, even though less than a quorum of the Board of Directors, or by a sole remaining director. Any director so chosen shall hold office until the next annual meeting of stockholders and until his or her successor shall have been duly elected and qualified, or until his or her earlier resignation, removal, or death."
The Charter thus expressly vests the exclusive power to fill Board vacancies in the remaining directors, to the exclusion of stockholders. This provision is consistent with, and goes beyond, the default rule of DGCL § 223, which provides that vacancies may be filled by a majority of the remaining directors "unless otherwise provided in the certificate of incorporation or bylaws." By including the word "exclusively" and specifying that the power applies "whether arising from death, resignation, removal, an increase in the authorized number of directors, or any other cause," the Charter eliminates any ambiguity regarding the Board's exclusive authority in this regard.
Article III, Section 3.04 of the Bylaws contains a parallel provision that is consistent with the Charter provision.
B. Defensive Significance
The Board's exclusive vacancy-filling authority is one of the strongest defensive provisions in the Company's governing documents. Its significance in the context of the Pinnacle Harbor campaign is substantial:
(i) Prevention of Interim Stockholder Action. Because vacancies may be filled only by the remaining directors, Pinnacle Harbor cannot obtain Board representation between annual meetings by creating or exploiting vacancies. Even if a director were to resign (whether voluntarily or under pressure), the resulting vacancy would be filled by the remaining directors, not by stockholder action. Pinnacle Harbor cannot call a special meeting to fill vacancies (see Section VII below regarding special meeting provisions), and it cannot act by written consent to fill vacancies (see Section VIII below regarding written consent provisions).
(ii) Settlement Flexibility. The Board's exclusive vacancy-filling power provides the Board with the discretion to appoint mutually agreed-upon directors as part of a settlement or cooperation agreement with the Activist, without the need for stockholder approval. This flexibility proved important in the ultimate resolution of the Pinnacle Harbor campaign, when the Board expanded its size to ten directors and appointed Franklin Chu to the newly created directorship under the Cooperation Agreement. Because the Charter grants the Board exclusive authority to fill vacancies — including vacancies created by an increase in the authorized number of directors — this appointment was within the Board's sole authority.
(iii) Prevention of Board Packing by Stockholders. Because stockholders cannot fill vacancies, a hypothetical scenario in which an activist removes incumbent directors (through a successful removal campaign or consent solicitation) and simultaneously seeks to fill the resulting vacancies with its own nominees is foreclosed. The combination of the exclusive vacancy-filling provision and the prohibition on written consent (see Section VIII) creates a robust defensive architecture that requires the Activist to wait for the next annual meeting to contest Board seats.
C. Recommendations. The current vacancy-filling provisions are well-drafted and provide strong defensive protection. We have confirmed that the Charter language is unambiguous and consistent with current Delaware statutory and case law. We note that the Charter provision — rather than merely a Bylaw provision — governs this issue, which provides additional protection, as Charter provisions can be amended only with stockholder approval under DGCL § 242. Pinnacle Harbor would need to garner a majority stockholder vote to amend the Charter and strip the Board of its exclusive vacancy-filling authority — a high bar that is unlikely to be met given the current stockholder composition.
No amendment is recommended at this time with respect to vacancy-filling provisions.
VI. DIRECTOR REMOVAL PROVISIONS
A. Removal With or Without Cause
Under DGCL § 141(k), the framework for director removal depends on whether the corporation has a classified board:
• Classified Board: Directors may be removed only "for cause" unless the certificate of incorporation provides otherwise.
• Declassified Board: Directors may be removed with or without cause by the holders of a majority of the shares then entitled to vote at an election of directors.
As discussed in Section III.A above, RGC does not have a classified board. Accordingly, under the DGCL default rule, directors may be removed with or without cause by a majority stockholder vote.
