Du Pont, Delaware, and "Empty Governance"

The announced merger between Du Pont and Dow Chemical will result initially in a single entity, DowDupont. The combined company plans to maintain two headquarters, one in Michigan (where Dow is based) and one in Wilmington Delaware (where Dupon is based).  At least one article, however, suggested that the dual headquarters structure would be "fleeting" and that ultimately the headquarters in Delaware could be closed. See DuPont merger: A 'sad day' for Delaware, Delaware Online, Dec. 12, 2015 ("The dual headquarters structure of the newly merged DowDuPont will likely be fleeting as the new company deals with the expenses and inefficiencies of maintaining two central locations. The decision could leave Delaware without a DuPont headquarters for the first time in 213 years.").   

Dupont is, of course, incorporated in Delaware (as is Dow).  That is no surprise; some 60% or more of the Fortune 500 are incorporated in the state.  What makes Dupont unusual is that it is actually headquartered in Delaware.  Of the Fortune 500, only two have headquarters in Wilmington:  Dupont (no. 87) and Navient (no. 463).  Dover, the second largest city in the state, has none.  To the extent that Dupont (or any of the resulting entities spun off from DowDupont) cease to be headquartered in the state, Delaware will find itself setting the law for largest public companies without actually having any of them within its jurisdiction.  

Sound familiar?  See Genger v. TR Investors, 26 A.3d 180 (Del. 2011) ("even if the Proxy language was ambiguous on that point, public policy considerations relating to the separation of voting control from underlyingeconomic stock ownership, which would result in 'empty voting,' required construing the Proxy strictly against any implied reservation of voting power.").  Perhaps, if this comes to pass, Delaware will be engaging in "empty governance."  

J Robert Brown Jr.