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TEACHING HYPOTHETICALS
By Richard D. Freer
Emory University School of Law
Six fact patterns:
1.
2.
3.
4.
5.
6.
Organization of corporation
Issuance of stock
Directors and officers
Shareholders
Fundamental corporate changes
Federal securities
______________________________________________________________________
-- Can BAR/BRI, Inc. serve as an incorporator for Curl Up and Dye Beauty Supply
Yes, it can be a person or an entity - that is the majority view. in new york
Corp.? Can Joan Rivers? ________________________________________________
______________________________________________________________________
it has to be a human
(2) Paper: Articles of Incorporation.
A.
B.
Information in articles.
(1) Names and addresses.
a.
Corporate name.
Can I form a corporation with the name Bubba=s Bountiful Biscuits?
No. It must include one of these Amagic words@ (or an abbreviation
thereof): __________________________________________________
corporation, company, incorporated, or limited
__________________________________________________________
_________________________________________________________
b.
CORPORATIONS
c.
__________________________________________________________
this general statement in states which require.
b.
__________________________________________________________
this corporation goes into an ultra vire act then O and D are liable.
__________________________________________________________
__________________________________________________________
__________________________________________________________
(4) Capital structure (stock).
a.
Articles must include: (1) Authorized stock, (2) number of shares per
class and (3) information on par value, (4) voting rights and (5)
preferences of each class.
2
CORPORATIONS
(3) Act.
File articles with Secretary of State and pay required fee. Acceptance by Secretary of
State is conclusive proof of valid formation. At that point, it is a de jure corporation.
-- Then, Board holds organizational meeting, where selects officers and adopts any
bylaws and conducts other appropriate business.
II. LEGAL SIGNIFICANCE OF FORMATION OF CORPORATION
(1) Internal affairs of corporation (e.g., roles and duties of directors, officers, and
shareholders) are governed by the law of the state of incorporation.
(2) A corporation is a separate legal person. It can sue and be sued, hold property, be a
partner in a partnership, make charitable contributions, must pay income taxes as an
entity, etc.
(3) Generally, officers and directors are not personally liable for what the entity does.
Generally, shareholders (owners) are not personally liable for debts of corporation.
This is the principle of Alimited liability,@ which means that shareholders generally are
liable only for the price of their stock.
the corporation is liable.
(4) So who is liable for what the corporation does? _______________________________
______________________________________________________________________
-- That means that if the proprietors fail to form a de jure corporation, they will be nervous
because they will be liable for what the business does. Then, think about:
III. DE FACTO CORPORATION DOCTRINE/CORPORATION BY ESTOPPEL
Doctrines by which a business failing to achieve de jure corporate status nonetheless is treated as
a corporation (so shareholders will not be personally liable for business debts). Generally, person
asserting either must be unaware of failure to form de jure corporation.
(1) De Facto Corporation: (a) there is a relevant incorporation statute; (b) the parties made
a good faith, colorable attempt to comply with it; and (c) some exercise of corporate
privileges. If applicable, treated as corporation for all purposes except in an action by
the state.
-- Example: incorporators draft articles and mail them to the Secretary of State.
Unbeknownst to them, the papers are lost in the mail. They are acting as a corporation
in the interim, not knowing of the failure to form a de jure corporation. They have the
business enter a contract. Are they liable on the contract (since there is no de jure
we have a strong argument that we may not be liable on the contract.
corporation)? __________________________________________________________
_____________________________________________________________________
_____________________________________________________________________
3
CORPORATIONS
IV. BYLAWS
(1) In most states, adoption of bylaws is not a condition precedent to formation of a
corporation. But virtually every corporation has them. They are for internal
governanceCe.g., lay out responsibilities, set regular meeting times and places,
prescribe methods of giving notice.
the board (the organizational meeting)
(2) Who adopts the initial bylaws? ____________________________________________
shareholders. in some states
(3) Who can repeal or amend the bylaws of a corporation? _________________________
the board can also do so.
______________________________________________________________________
_____________________________________________________________________
(4) If bylaws conflict with the articles, the articles control. Bylaws are an internal
document, not filed with a state agency.
V.
PRE-INCORPORATION CONTRACTS
(1) A promoter is a person acting on behalf of a corporation not yet formed. For example,
a promoter might enter a contract on behalf of a corporation-not-yet-formed.
(2) Liability on pre-incorporation contracts.
A.
__________________________________________________________________
__________________________________________________________________
4
CORPORATIONS
B.