Article IV, Section 4.06 of the Charter addresses director removal. The relevant provision states:
"Any director or the entire Board of Directors may be removed from office at any time, but only for cause, and only by the affirmative vote of the holders of not less than sixty-six and two-thirds percent (66⅔%) of the outstanding shares of capital stock of the Corporation entitled to vote generally in the election of directors, voting together as a single class."
This provision departs from the DGCL default rule in two significant respects. First, it limits removal to "for cause" only — even though the Company does not have a classified board. Second, it imposes a supermajority voting threshold of 66⅔% for any removal action. These provisions are highly favorable from a defensive standpoint, as discussed below.
"For Cause" Removal. We note that the validity of a "for cause" removal limitation in the absence of a classified board presents a legal question under Delaware law. DGCL § 141(k)(1) provides that directors of a corporation without a classified board "may be removed, with or without cause, by the holders of a majority of the shares then entitled to vote at an election of directors." However, this provision is generally interpreted as a default rule that may be modified by the certificate of incorporation. The Charter's "for cause" limitation is a permissible modification, though we note that some legal commentators have questioned whether DGCL § 141(k)(1) is a default or mandatory rule. To date, no Delaware court has definitively ruled that a "for cause" removal limitation is invalid in the absence of a classified board. We assess the risk of a successful challenge to this provision as low but not zero, and we recommend that the Board be aware of this residual legal uncertainty.
B. Supermajority Removal Threshold
As noted above, the Charter requires the affirmative vote of not less than 66⅔% of the outstanding shares entitled to vote in the election of directors to remove a director. This supermajority requirement is a powerful defensive provision that significantly raises the bar for any activist-initiated removal campaign.
Practical Impact. Pinnacle Harbor currently holds 6.8% of the Company's outstanding shares. Even if Pinnacle Harbor were to aggregate its shares with those of other known holders — Ridgeway Asset Management, LP (8.2%), Stillwater Capital Advisors, LLC (5.4%), and Canfield Municipal Employees' Retirement System (2.1%) — the combined holdings of these four stockholders would total only approximately 22.5% of outstanding shares, far short of the 66⅔% threshold. Accordingly, Pinnacle Harbor could not unilaterally — or even in combination with the other known significant holders — remove any of the Company's directors.
To reach the 66⅔% threshold, Pinnacle Harbor would need the support of a substantial portion of the Company's remaining institutional and retail stockholder base, which would require a full-scale proxy solicitation — a time-consuming, expensive, and uncertain endeavor.
Recommendation. The current supermajority removal threshold of 66⅔% is a strong defensive provision and we recommend no changes. We note that this provision is in the Charter, not the Bylaws, and therefore can be amended only with stockholder approval — an additional layer of protection.
VII. SPECIAL MEETING PROVISIONS
A. Who May Call a Special Meeting
The right to call special meetings of stockholders is a critical governance provision with significant defensive implications. DGCL § 211(d) provides that special meetings of stockholders "may be called by the board of directors or by such person or persons as may be authorized by the certificate of incorporation or bylaws."
Article II, Section 2.03 of the Bylaws provides:
"Special meetings of stockholders of the Corporation may be called only by (i) the Board of Directors pursuant to a resolution adopted by a majority of the whole Board, (ii) the Chair of the Board, or (iii) the Chief Executive Officer. No other person or persons shall be entitled to call a special meeting of stockholders."
Article III, Section 3.02 of the Charter contains a parallel provision confirming that special meetings may be called only by the Board, the Board Chair, or the Chief Executive Officer, and explicitly states that stockholders do not have the right to call special meetings.
Analysis. The Company's governing documents unambiguously restrict the right to call special meetings to the Board, the Board Chair, and the CEO. Stockholders — regardless of the size of their holdings — have no right to call a special meeting. This is a highly significant defensive provision.
B. Defensive Significance
The restriction on special meetings is critical in the context of the Pinnacle Harbor campaign for several reasons:
(i) Pinnacle Harbor cannot call a special meeting to remove directors, elect its nominees, amend the Bylaws, or take any other stockholder action outside of the annual meeting cycle. This forces Pinnacle Harbor to wait for the 2023 annual meeting to contest Board seats, giving the Board approximately five months to prepare its defense.
