Mecanismos de Negociación
5. CANTIDAD MINIMA
business and capital structure and provide sufficient early warnings to allow meaningful inter- vention in the company’s turnaround. Simply referencing the term “material definitive agree- ment” may cover all necessary agreements. See supra note 203 and accompanying text. 211. A board and shareholders may want to use additional or alternative triggers. Such triggers could focus on Items 2.03 and 2.04 of Form 8-K, or even the company receiving a going concern qualification from its auditors. A company likely would not want to rely solely on the going concern qualification because, depending on the industry and the nature of the company’s operations, such trigger may or may not provide sufficient early warnings of the company’s distress.
212. Commentators debate the value of shareholders’ interests in a company as that com- pany approaches insolvency. As explained at Part I, Delaware courts have determined that near-insolvency does not change the focus of directors’ duties. See, e.g., supra note 40. Nev- ertheless, incentives shift as a company approaches insolvency, and shareholders may be will- ing to take on significantly greater risk than advisable at that point in the company’s lifecycle. In fact, the shareholders’ perspective could become value destructive, rather than value en- hancing. For this reason, a company may want to include a safety valve in its targeted proxy access provision that “shuts off” the access after a certain period of time in distress or upon certain objective financial benchmarks. A company and its stakeholders also could at that point mandate the appointment of a chief restructuring officer, or the addition of a restructuring expert or creditor representative to the board, to better represent all interests in what likely will be a liquidation or sale event.
Upon the occurrence of a Trigger Event, the Company’s shareholders shall have the right to elect two additional directors to the Company’s board of directors (“Special Voting Right”).214 The Company shall in- clude in its proxy statement for any subsequent annual or special meet- ing of shareholders, the name of any person timely215 nominated for elec- tion (each a “Shareholder Nominee”) to the Board of Directors pursuant to the Special Voting Right by an individual Eligible Shareholder or a group of up to [twenty] Eligible Shareholders. If the Company’s next annual meeting is more than ninety days following the Trigger Event, the Company’s board of directors shall notice a special meeting of shareholders for a date not more than sixty days following the Trigger Event for purposes of implementing this provision.216 The Company also shall include the Required Information217 in any such proxy statement containing the names of any Shareholder Nominee. The Special Voting Right shall terminate on a date that is [three] years fol- lowing the Trigger Event (the “Termination Date”) and the term of the directors then serving pursuant to the Special Voting Right shall end immediately prior to the Company’s next regularly scheduled annual meeting of shareholders.
Shareholder Eligibility and the Relevance of the Holding Period. Include per- centage ownership and holding period requirements that align the interests of the shareholder nominating directors with the company; limit the number of nominees that may be submitted by shareholders and included in the com- pany’s proxy materials; and permit, with reasonable limits, participation by groups to allow a more diverse representation of shareholders to participate. These requirements are very similar to the basic provisions included in general proxy access bylaws.218 Nevertheless, proponents of targeted proxy access
may want to ease the eligibility requirements—including the mandated holding period—given the urgency of the issues presented by the Trigger Event. For example, a three-year holding period may impede an activist investor’s ability
§ 313.00(C) (setting forth minimum voting rights of preferred stockholders in listed companies, including the right to elect two directors to the board “upon default of the equivalent of six quarterly dividends”).
214. Proponents of this kind of targeted proxy access certainly could enlarge the number or percentage of additional directors that are elected pursuant to the provision. The mere pres- ence of two dissenting or alternative voices may, however, prove sufficient in many cases. This kind of provision may require an amendment to the company’s bylaws or certificate to enlarge the board as necessary to accommodate the additional directors. See, e.g., DEL.CODE
ANN. tit. 8, § 141(b) (2011). Proponents also may want to include language that prohibits the Company from otherwise enlarging or altering the number of directors on the board while the provision is in effect.
215. See supra note 207 (discussing the timeliness of submissions).
216. See supra note 206 (discussing timing concerns with the implementation of targeted proxy access and the potential use of special meetings to address these concerns).
217. See supra note 209 (discussing an example of these disclosures). 218. See supra notes 193, 201 and accompanying text.
to use targeted proxy access to the benefit of the company.219 Thus, even com-
panies with a general proxy access provision may want to provide enhanced access rights in the particular circumstances defined by the Trigger Event. The facts and circumstances of the company’s distress may, on balance, outweigh any short-termism concerns and tilt in favor of a shorter holding period requirement.
Shareholder Disclosures. Require detailed disclosures by the shareholder nominating directors. These disclosures should include not only information about its beneficial holdings in the company, but also any related derivative products, debt, or other interests it may hold, directly or indirectly, in the com- pany. To supplement the disclosures required in Schedule 14N,220 companies
and the SEC may want to consider a definition of “economic interest” similar to the following definition of “disclosable economic interest” under Rule 2019 of the Federal Rules of Bankruptcy Procedure: “any claim, interest, pledge, lien, option, participation, derivative instrument, or any other right or deriva- tive right granting the holder an economic interest that is affected by the value, acquisition, or disposition of a claim or interest.”221 Understanding the eco-
nomic interests of the nominating shareholder and its potential agenda are par- ticularly important in the distressed context, as evidenced by the RadioShack case study.222
Nominee Disclosures. Require specific disclosures concerning the nominee, including all relevant information that is provided by the company with respect to its nominees.223 Notably, the trigger allowing proxy access may help shareholders
identify nominees offering skills relevant to the particular issues plaguing the company.