__________________________________________________________________
-- Will P be liable on the lease if Oscar de la Rental Cars, Inc. is formed and
yes. p is liable until novation. here, there is no novation so he is liable.
adopts the lease? ___________________________________________________
we had the adoption here, this means that the corporation and the promoter are liable.
__________________________________________________________________
__________________________________________________________________
-- Remember: Adoption makes the corporation liable too, but does not relieve P.
So on this fact pattern, both the corporation and P are liable.
VI. FOREIGN CORPORATIONS
Foreign corporations transacting business in this state must qualify.
(1) A foreign corporation is one incorporated outside this state. So is a corporation formed
yes
in Florida foreign? ____________________________________________________
_____________________________________________________________________
(2) Transacting business means the regular course of intrastate (not interstate) business
activity. Not occasional or sporadic activity.
(3) Qualify by getting a certificate of authority from Secretary of State. Apply by giving
information from articles and a certificate of good standing from home state. Must pay
fees to state.
-- Generally, must appoint registered agent here too.
(4) Consequences of foreign corporation transacting business without qualifying: civil fine
and the corporation cannot sue in state (but it can be sued). There are no other
consequences for the foreign corporation.
-- Can the foreign corporation sue once it qualifies and pays fees and fines? ________
yes, once you qualify.
_____________________________________________________________________
CORPORATIONS
WHAT IS ISSUANCE?
Issuance of stock occurs when a corporation sells or trades its own stock. It is a way to raise
capital for the corporation.
-- Mayberry Realty Corp. sells 10,000 shares of Mayberry stock. That is an issuance, because the
corporation is selling its own stock.
no. only an issuance if the corporation
-- Family Guy sells 3,000 shares of Mayberry stock. Issuance? __________________________
-- So that means that all these rules in this fact pattern apply only when the corporation is selling
its own stock. NOT when you or I sell stock.
II. SUBSCRIPTIONS [written offers to buy stock from corporation]
(1) Revocation of pre-incorporation subscriptions.
On January 10, S signs a subscription, offering to buy 100 shares of C Corp., a
corporation not yet formed. A week later, S changes his mind. Can S revoke? No. A
pre-incorporation subscription is irrevocable for six months unless it provides
otherwise or all subscribers agree.
yes, until acceptance.
(2) Are post-incorporation subscriptions revocable? ______________________________
_____________________________________________________________________
(3) When do the corporation and the subscriber become obligated under a subscription
when the board accepts the offer. once the board of directors accepts the offer, then
agreement? ___________________________________________________________
the offer is irrevocable.
_____________________________________________________________________
Every state agrees that these are permitted: (1) money (cash or check), (2)
tangible or intangible property, or (3) services already performed for the
corporation. _______________________________________________________
__________________________________________________________________
B.
The split of authority is about two other forms. In some states these are OK but
in some states they are prohibited (so using them results in Aunpaid stock,@
1) promissory notes 2) future services. if on your exam,
meaning its all treated as water): ______________________________________
you see either of these, you must flag them. they are ok under the model act, but many states dont follow
__________________________________________________________________
CORPORATIONS
__________________________________________________________________
B.
No par means Ano minimum issuance price.@ Board of directors sets any price.
C.
Treasury stock.
This is stock that was previously issued and has been reacquired by the
corporation. The corporation can then resell it. Treat the sale as no par.
D.
Who determines the value of consideration received for an issuance? The board
of directors. And its valuation is conclusive if it was made in good faith. (In
some states, its conclusive if the board acted without fraud.)
E.
Consequences of issuing par stock for less than par value; i.e., Awatered stock.@
C Corp. issues 10,000 shares of $3 par to X for $22,000. The corporation (or its
creditors if it is insolvent) wants to recover the $8,000 of Awater.@ Who is liable?
(1) Directors? Yes, if they knowingly authorized the issuance.
he is liable also. no defense
(2) X (the person who bought it)? _____________________________________
(3) What if X transfers the stock to A? A is not liable if she acts in good faith
(did not know about the water).
-- But A=s status (good faith or not) has no effect on the liability of X or the
directors.
IV. PREEMPTIVE RIGHTS
(1) Preemptive right is the right of an existing shareholder to maintain her percentage of
ownership by buying stock whenever there is a new issuance of stock for money (cash
or equivalent). Some states do not include sale of treasury stock as Anew issuance.@
-- S owns 1,000 shares of C Corp. There are 5,000 shares outstanding. C Corp. is
planning to issue an additional 3,000 shares. If S has preemptive rights, then S has the
right to _______________________________________________________________
he has the right to buy 600, it is a percentage deal. 1k of 5k is 20% and then she is entitled to
20% of 3,000, which is 600.
