Writing in DealLawyers.com, Meredith Ervine highlights one Delaware corporation's proposal to amend its certificate of incorporation to designate the corporation as the agent of its stockholders to pursue damages in the event that specific performance is not sought or granted as a remedy for fraud or material and willful breach of the merger agreement by the acquiring company in a proposed merger transaction.  The purpose of the proposal is to address the so-called "Con Ed problem" in which the Court of Appeals concluded that the Northeast Utilities’ stockholders lacked third-party beneficiary status to enforce a merger agreement because the merger agreement lacked a third party beneficiaries clause.   Consol. Edison, Inc. v. Ne. Utilities, 426 F.3d 524 (2d Cir. 2005).

As I discussed in this post last month, these types of charter amendments raise a question of agency law - can charter amendment not signed by a shareholder create a valid agency relationship?  Is it inconsistent to insist that stockholders sign proxy cards appointing proxies as their agents to attend and vote at the meeting but not the appointment of the corporation as their agent?