CorporatIons SPRING 2008 INTRODUCTION Business Organization Distinguishing Features: (1) Formed for a business purpose (2) Intended

to be profitable (3) Financed by investors who expect to make money by sharing the companys profits Difference between traditional corporate law and contemporary corporate law: Traditional focus on fairness Contemporary focus on freedom to contract Models of Corporation: Contractual Theory Views company as founded in private contract where role of state limited to enforcing contracts State charter merely recognizes the existence of a nexus of contracts Finance Model Corporations are owned by shareholders and should therefore be managed in the interest of shareholders [BUT opposing view shareholders are too short-sighted and do not understand what is in their long-term interests] Types of Statutes Enabling (DE) corporate code contains default rules that operate in absence of specific rule. Rules can be tailored to individual business needs Mandatory must be used, cant tailor to own needs Even DE has some mandatory rules Line-Drawing Cases Sometimes in corporate law, have to engage in fact-based inquiry to determine someones status relative to principal: 1) When does control over third party them being your agent?? [Cargill] 2) When does a limited partner exercise so much control general partner? [Martin v. Peyton] 3) When does a SHHs behavior justify piercing the corporate veil?? [Baatz, etc.] Legal Ethics for Corporate Lawyer/Agency Law 1. Corporation is your client [not the management] a. Default rule, can be changed b. Best interests of client may differ from those of their constituents c. Should be made clear at outset 2. Elements of being a corporate lawyer: a. Prospective viewpoint i. Create plans, partnerships for clients ii. Think of the best way to achieve them iii. Occurs in the shadow of the law, anticipates how a court would rule b. Drafting skills i. Prepare Ks reflecting transactions need to draft deftly ii. Lays out rights, duties, conditions, remedies, etc. c. Predilection against telling client NO i. Lawyer needs to understand ultimate objective, ask client what wants to achieve ii. Some of the steps the client wants to take may be impossible, but may still be possible to reach objective iii. Qualification: you cant aid/abet in anything illegal

d. Conservatism i. Corporate lawyers dont like to live at the edge of legality/morality ii. Dont like to risk committing fraud, violating state law iii. Chooses most conservative approach iv. Delicate balance with refusal to say no e. Collegial Approach i. Different Approach from litigation where there is a fighting sensibility ii. In corporate law there are antagonistic interests, but they largely align both clients want to exchange something, want to do so on suitable terms

AGENCY___________________________________________________________________________ Agency costs power of those who are agents may not be used in best discretion Tools to deal with agency problem: - Duty of disclosure - Voice - Exit if shareholders dont like what managers are doing they can exit (although difficult in c.c.) - Give Agents a stake in the Principals affairs [i.e. give board of directors shares in corporation] Theories on Agency Costs (1) Cardozo punctilio of honor most sensitive (2) Market discipline if stock goes own that is owners saying not happy with management (3) Labor Market managers need to do right by owners so they will be attractive to other firms if want to change jobs LIABILITY OF PRINCIPAL FOR ACTS OF AGENT Sources of Agency: In order to bind the client, the attorney must have either express, implied, or apparent authority, or must act according to the attorneys inherent power [Koval]

Actual authority Express/implied authorization by a principle to act on his/her behalf. Most common Harder cases are where it is implied Court may look to several factors in determining that agent actual authority [Cargill] Apparent authority Authority based on principles manifestation to third parties that the agent is authorized to act on his/her behalf Principle will be bound by acts of a general agent, if the latter acted within the usual and ordinary scope of business in which he was employed, even if he may have violated the private instructions which the principal may have given him, provided the person dealing with such agent was ignorant of such violation and that the agent exceeded his authority. In order to create apparent authority, principal must manifest to third party that he consents to have the act done on his behalf by the person purporting to act for him [Fennell] Apparent authority is created only by representations of the principal to the third party. Agent cant create apparent authority by own actions or representations. [Fennell] Inherent authority arises from inherent characteristics of agents position [Koval] More likely if you have done it before.

A. Gay Jenson Farms Co. v. Cargill, Inc. screw the farmers case Supreme Court of Minnesota, 1981 Facts: Cargill was creditor to Warren Seed & Grain Co., an operator of a grain elevator. Warren incurred debt to farmers and group of farmers sued Cargill as a principle under agency principles. Held: Relationship was held to be that of agency-principle via IMPLIED EXPRESS AUTHORITY. Court found nine factors that did not normally characterize a creditor-debtor relationship: (1) Cargills constant recommendations to Warren by telephone; (2) Cargills right to first refusal on grain; (3) Warrens inability to enter into mortgages, to purchase stock or to pay dividends without Cargills approval, (4) Cargills right of entry onto Warrens premises to carry on periodic checks and audits; (5) Cargills correspondence and criticism regarding Warrens finances, officers salaries and inventory; (6) Cargills determination that Warren needed strong paternal guidance; (7) Provisions of drafts and forms to Warren upon which Cargills name was imprinted; (8) Financing of all Warrens purchases of grain and operating expenses; and (9) Cargills power to discontinue the financing of Warrens operations. ALL FACTORS ABOVE MUST BE VIEWED IN LIGHT OF CIRCUMSTANCES SURROUNDING CARGILLS AGGRESSIVE FINANCING OF WARREN Case was controversial because Cargill claimed to only be giving loans In amicus brief, lenders said would put freeze on loans Court said that normal relationships between lenders/borrowers could be distinguished Court found that it was also not typical of a buyer-seller relationship. Common for creditor-debtor relationship to contain contractual provisions relating to internal affairs for protection. Here went too far, incurred liability because of the relationship they established [not fraud, etc.] In contrast to Martin v. Peyton Fennell v. TLB Kent Co. United States Court of Appeals (1989) PH: lower court had held that lawyers have apparent authority to settle unless clients tell other side otherwise Facts: C. Vernon Mason, an activist attorney is sued by discharged employee who is his client. Lawyer makes a settlement contingent on signature by client. Holding: Court holds that clients have the privilege of settling cases and lawyer do not have the AUTHORITY to settle w/o client permission, even if appears that lawyer as APPARENT AUTHORITY. Apparent authority to settle cases is not held simply through lawyer-client relationship. In order to create apparent authority, principal must manifest to third party that he consents to have the act done on his behalf by the person purporting to act for him Principal (client) would need to have positive actions or manifestations to other counsel to led other counsel to reasonably believe that clients attorney was clothed with apparent authority to agree to definitive settlement of lawsuit. United States v. International Brotherhood of Teamsters - mob case United States Court of Appeals, 2nd Circuit (1993) Facts: Involved civil contempt proceedings against labor union officials and former attorney. Union lawyer entered into settlement agreement in open court on behalf of clients. Client then tried to assert that lawyer did not have authority to enter into agreement on clients behalf. Holding: As to statements made in open court, held that lawyer had both ACTUAL and APPARENT authority. ACTUAL: Principals can endow agents either expressly or impliedly to act on their behalf Here it was implied because: Some of the clients had agreed to do things that the settlement had called for Lawyer had said out load that he had been empowered by clients to exercise this authority Further negotiations gave impression of actual authority, that lawyer was acting under their discretion

APPARENT: Not because inherent in lawyer-client relationship, but b/c had manifested to Distinguished from Fennell in court there is an indicia of intention of clients for lawyers to bind them; had apparent authority b/c clients (principals) did not correct statement to that effect in open court

Koval & Koval v. Simon Telelect Supreme Court of Indiana, 1998 Facts: An attorney settled a claim in the context of an ADR proceeding. The client had not participated in the proceedings and later challenged the attorneys authority to settle the claim. Holding: Authority of agent can be found in inherent relationship. If can have authority to act for client in open court than it is a narrow extension to apply to alternative dispute resolution. In the absence of a communication of a lack of authority by the attorney, as a matter of law, an attorney has inherent power to settle a claim when the attorney attends a settlement procedure governed by the ADR rules. Retention confers on an attorney the general implied authority to do on behalf of the client all acts in or out of court necessary or incidental to the prosecution or management of the suit or the accomplishment of the purpose for which the attorney was retained. NOT in contrast to Fennell follows line of cases that attorney has power to bind client in court. Ratification Adoption

Principal takes advantage of benefits of some unauthorized act of agent Relates back Adoption in corporate law promoters activities before formation of corporation. Although promoter does not yet have principal, actions can later be adopted when corp. formed Binds Corporation as of the point at which they adopt it

Connecticut Junior Republic v. Doherty case of meticulous drafter Massachusetts (1985) Facts: Charities sued a lawyer under theory the lawyer's mistake caused them to lose $1,305,060 in bequests. Emerson had executed a will in 1960 listing nine charities. Nine years later wanted to change list of charities and hired Doherty [lawyer being sued]. Doherty made the change and Emerson "executed the codicil," which contains eleven charities, but only one of the original 9. Later change in law made Emerson want to make repairs to will in order to create charitable remainder annuity trusts. During change, Doherty accidentally substituted original 9 charities for previous 11. Later president of the bank and another lawyer went to Emerson's home to preside over the execution of the second codicil. During execution Mr. Emerson was read the codicil twice [including names of charities] and made no comment about changes. Emerson did say within the following year to a friend that he "reverted or returned to original charities." Emerson died in 1979. Holding: Court found that client had ratified lawyers unauthorized mistake. Presumption that a person who signs a writing that is a legal document knows its contents. Client went through formal ceremonies of adopting changes and did not object to beneficiaries Read will aloud, charities read twice Instrument not long or complicated Testator did NOT comment about charities There was some evidence that the testator wanted to change the charities Ratification was superseding cause of any cognizable loss to left-out charities. LIABILITY OF AGENT FOR ACTS ON BEHALF OF PRINCIPAL Agent is not normally liable for actions taken on behalf of principal Agent may be liable where: 1) Actions taken on behalf of principal where identity of principal is undisclosed [Ecco Bella] a. This is because the third party with which the agent is dealing might reasonably believe that the agents act is binding

b. The burden is therefore on the agent to let the third party know the identity of the principal, tell the third party that they are actually dealing with the principal 2) Actions taken on behalf of principal where identity of principal is partially disclosed [knows there is an agency/principal, not identity of principal] [Water, Waste & Land] 3) Conflicts of Interest [see below; jukebox case] How can an agent let third party know they are dealing with a corporation? 1) State name of corporation during transaction 2) Make it clear in the stationary that the buyer is a corporation 3) NOT merely enough to file with secretary of state burden is on agent African Bio-Botanica, Inc. v. Sally Leiner, T/A Ecco Bella buying plants under someone else New Jersey (1993) Facts: Bio-Botanica sold products to Ecco Bella. Orders were directed to Ecco Bella at Leiners address. Letterhead from company said ecco bella but did not indicate Ecco Bella was corporation. African suing corporations owner for debts. Holding: Held that Sally Leiner could be liable for corporate debts as Ecco Bella agent Principal Undisclosed. Unless parties otherwise agree, an AGENT who enters into a contract for undisclosed or partially disclosed principal is liable for contract. Notice = knows or should know Person dealing with agent/principal does not have duty to inquire. Duty rests on agent wanting protection from liability since they have means and motive to communicate status. Under corporate law, shareholders are not personally liable for debts of corporation. However, can be liable under agency law if take actions on behalf of corporation. Water, Waste & Land, Inc. Colorado 1998 Facts: Agent disclosed name of company represented but not fact that company was an LLC. Holding: Notice provision of Colorado Limited Liability Company Act (that if LLC on notice of limited liability) did not relieve agents of their common law duty to disclose the existence and identity of principals to avoid personal liability on contracts with 3rd parties. Third party dealing with LLC is not always on constructive notice of existence of agents principal. Doctrine of limited liability protects shareholders from corporate acts. BUT if shareholders take action on behalf of corporation could expose themselves to potential liability. Identity of Principal Known1 to 3rd Party Yes No Yes Identity of Agent Known to 3rd Party Yes Yes Yes 3rd Party Knows of Agency Relationship Yes Yes No WHO IS LIABLE??? Only principal Both Principal and Agent [Ecco Bella] Both Principal and Agent [Water Waste]

Principal Fully Disclosed Principal Partially Disclosed Principal Disclosed

LIABILITY OF SHAREHOLDERS When SHH act on behalf of corporation, they are agents undoes normal rule of limited liability LIABILITY FOR TORTS The law is a little different in the context of agency torts focus is on only PRINCIPALs liability rather than agents Principal liable if [distinguishes between employees/independent contractors key factor is CONTROL]: Employees: when acts in scope of employment b/c principal has control over agent
1

Notice is knows or should know; person dealing with the corporation does not have a duty to inquire, the duty rests on the agent wanting protection from liability b/c they have the means and motive to communicate status.