______________________________________________________________________
(2) What if the bar exam question does not indicate whether the articles of C Corp. provide
for preemptive rights? Split of authority. Traditionally, preemptive rights exist unless
the articles provide otherwise. Strong trend says preemptive rights do not exist unless
the articles provide for them. figure out what we covered in class
7
CORPORATIONS
-- The articles of C Corp. provide for preemptive rights. C Corp. is issuing stock
to G to acquire Green Acres from G. Are there preemptive rights? NO. Why?
this is not an issuance for money. here, it is for property.
_________________________________________________________________
_________________________________________________________________
FACT PATTERN 3: DIRECTORS AND OFFICERS
I.
STATUTORY REQUIREMENTSCDIRECTORS
(1) Number: one or more adult natural persons.
(2) Election: Shareholders elect directors (at the annual meeting).
(3) Shareholders can remove directors before their terms expire. Generally, majority of
with or without cause.
shares entitled to vote must vote for removal. On what bases? ___________________
_____________________________________________________________________
-- But shareholders cannot remove a director if cumulative voting is in effect and the
number of votes against removal would be enough to elect the director. We will see
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cumulative voting on page ________.
board or shareholders, generally
(4) Who selects the person who fills a vacancy on the Board? ______________________
_____________________________________________________________________
_____________________________________________________________________
--But if the shareholders created the vacancy by removing a director, the shareholders
generally must select the replacement.
(5) Board action.
A.
There are two ways the board can take a valid act: (1) unanimous written consent
to act without a meeting, or (2) a meeting (can be held anywhere) that satisfies
quorum and voting requirements. What if neither of these is met? ____________
any act is void, unless it is ratified by a valid act which has to be met by the 2 things listed above
__________________________________________________________________
__________________________________________________________________
__________________________________________________________________
-- Does a conference call qualify as a meeting (assuming all participants can hear
yes
each other simultaneously)? __________________________________________
B.
Notice is required for special meetings but not regular meetings. (The time and
place of regular meetings is set in bylaws.) The method for giving notice is
usually in the bylaws. If the corporation fails to give notice of a special meeting
to all directors, the meeting is void unless those not given notice waive the defect.
8
CORPORATIONS
C.
D.
lazy director
Justin Timberlake, a director of C Corp., fails to attend any of the board of directors=
meetings or to keep abreast of the company business in any way. The corporation
loses money on several deals. Will Justin be held liable for these losses for breaching
the duty of care?
--State the duty of care standard. A prudent person would attend some meetings and do
some work. Justin never did anything, so he has breached the duty of care. BUT HE IS
his breach caused a loss to the corporation. it is not enough for the P to show
LIABLE ONLY IF: _____________________________________________________
that there has been a breach of duty of care. you must show CAUSATION. it is very tough to do that because
______________________________________________________________________
the corporation would have lost money anyways.
______________________________________________________________________
______________________________________________________________________
______________________________________________________________________
9
CORPORATIONS
(2) Misfeasance (the board does something that hurts the corporation).
The directors of Hedonists= Hot Tubs, Inc., vote to start a new line of hot tubs with
built-in wine coolers and video cameras. The idea is a disaster and the corporation
loses money. Are the directors liable for breach of the duty of care?
-- State the duty of care standard. Here, the directors= action caused a loss to the
corporation. BUT, a director is not liable if she meets the business judgment rule
the standard is what a prudent person would do. prudent people do appropriate homework.
(ABJR@). ______________________________________________________________
did they deliberate, analyze, etc.... prudent people do these things. if they do these things then they are not
______________________________________________________________________
liable.
______________________________________________________________________
______________________________________________________________________
______________________________________________________________________
______________________________________________________________________
______________________________________________________________________
BJR: So a court will not second-guess a business decision if it was made in good faith,
as a director you don't have to be right 100%. you just
was informed, and had a rational basis. _____________________________________
have to do the homework that a prudent person would do. grossly negligent or irrational is usually when you are
_____________________________________________________________________
going to be liable
IV. DUTY OF LOYALTY (Burden on Defendant because BJR does not apply in cases
involving conflict of interest.)
