Three insurance and disclosure points deserve their own treatment because each is routinely overgeneralized.
D&O insurance
Counsel should review D&O policies pre- and post-reincorporation for changes in retention, defense cost coverage, choice-of-law clauses, state-law jurisdiction language, and exclusions for breach-of-loyalty claims. Whether the broader D&O market has systematically differentiated pricing for TX/NV-domiciled issuers is a question requiring market-data sources (Aon, Marsh, Willis Towers Watson, Woodruff Sawyer); this page does not assert a market-wide repricing absent that data. Side A coverage and Side B / Side C tower review should be performed at policy renewal, not assumed unchanged.
Federal-forum-provision scope
Salzberg v. Sciabacucchi held that Delaware corporations may adopt charter provisions designating federal court as the exclusive forum for Securities Act § 11 claims — an internal-affairs proposition. Lee v. Fisher addressed the Ninth Circuit’s treatment of state-court forum clauses applied to Exchange Act § 14(a) derivative claims. The two cases address different procedural postures; the operative analysis is claim-specific. Counsel should not assume that a Texas or Nevada exclusive-forum bylaw covers Exchange Act derivative claims, Securities Act claims, or both — the scope of each must be reviewed against the bylaw’s text and the specific claim’s federal-jurisdictional posture.
The federal-securities exception
Federal-securities claims do not disappear at the state border. Securities Exchange Act § 10(b) and Rule 10b-5 remain available for transactional fraud claims; Section 14(a) and Rule 14a-9 remain available for proxy-disclosure inadequacy; Securities Act § 11 remains available where registration-statement disclosures are materially misleading. The federal anti-waiver rules at Securities Act § 14, 15 U.S.C. § 77n and Exchange Act § 29(a), 15 U.S.C. § 78cc(a) preserve federal substantive rights for federal-securities claims, and state-law internal-affairs forum clauses do not override them. (Securities Act § 28, 15 U.S.C. § 77z-3, is the Securities Act’s general exemptive authority and is not an anti-waiver provision; Exchange Act § 27, 15 U.S.C. § 78aa, is the Exchange Act’s federal-court jurisdictional grant.).