Independent Contractors: not liable for tortuous acts of agent b/c principal lacks control unless principal was negligent in selection of independent contractor Exception [principal is always liable] Extremely dangerous activities [public policy exception]

FIDUCIARY OBLIGATIONS OF AGENTS The law imposes fiduciary obligations on every agency relationship; provides guidelines for agents conduct and requires agent to act in principals best interests [Tarnowski] Fiduciary duty of agents to principals reduces agency costs and makes it less necessary for principals to monitor agents. Types: o Duty of Care: duty to act as reasonably prudent people would in similar circumstances. In exercising that discretion, the agent can bind the principal. This sounds like tort doctrine [statusbased] but is more textured. Defense: BJR o Duty of Loyalty: a little bit stronger, requires agent to act in best interests of the principal at all times, especially when the interests of the principal conflict with the interests of the agent [must subordinate own interests to those of the principal] Defense: that subordinated interests to those of the principal This duty might actually subject agents personal liability No BJR defense o Duty of Good Faith???? [duty of care/loyalty do not speak to good faith] o Duty to disclose???? [Imposed in Mienhard] Damages For breach of duty, PRINCIPAL can recover from agent both: (a) damages, and (b) restitution2 Under breach of loyalty, damages are tort-like [status-based], not contractual. Remedies are NOT concerned with overcompensation. Tarnowski v. Resop jukebox case Supreme Court of Minn. (1952) Facts: Plaintiff engaged D [Resop] as agent to find route of operated music machines for purchase. Resop said had found route (lied about specifications). Tarnowski bought route and then found representations were false. Tarnowski sued sellers and recovered, and then suit Resop as agent. Sought to recover damages for: secret commission collected by agent from sellers, loss suffered in operating route prior to recession, loss of time devoted to operation of route, expense in recission of sale and investigation, nontaxable expenses in connection with suit against sellers, attorneys fees in connection with suit. Holding: Allowed Tarnowski to recover. Profits made by an agent in the course of an agency belong to the principal whether they are fruits of performance or violation of an agents duty. Actual injury not necessary just need to show agent placed himself in such relations that he might be tempted by his own interest to disregard principals interest. Fact that made whole by prior suit doesnt bar suit under agency theory If agent breaches duty of loyalty, seller can recover: o (1) Value agent has received, o (2) Amount of damage caused. Attorneys fees directly traceable to tortuous act and therefore recoverable. Breach of duty of care (didnt conduct investigation as reasonably prudent financial advisor would do), duty of loyalty, and perhaps duty of good faith

Restitution: any amount agent earned in breaching duty.

PARTNERSHIP___________________________________________________________________________ Good alternative to corporate form Association of two or more individuals to carry on trade or business for profit Co-ownership [unlike agency-principal where one party acts on behalf of another] Two main forms: General Partnership Limited Partnership Corporation v. Partnership 2 main differences: Tax Liability Advantages: Tax benefits: pass through/single taxation [partner pays tax on his or her proportion but partnership does not pay tax itself; partnership is not considered an entity for tax purposes] Disadvantages: Death of partner then all partnership property subject to probate Shares not freely transferable requires assent of all partners No limited liability Taxation Corporations subject to double taxation. Taxed both as entity and then shareholders are taxed on dividends. Partnership tax is passed through to partners earnings. FORMATION o Can be by express agreement [formal K] or operation of law o Partnership can form even if dont intend to be partners [substance > form] Courts look at intent to do the act that looked like a partnership not intent to form partnership: Manifestation of intent to do business together [Moon]; Contribution of resources: hard assets, business name/reputation, sweat equity, service, business leads, phone number [Arthur v Stein] Degree of control asserted over how business is run [Martin v. Peyton]] Profit sharing o As distinguished from K right of interest in loans [Martin v. Peyton] or an employment K [Holmes] o Courts disagree as to whether profit sharing is essential [Holmes]; but the vast majority of cases use it as an element b/c is really important component of partnership [Slumberger] o Where there is no express agreement, the default is that the partners split profits 50/50 Probably not a partnership if it is for a fixed purpose, limited duration [Mienhard, J. Andrews, dissenting] Factors should be examined in context [Arthur v. Stein] Partnership focused on substance as opposed to form [unlike corporation] Where not found to be a partnership, it is a joint venture rooted in K no fiduciary duties owed, default rules of partnership dont apply

o o

Martin v. Peyton Investment Bank Bailout Case NY (1927) Facts: Mr. Hall got a loan from his three friends. In exchange for loan: friends were given securities as insurance and were to receive 40% of the profits of firm until return was made on loan. Also: (1) Took out life insurance for Mr. Hall assigned to trustees; (2) Trustees were to be kept advised in conduct of business and consulted for important matters; (3) Trustees could inspect books and veto any business they thought too risky; (4) Each member of firm had to assign interest to trustee;

(5) Option to enter firm at later date by buying 50% or less of any members interest at stated price; (6) Each member had to put resignation in hands of Mr. Hall. Creditor brought suit against investors as partners. Holding: After looking at all ATTRIBUTES IN QUESTION decided that no partnership formed. While some terms were unusual, no hint that the transaction was not a loan of securities with a provision of compensation with colaterral given in form of indenture. There were a few bad facts: Payoff is principle plus portion of profits [profit-sharing] BUT there is a caveat [only within certain limits] Control Rights [lender has veto rights] BUT cant say should be in real estate [i.e. make fundamental business decisions] Rule: Must examine all attributes in deciding question of whether partnership formed. Some bad facts wont necessarily kill a financing deal. This is like Cargill where the question is a matter of crossing a certain line McArthur v. Stein Montana (1997) Facts: Stein, Potter and Beebe formed Midland Roofing and Gutters. Beebe arranged line of credit from McArthur. Then Potter and Beebe left town. Beebe did not list Stein in connection with partnership. Stein sued by creditor for partnership debts. Holding: Found partnership manifest intention of coventurers to be in business together. Found contributions to business in form of hard assets and sweat equity, and found written expression of profit-sharing intention. Holmes v. Lerner Horrible Urban Decay Lady case CA (1999) Facts: Lerner, entrepreneur and founder of Cisco Systems, made oral contract with horse trainer Holmes to start Urban Decay cosmetics after Holmes made new nail polish color while on vacation with Lerner in England. Lerner said, "We will hire people to work for us. We will do everything we can to get the company going and we'll be creative, and other people will do the work, so we'll have time to continue riding the horses." Lerner secured the trademark and they did market research together. They hired graphic designer and had a meeting and decided to convince Soward, general partner at "& Capital" [Lerner's business consultant], to contribute start up money. Soward was made a marketing person COO w/o notification to Holmes. In 1995, Soward signed application for trademark for Urban as President and they tried to get Holmes to accept 1 or 2 % ownership interest. Meanwhile Holmes managed Warehouse. Later Holmes realized company was being organized without her. Lerner had previously said in press conference that company was Holmes idea, but then omitted her from official history and said no longer welcome at board meeting. Lerner claimed had merely been interested in having Holmes as an employee. Holding: Found a partnership despite lack of definite profit-sharing agreement. Profit sharing is evidence of partnership but not required element. No profits shared here b/c partner expelled. Oral agreement found by remarks such as well do everything, itll be our baby Judge said profit-sharing agreement was evidence not element [minority view] Schlumberger Technology Corporation v. Swanson Tex (1997) Facts: Schlumbergers were consultants for a diamond mind. Found to be consultants not partners in work with offshore drilling company to mine diamonds. Swans paid consulting fee and royalties on diamonds, if any. Holding: Texas court held four elements necessary for express or implied partnership (1) a community of interest in the venture, (2) agreement to share profits, (3) agreement to share losses (4) mutual right of control or management of enterprise Entitlement to royalty based on gross receipts not profit sharing Unlike Holmes, finds that profit sharing is an essential feature of a partnership [majority view]

OTHER ASPECTS OF PARTNERSHIPS Partners have great leeway in changing default rules when they lay out the partnership; prudent venturers spell out these and other elements in a formal K. FINANCING THE PARTNERSHIP Partner may provide capital and lend money to a partnership Hard to raise additional capital for a partnership Borrowing money increases liability for all partners New partners would require change in management structure (cant do w/o unanimous consent) Cant compel existing partners to contribute more money Partners should have an agreement for how they will finance the partnership Who What What amounts In exchange for what profits/losses PARTNERSHIP PROPERTY Old rule: assets are controlled by individual partners [aggregation theory of partnership] showed hesitancy to adopt entity theory 1997 Uniform Partnership Act provides that assets are owned by partnership not individual partners PARTNERS RETURN ON INVESTMENT Partners get a return on interest in 3 ways: (1) Sale of company; (2) Another partner buys out a partners interest through share of appreciation; (3) Partner transfers individual interest to third party share of appreciation Allocation of profits/loss: Partners first contribute contribution capital (at start of business or then when needed after) Then keep individual capital account that are increased by value of applicable partners capital contributions, and are increased/reduced by: Profits [revenues > expenses profit] Losses [revenues < expenses loss] Rights/distributions: Can be made based on: Profits [revenues > expenses profit] Revenues [concentrates on the income situation] How much the concept/venture would sell for; how well would do in someone elses hands [based on finance principals] Distributions not affected by law can receive distributions even when company is losing money This rule is the default, can be changed Creditors will most likely insist that it be changed Also, must comply with broad, general principals of commercial law [cant commit fraudulent conveyance to deceive your creditors] The partner is NOT obliged to partnership losses before withdrawal/liquidation of partnership unless otherwise agreed [but DOES have right to receive current distribution of profits credited to his account] TRANSFER OF INTEREST TO THIRD PARTIES OR PARTNERSHIP Financial Interests May be freely transferred to third parties

10

Management rights Transfer requires permission of all remaining partners. Partnership buyout is alternative to third party sale (remaining partners must compensate exiting partner for value of partnership interest). Can also use if one partner dies.

DISSOLUTION OF THE PARTNERSHIP Dissolution point in time when partners cease to carry on business together Winding Up process of settling partnership affairs after dissolution Sell company as a going concern or liquidate assets Pay debts (if insufficient money then partners will have to contribute additional amounts according to share of profits) If excess funds then repay partners capital contribution and distribute profits Dual priority rule partnership creditors have priority over creditors of individual partners Termination point in time when all the partnership affairs are wound up FIDUCIARY OBLIGATIONS OF PARTNERS Not subject to contractual control b/c is status based conflict between freedom of K and status-based obligations Owe same agency-principal: Duty of care Duty of loyalty [not acting in self interest] Historical: Not honesty alone, but the punctilio of the honor most sensitive [Mienhard v Salmon, Cardozo, J.] this does not resemble the fiduciary duties in any branch of the law Today: all you really need is to put own interests behind other partners There is a great debate in comparative law about what duty should be owed Maybe duty of good faith Duty to disclose? [Mienhard v Salmon] may be part of duty of loyalty or stand alone You need to share valuable information with co-venturers Does not require continuation of the venture, but that you tell other party about the venture [although it could bidding wars, increased tensions, everyone loses] Duty may depend on whether partner is approached in his individual capacity [this along with duty of loyalty something similar to corporate opportunity doctrine] o Remedies of breach equitable remedies while considering practicalities of forced partnership

Holmes: partner lost out because value of company increased substantially and Holmes had only received present value at time; court may not have wanted to give her a long-term interest in the corporation, however, because there was already tension between them Meinhard: lost out because real estate value substantially decreased and partner had 50% of partnership; created interest in going concern [constructive trust; Salmon was given 1 additional share to allow him to continue running the business; shows a movement towards the view of partnerships as entities]

Meinhard v. Salmon punctilio of honor most sensitive Court of Appeals of NY (1928) Facts: Two men in partnership for running shops and offices in leased Hotel Bristol. Salmon managed the business day-to-day and Meinhard provided half of necessary funds for renovation [silent partner]. When lease was near end Gerry, business owner approached Salmon with business opportunity of destroying building and putting new one in its place. Salmon accepted by himself and lease converted to whole tract with 20 year term, renewable options to 80 years. Meinhard sued under breach of fiduciary duty of partners. Holding: Salmon liable for breach. Meinhard should have had an opportunity to compete since new lease was preemptive opportunity that was incident of the enterprise [partnership]; Similar to Corporate opportunity doctrine.