Duty of loyalty standard: A director owes the corporation a duty of loyalty. She must act in
good faith and with a reasonable belief that what she does is in the corporation=s best interest.
(1) Interested Director TransactionCany deal between the corporation and one of its
directors or another business of the director=s.
Martha is a director of XYZ, Inc. She sells wreaths to the corporation. That is an
interested director transaction. Is Martha in trouble?
-- State the duty of loyalty standard. Interested director transaction will be set aside
UNLESS the director shows: (1) the deal was fair to the corporation when entered, OR
(2) her interest and the relevant facts were disclosed or known and the deal was
the burden on the D. she must show that the deal was fair when entered.
approved by either of these: ______________________________________________
second, her interest and relevant facts were disclosed or know and then deal
_____________________________________________________________________
then
it gets the green light by either majority of disinterested directors or majority of disinterested shares.
_____________________________________________________________________
_____________________________________________________________________
-- Special quorum rules: interested directors count toward quorum.
10
CORPORATIONS
-- Directors can set their own compensation, but it must be reasonable. If excessive, it=s
waste of corporate assets, and a breach of the duty of loyalty.
(2) Competing Ventures.
Sharon is a director of Ozzie's Music Co. She can also serve on the board of directors
of Home Depot because it does not compete with Ozzie's. But can Sharon start her
own music company?
-- State the duty of loyalty standard. Director cannot compete directly with her
corporation.
constructive trust on sharon's profit. if sharon goes into business then she has to cough up the
-- Remedy: ___________________________________________________________
_____________________________________________________________________
profits to Ozzie
(3) Corporate Opportunity (Expectancy).
Cheatem is a director of C Realty Corp., which develops condo projects. Cheatem
learns of some land that has been zoned for condos and buys it for himself as an
investment. What are C=s rights, if any, against Cheatem?
-- State the duty of loyalty standard. Director cannot USURP a corporate opportunity.
That means the director cannot take it until he (1) tells the board and (2) waits for the
board to reject the opportunity.
--
opportunity.
__________________________________________________________________
__________________________________________________________________
-- Is the company=s financial inability to pay for the opportunity a defense? _____
generally
not.
__________________________________________________________________
__________________________________________________________________
-- Remedy: If Cheatem still has it, he must sell it to the corporation at his cost. If
Cheatem has sold it at a profit, the corporation gets the profit. (Constructive trust.)
V.
CORPORATIONS
(4) Which directors are liable for all the things directors be liable for?
A.
General rule.
A director is presumed to have concurred with Board action unless her dissent or
abstention is noted in writing in corporate records. That means (1) in the minutes
or (2) in writing to the corporate secretary at the meeting or (3) registered letter to
the corporate secretary immediately after the meeting.
not by itself, it must get into writing by the ways listed above.
-- So is an oral dissent effective? ______________________________________
__________________________________________________________________
-- You cannot dissent if you voted for the resolution at the meeting.
B.
Exceptions.
(1) Absent directors are not liable.
(2) Good faith reliance on (a) book value of assets or (b) opinion of a competent
employee, officer, professional, or committee of which the director relying
was not a member, or (c) financial statements by auditors. Must have a
reasonable belief in the competence of the persons providing such
information.
VI.
CORPORATIONS
An officer or director gets sued by or on behalf of the corporation. She has incurred
costs, attorneys= fees, maybe even fines, a judgment or settlement. She seeks
reimbursement from the corporation.
A.
B.
C.
2.
Eligibility standards: she must show that she acted in good faith and with the
reasonable belief that her actions were in the company=s best interests. duty of loyalty
3.
(2) Notwithstanding these rules, the court where director or officer was sued can order
indemnification if it is justified in view of all circumstances. Usually limited to costs
and attorneys= fees (not any judgment against the director or officer).
13
CORPORATIONS
(3) Articles can provide for limitation or elimination of liability for damages, but not for
breach of the duty of loyalty, intentional misconduct or wrongful personal benefit. In
some states, such provisions are available for directors only, not officers.
FACT PATTERN 4: SHAREHOLDERS
I.
14
CORPORATIONS
(2) Undercapitalization.
S is a shareholder of Glowco, Inc., G, a corporation that hauls and disposes of nuclear
waste. G does not carry insurance. G has an initial capitalization of $1,000. V is
injured when one of G=s trucks melts down. Can V sue S?
general rule => shareholders are generally not liable personally
-- General rule; PCV standard. Here a court MIGHT PCV because the corporation was
undercapitalized when formed. Why? Because shareholders failed to invest enough to
that is true here.
cover prospective liabilities. ______________________________________________
_____________________________________________________________________
_____________________________________________________________________
_____________________________________________________________________
-- Instead of PCV here, a court might subordinate debt owed to the responsible
shareholders (if any) to that of other creditors.
