Recent rulings by judges in Delaware and other states have given impetus to the adoption of exclusive forum bylaws. To the casual observer, the idea might seem entirely novel. But as Koheleth (the Gatherer) wrote "What has been is what will be, and what has been done is what will be done, and there is nothing new under the sun."
Exclusive forum bylaws do not require that all actions involving a corporation be brought in a specified forum. Typically, they apply only to the following four categories of suits:
In the case of officers, the first two categories may already be covered by one or more forum selection clauses in existing contracts. For example, an employment agreement might provide that the exclusive forum is not a court, but arbitration as in the following:
To the fullest extent allowed by law, any controversy, claim or dispute between you and the Company (and/or any of its affiliates, owners, shareholders, directors, officers, employees, volunteers or agents) relating to or arising out of this Agreement, your employment or the termination of that employment will be submitted to final and binding arbitration in ___________, for determination in accordance with the American Arbitration Association’s (“AAA”) Employment Arbitration Rules (the “Rules”), including any subsequent modifications or amendments to such Rules, as the exclusive remedy for such controversy, claim or dispute.
Since derivative suits are suits between the corporation and the defendants, they would seem to be covered by this type of provision. Note that in this case, covered disputes aren't limited to claims of breach of contract, but extend to claims and disputes "relating to or arising out" of the employment relationship.
Other sources of exclusive forum provisions may be equity compensation plans, award agreements and severance agreements.