11

Even though no conscious effort to defraud, still would need to create constructive trust attached to either shares owned or shares under control and allow Meinhard to have half. If equal division, Salmon would get 1 more share. Duty to Disclose - For managing co-venturer, duty of undivided loyalty is relentless and supreme Note: Cardozo jumped to put fiduciary duties on joint venturer Dissent [Andrews, J.]: no general partnership formed only joint venture for specific period of time. No joint capital provided and Salmon did not actually assign the lease. Resulting lease was not the same.

12

HYBRIDS________________________________________________________________________________ Hybrids are the best of both worlds they take advantage of the best aspects of corporations (limited liability) and partnerships (pass through taxation), which are seen as two ends of a spectrum. These forms of business have only been possible with the increasing acceptance of the entity view of corporations. Limited Partnership & Other Options o Limited Partnerships: were a way to limit liability risk, namely in Maritime trade. They were invented in the Middle Ages, but codified near the beginning of last century, although they never really took off in the U.S. Creates two classes of partners: General Partners: Are on the hook just like a general partnership. o Can be individuals, corporations, limited liability companies, or other legal entities, o It was necessary to have general partners in this business form. Showed an unwillingness to let entity stand alone. Limited Partners: third parties could invest in a partnership without incurring liabilities for its obligations. o Maintained their limited liability as long as did not control the affairs of the partnership. Traditional Rule: no control at all Some states created safe harbors: provisions that outlined what the limited partners could do without exposing themselves to liability [problematic b/c purport to deal with all limited partnerships, but they are diverse]. Examples: Consult Give strategic advice Veto power Lending Vote on extraordinary measures [whether to sell all assets; whether to take on large amount of debt] Statement that was not exercising control is NOT dispositive [Gateway] Very fact-based analysis Transfer of Shares: Shares of limited partners can be transferred to third parties if other partners agree. Doesnt end the limited partnership. If general partner withdraws, partnership will usually end. Formation: filing certificate of limited partnership with state office Statutory close corporation Informal management structure Dissolution at will Share transfer restrictions Pass-through taxation Limited liability Flexible management structure Chapter S Corporation: An amendment to the IRS code allowed corporations to avoid double taxation if they met a number of conditions: Small number of owners Owners could be individuals or partnerships [NOT corporations] Owners had to be unanimous that this was how they wanted to proceed These restrictions meant that this was merely a band-aid did not apply to many corporations Professional Corporation Like other corporations but shareholders personally liable to clients or patients

13

Way to get around ethics rules that professionals cant be in corporations Limited Liability Company [LLC]: Showed that people were willing to see a partnership as an entity. Was invented in Wyoming in 1986, and other states followed suit. General Characteristics: People who own interests are not personally liable, can engage in control Generally taxed as partnership [pass through, single taxation] Why is this form so popular?? Tax reasons Ability of partners to control partnership Most important: limited liability o For capitalism, LL is a transcendent drive o People wont invest or will charge a lot for their investment if they are personally liable for the full extent of the enterprises obligations Downside: law not very well developed [see below] Importance of Form in LLCs Disagreement Not important [Elf; called requirement that LLC sign the K form rather than substance] o This is an odd conclusion b/c corporate law has an appetite for form o Also goes against increasing view of LLC as entity rather than as a collection of its members Very important [Moon] o More consistent with theory, prevailing views o Does not matter if intended to have LLC, just whether intended to have venture Formation: file articles of organization with office of secretary of state Management: can be managed either by members or by management group [centralized] All members have no personal liability provided: (1) Company was properly formed (2) Members have paid promised capital contributions in full (3) Company is not operating in fraudulent manner Transfer: members can transfer financial interest, but transferee doesnt become a member unless other members consent or operating agreement so provides Limited Liability Partnership [LLP]: Different from Limited Partners because partners can participate in the control of partnership Many offer possibility to form a partnership in which people who would generally be general partners are not liable Other forms include: Limited Liability Limited Partnership, etc.

There will be continued convergence and hybridization, with enormous contractual freedom

14

ISSUES WITH HYBRID FORMS - These forms are new, law is not entirely extensive o Have not dealt with the complex issues that other forms have dealt with; just not enough caselaw for judges to solve the issues with these forms based on hybrid law alone o They are rooted in corporation and partnership law use of corporate/partnership/agency law to resolve these issues o These forms of law will therefore have a continued relevance - State law on these forms is very inconsistent o They are created/authorized by the several states states pick and choose, may or mat not offer all of the various forms o May have different names for the forms in each state There is no uniform act for a number of these forms Where there are model acts, they are constantly amended, states adopt different provisions [i.e. Gateway] o As a lawyer, it is particularly important to pay attention to the law of each state Gateway Potato Sales v. G.B. Investment Co. Arizona (1991) Facts: Creditor would not give seed potatoes to Ellsworth [president of limited partnership, Sunworth] because he had a checkered financial past. Ellsworth said that he had a financial backer, who was a limited partner in Sunworth, and on the strength of that, the Creditor extended loan. Ellsworth did not pay. Creditor of a limited partnership sued the limited partner/financial backer, alleging that the limited partners activities had rendered him personally liable despite the general rule. The financial backer/limited partner claims he did not exercise any control, but Ellsworth had two pages of depositions about all of the shots that the limited partner called. Holding: Evidence provided that was enough evidence that the limited partner had engaged in corporation as a full partner to get past summary judgment. - General rule: limited partners have no personal liability unless they exercise control - Old law: could not exercise any control [similar line-drawing issue to Cargill and Payton] - Intermediate law: It was hard to draw this line, so states created Safe harbors; if acted outside safe harbors, could be liable; but these were hard to generalize across - New law: If limited partner participation in business is not substantially the same as the general partner, then liable only to persons who transact business with limited partnership with ACTIVE KNOWLEDGE of participation in business. - This case shows how fact-intensive this analysis can be

15

Courts will second-guess what people to do and whether it personal liability; this increases the cost of investment because of the uncertainty over whether they will be personally liable

Elf Atochem North America, Inc. v. Jaffari and Malek LLC Delaware (1999) Facts: Malek LLC was joint venture between Elf (solvent-based maskant company) and Malek, Inc (owned by Jaffari, made innovative environmentally-friendly alternatives). Under agreement, jurisdiction was in California. Deal between companies went sour. Elf sued Jaffari and Malek LLC for breach of duty, breach of contract, tortuous interference of prospective relations, and fraud. Whether this court has jurisdiction depends on whether the agreement is enforceable. Defense claimed couldnt sue in DE court b/c agreement enforceable. Elf said LLC not bound by agreement b/c LLC didnt sign it. Holding: Entities (LLCs) bound by members signatures and DE Limited Liability Act allows investing exclusive subject matter in another state. Allowing parties to have forum selection clause for ADR embraces freedom of contract Emphasizes substance over form [just form] Inconsistent with entity view Odd b/c corporate law has an appetite for form [especially in DE] Claims members of LLC are real parties in interest May have been more of a functional decision Advanced Orthopedics, LLC v. Moon Louisiana (1995) Facts: Orthopedic Doctor was listed on certificate of incorporation but didnt sign operating agreement. Holding: Doesnt matter if didnt sign operating agreement because the entity did. Do not have to have subjective intent to form LLC, but rather the subjective intent to have the venture. Emphasizes form doesnt matter what people intended COMPARISON OF BUSINESS FORMS General Partnership Corporation Limited Partnership Sub S LLP, LLLP, LLC Limited Liability? No Yes Yes (if..no control) Yes Yes Single Tax? Yes No (double tax) Yes Yes (ifmembers elect to do so and other conditions) Yes Control/Participation? All partners manage Centralized manage. Limited partners can exercise less control than general partners ? Yes (limited liability partners can participate and retain limited liability) Other?

? Differ as to management style, distribution controls, investment forms

Other Ways to distinguish business forms: - Finance - Distribution - Location of Managerial Function o Centralized [i.e. corporation] o De-centralized [i.e. partnership] - Forms of ownership interests o Collective, no individual accounts [i.e. common stock in corporation] o Individual accounts [i.e. equity contributions of partners] - Distribution of profits o Rules limiting distribution of profits [i.e. corporation] o No rules limiting distribution of profits [i.e. partnership]

16

17

CORPORATIONS Legal Entities - Have assets: cash, building, inventory, trademarks - Have liabilities: accounts, loans, salaries, taxes payable, obligations to other people Creations of the State - Must go through formal procedures [i.e. create specific documents, file with state] - Must pay state franchise fees [consequence of state formalities] Transferability of shares - Shares are fully transferable - This is the default rule, can be modified with restrictions on transfer Tax - Has a different tax structure than individuals o Taxed twice On revenue Then SHH face a tax on distribution o Tax rates might be different than for individuals Liability - SHH not personally liable [most significant discovery - Own an interest in that separate entity, are not liable for that entitys obligations above the amount of their own contribution - Creditors look to the entity to have debts paid off Closely held v. Publicly Held Corporation - Central Distinction o Publicly held corporations trade securities in public capital market o Closely held corporations do not - Has practical consequences o SHH with stock on stock exchange can more readily buy/sell them deep liquidity o Much harder to do this with closely held corporations - Has legal consequences o In the US, publicly held corporations are subject to an overlay of federal securities laws not applicable to private corporations o SHH in closely held corporations are held to a higher duty to each other than SHH in publicly held corporations [no duty unless controlling SHH] PLAYERS IN CORPORATION CORPORATION -State statute, charter, by-laws -Any lawful purpose; all lawful powers -Separate entity; [A L] Owners - Have interest in the residual assets of the corporation [A L = Equity/Residual Interest] o Put capital at corporations disposal for generating profit o Standard form that represents their equity interest is stock, may be divided into 2+ classes:

Common stock: Common representation of equity interest Has default claim to residual interest [there has to be a residual owner] Within the common stock there can be different classes, each with different rights [$, voice, vote, etc.] Preferred stock: Created by K

18

There is no default in corporate law re: preferred stock Specific amounts of dividends, voice, etc. are promised Can also have several classes of preferred stock Can be on board and vice versa Although in larger corporations, SHH and board tend to be very different Leads to the problem of conflict of interests between those who run the corporation and those who control it Has been called the biggest problem of corporation in society [Berley & Means] Economists call it agency costs people in charge are supposed to be agents, act on behalf of corporation and its owners [principal], but may shirk this responsibility o Fiduciary duties [legal solution] o These duties vary in strength [Veasy v. Cardozo] o This philosophical divide tends to reflect the varying degree of faith that people have in market forces, labor force, product competition in managing agency costs In close corporations, there is a closer convergence between directors and SHH