Remember (always say this in a PCV hypo): courts are generally more willing to PCV for
a tort victim than for a contract claimant.
II. SHAREHOLDER MANAGEMENT OF CORPORATION
(1) Remember that generally the board of directors manages a corporation.
(2) Shareholders can manage corporation directly in a close corporation. What are the
1) few shareholders (no magic number) 2) the stock
characteristics of a close corporation? ______________________________________
is
not publicly traded.
_____________________________________________________________________
_____________________________________________________________________
_____________________________________________________________________
-- The shareholders in a close corporation can elect a board of directors, and the board
will manage the corporation. Or they can eliminate the board of directors and run the
corporation themselves. Usually, this is done by unanimous shareholder agreement. If
the shareholders eliminate the board and take over management, who owes the duties
the managing shareholders, they are fiduciaries
of care and loyalty to the corporation? ______________________________________
_____________________________________________________________________
_____________________________________________________________________
(3)
Shareholders in a close corporation owe each other fiduciary duties. Watch especially
a controlling shareholder who oppresses minority shareholders, e.g., selling control
(without reasonable investigation of the buyer) to someone who loots the corporation
or other oppression of minority shareholders. Courts may be willing to help the
minority shareholder here. WHY? Because there is no public market for the shares
(so the minority shareholder cannot just get out by selling shares).
15
CORPORATIONS
(4) Licensed professionals, including lawyers, medical professionals, and CPAs, may
incorporate as a Aprofessional corporation.@ The name must include the designation
Aprofessional corporation@ or Aprofessional association@ or an abbreviation of one of
those. The shareholders must be licensed professionals and generally the P.C. may
practice only one profession. The P.C. may employ non-professionals (not to render
professional services). The professionals and the P.C. remain personally liable for their
own malpractice or misconduct in rendering professional services. Shareholders are
generally not liable for each other=s malpractice or for corporate obligations. Generally,
the rules governing regular corporations apply to the P.C.
III. SHAREHOLDER DERIVATIVE SUITS (SHAREHOLDER AS PLAINTIFF)
(1) In a derivative suit, a shareholder is suing to enforce the corporation=s claim, not her
own personal claim.
To determine if its a derivative suit, ask: could the corporation have brought this suit?
If so, it is probably a derivative suit.
-- S sues the board of directors of C Corp. for usurping corporate opportunities.
Derivative suit? YESC duty of loyalty (and care) are owed to corporation. _________
a breach hurts the corporation
_____________________________________________________________________
_____________________________________________________________________
-- S sues board of directors of C Corp. for issuing new stock without honoring her
preemptive rights. Derivative suit? NoCthis is a direct suit, to vindicate S=s personal
claim.
(2) What are the consequences of a successful derivative suit?
Generally, the recovery in any successful derivative suit goes to the corporation (not to
the shareholder (S)) who brought the suit on behalf of the corporation. ____________
it is the corporation's claim so they should get the benefits.
_____________________________________________________________________
-- What does S receive? Costs and attorneys= fees, usually from the corporation. After
all, the shareholder conferred a benefit on the corporation by suing and winning.
(3) What are the consequences of an unsuccessful shareholders= derivative suit?
no
_____________________________________________________________________
16
CORPORATIONS
(4) What are the requirements for bringing a shareholder derivative suit?
A.
Stock ownership.
The person bringing suit must have owned stock at the time the claim arose or
have gotten it by operation of law from someone who did own stock when the
claim arose. What are examples of operation of law? ______________________
inheritance, divorce decree
__________________________________________________________________
__________________________________________________________________
B.
Must also show that S will adequately represent the interest of the corporation.
__________________________________________________________________
C.
Must also make a written demand on directors that the corporation bring suit
UNLESS demand would be futile. Why would demand be futile? ____________
if the defendants in the suits are the directors who are reviewing the demand
__________________________________________________________________
__________________________________________________________________
__________________________________________________________________
__________________________________________________________________
D.
Usually must plead with particularity the efforts to get the corporation to sue or
why demand was excused.
E.
(5) Litigation.
A.
