Legal baseline · New Jersey → Texas
Bottom line. Most commentary compares Texas to Delaware. That comparison would matter if ExxonMobil were moving from Delaware. It isn't. ExxonMobil has been incorporated in New Jersey since 1882, and New Jersey is the law it is leaving behind — not a clean shareholder-rights gold standard, but a regime with a security-for-expenses framework, a 10% interested-stockholder trigger, and a five-year business-combination moratorium with ongoing fair-price conditions. The table below scores all three states on the five rules that matter: derivative-suit standing, shareholder proposals, exclusive forum, written consent, and fee-shifting.
ExxonMobil is leaving a state that authorizes a security-for-expenses bond against derivative plaintiffs holding under $250,000 in market value, permits fee-shifting, imposes a 10% interested-stockholder threshold, and applies a 5-year merger moratorium followed by ongoing post-moratorium approval / fair-price architecture. For shareholders, this is a deregulatory move — not a restrictive one.
N.J. Stat. Ann. §§14A:3-6.7 (fee-shifting, opt-in), 14A:3-6.8 (security-for-expenses; bond amount court-set, with a $250,000 market-value safe-harbor exemption), 14A:10A-3(j), 14A:10A-4, 14A:10A-5 (10% threshold; five-year moratorium; ongoing post-moratorium approval / fair-price conditions under §14A:10A-5) (West 2024).
The disenfranchisement critique often compares Texas to Delaware. For ExxonMobil, that is the wrong starting point.
ExxonMobil is migrating from New Jersey to Texas, not from Delaware. The relevant question is not whether Texas law contains opt-in provisions that could restrict shareholder rights, but whether ExxonMobil adopted them. The proxy record says it did not: ExxonMobil expressly declined both elective Texas provisions most central to the critique — §21.373 (shareholder-proposal threshold) and §21.552(a)(3) (derivative-standing threshold).
Each cell cites the operative statute. Where ExxonMobil’s certificate or bylaws are dispositive, the citation includes the specific DEF 14A annex.
| Dimension | Current — New Jersey (in force; ExxonMobil is leaving this regime) |
Proposed — Texas (default TBOC + SB 29 / SB 1057 framework; ExxonMobil declined the SB 29 §21.552(a)(3) and SB 1057 §21.373 opt-in elections) |
Alternative — Delaware (reference comparator the critique uses) |
|---|---|---|---|
| Derivative-suit standing threshold | N.J. Stat. Ann. §§14A:3-6.2, 14A:3-6.3. No percentage ownership threshold; shareholder must satisfy contemporaneous-ownership and fair-and-adequate-representation requirements plus the §14A:3-6.3 demand and 90-day waiting-period rules. | Tex. Bus. Orgs. Code Ann. §21.552(a)(3) (post-SB 29). Texas permits, but does not require, a corporation to adopt a derivative-standing ownership threshold not exceeding 3% of outstanding shares. ExxonMobil did not adopt this threshold. The separate $1 million / 3% formulation in §21.373 applies to shareholder proposals, not derivative standing. | Del. Code Ann. tit. 8 §327. Contemporaneous-ownership rule; no percentage threshold. Bylaw-adopted thresholds remain legally unsettled. |
| Shareholder-proposal threshold | No comparable statutory threshold in the NJBCA. ExxonMobil’s existing proxy / bylaw and federal Rule 14a-8 framework govern. | Tex. Bus. Orgs. Code Ann. §21.373 (West 2025) (added by SB 1057). Captioned "NATIONALLY LISTED CORPORATIONS: SHAREHOLDER PROPOSALS" — the provision applies only to nationally listed corporations and only if affirmatively elected in the certificate of formation or bylaws. It is not a derivative-standing provision. When elected, a shareholder (or group) must hold at least $1 million in market value or 3% of voting shares (disjunctive), hold for six months through the meeting, and solicit holders representing at least 67% of voting power. §21.373(d) imposes a contact-facilitation duty on the adopting corporation. ExxonMobil did not adopt this provision. | No direct DGCL analogue. Delaware corporations rely on the DGCL, bylaws, and federal Rule 14a-8 / proxy framework. |
| Security-for-expenses bond | N.J. Stat. Ann. §14A:3-6.8. Corporation may demand security for reasonable expenses unless plaintiff holds ≥5% of any class or shares with market value above $250,000; bond amount set by the court. Opt-in under §14A:3-6.9(a).† Fee-shifting authorization is the separate §14A:3-6.7 (also opt-in). | Tex. Bus. Orgs. Code Ann. ch. 21 (post-SB 29). No statutory security-for-expenses bond; the predecessor article (former Tex. Bus. Corp. Act art. 5.14(F)) was not carried forward into the TBOC. Separate demand-review and director-independence procedures at §§21.553–21.554 and §21.4161, but those are panel-determination provisions, not bond requirements. | — Not applicable. Delaware imposes no security-for-expenses bond. |