(ii) Even if Pinnacle Harbor were to aggregate its holdings with those of other stockholders, no combination of stockholders can force a special meeting, regardless of the aggregate percentage of shares held.
(iii) The restriction on special meetings interacts synergistically with the prohibition on stockholder action by written consent (see Section VIII). Together, these two provisions ensure that the annual meeting is the sole forum in which stockholders can take action, and the advance-notice provisions (Section IV) ensure that any nominations or business at the annual meeting must comply with the procedural requirements of the Bylaws.
C. Recommendations. The current special meeting provisions are among the strongest defensive provisions in the Company's governing documents. The dual placement of the restriction — in both the Charter and the Bylaws — provides additional protection, as the Charter provision can be amended only with stockholder approval. We recommend no changes to these provisions at this time and strongly recommend that the Board preserve this restriction in any future governance discussions or settlement negotiations.
VIII. STOCKHOLDER ACTION BY WRITTEN CONSENT
A. Current Provisions
DGCL § 228 provides a default rule that any action required or permitted to be taken at a meeting of stockholders may be taken without a meeting, without prior notice, and without a vote, if a written consent setting forth the action so taken is signed by the holders of outstanding stock having not less than the minimum number of votes that would be necessary to authorize or take such action at a meeting. However, this default rule may be overridden by the certificate of incorporation.
Article III, Section 3.03 of the Charter provides:
"No action that is required or permitted to be taken by the stockholders of the Corporation at any annual or special meeting of stockholders may be effected by written consent of stockholders in lieu of a meeting of stockholders, unless such action is recommended by all members of the Board of Directors of the Corporation then in office."
Analysis. The Charter effectively prohibits stockholder action by written consent, with a narrow exception for actions unanimously recommended by all members of the Board of Directors. Because the Board unanimity requirement makes the exception functionally inoperative as a tool for dissident stockholders, this provision operates as a de facto prohibition on stockholder action by written consent.
B. Defensive Significance
The prohibition on stockholder action by written consent is a critical defensive provision that prevents Pinnacle Harbor from bypassing the annual meeting process entirely. Without this prohibition, Pinnacle Harbor could solicit written consents from stockholders at any time — not just during the annual meeting season — to remove directors, elect its own nominees, amend the Bylaws, or take other stockholder actions. The ability to act by written consent would create a year-round vulnerability, effectively eliminating the procedural protections provided by the advance-notice provisions and the annual meeting cycle.
The prohibition on written consent is particularly important in the declassified board context. If written consent were available, and if Pinnacle Harbor could rally sufficient stockholder support, the Activist could conceivably remove the entire Board and replace it with its own nominees through a consent solicitation, without ever holding a stockholder meeting. The prohibition forecloses this avenue entirely.
C. Recommendations. The current prohibition on stockholder action by written consent is well-drafted and provides robust defensive protection. We note that the provision is in the Charter, not the Bylaws, which means it can be amended only with stockholder approval — an important structural protection. The exception for actions unanimously recommended by all members of the Board does not present a meaningful vulnerability, as it requires the affirmative approval of all directors, including any directors who might be aligned with the Activist.
We recommend no changes to this provision at this time.
IX. SUPERMAJORITY VOTING REQUIREMENTS
A. Charter Amendment Provisions
Article VIII of the Charter contains supermajority voting requirements for amendments to specified provisions of the Charter. Specifically, Article VIII, Section 8.01 provides:
"Notwithstanding any other provision of this Amended & Restated Certificate of Incorporation or any provision of law which might otherwise permit a lesser vote or no vote, the affirmative vote of the holders of not less than sixty-six and two-thirds percent (66⅔%) of the outstanding shares of capital stock of the Corporation entitled to vote generally in the election of directors, voting together as a single class, shall be required to amend, repeal, or adopt any provision inconsistent with, Article III (relating to special meetings and stockholder action by written consent), Article IV (relating to the Board of Directors, including board size, vacancies, and removal), and this Article VIII (relating to amendment of the Certificate of Incorporation)."
