행동주의자측 지명이사의 회사정보에 대한 접근권과 비밀유지의무- 미국에서의 논의와 우리 법제에 대한 시사점 -

A recent trend in global shareholder activism is that target companies are increasingly accepting shareholder activist nominees as directors. When activist directors are elected, companies face a variety of challenges in managing their boards. First, in Korea, even if an individual activist director requests certain information without going through the board of directors, the target company is not legally required to comply with the request, but it is sufficient to take the position that the target company is only required to comply with the request of the board of directors as a consultative body. In light of this, it is particularly important for minority shareholders to agree on access rights (such as the target company's obligation to provide certain information and the shareholders' right to inspect the target company) through a joint venture agreement, as it is difficult for minority shareholders to obtain the necessary information from the target company, such as a joint venture controlled by a majority shareholder. Second, even if the activist director is a director of the target company, the shareholder activist is only a third party from the target company's perspective, so if the activist director discloses confidential information to the shareholder activist without the company's authorization, the activist director may be in breach of the duty of confidentiality. Thus, regardless of the circumstances in which the activist director is expected to act on behalf of the shareholder activist, it would be preferable to interpret the rule to mean that disclosure of confidential information by the activist director to the shareholder activist is impermissible if it would harm the interests of the target company, at least in situations where a conflict of interest exists between the shareholder activist and the target company. Finally, if the designated director is a dual fiduciary and possesses material information about the shareholder activist, simply abstaining from the transaction would be effectively tantamount to remaining silent during the transaction discussions and concealing the material information, potentially constituting a breach of the duty of care or loyalty to the company. However, the problem with this is that if the designated director discloses the designating shareholder's information by explaining the circumstances that led to his or her abstention, this may also be a breach of the duty of care or loyalty to the designating shareholder. Therefore, to solve this problem, it may be advisable to make an agreement in advance to the effect that “if the designated director abstains from voting on the approval of a transaction with a potential conflict of interest, the designated director is not required to further disclose confidential information relating to the designating shareholder to the company and other directors.