The corporation must be joined as a defendant. Even though the suit asserts the
corporation's claim, the corporation did not do so, so it is joined initially as a
defendant.
B.
No dismissal or settlement without court approval. Court can give notice to those
who would be affected, and get their input on whether dismissal or settlement
should be approved.
17
CORPORATIONS
The record shareholder is the person shown as the owner in the corporate records.
The record date is a voter eligibility cut-off.
C Corp. sets its annual meeting for July 7 and record date for June 6. S sells B her
C Corp. stock on June 25. Who is entitled to vote the shares at the meeting, S or
S
B? ______________________________________________________________
__________________________________________________________________
B.
Exceptions to the general rule that record owner on record date votes.
1.
Treasury stock. Suppose the corporation reacquires stock before record date.
So the corporation is the record owner on the record date of this treasury
no
stock. Does the corporation vote the treasury stock? __________________.
2.
Death of shareholder.
-- S owns stock in C Corp.; S is the record shareholder. After the record date,
yes
S dies. Can S=s executor vote the shares? ____________________________
3.
Proxies.
A proxy is a (i) writing (fax increasingly OK; e-mail OK in some states), (ii)
signed by record shareholder, (iii) directed to secretary of corporation, (iv)
authorizing another to vote the shares.
-- On February 2, 2007, S sends a letter to secretary of C Corp. authorizing
Charlie Whitebread to vote her shares. Can Charlie vote S=s shares at the
2007 annual meeting in July? Yes. This is a proxy.
-- This is OK in shareholder voting. Remember, proxies are not permitted
for voting by directors. Page ________.
-- Can Charlie vote S=s shares at the 2008 annual meeting in July 2008? ___
no, 11 months
______________________________________________________________
______________________________________________________________
-- What if, prior to the 2007 meeting, S writes to the secretary of C Corp. that
she now wants Jim Cramer to vote her shares at the 2007 meeting? _______
that is okay, she has revoked charlie's proxy
______________________________________________________________
18
CORPORATIONS
-- Can S revoke her proxy even though it states that it is irrevocable? _____
yes.
______________________________________________________________
-- S sells B her shares after the record date but before the annual meeting. S
gives B an Airrevocable proxy@ to vote the shares at the annual meeting. Can
S revoke this proxy? No, because (1) it says irrevocable and (2) the
proxyholder has some interest in the shares other than voting. This is a
Aproxy coupled with an interest.@ ___________________________________
it is met here
______________________________________________________________
______________________________________________________________
-- Here, the interest is ownership. But it could be an option, pledge, etc.
C.
2.
yes
Can shareholders enter into voting agreements? ___________________
b.
__________________________________________________________
_________________________________________________________
c.
split of authority
Are voting agreements specifically enforceable? __________________
There are two ways shareholders can take a valid corporate act: (1) unanimous
written consent of the holders of all voting shares, or (2) a meeting (held
anywhere) that satisfies quorum and voting rules.
19
B.
Annual meeting: to elect directors. If not held, a shareholder can petition the court
to order one.
C.
Special meeting can be called by (a) the Board, (b) the president, (c) the holders
of at least 10 percent of the voting shares or (d) someone else as provided in the
articles.
-- Suppose a proper person calls a shareholder meeting for the purpose of
removing an officer. There is a problem with this. Why? __________________
shareholders cannot remove officers (tricky question)
________________________________________________________________
________________________________________________________________
________________________________________________________________
D.
Contents of the notice: always must tell them when and where and must state
purpose. Why is statement of purpose important? Because that is the only
business that can be transacted at that meeting. _______________________
______________________________________________________________
2.
CORPORATIONS
-- X Corp. has 120,000 shares outstanding. 62,000 shares are represented at the
meeting, but only 50,000 shares vote on a particular proposal. How many shares must
vote for the proposal for it to be accepted by the shareholders? ___________________
we need at least 25,001 (only those who have voted)
______________________________________________________________________
______________________________________________________________________
(4)
B.
C.
V.
Stock transfer restrictions will be upheld provided they are reasonable under the
circumstances, which means not an undue restraint on alienation. The right of first
refusal is OK, assuming the corporation offers a reasonable price. ____________
you have to offer it to the corporation first
__________________________________________________________________
__________________________________________________________________
B.
CORPORATIONS
_____________________________________________________________________
(3) What are the consequences if the corporation does not allow inspection after proper
demand? Shareholder moves for court order. If successful, also generally recovers
costs and attorneys= fees incurred in making the motion.