OWNERS Equity interest [A L = Owners Equity] Common stock Board of Directors - All state statutes require that the corporation be managed by the board of directors - Can have any number of directors [the rest is tailorable] - Their job is to manage the affairs of the corporation gives them control of decision-making o Then a lot of power is delegated officers o The officers are supervised by the board - BOD has extensive power to make all sorts of business decisions [whether to buy-back stock, issue stock, etc.] - Governance statutes can be included, however, that alter the powers that are available to the BOD BOARD OF DIRECTORS Control/manage business and affairs Hire/supervise executive officers Lenders - Corporations may also attract debt from lenders o Get a fixed, K claim o Rights of lenders are typically set out in K, lender can put in provisions to protect investors - Managers invest the money lent to them to get a higher return leverage - The lender has priority there is a the debt has to be repaid to lenders before SHH get anything o No problem when things go well o But when things go poorly conflict of interest between SHH/lenders o When a lender lends to corporation, can generally sue the corporation, not the SHH [b/c of limited liability] LENDERS Contractual Debt Leverage Effect Relationship between Equity and Debt - SHH can engage in either o Equity piece of expanding pie; no guarantee of repayment o Debt make a loan on specified terms - When fiduciaries make loans rigorous scrutiny [Fett]

19

20

INCORPORATION________________________________________________________________________ ENABLING STATUTE - Refers to corporate code that is full of default rules o In the absence of another rule, the default rule applies o They are selected because people are the most likely to follow them - Because the statutory codes are enabling, corporations can tailor the rules as they like - Although some rules are mandatory [even in DE] - This is a big change historically corporations were created by Special Act, then by restrictive statutes PROMOTERS Someone who organizes the business aspects and plans the organizations formation. Liability on Promoter K Limited Liability businesses do not legally exist until all statutory formalities have been completed; the persons organizing the business do not expect to be personally liable for companys obligation. Therefore contractual obligations are often taken on behalf of company to be formed not promoters personally. At time of contracting, promoter acts on behalf of nonexistent principal. Once corporation formed, corporation may accept or reject contract. Corporation not bound by contract unless after takes some action which would cause court to hold corporation estopped. Ratification: does not apply to promoter contracts because it relates back to the time of K, a time at which the corporation did not exist Adoption: process by which promoters contracts are adopted by the corporation. Does not have retroactive effect. Gives legal effect to the K at the time of the date of adoption. [McArthur v. Times Printing] o Formal Adoption: BOD passes resolution stating they are adopting the K o Informal Adoption (more common): newly formed corporation performs obligation under the K with knowledge of the Ks terms Rights and Liabilities of Promoters on Promoters Contracts Promoters generally personally liable under promoters contracts This is the case even if the promoter did not subjectively intend to be liable b/c contract must have more than one party to both sides. To guard against liability [still liable after adoption unless one of the following occurs] Novation: Language contemplating an automatic novation upon adoption of the to-be-formed corporation in K Novation3 either formal or informal must be affected after the to-be-formed corporation has adopted the K If novation does not occur promoter liable Include a written option from the other contracting party by which the other party grants to the promoter, for the benefit of the to-be-formed corporation, an option to enter into a specific contract If option Whether or not promoter is bound by promoters contract turns on [independent issue from adoption]: (1) What the parties seem to have intended: Whether specifically intended that promoter not be personally liable [not unilateral intent] If promoter signs in corporate name without telling the other party that the corporation is still unformed intent is for liability to lie with corporation, but instead falls under general rule that promoter is liable and not corporation [cant take subjective intent literally] (2) How the contract is drafted:
3

Other contracting party releases promoter from liability upon accepting a substituted party. Means a substitute of something new.

21

Each term requires consideration Must be clear without argument, state explicitly that the other party will look only to the tobe-formed corporation for performance (3) Consideration K must have consideration to be enforceable this includes for the novation and the option mentioned below May also consider: whether it was an agreement that the corporation could have entered into; whether the agents of the company would normally have expressed or implied authority to enter into that agreement [McArthur]

McArthur v. Times Printing Co. (unhappy advertising guy) Minnesota (1892) Facts: Promoter of Times Printing formed contract with Nimocks for advertising services. Corp. formed on October 16. Paper started being published Oct 1 and Nimocks served as advertising solicitor. After company organized he continued in employment until discharged following April. Defendant BOD never took any formal action but were aware of contract at time Held: Corporation is not bound by engagements made on its behalf by its promoters before it was organized, but it may make such engagements in its own Ks after organization by ADOPTION. Not requisite that FORMAL adoption or acceptance be expressed. Can be INFERRED from acts or acquiescence on part of the corporation or its authorized agents Right of Corporation to adopt agreements entered into by promoters depends upon purposes of the corporation and the nature of the agreements Agreement must (1) Be one which the corporation itself could make (2) One which the usual agents of the company have express or implied authority to make On issue of statute of frauds issues, Court said that statute of frauds would have run out at time contract made, and that employee should have properly alleged contract with promoter. WHERE TO INCORPORATE?? Significance of State of incorporation Domicile for jurisdictional purposes (capacity to sue and be sued) Internal Affairs state of incorporation is governing law of internal affairs of incorporation Three Factors for Consideration: Three factors for consideration: (1) Substantive provisions of state incorporation law, (2) Cost of incorporating in one state other than the one where company does business, (3) Whether company will be privately or publicly held Substantive Provisions State of incorporation governs the corporations internal affairs as well as options for corporate governance and financial structures BUT widespread congruence of corporate law among states [exceptions some states are more or less liberal on certain terms, such as DE and its provisions regarding meetings] Cost of incorporating in other than primary place of business If doing business elsewhere, need to qualify in home state as foreign corporation Will have to file reports in 2 places yearly Tax burden will increase Company held privately or publicly If held publicly need to look at tax savings based on number of shares issued The default answer should be in the corporations home state - If incorporate elsewhere, has to qualify in home state as foreign corporation - Will have to pay franchise fees in both states - The incorporation statutes in the various states are not all that different But for larger corporations, incorporating in DE may be better: - Tax reasons

22

Already incorporating in lots of states relative cost of incorporating in one more state is small Decision to incorporate in DE should NOT be inevitable

Why DE is so GREAT! [Elf] - Enabling statutes - Courts have special expertise in corporate law, have expedited procedures - Secretary of state responds quickly - Good tax structure - Are innovative - Restrictions on ability of legislature to radically change system [requires 2/3 vote] - Statutory model emphasizes transcendent policy of freedom of K epitomizes the enabling sense - May actually increase the value of the corporation - The corporation may still be located elsewhere just need: o File documents with secretary of state o Get local recognition o Have to pay franchise fees in DE [1/2 state revenues] Carey/Winter Debate Carey Race to the bottom DE is so interested in being number one in corporate charters That competition would increase agency costs b/c cater to managers at expense of SHH Solution national, federal incorporation law [Congress could pass pre-emptive legislation abolishing the state charters] A lot of people take this position, but it has not yet happened Winter Race to top There are lots of forces that discipline managers Managers will be disciplined by forces promoting efficiency Will want to do best by stockholders Market forces require doing well to attract investors BUT is there a guarantee that markets work to make agents act faithfully and successfully? This is not solved. We dont have national incorporation law We do have some federal overlay state/federal competition Delaware always has to worry about Washington and federal apparatus invading state corporate law [i.e. Sarbanes/Oxley Act] HOW TO INCORPORATE Do not use unexamined pre-printed, standardized documents. Steps Prepare and/or review promoters contracts Select corporate name and, if necessary, reserve it Establish the companys capital structure and, if necessary, prepare stock subscription agreements in compliance with state and federal securities laws Establish a registered agent and registered office Determine statutory requirements, if any, for incorporations, officers, and directors Prepare articles of incorporation and bylaws File articles with Secretary of State and, if appropriate, with other governmental authority Prepare initial draft of minutes for organizational meeting or prepare written consents to accomplish without a metting [the actions to be taken at the organizational meeting] Model Act

23

2.1.2.3 Define necessary steps for preparing and filing articles of incorporation - at a minimum, articles of incorporation
must state: Corporate name, number of authorized shares, name/address of registered office and agent, name and address of incorporator 2.1.2.4 1.20-1.21 prescribe standards for the form of the documents 2.1.2.5 3.01(a) purpose of engaging in any lawful business 2.1.2.6 1.40 (22A) includes both facsimile and electronic signatures as signatures Under Model Act job of incorporators is to sign the charter and deliver it to the secretary of states office. Under Model Act, duration may be perpetual unless otherwise specified. Governing Documents Corporate existence begins when articles of incorporation filed with Sec. of state. Articles of Incorporation [Charter]: o Formal, constitutional instrument Provides basic governing rules for corporation Is the organic founding document o State law specifies what the charter must include, may be: The name of the corporation The number and types of shares that the corporation is authorized to issue w/ rights, preferences The name and address of the companys registered office and its registered agent for service of process The name and address of incorporators The corporate purposes [model code default: any lawful business] The number and names and addresses of the initial BOD [if available] Optional provisions concerning the management of the business and regulation of companys affairs Bylaws o More expansive detail than the charter o Can include: When meetings are Who attends the meetings What kind of notice is given for the meeting Voting Rules Governing apparatus of the corporation [may also be in charter] Good corporate lawyers try to anticipate problems when drafting these documents b/c the rules for amending each is different. o Default rules: Charter can be amended only with SHH involvement Directors can change by-laws w/out SHH involvement o This may influence where you put things Purposes and Powers Clauses Corporate purposes clause designates types of business which company may conduct. At one time acts of the corporation had to achieve its purpose Now model act allows for any lawful purpose HOWEVER can specify purpose if desire Ultra Vires beyond the power conferred to the corporation by the state (beyond coporate purposes) Now little remains of ultra vires doctrine Corporate charter purposes are broad and generic; powers clauses afford corporations powers like those of a natural person Model 3.04 limits challenges to corporate action based on lack of power to proceedings brought by shareholders, by the corporation, or by the Attorney General

24

ALL CORPORATE STATUTES SPECIFY BOD SHOULD CONTROL AND MANAGE AFFAIRS OF BUSINESS

Preincorporation Agreements MBCA 7.32 authorizes preincorporation agreements and gives parties wide latitude in agreements Could set forth [promoters agreement] State of incorporation Money and property each participant is to contribute Stock and other securities that are to be issued to each participant Principle terms to be included in charter and bylaws ** Ceases to serve a purpose and become defunct as soon as corporation fully organized. Shareholders agreement Variations from the traditional pattern of corporate management such as power to veto corporate decisions to some or all of the participants Concern matters relevant to SHH Generally does not need to be in Charter, some states mandate that it does Examples: whether can vote for each other, who can sell shares to/restrictions on transferability arrangements among participants for the corporation to employ one or more of them, undertakings by the participants or some of them not to acquire an interest in or participating in any competing enterprise Disposition of stockholder who dies or becomes disabled does the company have to buy it back?? Arrangements for purchase of business insurance by participants to keep others fully informed of transactions relating to business or affecting value of stock Provisions for arbitration or some other method of resolving disputes between participants Commitments for future financing Best time to enter into them is at the beginning Courts are increasingly upholding them; particularly for closely held corporations Pre-incorporation Doctrine desirable when: Organization of corporation will take considerable amount of time Business bargain contemplates extensive financial commitments in advance of incorporation Participants want to mind one or more of their number to commitments for future financing One or more participants has been enduced to engage in the enterprise by consideration other than prospect of obtaining shares in the projected corporation (promised employment) Participants place restrictions on transferability of stock in projected corporation Important parts of the business bargain will not be covered in writing even after charter has been executed and bylaws adopted

25

CAPTIALIZATION_& DISTRIBUTIONS__________________________________________________________________ ISSUING SHARES Charter must include a number of common shares to be authorized BOD decides how many to issue and sell to people If issuing more shares than authorized in charter needs SHH approval DGCL 102(a)(4) corporation has authority to issue the number of shares that are stated in its charter. Shares may be divided into classes as corporation desires. Must state par value or if that stock is w/o par. Classes of Shares o

Common Stock Usually common stock holders will share equally in rights of shareholders (voting, etc), but common stock can be broken into classes and rights split up

Preferred Stock Dividends paid to first over common stock holders But have right to dividends up to certain amount Usually not right to elect directors unless havent been paid dividends for certain time (12 months) Usually callable corporation can force to sell back at stated amount in charter Warrants transferable long term options to acquire shares from the corporation at a specified price. Price is function of market price of underlying shares. No voting or dividend rights. Rights short-term warrants expiring in one year. May be publicly traded or listed on securities exchange.
o o o o

