Document type: Checklist Practice area: Corporate — Governance Jurisdiction: United States (federal and state) Last reviewed: 5 September 2026

Part 1 — Know your register (ordinary years)

  • Stock surveillance engaged — identifies accumulation weeks before any filing obligation arises.
  • Quarterly institutional holdings analysis maintained.
  • Watch list: unusual volume without news; accumulation at a single prime broker; a holder converting from Schedule 13G to 13D; options and swap activity; coordinated timing across accounts.
  • Derivative exposure understood — cash-settled instruments give economic exposure without votes, and hedging counterparties are themselves a source of votes.
  • Decision-makers mapped, not just institutions — at the large index funds the vote is decided by a governance team applying published policies, not the portfolio manager.
  • Register refreshed quarterly and put before the board annually.

Part 2 — The annual self-assessment, through activist eyes

  • Total shareholder return over 1, 3, and 5 years against a defensible peer set and the index — with an explanation that would satisfy a skeptical analyst.
  • Sum of the parts: each segment on comparable multiples. Where the parts exceed the whole, that is the campaign thesis — have a reasoned answer on separation costs, dis-synergies, and tax leakage, or a plan.
  • Capital allocation: every material acquisition over five years with realized returns; buyback timing; dividend policy; capex versus depreciation.
  • Margins by segment against the closest comparable operators; unexplained gaps identified.
  • Board: tenure distribution, skills matrix against the strategy, attendance, overboarding — and which individual directors would be vulnerable head-to-head against a credible outside nominee (universal proxy makes this urgent).
  • Compensation: realized pay against performance, peer positioning, metric selection.
  • Governance features an adviser would criticize: classification, supermajority provisions, no special meeting right, dual class without a sunset, responsiveness to prior votes.
  • Findings ranked by how damaging they would be publicly; top three before the board with a remediation plan and a date.
  • Acted on. (A filed assessment that produces no action is paid for twice.)

Part 3 — Infrastructure

  • Advance notice bylaws reviewed and updated in an ordinary year — requiring ownership including derivative and short positions, arrangements with others, nominee background and qualifications, and any third-party compensation arrangement with a nominee.
  • Bylaws confirmed reasonable in scope. (Provisions adopted or applied inequitably in the face of a specific threat have been invalidated.)
  • Rights plan on the shelf, not outstanding.
  • Charter and bylaw defensive provisions reviewed: classification, special meeting right, written consent, supermajority.
  • Response team named: CEO, CFO, GC, IR, outside counsel, Delaware counsel, financial adviser, proxy solicitor, communications counsel.
  • Advisers identified, engaged in principle, and briefed on the company.
  • Draft communications materials outlined.
  • Board has discussed what it would do.

Part 4 — Institutional relationships (ordinary years)

  • Governance teams met at the largest index holders — not only portfolio managers.
  • Each major holder's voting policies understood.
  • Proxy advisory firm policies read annually; the company's likely scoring on classification, tenure, and compensation known in advance.
  • Issues an adviser would flag addressed in an ordinary year, when the change reads as governance rather than defense.
  • Engagement log maintained.

Part 5 — The tabletop

  • Half-day simulation: a 13D lands Tuesday disclosing 6.5% and a board-composition purpose. Nothing distributed in advance.
  • First seventy-two hours run in real time.
  • Complications injected: CEO travelling; journalist calls before the board is briefed; executive posts on social media; a large holder says they are sympathetic; the advance notice deadline is eleven days away.
  • Findings recorded and fixed: stale team list, unclear approval path, unread bylaws, no vote model template, no governance-team relationships, unaddressed self-assessment findings.
  • Directors included.
  • Repeated every two years and after any material change in register, strategy, or board.

Part 6 — The first seventy-two hours

  • Pre-named response team convened same day.
  • Filing read carefully: percentage, timing and prices, funding, and — most importantly — the stated purpose under 15 U.S.C. § 78m(d).
  • Board briefed within 24 hours, in writing, with the filing attached.
  • Short neutral public acknowledgment issued. (Silence reads as unpreparedness; a defensive statement reads as entrenchment.)
  • Not done: personal attacks; reflexive defensive measures; a hasty strategic announcement; unapproved executive comment.
  • Surveillance and register work started.
  • Calendar checked and diarized: advance notice window, nomination deadline, annual meeting date.

Part 7 — The honest substantive assessment

  • Privileged board session asking: which of the activist's arguments are right?
  • Arguments sorted: right and we should act / wrong and demonstrable with data / contested.
  • Changes the board believes correct made on the company's own reasoning, with a contemporaneous record.
  • Conflicts assessed — where management's position is at issue, consider an independent committee with its own advisers. In any campaign involving a call for a sale, not optional.
  • Deliberation documented in minutes that record what was considered and on what advice.

Part 8 — The nomination notice

  • Notice read against the bylaws carefully: timeliness; ownership including derivatives and shorts; arrangements with others; nominee background; third-party compensation arrangements; required representations.
  • Conservative on challenge. Rejecting a valid nomination on a strained reading becomes litigation lost in public and hands the activist a governance argument.
  • Where genuinely defective: deficiency identified in writing with an opportunity to respond.
  • Bylaws NOT amended now — post-nomination amendments are defensive measures evaluated as such.
  • Derivative disclosure analyzed — a hedged holder's thesis reads differently, and that is worth telling shareholders.