| Interested-stockholder moratorium | N.J. Stat. Ann. §§14A:10A-3(j), 14A:10A-4, 14A:10A-5 (West 2024). 10% interested-stockholder threshold; 5-year moratorium; ongoing post-moratorium approval / fair-price conditions under §14A:10A-5 (board approval, two-thirds disinterested vote, or detailed fair-price route). | Tex. Bus. Orgs. Code Ann. §§21.602, 21.606 (West 2025). 20% affiliated-shareholder threshold (higher than NJ or DE); 3-year moratorium; no statutory post-moratorium fair-price condition. The substantive shareholder-friendly differences vs. NJ are the higher threshold and the absence of the post-moratorium fair-price architecture — not the moratorium duration (TX 3yr = DE 3yr). | Del. Code Ann. tit. 8, §203 (2024). 15% threshold; 3-year moratorium; no statutory post-moratorium fair-price condition. |
| Written consent of stockholders | N.J. Stat. Ann. §14A:5-6. Permitted; unanimous consent generally, with nonunanimous minimum-vote consent available unless the certificate of incorporation provides otherwise, subject to notice and other statutory exceptions. | Tex. Bus. Orgs. Code Ann. §§6.201, 6.202. §6.201 default is unanimous written consent; §6.202 permits less-than-unanimous only if authorized by the certificate of formation. ExxonMobil’s Texas Certificate of Formation and Bylaws set the operative standard — DEF 14A Annex B (Cert. of Formation, pp. 135–38) and Annex C (Bylaws, pp. 139–62). Readers should consult those instruments directly rather than rely on a comparator label. | Del. Code Ann. tit. 8 §228. Permitted unless the certificate provides otherwise; holders of the minimum vote required at a meeting may act by consent. |
† Note on the opt-in. N.J. Stat. Ann. §§14A:3-6.7 (fee-shifting) and 14A:3-6.8 (security-for-expenses bond) are opt-in provisions that apply only if expressly adopted in the corporation’s certificate of incorporation. See N.J. Stat. Ann. §14A:3-6.9(a). The application of these provisions to ExxonMobil’s current New Jersey regime turns on the express elections in its Restated Certificate of Incorporation. See ExxonMobil DEF 14A Annex D, at 163–89.
Gusinsky v. Reynolds, No. 3:25-cv-01816-K, 2026 WL 747179, slip op. at 8–11 (N.D. Tex. Mar. 17, 2026) (Kinkeade, J.). The court applied Tex. Bus. Orgs. Code Ann. §21.552(a)(3) to a corporation (Southwest Airlines) that had adopted a 3% derivative-standing threshold by bylaw and dismissed the suit with prejudice when the plaintiff’s 100 shares fell far below that threshold. The case shows the threshold is enforceable when adopted. ExxonMobil, however, did not adopt §21.552(a)(3), so the case is relevant to the Texas opt-in architecture, not to ExxonMobil’s adopted governance documents. Slip-opinion primary source: PACER (N.D. Tex. docket 3:25-cv-01816-K) / CourtListener / Westlaw 2026 WL 747179; hosted PDF link pending.
The Northern District of Texas dismissed Southwest Airlines’ derivative suit with prejudice when the plaintiff’s 100 shares fell far below Southwest’s bylaw-adopted 3% threshold. Confirms §21.552(a)(3) is enforceable when a corporation elects it.
Page 77 of the ExxonMobil DEF 14A commits the company under federal proxy antifraud liability to non-adoption of §21.552(a)(3) and every Texas provision that weakens shareholder rights below the New Jersey baseline.
Gusinsky is the doctrinal predicate the critique invokes — but because ExxonMobil declined both §21.552(a)(3) (the provision Gusinsky enforces) and §21.373 (the parallel shareholder-proposal opt-in), the precedent is binding on Southwest Airlines and inert for ExxonMobil shareholders.
“The Company is not adopting any elective provisions of the Texas corporate statute that weaken shareholder rights as compared to New Jersey law in connection with the Texas Redomiciliation.”
— ExxonMobil DEF 14A, Proxy Summary at 3 (Apr. 8, 2026)“The Company is not adopting any elective provisions of the Texas corporate statute that could be viewed as weakening shareholder rights as compared to New Jersey law in connection with the Texas Redomiciliation.”
— ExxonMobil DEF 14A, Proposal 4 detail at 76–77 (Apr. 8, 2026) · Accession 0001193125-26-147614 · EDGAR →Note on both formulations. The proxy contains both an unhedged version of the commitment in the Proxy Summary at page 3 and a hedged version in the Proposal 4 detail discussion at pages 76–77. Both are operative under federal proxy antifraud liability (17 C.F.R. § 240.14a-9). The unhedged version controls the company’s representation; the hedged version reflects the proposal-discussion drafting convention.
Primary statutes & filings