MBCA 601(a) and 601(c) permit corporation to have classes of shares that differ based on preferences, limitations and relative rights MBCA 601(c) authorizes the issuance of shares that may be redeemed at the option of either the corporation, the shareholder or third person (such as holder of another class of security in the same corp) or upon the occurrence of a predetermined event. MBCA 601(b) requires articles of incorporation to authorize (1) one or more classes of shares that together have unlimited voting rights and (2) one or more classes of shares (which may be the same class or classes as those with voting rights) that together are entitled to receive net assets of the corporation upon dissolution - Model Act breaks away from terminology of common and preferred stock - If only one class of stock, then dont need a description and understood that shares have both the power to vote and the power to receive the net assets of the corporation upon dissolution. - Could also delegate power to BOD to establish terms of a class of shares if no shares have been issued. Would have to set forth descriptions in amendment to articles of incorporation before shares are issued. Consideration - Traditional Corporate Law: requires certain types of consideration [cash, property, services, NOT promissory note] - Modern Corporate Law: any kind of consideration; within boards discretion DGCL 153 what must charge for shares (1) Par Board may not set consideration at less than par value (2) No-par stock issued for consideration as determined by BOD DGCL 152 Consideration may be in form of cash, tangible or intangible property, any benefit to corporation, any combination to foregoing. If amount of par value is paid in above consideration, amount greater than par value can be paid with binding obligation to pay in future. DGCL 154 BOD must express consideration in $ - When company issues shares at par value, capital must be equal to or more than aggregate par value - For no par stock, all consideration received constitutes stated capital unless BOD determines only part is stated capital but something must be left in stated capital

26

MBCA 6.21(b) Board of directors may authorize shares to be issued for consideration consisting of any tangible or intangible property or benefit to the corporation, including cash, promissory notes, services performed, contracts for services to be performed, or other securities of the corporation MBCA 6.21(e) Corporation can hold stock in escrow until completion of future services MBCA 6.21(c) Board determines if consideration (of something other than cash) is adequate. Determination is conclusive. Duly Authorized, Validly Issued, Fully Paid, and Nonassessable Stock Duly authorized when shares were issued, corporation had sufficient shares authorized in its charter to cover the issuance. Validly issued shares issued in accordance with corporate law o Did BOD approve issuance of stock o Was consideration in an amount and of a type allowed by statute? Nonaccessible if stock fully paid, owner cannot be assessed for further payments. Board can also issue shares that would be accessible later. Fully paid appropriate type and amount of consideration has been paid o Did title to real property pass to corporation? Watered stock stock issued for less than full amount of permissible consideration set by board dilutes value of other issued shares b/c corporation has not received full value for watered stock Model 6.21 no mimium price at which specific shares must be issued and therefore there can be no watered stock liability traditional view shareholder liable for difference between amount paid for a share and the shares par value Shareholder Contribution/Liability - Insufficient Capitalization o SHH must contribute at least the committed capital amount [par value/stated value x # shares] o Within discretion of BOD to set that amount o Old Rule: Where have not done so, may be required to pay difference to creditors [Hanewald]; where par value is merely nominal, the court may look into whether the contribution by SHH was sufficient - Subordination: o Where there is no par value requirement, the court may still investigate whether the amount that the SHH contributed was adequate to finance the corporation [Obre] o If inadequate [a.k.a. thin incorporation] Equity investment must be adequate with reference to obligations If not, their debt will be reclassified as equity, loans will be subordinated to other creditors in case of bankruptcy [equitable subordination] Has tax consequences will be treated as equity for tax purposes o No need to show actual fraud, just that violated fiduciary duties owed to corporation [Fett] o In making this determination, courts will look at: Debt to Equity Ratio: important factor, not determinative Fett: 80:1; justifies owners putative loans being re-classified as equity, subordinating debt Assets Liabilities $413,000 Equity $5,000

Assets Cash: $3000 Equipment: $72,000

Obre: 1:1; court considered it to be sufficient capitalization, safe capital structure b/c there was equity beneath debt incurred owners interests treated as debt, not subordinated Liabilities Note: $35,000

27

Equity Equity preferred: $40,000 Equity common: $40,000 Not clear where the line is between these two cases moderate leverage is probably OK (i.e. 1:1), at the other extreme, probably not safe (80:1) Whether corporation has legitimate business purpose in arranging debt a certain way [Obre] Whether complied with formalities of corporate law, such as holding meetings, keeping records [Fett] Whether did anything shady [i.e. manipulating dates of instruments [Fett] Material amount of equity Realistic debt structure To avoid subordination, owners should: Incur straightforward indebtedness Borrow in stages Provide collateral Identify consideration Avoid pro rata lending Trust as lender Guaranteed loans Reasonable expectations of repayment Act like a creditor

Toms v. Cooperative Management Corporation renege sale of shares Louisiana (1999) Facts: Ms. Toms owned stock in close-held timber company. Sold her 150 shares to corporation. Corporation cancelled stock. 9 years later Ms. Toms sued saying price was too low. Board settled by authorizing 150 new shares to be sold at price paid for stock. Board decided that consideration paid for new stock should go into capital surplus rather than stated capital. Dissenters sued saying cant allocate $0 to stated capital and that 85% shareholder approval required to issue new equity (increase stated capital account) Holding: Under LA statute, some amount must be allocated to stated capital when stock sold. Zero is not an amount. Also, corporation must adhere to own bylaws and 85% approval for issuing new stock. - This was an interesting use of the stated capital rules to restrict ability of corporation to buy back shares Hanewald v. Bryans, Inc. (couple that didnt pay for stock) North Dakota (1988) Facts: Husband and wife bought dry goods store. Each issued 50 shares of stock at par value of $100,000. But Bryans Inc. (company) didnt receive for those shares any payment. Company went bankrupt. Didnt pay some bills. Creditor sued. H&W said not liable because shareholders Held: Failure of shareholders to pay for their shares to corporation make them personally liable for debts in amount owed. Shareholder liable to corporate creditors to the extent his stock has not been paid for. Liable in amount of difference of par value of stock and what was actually paid Debt subordinated Obre v. Alban Tractor Co. (Tractor man makes OK loan) Maryland (1962) Facts: Henry Obre and F. Stevens Nelson formed Annel Corporation to move dirt and build roads. Orbe transferred equipment of $63K and cash of $1.7K. Nelson contributed $8.5 equipment and $1.5 cash. Orbe received in return $20,000 par value nonvoting preferred stock, $10,000 common stock, and $34.7K note. Holding: Business was not undercapitalized, and therefore note of shareholder not subordinated to note of creditors. $40,000 in equity and $34.7K note is about 1:1 ration and ok. There is no showing that $40,000 was inadequate capitalization for an enterprise of this size, particularly in view of the careful planning that went into determining its capital structure. Subordination occurs when venture was under-capitalized or a showing of fraud or mismanagement. Defendants had a valid business purpose for their capital structure:

28

(1) corporation needed necessary equipment received in exchange for not, (2) note given the same day as incorporation, (3) note was for 5 years OK that note was made payable in 5 years. Creditors could have determined the financial status of the corporation simply by inspecting the stock issuance certificate filed with State Tax Commission

Fett Roofing and Sheet Metal Co. v. Moore (sketchy guy makes continual loans to business) District Court of VA (1977) Facts: Donald F. Fett started sole proprietorship w/ equity of $5,000, would make loans to corporation as needed by borrowing loans from bank. Deeds of trust to secure loans were back-dated. Fett knew business was insolvent. Debt to equity ratio was 80:1. No evidence that borrowings were formally authorized by corporation that interest was paid, and creditor had day-today control over corporate affairs. Holding: Found loans were actually capital contributions. A director, officer, majority shareholder, relatives thereof or any other person in a fiduciary relationship with a corporation can lawfully make a secured loan to the corporate beneficiary. However, when challenged in a court a fiduciarys transaction with the corporation will be subjected to rigorous scrutiny and burden will be on him to show good faith of transaction and inherent fairness from viewpoint of the corporation and those interested therein When a corporate insider achieves an unfair advantage over outside creditors dealing at arms length, the Court will subordinate his claim to theirs. DEBT

Notes short-term or long-term loan (one to ten years) from banks, private investors, or shareholders to corporation. Could be secured or unsecured. Bond long-term debt instrument secured by a mortgage or deed or trust on corporate property Debenture unsecured long-term debt instrument Indenture contract between corporation and an indenture trustee, usually a bank, that acts for the benefit of the bond or debenture holder (protects bond and debenture holders) Why debt? Interest payments tax deductible for corporation; dividend payments are not. Why creditor rather than stockholder? Debt may be repaid without tax consequences; stock dividends taxed Debt holder have preference if corporation goes bankrupt Debt holders can qualify for current income deduction if not repaid easier than stock holder who suffers loss Leverage financial consequences of the use of debt and equity Debt holder has fixed claim Equity holder has residual claim If something is highly leveraged more risky higher gains, higher loses Example: Homeowner buys condo for $100,000. Pays $10,000 down and borrows $90,000. Sells condo for $110,000. Gain = $10,000 - highly leveraged gain $10,000/$10,000 = 100% If had paid $100,000 down - low leveraged gain = $10,000/$100,000 = 10% Condo only sells for $90,000. Loss = $10,000 - if highly leveraged loss 100% - if low leveraged loss 10% Preferred stock can also have leveraging effect for common stock.

BALANCE SHEET: outline of the capital structure of the corporation; used as a basis to determine whether can distribute shares. It is divided into two columns Assets and Liabilities. Liabilities include both debt and equity.

29

Par value

Nominal designation associated with a share of stock (common or preferred) Generally set at a low amount [penny, dime] to maintain flexibility Can have substantive content lenders may require that it be a real value to ensure SHH have something at stake Also has tax consequences [DE] Corporations are taxed based on par value Where there is no par value, will be taxed to high value incentive to have par value Traditionally: was a device for lenders so could lend on assumption that owners will have permanent investment in corporation [equity cushion]; comfort that there will be permanent resources in corporation Consequences: (1) Corporation cannot sell shares for less than par value (2) Limitations on distributions that corporation can make to share holders [cant make beyond stated capital, determined by par value x # of shares outstanding] (3) Defined what types of consideration could be paid for shares [cash, property, services rendered] and what could not be used [promise for future payments] BUT no one ever required that par value be based on anything substantive no real protection Modern Par value is formal only. In most states it is permissive [i.e. DE] but where corporations have par value elaborate set of consequences No rational lender looks at par value to determine risk, instead looks at: The actual value of the corporation Maximum amount of SHH equity Minimum amount of lender debt Should exercise due diligence call on credit rating agencies to assess the quality of borrowers risk [must do so b/c take a risk of non-payment] Creditors should also seek to protect themselves through Ks [more important to lenders than the judicial policing of corporate abuse of lenders]: Monthly repayment Constraints on business decisions, such as making loans Require them to maintain certain cash flows Requirements on current debt:equity ratio Financial covenants [i.e. limiting right to distribution] Lenders remedy against breach i.e. demand current payment [allows creditor to sit down with lender and make corporations make changes or charge a higher rate]

Capital: money made through stock - Traditional Corporate Law: o Stated capital stockholders permanent investment in the organization [Equity] If stock has par value, stated capital = [# shares outstanding] x [par value/share] If stock is no par stock, stated capital is an arbitrary amount that the board assigns to the stated capital amount A certain, non-zero amount needs to be allocated to stated capital [Toms] Where corporations o Capital Surplus: amount for which the corporation sells the shares above capital surplus o This distinction consequences Address power allocation in disputes between SHH/BOD [Toms] Mediating disputes between lenders/owners Modern Corporate Law: o Stock can be par or not o Does not distinguish between stated capital and capital surplus all called capital