(4) Directors dont have to make any showing to get access to the books and records.
Because of their management responsibilities, they have unfettered access. ________
this is for shareholders
_____________________________________________________________________
$4 per share
100,000 shares of common stock. ______________________________________
__________________________________________________________________
2.
CORPORATIONS
3.
__________________________________________________________________
__________________________________________________________________
__________________________________________________________________
__________________________________________________________________
4.
__________________________________________________________________
__________________________________________________________________
__________________________________________________________________
__________________________________________________________________
__________________________________________________________________
(3) For any distribution (dividend, repurchase, redemption), which funds can be used?
1.
How is earned surplus computed? All earnings minus all losses minus
distributions previously paid.
b.
__________________________________________________________________
__________________________________________________________________
23
2.
Stated capital: this is generated by issuing stock. (So is capital surplus, below.)
--So when we have an issuance, the consideration will be allocated between stated
capital and capital surplus.
a.
no
Can stated capital be used for distributions? __________________________
b.
3.
b.
_____________________________________________________________
(4) Instead of the foregoing fund requirements, many states now simply say the
corporation can declare a distribution as long as the corporation is not insolvent or if
the distribution would render it insolvent. Insolvent means either:
a. the corporation is unable to pay debts as they come due OR
b. its assets are less than its liabilities (and liabilities include liquidation (or
dissolution) preferences); we will see liquidation preferences on page 29.
(5) Directors are personally liable for unlawful distributions, as are shareholders who
knew the distribution was unlawful when they received it. In some states, director
liability here is strict; in some, directors are only liable if the distribution is made in
breach of a duty. Remember, however, directors= possible defense of good faith
12
reliance. Cross-reference page _________
.
24
The right of appraisal is the right of a shareholder to force the corporation to buy
her shares at fair value. This is the shareholders sole remedy for these
fundamental changes unless there is fraud.
B.
2.
C.
merger or consolidation;
transfer of substantially all assets not in the ordinary course of business;
transfer of shares in a share exchange.
If the shareholder and the corporation cannot agree on fair value of the shares,
we litigate
what happens? _____________________________________________________
__________________________________________________________________
D.
Some states do not grant the right of appraisal if the company=s stock is listed on a
national exchange or has a large number of shareholders (e.g., 2,000 or more).
This makes sense, because in such a large corporation, there is a public market for
the shares, so the disgruntled shareholder can just sell on the market. She doesnt
need to force the corporation to buy her out.
CORPORATIONS
you still need at least
-- What if only 2,400 shares showed up to vote on the amendment? _______________
2,001 votes
_____________________________________________________________________
_____________________________________________________________________
(3) If approved, file amended articles with Secretary of State.
(4) Are there dissenting shareholder rights of appraisal? No. But if the amendment harms a
class of stock, the amendment must be approved by the shares of that class itself as
well as by the overall majority of all shares entitled to vote. This is Aclass voting.@
III. MERGERS [B, Inc. merges into A Corp.] OR CONSOLIDATIONS [A Corp. and B,
Inc. form C Corp.]
(1) Board of director action (both corporations), and notice to shareholders.
(2) Shareholder approval (generally both corporations). ___________________________
majority of the shares entitled to vote
______________________________________________________________________
(3) If approved, file articles of merger (or consolidation) with Secretary of State.
(4) REMEMBER DISSENTING SHAREHOLDER RIGHT OF APPRAISAL.
(5) Effect of merger or consolidation: the
_________________________________________
surviving company succeeds to all rights and liability of the constituent
______________________________________________________________________
______________________________________________________________________
-- This rule makes sense because the constituent corporation disappeared. So a creditor
of that corporation can sue the survivor.
IV. TRANSFER OF ALL OR SUBSTANTIALLY ALL OF THE ASSETS NOT IN THE
ORDINARY COURSE OF BUSINESS OR SHARE EXCHANGE (one company
acquires all the stock of another)
yes
(1) Are these fundamental changes for the transferring corporation? _________________
no
(2) Are these fundamental changes for the buying corporation? _____________________
CORPORATIONS
_________________________________________________________________
_________________________________________________________________
B.
Number of shares of B, Inc. that must approve the sale? NONE. THEY
DON'T VOTE, BECAUSE IT'S NOT A FUNDAMENTAL CHANGE FOR
THE BUYING CORPORATION.
(3) Are there dissenting shareholders= rights of appraisal? Yes, for shareholders of the
transferring corporation only.