Analysis. This provision creates an interlocking set of protections: the key defensive provisions of the Charter — including the prohibition on written consent, the special meeting restrictions, the Board's exclusive vacancy-filling authority, the director removal provisions, and the supermajority amendment provisions themselves — are protected by a 66⅔% supermajority voting requirement. This means that Pinnacle Harbor cannot unilaterally amend any of these provisions and would face the same high barrier discussed in Section VI.B in any effort to do so. The self-referencing nature of the provision (Article VIII protects itself against amendment by less than a 66⅔% vote) ensures that the supermajority requirement cannot be undone by a simple majority vote.
B. Bylaw Amendment Provisions
DGCL § 109(a) provides that the bylaws of a corporation may be amended by the stockholders, and that the certificate of incorporation may additionally confer the power to amend bylaws on the board of directors.
Article VII of the Charter provides:
"In furtherance and not in limitation of the powers conferred by law, the Board of Directors is expressly authorized to adopt, amend, alter, or repeal the Bylaws of the Corporation."
Article X, Section 10.01 of the Bylaws contains a parallel provision, confirming that the Board may adopt, amend, alter, or repeal the Bylaws, and further providing that stockholders may also amend, alter, or repeal the Bylaws by the affirmative vote of the holders of not less than 66⅔% of the outstanding shares of capital stock entitled to vote generally in the election of directors.
Analysis. This framework is highly favorable to the Company:
(i) Board Authority. The Board has the unilateral power to adopt, amend, alter, or repeal the Bylaws without stockholder approval. This is critically important: it means the Board can adopt the enhanced advance-notice provisions and other defensive bylaw amendments recommended in this memorandum without the need for a stockholder vote. This power is subject to fiduciary duties and the equitable principles of Delaware law (discussed in Section XIII), but it provides the Board with meaningful near-term flexibility.
(ii) Supermajority Stockholder Requirement. Stockholders may amend the Bylaws, but only by a 66⅔% supermajority vote. This means that Pinnacle Harbor cannot amend or repeal the Company's advance-notice provisions (or any other defensive bylaw provisions) with a simple majority stockholder vote. The 66⅔% threshold provides substantial protection against activist-driven bylaw amendments.
C. Defensive Significance and Recommendations
The combination of the Board's unilateral bylaw amendment power and the 66⅔% supermajority stockholder requirement for bylaw amendments creates a highly advantageous defensive posture. The Board can strengthen the Bylaws as needed, while Pinnacle Harbor faces a very high bar to undo any such amendments.
The supermajority requirements for Charter amendments (66⅔% for key provisions) and Bylaw amendments (66⅔% for stockholder-initiated amendments) are consistent with best practices among companies that have adopted defensive governance structures. We recommend no changes to these provisions at this time.
We note, however, that the Board's exercise of its unilateral bylaw-amendment power in the context of an activist campaign will be subject to heightened judicial scrutiny, as discussed in Section XIII below.
X. EXCLUSIVE FORUM PROVISION
A. Current Provision
Article IX of the Charter contains an exclusive forum provision, which provides as follows:
"Unless the Corporation consents in writing to the selection of an alternative forum, the Court of Chancery of the State of Delaware (or, if the Court of Chancery does not have jurisdiction, another state court located within the State of Delaware or, if no state court located within the State of Delaware has jurisdiction, the federal district court for the District 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 current or former director, officer, employee, or agent of the Corporation to the Corporation or the Corporation's stockholders, (iii) any action asserting a claim against the Corporation or any current or former director, officer, employee, or agent of the Corporation arising pursuant to any provision of the Delaware General Corporation Law, the Amended & Restated Certificate of Incorporation, or the Amended & Restated Bylaws of the Corporation, or (iv) any action asserting a claim against the Corporation or any current or former director, officer, employee, or agent of the Corporation governed by the internal affairs doctrine."