30

DGCL 154: Determination of Amount of Capital; Capital, Surplus and Net Assets Defined Any corporation may, by resolution of its BOD determine that only a part of the consideration which shall be received by the corporation for any of the shares of its capital stock which it shall issue from time to time shall be capital; but in the case of the shares issued shall be shares having a par value, the amount of the part of such consideration so determined to be capital shall be in excess of the aggregate par value of the shares issued for such consideration having a par value, unless all the shares issued shall be shares having a par value, in which case the amount of the part of such consideration so determined to be capital need be only equal to the aggregate par value of such shares. In each such case the board of directors shall specify in dollars the part of such consideration which shall be capital. If the board of directors shall not have determined (1) at the time of issue of any shares of the capital stock of the corporation issued for case or (2) within 60 days after the issue of any shares of the capital stock of the corporation issued for consideration other than cash what part of the consideration for such shares shall be capital, the capital of the corporation in respect of such shares shall be an amount equal to the aggregate par value of such shares having a par value, plus the amount of the consideration for such shares without par value. The amount of consideration so determined to be capital in respect of any shares without par value shall be the stated capital of such shares. The capital of the corporation may be increased from time to time by resolution of the board of directors directing that a portion of the net assets of the corporation in excess of the amount so determined to be capital be transferred to the capital account. The board of directs may direct that the portion of such net assets so transferred shall be treated as capital in respect of any shares of the corporation of any designated class or classes. The excess, if any, at any given time, of the net assets of the corporation over the amount so determined to be capital shall be surplus. Net assets means the amount by which total assets exceed total liabilities. Capital and surplus are not liabilities for this purpose. DGCL 244. Reduction of Capital (a) A corporation, by resolution of its board of directors, may reduce its capital in any of the following ways: 1. By reducing or eliminating the capital represented by shares of capital stock which have been retired 2. By applying to an otherwise authorized purchase or redemption of outstanding shares of its capital stock some or all of the capital represented by the shares being purchased or redeemed, or any capital that has not been allocated to any particular class of its capital stock [buy-back]; 3. By applying an otherwise authorized conversion or exchange of outstanding shares of its capital stock some or all of the capital represented by the shares being converted or exchanged, or some or all of the any capital that has not been allocated to any particular class of its capital stock, or both, to the extent that such capital in the aggregate exceeds the total aggregate par value or the stated capital of any previously unissued shares issuable upon such conversion or exchange; or, 4. By transferring to surplus (i) some or all of the capital not represented by any particular class of its capital stock; (ii) some or all of the capital represented by issued shares of its par value capital stock, which capital is in excess of the aggregate par value of such share; or (iii) some of the capital represented by issued shares of its capital stock without par value. [transfer capital to surplus as long as par value remaining] (b) not withstanding the other previsions of this section, no reduction of capital shall be made or effected unless the assets of the corporation remaining after such reduction shall be sufficient to pay any debts of the corporation for which payment has not been otherwise provided. No reduction of capital shall release any liability of any stockholder whose shares have not been fully paid. Earned surplus - Equal to the profits earned by the corporation during its existence LESS any dividends it ever paid out [a.k.a. retained earnings] - Generate revenue by deploying assets, turning them into expenses Liabilities - [See DEBT above] - Unpaid-for goods - Judgments/torts - Taxes owed Balance Sheet Review: Corporation issues $1,000 shares of $1 par value stock for $10 per share ASSETS LIABILITIES Cash $10,000 SHAREHOLDERS EQUITY $0

31

$1,000 $9,000 _________________ TOTAL ASSETS = $10,000 TOTAL L & E = $10,000 ** If no par value, then $10,000 would be in stated capital, unless BOD decided to put some in capital surplus (as long as not $10,000 in surplus) Corporation invested $10,000 in some venture that returned $15,000 on the investment, producing earnings of $5,000. ASSETS LIABILITIES $0 Cash $15,000 SHAREHOLDERS EQUITY Stated capital $1,000 Capital Surplus $9,000 Earned Surplus $5,000 _________________ TOTAL ASSETS = $15,000 TOTAL L & E = $15,000 Corporation invests $10,000 and received only $5,000 in return, thereby losing $5,000 ASSETS LIABILITIES $0 Cash $5,000 SHAREHOLDERS EQUITY Stated capital $1,000 Capital Surplus $9,000 Earned Surplus (-$5,000) _________________ TOTAL ASSETS = $5,000 TOTAL L & E = $5,000 INCOME STATEMENT: report net income or loss for a given fiscal period

Stated capital Capital Surplus

[Revenue expenses to produce those revenues] + [any other gains/losses] = profit Generate revenue by deploying assets (turning into expenses) o No profits until expenses, depletions, depreciations have been deducted o Depreciations are treated as an operating expense Profits have the effect to increase equity o If negative profits, then equity decreases o Equity also goes down where the corporation makes a distribution Income goes into earned surplus under equity portion [in the case of nimble dividends, the amount never shows up on balance sheet]

DISTRIBUTIONS/DIVIDENDS The most important restriction on the ability of the corporation to make distributions are the K provisions of lenders.

Traditional Rule: corporation entitled to make distributions only from surplus [earned surplus and capital surplus] o Not able to make distributions from stated capital o This has to do with the fact that creditors valued the idea of there being stated capital o The problem with this is that at any time, the board can change the amount that was in stated capital [by changing the par value] staggering consequences [SHAZAAM!] o The allocations are within the directors discretion i.e. which classes to distribute to, unless there is a preferred stock Modern Rule: can make distributions as long as the corporation is solvent o MBCA: (1) pay debts as become due (2) A > L o DGCL: Old-fashioned rule: based on legal capital

32

A > [L + equity cushion/legal capital] Unreliable source of protection, but may limit distributions Exception: Nimble dividends Corporations can make dividends out of earnings of the year even if would otherwise be impairing legal capital Enables distribution SHH at time should pay creditors [NOT allowed by MBCA] Criticized, but the theory is that the earnings signify recovery

MBCA 6.40 whether corporation may make distribution to shareholders DGCL 170 dividends can be paid from surplus or current profits but not from a capital account. - Dividends from earned surplus payment to shareholders of corporations earnings, return on shareholders investment - Dividends from capital surplus return of shareholders capital rather than corporate earnings, payback to shareholders

RESTRICTIONS ON TRANSFER OF SHARES: purpose is to restrict transfers and provide liquidity; alters the default rule that shares are fully transferable. Can be K arrangements between SHH [i.e. SHH agreement]

Mostly useful for close corporations: o No market for shares o No liquidity for SHH if wants to buy/sell, has to negotiate with other SHH o Lots of uncertainty about the value of shares b/c there is no market price o Identity of SHH is really important o Particularly important for Family corporations Chapter S corporations In publicly held corporations, the market solves these problems, but different problems [i.e. separation between owners/managers] All that is required [in addition to the agreement] is that the certificate representing the stock say that it is not freely transferable on its face o Range of flexibility of restrictions of this type are near endless; subject to negotiations o Although judges are not likely to uphold a restriction that wholly prohibits its transfer May include other provisions [in agreement] o Who needs consent o What kind of majority Three main categories: o Preemptive Rights o Restrictions on transferability of shares o Buy-out Agreement

Preemptive Rights: gives SHH the opportunity to maintain a proportionate share by giving them right of first refusal - Legal Right o Rooted in common law [judges initially created the doctrine] o Codified Four Approaches: Most States: corporations can opt in for preemptive rights if they want them, not default [Opt In] Some States: unless corporation specifies in charter, then SHH have preemptive rights [Opt Out] Few states: Preemptive rights are mandatory DE: silent; suggests there is no longer authority to have preemptive rights b/c they did at one time have it Process: when the board decides to offer more shares and determines price, each SHH is given an offer to buy a number of shares that corresponds to their respective share [pro rata]

33

o When offer is made triggers duty of care/duty of loyalty [fiduciary duties trump K] Must protect SHH from dilution of interest Where makes a decision harmful to one SHH, must show a valid business purpose [Katzowicz] Board has a lot of discretion here b/c in close corporation it is hard to determine the fair value of share
BJR

o Also, it may not entirely protect from dilution because when new shares are offered, existing SHH may not
have existing funds to exercise rights

o If SHH does not exercise right waived o Where some SHH exercise their right and others do not dilutes interest of non-participating SHHs
[Katzowicz] Share Transfer Restrictions and Buyout Agreements Transfer Restriction w/ Buyout If a person wants to transfer others must buy-out. Provides liquidity in absence of market Contractual liquidity mechanism. Should agree on a methodology for valuation at the outset. Price is the most contentious issue with these devices [Denkins] Valuation methodologies: Book value Usually expressed as [assets liabilities]. Limitations: Accounting that assets/liabilities not intended to indicate market exchange rate; may not account for value that is not in accounting principles Not always self-defining to say book value is insufficient for law just how it will be calculated should specify what should be considered in the calculation [Denkins] Adjusted book value book value adjusted to reflect how accounting differs from fair valuation issues, i.e. appreciation value of certain property. May also consider: Nature and history of business Economic outlook of industry Book value of stock Companys financial condition and earning capacity Dividend-paying capacity Goodwill Previous sales of stock Market price of stocks of similar corporations Market Equivalents compare to similar company traded in public markets Earnings Based Valuation and Cash Flow Valuation **** MOST POPULAR Earnings Based Valuation addresses what the corporation will do in the future, what revenues it will generate over the next few years. Standard Technique: fair value is some multiple of the probable average earnings over the next few years. Cash Flow Valuation project cash flow that share or company will generate in the next year. Is the same idea as Earnings-based valuation, but you are looking to cash not earnings. This is more resolute on what you are actually getting at is the fashion on Wall Street now. Katzowitz v. Sidler (3 guys, 4 businesses, 2 bad guys dilute) New York (1969) Facts: 3 men in business of gas industry. Together they own a number of companies: Sulburn corporation ownes Sullivan, Burnwell, and unnamed company. Two owners Sidler and Lasker decided wanted to kick out Katzowitz. Sidler and Lasker wanted to loan money earned by Sulburn to another corporation all three controlled, but Katzowitz wanted cash. Sidler and Lasker propose to offer additional secuties for $100 per share to substitute for money owed to directors. This was 1/18 the book value of stock. Sidler and Lasker take stock. Katzowitz given notice of right to purchase stock, but took cash. Purchase by Sidler and Lasker diluted book value of outstanding securities. When they later dissolve business Book Value per share Number of Shares Pre $1800 15 Deal +15 Post $429 65

34

Corporate Book Value S&L K

$27,000 $1800 x 5 = $9,000 $1800 x 5 = $9,000

+ $5,000

$32,000 $492 x 30 = $14,760 $492 x 5 = $2460

Holding: Under preemptive rights, BOD cant issue shares for significantly less value without an valid business purchase for issuing. Shareholder in close corporation is at a total loss to safeguard his equity from dilution if no rights are offered and he does not want to invest additional funds. When issuing price is shown to be markedly below book value in a close corporation and when the remaining shareholder-directors benefit from the issuance, a case for judicial relief has been established. Corollary of a stockholders right to maintain his proportionate equity in a corporation by purchasing additional shares is the right not to purchase additional shares without being confronted with dilution of his existing equity if no valid business justification exists for the dilution. Denkins v. Zinkan Enterprises Ohio (1997) Facts: Plaintiff had put option to sell his shares in Zinkan Enterprises, Inc. Tried to exercise option, but D failed to repurchase stock. Disagreed as to book value. Defined in stock purchase option as determined by dividing the Companys stockholders equity as shown on yearly financial statement by the number of issued and outstanding common shares of the Company as of the date of such financial statement. Question of whether equity listed on Star Bank balance sheet was relevant to book value of stock or put option. P needed to show this was value on yearly financial statement and that taxes had been taken out. Held: P had not shown adequate book value and therefore was stuck with alternative damage award of $1,500 per share. Cant assume that everyone knows what you mean when you say book value or any other valuation method. Need to be clear that book value for one part of agreement is the same as for others.