(4) File articles of exchange with the Secretary of State in share exchange. Usually,
no filing in transfer of assets.
(5) Generally, acquiring company is not liable for debts of the acquired company
unless the deal says otherwise or unless the company purchasing assets is merely
a continuation of the selling corporation. This makes sense, because the
corporation that sold its assets still exists, so a creditor can still sue it.
V.
DISSOLUTION
(1) Voluntary.
A.
Board of directors action and approval by a majority of the shares entitled to vote.
B.
Shareholder can petition because of: (1) director abuse, waste of assets,
misconduct; or (2) director deadlock that harms the company; or (3) shareholder
deadlock and failure for at least two annual meetings to fill a vacant board
position.
-- Alternative to dissolution: the court might order the corporation or majority
to buyout the petitioning shareholder
shareholders to: ____________________________________________________
__________________________________________________________________
-- This is especially likely in a close corporation.
B.
Creditor can petition because the corporation is insolvent and the creditor either
has an unsatisfied judgment against the corporation or the corporation admits the
debt in writing.
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CORPORATIONS
(3) After filing articles of voluntary dissolution, or after court order of involuntary
dissolution, corporation stays in existence to wind up. Winding up: (a) gather all assets,
(b) convert to cash, (c) pay creditors, and (d) distribute remainder to shareholders prorata by share unless there is a dissolution (or liquidation) preference.
-- What's a liquidation preference? Works like a dividend preference; pay first.
this would be in the articles
______________________________________________________________________
FACT PATTERN 6: FEDERAL SECURITIES LAW
I.
(2) Equity. Investor buys stock, and has an ownership interest in the corporation. This
status carries various rights, e.g., to inspect records, bring derivative suits. Shes an
owner, not a creditor, of the corporation.
II. RULE 10b-5CAIMED AT DECEITFUL BEHAVIOR.
This federal law prohibits fraud and misrepresentation (or nondisclosure) in connection with the
purchase or sale of any security (debt or equity).
(1) AInstrumentality of interstate commerce@ (telephone, mail or if deal goes through
national exchange)
(2) Type transactions
A.
B.
C.
SEC
B.
CORPORATIONS
Widget Corp. issues a press release that Buffett has expressed an interest in
acquiring a major block of its stock. The release fails to indicate that it is Jimmy
Buffett and not Warren Buffett who is interested. Because of this press release,
Duffy does not sell his Widget stock. Does Duffy have a 10b-5 cause of action?
no, because he did not buy or sold
__________________________________________________________________
__________________________________________________________________
(5) Possible defendantsCAany person@ (including entities).
A.
B.
C.
D.
Tipper or tippee.
1.
L, a lawyer for X Co., learns that X Co. is planning to merge with Y Corp.
She telephones her son-in-law Joe about this, and urges him to buy X Co.
stock. Acting on the tip, Joe buys the stock. Any violations of Rule 10b-5?
L is a tipper because: (1) she passed inside information in breach of a duty to
X Co., and (2) she benefitted. How did she benefit? ___________________
making a gift or enhancing reputation is enough
_____________________________________________________________
-- Joe is a tippee because (1) he traded on the tip and (2) knew or should
have known that the information was improperly passed. _______________
______________________________________________________________
2.
(6) Scienter. D must have an intent to deceive, manipulate or defraud. Recklessness may
suffice.
(7) Reliance. Said to be a separate element, as in fraud, but is presumed in public
misrepresentation and nondisclosure cases.
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CORPORATIONS
B.
Type defendant.
-- Director (either when she bought or sold) or
-- Officer (either when she bought or sold) or
-- Shareholder who owns more than 10 percent of the corporations stock (to be
covered, she must own this much both when she bought and sold)
C.
Type transaction.
Buying and selling stock within a single six-month period (short-swing trading)
--Did she buy at less than $6 within 6 months after the sale in January 2007? _______
yes
____________________________________________________________________
____________________________________________________________________
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CORPORATIONS
-- Multiply $5 profit times 200 shares. Why 200? Because that is the largest number
of shares she both bought and sold within the six months._______________________
______________________________________________________________________
______________________________________________________________________
______________________________________________________________________
______________________________________________________________________
______________________________________________________________________
______________________________________________________________________
LAST POINT: If you have questions, call me. Please do not e-mail; e-mail is not a good
option for me. Call and if Im not there, leave your question and your phone number and I will
call you back. My phone number is: _______________________________________________
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