Analysis. This exclusive forum provision is consistent with DGCL § 115, which expressly authorizes Delaware corporations to adopt exclusive forum provisions, and with the Delaware Supreme Court's decision in Salzberg v. Sciabacucchi, 227 A.3d 102 (Del. 2020), which upheld the enforceability of such provisions. The provision channels all internal affairs litigation — including derivative actions, fiduciary duty claims, and claims arising under the DGCL — to the Delaware courts, which have the deepest expertise in corporate governance matters.
B. Defensive Significance
The exclusive forum provision serves an important defensive function in the context of the Pinnacle Harbor campaign. If a proxy contest materializes, there is a meaningful risk that Pinnacle Harbor or its counsel (Hargrove Sloane & Birch LLP) may initiate litigation to challenge the Board's defensive actions — for example, challenging the adoption of enhanced advance-notice bylaws, alleging breach of fiduciary duty in the Board's response to the Activist's campaign, or seeking injunctive relief to compel the Company to seat Pinnacle Harbor's nominees. The exclusive forum provision ensures that any such litigation would be brought in the Delaware Court of Chancery (or, if lacking jurisdiction, another Delaware court), rather than in a forum perceived as more favorable to the Activist, such as a state court in New York or Nevada.
Additionally, the exclusive forum provision prevents the Activist from engaging in "forum shopping" or filing parallel suits in multiple jurisdictions — a tactic that can impose significant litigation costs on the Company and create the risk of inconsistent rulings.
C. Federal Forum Provision
Notably, the Charter's exclusive forum provision does not currently contain a "federal forum" provision requiring claims under the Securities Act of 1933 (the "Securities Act") to be brought exclusively in the federal district courts of the United States. In Salzberg, the Delaware Supreme Court upheld the validity of a charter-based federal forum provision for Securities Act claims. A growing number of Delaware corporations have adopted such provisions to prevent plaintiffs from bringing Securities Act claims in state courts, where procedural rules may be more favorable to plaintiffs.
While Securities Act claims are not the primary concern in the current activist campaign (which involves a contested election rather than a securities offering), the absence of a federal forum provision represents a gap in the Company's overall governance framework that should be addressed. If the Company undertakes a securities offering in the future, the absence of a federal forum provision could expose it to state-court Securities Act litigation.
D. Recommendations. The existing exclusive forum provision is well-drafted and provides meaningful protection. We recommend that the Board consider adopting a federal forum provision as well, either by Charter amendment (at the 2023 annual meeting, if the Board determines stockholder approval is desirable) or by Bylaw amendment (if the Board concludes that the DGCL and Delaware case law support the adoption of a federal forum provision by bylaw rather than charter). We note that the enforceability of a bylaw-based (as opposed to charter-based) federal forum provision has not been definitively resolved by the Delaware courts, and we recommend a charter-based approach for maximum certainty.
XI. PROXY ACCESS PROVISIONS
A. Current Provisions
Article II, Section 2.13 of the Bylaws contains a proxy access provision that permits qualifying stockholders to include their own director nominees in the Company's proxy materials. The key parameters of the proxy access provision are as follows:
• Ownership Threshold: A stockholder, or a group of up to twenty (20) stockholders, who collectively own at least three percent (3%) of the Company's outstanding shares of common stock;
• Holding Period: The qualifying stockholder(s) must have held the requisite shares continuously for at least three (3) years as of the date of the nomination notice;
• Number of Nominees: The greater of two (2) nominees or twenty percent (20%) of the Board (rounded down to the nearest whole number);
• Information Requirements: The nominating stockholder(s) must comply with specified informational requirements, including disclosure of ownership, holding period, and intent to continue holding shares through the annual meeting.
Application to Pinnacle Harbor. Pinnacle Harbor currently holds 6.8% of the Company's outstanding shares, which exceeds the 3% ownership threshold. However, Pinnacle Harbor commenced its