35

ORGANIZATION_________________________________________________________________________ CORPORATE HIERARCHY: hierarchy of legal sources regulating/binding the corporation. Statute/law > Charter > Bylaws > Resolution [SHH Agreement???}] Corporate Statue/Law Generally o Authorizes creation Usually enabling Any changes to charter must be approved by SHH [default rule] Some mandatory provisions: Corporation shall be managed by the BOD Needs to be at least some common stock, the # of shares of authorized common stock must be set forth in charter Must set forth quorum, voting requirements in charter Corporations need to have annual meetings of SHH SHH get to vote on BOD, vote on certain mergers and acquisitions, liquidation, etc. Charter o The charter is public knowledge certain things must be in charter over bylaws o As a default rule, changes to charter must be approved by SHH; bylaws amended by board [should put important things in charter b/c is harder to change] o Things about internal affairs of corporation generally must be in charter [SHH agreements generally dont, but it depends on the state] Bylaws o Deals with the range of regulatory matters that the corporation has to deal with [generally things about which there is not much dispute o Generally can be amended by the board

Model Act 2.06(b) - bylaws may contain provisions for managing business and regulating affairs of corporation's internal workings as entity as opposed to actions regulating conduct of corporations business Board Resolution o Board has plenary power to govern the corporation o Can govern regulatory matters of the corporation

What if they put it in the wrong place?? - If statute requires that you put it in charter, and you put in bylaw void [Roche] - If board tries to pass a bylaw that violates the statute void [Datapoint] - Where the charter and bylaw conflict, the charter controls [Paulek]; however, what initially appears to be a conflict may actually be a statement of concurrent power [Disney] - Courts could treat it as a K, but only likely to do that in certain circumstances [Jones v Wallace] o Such as where there were procedural defects [not disrupting corporate hierarchy] o Only allowed in closely held corporation has fewer SHH, making form less important - But there is a lot of formalism in corporate law if they want it, they need to put it in the right place. Roache & the Legal Center, Inc. v. Bynum non-deadlocked board/would you like to be this guys friend? Alabama (1981) Facts: Roach formed corporation with wife and friend. Wife and friend later surrendered their holdings. Roach as sole shareholder adopted bylaws providing for quorum of 70% and super-majority voting of 70%. Also made article that President is chief executive and shall have general and active management of the business of the corporation. Then elected himself and Forstman to serve as legal directors. Then another attorney elected to serve as director. 2 new people didnt want to vote for Roach on BOD. Roach able to block their vote with his (not 70%). 2 others sued saying deadlocked. Roach said not hopelessly deadlocked b/c he continues to manage affairs as President.

36

Holding: Bylaws void here, only valid if reasonable, proper objects of corporation, and consistent with charter and statutory law. Statute provides power of corporation shall be managed by BOD bylaw that said power in President conflicts with this and with Articles of Incorporation and is invalid Statute says that voting can be changed in ARTICLES OF INCORPORATION. Putting them in bylaws is invalid. Because no amendment to articles of incorporation default is majority for quorum and majority vote which was attained. Datapoint Corp. v. Plaza Securities, Co. (Asher as hostile take-over man) Delaware (1985) Facts: Asher Edelman buys 10% of shares in Datapoint. Thinks company could do better under his control hostile takeover. BOD resists Edleman so he solicits consents from shareholders. BOD wants to slow down consent solicitation so passes bylaws that (1) any consent turned in doesnt take effect until 45 days after receipt (2) date as of which shareholder eligibility is determined is 60 days after receipt of consents. Holding: BOD bylaw frustrates the procedure established by statute in a way sufficient to be in conflict. Bylaws do not have to directly conflict. Can be declared invalid if frustrates the statute. Focus of purpose of statute provision. Paulek v. Isgar (D class stock for water rights) Colorado (1976) Facts: One corporation would like to acquire another corporation. Buyer corporation wants to exchange D class stock for water rights. Charter authorizes A,B,C,D shares. By-laws only mention A,B,C class. Some stockholders do not think good idea to buy waterrights and say bylaws dont mention D-class stock therefore cant be issued. Holding: Statute says charter must state authorized shares. Charter controls so by-law invalid. Exchange allowed. Jones v. Wallace Oregon (1981) Facts: When Wallace sole shareholder of Capital Credit & Collection Service made bylaw for quorum of 100%. Later 2 other people bought shares. At directors meeting directors voted by majority to remove Wallace as President and elect Jones. Later at shareholders meeting, Wallace used majority of shares to remove minority shareholders as directors and replace them. Plaintiffs sued to impose bylaw requirement that need 100% shareholder vote for quorum. Def. says bylaw invalid b/c voting requirement not in Articles of Incorporation. Holding: Bylaw cant be enforced as contract to circumvent statute and corporation articles. Courts will occasionally, rarely, allow bylaws to be binding when there is a procedural defect in approval process. BUT NOT HERE. ORGANIZATION PROCEDURES

(1) Incorporation: when state issues corporate charter or when filed [specified in statute] (2) Organization: when corporation is given bylaws, shareholders, officers, and first directors o Organizational meeting: corporate statutes provide for holding of organizational meeting after the issuance of a corporations charter to organization of corporation Held by directors if named in charter If no directors are named in charter, held by incorporator Consent in lieu of meeting: Incorporator(s)/Director(s) forego the organizational meeting and act by written consent [usually has to be unanimous] Good when there is only one incorporator [meeting of one = weird] Provided for in MBCA 2.05(b) Written consent may be drafted by lawyer important to start corporation w/out defects o Steps at Meeting: (1) Adopt bylaws for regulation of corporations affairs [incorporator or directors] (2) Election of directors

37

Incorporator adopts bylaws with provision on number of directors, then elects directors Incorporator can either continue meeting or directors can take over (3) Election of officers Many states require certain named officers and then BOD can appoint other officers as desired Most of the time a person may simultaneously hold a number of offices [but in many states NOT both President and Secretary, although the MBCA doesnt care]

MBCA 2.05(a)(1) - meeting to be held to complete organization of the corporation by appointing officers, adopting bylaws, and carrying on any other business brought before the meeting MBCA 2(b) written consent in lieu of meeting allowed Other Organizational Matters: Basics completed after bylaws, directors, and officers. o Sale of stock o directors must approve sale and authorize amount of consideration o modern statutes allow sale without certificates o Promoters' contracts and expenses o Usually BOD will adopt actions taken before incorporation and adopt those between incorporation and organization o Compensation of Directors and Officers o Directors should pass resolution approving at least compensation of CEO o May be legally possible for CEO to approve own salary, but not good idea o Adoption of a Corporate Seal o Not required but authorized by statute [not necessary to have a corporate seal] o If has a seal, must be approved in connection with corporation's organization o Qualification to Do Business o Foreign corporation is one that does business with one or more states that are not the state of incorporation o Foreign corporations must qualify to do business - BOD passes general resolution authorizing directors to take such steps necessary to incorporate o Banking Relationship o BOD must pass resolution before bank will allow opening an account should specify persons to open corporate checking account, sell commercial paper, take out loans, etc. o Better to list corporate offices rather than names of individuals o Agreements between Shareholders o In closely held corporation o Usually agreements on matter such as voting for directors and officers and questions of selling stock o May or may not need to be in charter [depends on state] o Corporate Minutes o All jurisdictions require that corporate minutes be kept - common law or statute o Scope of minutes - require only minutes of "proceedings" not deliberations o Inspection o Right to inspect may be provided by common law, by statute, by proxy rules of SEC o Nearly all states require "proper purpose" o Minutes as evidence o To be admitted at trial, corporate secretary or person performing duties of secretary at meeting must prove authenticity and establish made in regular course of business o Would be hearsay traditionally. Now admitted to (1) prove so-called constitutive acts of corporation (incorporation, organization, etc), (2) against corporation as admissions against interest, (3) against shareholders, officers, directors to prove participation in corporate affairs, authority of agents, discharge of duties of care and loyalty on behalf of directors o Matters to be included - pg. 302 o copy should be on file with secretary o Frank v. Engle - DE case that extended discovery of minutes to discovery of drafts

38

39

DEFECTIVE INCORPORATION: Applies where people seek to incorporate, but screw it up. The process of incorporation used to be difficult people would screw it up and then try to draw on equitable principles to establish the corporation.

De jure corporation: Corporation of right, properly formed De Facto Incorporation (partial birth corporation): Treat entity as a corporation for ALL purposes limited liability. o Must prove: (1) There is a law under which the purported corporation could have been incorporated (2) There was a good faith attempt to incorporate under that law [usually the issue] (3) There was use of corporate power in honest belief that the corporation existed o The need for de facto corporation is less because there is less excuse to mess this up [Levy] o Although there may be some cases where the doctrine may be needed [Namerdy p. 327] Corporation by Estoppel Estops a party from arguing the nonexistence of a corporation that does not meet de jure corporation. Grounded in equity. o Does NOT actually create a corporation, rather recognizes an equity that one who recognized the organization as a corporation in business dealings should not be allowed to quibble or raise immaterial issues of matter which do no concern him in the slightest degree defeats claim to liability o Can be used to help anyone: D, P, third party, etc. o Occurs in two broad fact patterns: Whether corporation or its participants is obligated [Timberline]; P must believe contracting with corporation to be estopped from denying it When an owner tries to deny the existence of the corporation that was defectively formed even though had been running it like a corporation [i.e. associate denies it was a corporation to get out of intent to compete agreement] The equitable impulse may be stronger in the second case b/c D is almost engaging in fraud, but this is really factbased, is a jurisprudential judgment about fairness Florida Rule: corporation by estoppel only when neither party has actual or constructive knowledge that corporation does not exist.

Robertson v. Levy (Buy my record store and then Ill sue you) D.C. (1964) Facts: Robertson entered contract with Levy where Levy would form a corporation and buy Robertson's record store. Levy submitted articles of incorporation but were defective and no certificate of incorporation. Roberson leased building to Levy as president of Penn Ave Record Shack. Levy paid Robertson on lease after certificate of incorporation finally issued. Penn Ave Record Shack ceased doing business and was without assets to pay lease. Robertson sued Levy in personal capacity for debt on unpaid lease to corporation. Holding: YES - can be held personally liable because assumed to act as corporation before had authority. 3rd party is not estopped from denying existence of corporation at time contract entered. When a corporation is or is not incorporated is a matter of black letter law. There may be at times (other than here) that equitable remedies would apply. Inexcusable to screw up incorporation. Those involved in corporation which is defective are liable for its punitive acts. Timberline Equip. Co. v. Davenport (Flying Doctors) Oregon (1973) Facts: Group of Dr's formed corporation for airplanes. Entered into lease for rentals 6 months before signing articles of incorporation. Defaulted on lease. Timberline Equipment brought action for equipment rentals against Dr's. Question of whether de facto corporation can be found which would prevent personal liability? Holding: NO - principle of de facto corporation no longer exists in Oregon common law. BUT only Dr. Bennett liable (silent partners not liable). 3rd party did not manifest intent to deal with corporation Like Echo Bella case where 3rd party suing individual and personal balance sheet and individual denying liability b/c corporation Also like Elf mere formality that corporation would have to sign agreement.(?)

