Although Rome before Augustus is often described as a republic, it was in many respects ruled by the wealthy who jealously guarded their power.  So it was with Rome’s comitia centuriata.  In theory, this was an assembly of the people that elected the chief officials of the republic.  However, these were not direct elections.  Instead, the populace was divided into groups, known as centuries, and each century had one vote.  Because the centuries voted in order of rank and a simple majority vote was required, it was rare that the lower classes were able to vote. (The voting ended when the requisite majority was attained.)   In this way, the wealthy were able to run things while providing the semblance of universal sufferage.

I see some parallels when it comes to proxy access proposals.  For example, Broc Romanek recently noted that Whole Foods Market, Inc. had obtained the SEC staff’s concurrence to exclude from its proxy statement a shareholder access proposal submitted by James McRitchie.  Whole Foods argued that Mr. McRitchie’s proposal could be excluded pursuant to Rule 14a-8(i)(9) because his proposal directly conflicts with a company proposal.  Whole Foods explained that its Board of Directors has determined “to seek shareholder approval of amendments to the Company’s Amended and Restated Bylaws (the “Bylaws”) to permit any shareholder (but not a group of shareholders) owning 9% or more of the Company’s common stock for five years to nominate candidates for election to the Board and require the Company to list such nominees with the Board’s nominees in the Company’s proxy statement.”

Whole Foods is a Texas corporation and this is what I found in Section 21.152 of the Texas Business Organizations Code:

CLASSES AND SERIES OF SHARES. (a) A corporation’s certificate of formation may divide the corporation’s authorized shares into one or more classes and may divide one or more classes into one or more series.  If more than one class or series of shares is authorized, the certificate of formation must designate each class and series of authorized shares to distinguish that class and series from any other class or series.

(b) Shares of the same class must be of the same par value or be without par value, as stated in the certificate of formation.

(c) Shares of the same class must be identical in all respects unless the shares have been divided into one or more series. If the shares of a class have been divided into one or more series, the shares may vary between series, but all shares of the same series must be identical in all respects.

(d) A corporation’s certificate of formation must authorize:

(1) one or more classes or series of shares that together have unlimited voting rights; and

(2) one or more classes or series of shares, which may be the same class or series of shares as those with voting rights, that together are entitled to receive the net assets of the corporation on winding up and termination.

Because I don’t have any familiarity with Texas law, I’m not expressing any views on whether Whole Foods’ proposed bylaw amendment is permissible in light of the above provision.  However, if Texas permits discrimination based on who holds the shares (i.e.,larger, long-time holders), then it seems that, like the comitia centuriata, some nominally identical shares are more equal than others.

See also my post All Shares Are Equal But With Proxy Access Some Shares Are More Equal Than Others.