Part 9 — The vote model

  • Built in week two, holder by holder, top fifty positions: shares, percentage, holder type, likely disposition, what would change it, relationship owner, and who decides (governance team or PM).
  • Vote sources understood: index funds (largest, vote everything, governance teams decide); active managers (fewer, more persuadable); proxy advisers (move institutional votes); retail (low turnout, management-leaning, expensive to reach).
  • Mechanics modeled: record date, broker non-votes, proxy revocation, employee plan pass-through.
  • Standard noted: plurality in a contested election — highest vote-getters win regardless of majority support.
  • Modeled seat by seat under universal proxy — the question is which of our nominees is individually weakest against which of theirs.
  • Updated weekly.

Part 10 — Engagement

  • Largest holders called in the first two weeks, before the activist's narrative settles.
  • Governance teams met; published voting policies addressed directly.
  • Substantive submission to the proxy advisers, submitted early: segment economics, capital allocation record with realized returns, board skills matrix, steps taken and when (post-campaign action is discounted).
  • Individual director records addressed — adverse reports now target specific incumbents.
  • Draft adviser reports corrected factually, promptly, without arguing characterization.
  • Data, not tone. No personal attacks. Errors corrected once, precisely.
  • Every communication treated as a solicitation under 15 U.S.C. § 78n(a) and 17 C.F.R. Part 240 — filed, and cleared through one approval path with one named approver, including executive social media.

Part 11 — The settlement decision

  • The test applied: would we appoint these people if the fund did not exist?
  • Not settling to avoid embarrassment; not fighting to avoid the appearance of capitulation.
  • Cost of the alternative modeled: solicitation, legal, financial advisory, communications — plus three to six months of senior management attention.

Terms:

  • Board seats: number, identity, and whether a mutually agreed independent is added.
  • Committee membership — the hardest term and the one that determines influence.
  • Standstill: duration tied to the next nomination window; no further nominations, proposals, or solicitations; accumulation cap; no group formation with others.
  • Voting commitment scope — director elections is ordinary; all matters is aggressive.
  • Information rights and confidentiality — expressly, whether the appointed director may share information with the fund, and the fund's resulting trading restrictions.
  • Non-disparagement, mutual and time-limited; termination and fall-away provisions; expense reimbursement as a negotiated line item.
  • Announced on the company's reasoning, with commitments the company intends to keep.

Part 12 — Defensive measures, if used

  • Understood: enhanced scrutiny applies — the board must identify a legitimate threat after reasonable investigation and respond proportionately.
  • The investigation documented contemporaneously: advice received, analysis, alternatives weighed.
  • Rights plan threshold and trigger calibrated to a genuine creeping-control threat, not to silencing advocacy.
  • Nothing done that interferes with the vote — no moving the meeting date, expanding the board mid-contest, changing rules after a nomination, or delaying the count. (A compelling justification is required and rarely found.)
  • Independent committee used where management's position is at issue.
  • Institutional reaction weighed — a measure that succeeds legally and alienates the base has lost the campaign that matters.

Part 13 — Running a contest

  • Universal proxy mechanics correct: each side's card lists all duly nominated candidates; formatting and reference requirements met; dissident's minimum solicitation threshold tracked.
  • Solicitor engaged and soliciting; vote position known weekly and daily in the final week.
  • Message consistent across the proxy statement, presentations, letters, and every executive conversation.
  • Litigation managed and kept proportionate — a claim that fails publicly strengthens the other side.
  • End-game mechanics watched: inspectors of election, revocation, broker non-votes, receipt records.
  • The company keeps being run. A board frozen for six months proves the activist's point.

Part 14 — Other constituencies

  • Employees: short accurate message; no promised outcomes; named contact; only designated spokespeople speak externally.
  • Retention risk addressed deliberately — with the compensation committee documenting rationale and timing, because awards during a campaign are scrutinized as entrenchment.
  • Customers and suppliers: approved short answer for commercial teams; anything further routed to a named person.
  • Understood that these communications can themselves be solicitations and go through the same approval path.
  • Internal and external tone consistent — both will be read.

Part 15 — After the campaign

  • Appointed director onboarded like any other — same orientation, materials, and access.
  • Information-sharing and confidentiality operated per the settlement; fund's trading constraints understood (a designee's knowledge may be attributed to the fund).
  • Substantive argument expected to continue, particularly in the committee the appointee joined.
  • Standstill dates calendared: expiry, next nomination window, fall-away triggers.
  • Commitments executed — the most common cause of a second campaign is a company that settled the first and did not do what it said.
  • Debrief written: cost, which arguments landed, the register now, and what the self-assessment should have caught.
  • Self-assessment cycle resumed with the campaign's arguments folded in.

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This checklist is general information, not legal advice, and does not create an attorney-client relationship.