40

ALLOCATION OF AUTHORITY_________________________________________________________________________ The corporate structure of authority works even though there is an infinite variety of attributes among all corporations. They are all the same in that they are run by the BOD. BOARD OF DIRECTORS - All statutes announce that the business and affairs of the corporation shall be managed by the board of directors o Smaller corporation: members of the board may also be managers/officers, may be involved in daily decision-making o Larger corporation: tendency of the board to monitor the managerial activities and sweep in to resolve emergency situations [generally have jobs outside corporation] Meet periodically Discuss business progress/strategy Monitor/review officers Power to Bind corporation - Board has plenary powers, can bind corporation, but act as agents on behalf of the corporation o The SHH cant change this, not even by private K b/c power does NOT come from SHH [Manson v. Curtis] While Manson is still good law, there has been some relaxation in the strength of its principle. Under modern statutes/judicial impressions we do tend to offer greater solicitude to smaller and close corporations to alter framework of corporation For example, may allow enforcement of bylaw that was enacted improperly as a K [Jones v. Wallace] o This involves the debate as to whether the corporation is a public or private enterprise If it were private, could K around all sorts of provisions But the corporation was created by the state SHH have to be involved in the corporation with all of its limitations Maintain Internal Controls - Duty of BOD to maintain internal controls management, reporting technology o BUT sometimes all the controls in the world cannot ensure no one slips through o Example Societe Generale young trader bet more than the company is worth Action through Committee - Directors may also act through committee they have established. But cannot: o (1) Authorize or approve distributions except according to a formula or method, or within limitations, prescribed by the board of directors o (2) Approve or propose to shareholders action that this Act requires to be approved by shareholders, o (3) Fill vacancies on the BOD or any of its committees, o (4) Adopt, amend, or repeal bylaws MBCA 8.01(b) modern statutory grant to directors of general power over managmenet. All corporate powers shall be exercised by or under authority of, and the business and affairs of the corporation manged vy and under the direction of, its board of directors, subject to any limitation set forth in the articles of incorporation or in an agreement authorized under 7.32. MBCA 7.32 shareholders in privately held corporations can enter into shareholder agreements modifying traditional management structure (1) Limitations on boards power may also be imposed by provisions in the companys charter and private agreements (2) Introduces concept that management structure other than one featuring supremely powerful board by be established by charter or by private agreement OFFICERS Role of officers should be described in bylaws, and officers should be designated by the board. Function/Authority of Officers - Model Act: Doesnt prescribe number or specific officers o But must have at least one officer with responsibility for preparing minutes of directors and SHH meetings and maintaining and authenticating records of the corporation.

41

o Same individual may simultaneously hold more than one office [no restrictions] MBCA 8.40 corporation shall have officers described in its bylaws or designated by board of directors in accordance with the bylaws. - Other Jurisdictions o Require specific officers (usually Pres & Sec) o Prohibit same person from acting as both President and Secretary Power of Officers - Officers power is delegated to them by BOD - They end up running most of the operations - Their actions require board approval, but even in medium-sized firms, there are a lot of things that the board does not know about o Prudent course of action is for officer to obtain authorization from board o For some things it would be impossible to get a resolution, so we get a resolution that officer [inherent authority] - To prevent officer from acting without authorization, could establish a system of internal control [i.e. two signatures required; reporting requirements; prevent access to certain people] Model Act 8.41 each officer ahs the authority and shall perform the duties set forth in the bylaws or, to the extent consistent with the bylaws, the duties prescribed by the board of directors or by direction of an officer authorized by the board of directors to prescribe the duties of other officers. Agency Principles: officers are governed by agency law - Actual Authority includes both express and implied o Express: authority by virtue of board resolution o Implied: authority implied by board action - Incidental authority: to do routine things in operation of business [Greenspoon] o Issue is whether the act was material or quotidian o This is a fact-based question, looks at: Nature of business Sorts of power that presidents normally exercise o Just by being elected, officer has incidental authority to perform acts that are incidental to acts for which the officer has actual authority - Inherent authority: by virtue of position o President: Elbum: corporation bound to K when president decided to sue Breshanan: corporation NOT bound when president sold real property that houses executive offices Lee: K to provide a lifetime pension benefit could be argued either way Pensions are usually in ordinary course of business for president Lifetime pension might take it too far Majority found it was ordinary, Learned hand disagreed o Vice President: viable substitute when president is absent or incapacitated [Anderson] o Secretary Powers of secretary relate only to internal operations of and not to its business Secretary has implied power to deliver certifications and attestations to the signatures of officers Tastee Freeze: secretary needed authority from board to authenticate the board resolutions to prove that the parent corporation had authorized the transaction o Treasurer Jacobis: treasurer clearly did not have authority to write a loan for $2000, treasurers of manufacturing corporations lack inherent authority to write promissory notes without authorization Apparent authority: results from manifestations by principal to third party

42

Principal can create apparent authority by allowing an agent to act in a certain way and thereby create the impression that authority in fact exists Ratified Authority When considering any alleged power beyond which is generally recognized, the power must ultimately have been given by the bylaws or the board, either directly or through another officer. Board could have granted power by acequience or ratification. o

SHAREHOLDERS Have nearly no powers corporate statutes give the directors plenary power, but the SHH can elect the directors. SHH have no power to bind the corporation - i.e. SHH cant have meeting and decide to sell assets even if they are the same people [Gashweiler] - Why is this the rule?? o BOD more stable than SHHs SHH body can change [sell stock, freely transferable] BOD elected for annual terms o Different duties SHH owe no duty to corporation [outside paying for stock] BOD owes fiduciary duty o SHH diverse group o Need to have a crisp rule b/c there are an infinite number of corporations o Compact between SHH and directors Shareholders MUST have an annual meeting - Shows formality of corporate law - SHH cannot reelect themselves in a writing [Hoschett v. TSI International Software] - Meeting Rules: o Quorum must be present o SHH must own shares as of specified date o May vote by proxy or in person o May take action by written consent of ALL SHH entitled to vote o BUT even if written consents about BOD, must still have annual SHH meeting Purpose of meeting [Hoschett v. TSI International Software]: Central role of meetings is scheme of corporate governance Marginally beneficial effect on managerial attention and performance Certain discipline and occasion for interaction Form of discourse between SHH and managers [oral reports, questions, etc.] - SHH may [if charter/bylaws allow] remove holdovers and fill vacancies of board through exercise of consent power, but must hold annual meeting [in effect until hold annual meeting] SHH can generally have access to SHH list o SHH lists must be made available for inspection for a time beginning soon after the company sends notice of meeting extending through the meeting itself [MBCA] o Whether a particular SHH is entitled to the list turns on the language of the statute [typical: whether have proper purpose] o Depends on SHHs intent: A proper purpose would be germane economic or investment interest Not a proper purpose if is for purely political/social/moral reasons [Honeywell] Although they can also have a mixed intent [i.e. I object because your weapons business is not profitable is OK; I object to your making weapons is not OK] [DeRosa; Credit Bureau Reports] o Normative question of whether this distinction is appealing what should the purpose of our corporations be? In the U.S., it is to benefit SHH [owners] But this means SHH only interact with corporations on these terms

43

Corporations do more than just make money but it may be that profit is the only shared motive between SHH and corporation Allowing too many SHH to get records would be detrimental to corporation: o Privacy concerns o Used as harassment tool This solitary motive is changing as: Corporations are making their purposes broader Money flows across borders, influence from overseas Ways to circumvent this rule: Claim a mixed motive Try to elect an activist board [proper purpose is certainly to elect a new board]

Manson v. Curtis New York (1918) Facts: D allegedly breached an agreement between plaintiff and defendant relating to control by plaintiff of the BermudaAtlantic Steamship Company, a corporation in which each was a stockholder. Agreement was for passive directors irreconcilable with management of affairs of corporation by Board of Directors. Holding: Stockholders cannot make agreement to take away power of BOD Case involves question of whether corporation is merely a private contractual apparatus or concession of state authority to make certain forms of business. Law does not permit stockholders to create sterilized BOD Gashwiler v. Willis (Dudes sell mine) California (1867) Facts: Three individual create Rawhide Ranch Gold and Silver Mining Co. All shareholders also trustees. At shareholder meeting, shareholders authorize three trustrees to sell land and assets of corporation. and electe themselves BOD. Holding: Sale was not authorized. Power to make such authorization vested in Board. Here this was shareholders meeting. Do not have power as shareholders to bind corporation, even if same people. Corporation can only act can only speak- through the medium prescribed by law the Board of Trustees. Might also not have been competent for Board to convey all land and assets w/o consent of stockholders might need to have both. State ex rel Pillsbury v. Honeywell, Inc. (Peacenik against thermometer people) Minnesota (1971) Facts: Guy bought stock in Honeywell during Vietnam War b/c wanted to communicate with shareholders about Honeywell's involvement in munitions manufacturing. Admitted that sole purpose of the purchase was to give himself a voice in Honeywell's affairs so he could persuade Honeywell to cease producing munitions. Had agent buy stock and bought in name of Pillsbury family nominee and then bought 1 share in own name. Also discovered had contingent beneficial interest in terms of trust from grandmother. Requested list of stockholders from Honeywell . Honeywell refused. Filed petition for writ of mandamus ordering Honeywell to produce records. Took deposition and admitted reason for requesting stock records was Vietnam War. Holding: No right of inspection for someone trying to convince corporation on merely matter of policy. While plan to elect one or more directors is specific and the election of directors normally would be a proper purpose, here the purpose was not germane to petitioners or Honeywells interest Petitioner has to be interested in long-term well-being of the company or enhancement of his shares. Credit Bureau Reports, Inc. v. Credit Bureau of St. Paul, Inc. Facts: SHH asked for list to urge better treatment of suppliers Held: Court required D corporation to turn over stockholder list to stockholder who was also a supplier. Purpose of soliciting proxies for to persuade company to improve treatment of suppliers OK. DeRosa v. Terry Steam Turbine Co.

44

Court allowed inspection by labor union employees who owned 1 share of stock. Purpose of communicating with other shareholders regarding Ds treatment of employees OK Cunningham says OK b/c deals with inside company and therefore is an investment interest

Joseph Greenspons Sons Iron & Steel Co. v. Pepcos Valley Gas Co. [Power of President] Delaware (1931) Facts: President of Pepcos Valley Gas Co. signed contract with P for 45 miles of gas pipe. D says that this signature was understood to be conditional on approval by BOD. Pipe was not delivered, and D sues for breach of contract. D says no valid contract because board did not give approval. Held: Found that President did not have power. Purchase of $100,000 gas pipe NOT within daily routine activity. President may perform all acts of an ordinary nature which by usage or necessity are incidents to his office and by virtue of his office he may enter into a contract and bind his corporation in matters arising from and concerning the usual course of corporations business. Whether or not purchase is part of ordinary and usual duty depends on: character of goods ordered, amount thereof in relation to the size and condition of the company, nature of the company, companys purposes and aims, other facts and circumstances. Other powers of Pres. can come from: Some provision of statutory law Corporate charter By-law of company Resolution of BOD Showing that Pres in habit of doing act on prior occasions for similar contracts which were recognized by third party and company had approved and ratified former and similar acts President has the power to bind the corporation in its usual course of business! Anderson v. Campbell [incapacitated president] Minnesota (1929) Facts: Three granite companies merging. Deed prepared to convey real estate to new corporation. Space left for President to sign. President not there and vice-President signed instead without indicating vice before his title. Later tried to claim that deed was void. Holding: Plaintiff estopped from saying deed was void. In the absence of by-laws defining or limiting authority, the vice-President is a substitute for and when the president is absent or disqualified. Under these circumstances within the authority extended to the President to make such conveyance. Plaintiffs not in position to take advantage of their own harmless clerical error. In Re drive In Development Corp. [Tastee Freez] 7th Cir. (1966) Facts: Drive In was subsidiary of Tastee Freez a holding company of soft ice cream outlets. Tastee Freez arranged a sales contract with National Boulevard in return for cash. Drive In and Tastee Freez jointly and severally guaranteed Allied Business contractual obligation. Vice president of Drive In signed a guarantee as chairman and secretary attested to execution. Tastee Freez and Drive-In went into bankruptcy. After bankruptcy found no resolution authorizing the vice president to sign the guarantee. Holding: Drive in estopped to deny vice presidents express authority to sign the guaranty because of the certified copy of a resolution of Drive Ins board of directors purporting to grant such authority furnished by secretary, even if not formally adopted. Generally duty of secretary to keep corporate recordsStatements made by an officer or agent in the course of a transaction in which the corporation is engaged and which are within the scope of his authority are binding upon the corporation. Jacobus v. Jamestown Mantel Co. (bad treasurer) New York (1914) Facts: Railroad company treasurer made note in neme of company. Trust company endorsed note and gave cash to receiver. Later found out that treasurer had no express authority or authority by bylaws or otherwise to sign and endorse promissory note.

45

Holding: One who deals with the officers or agents of a corporation is bound to know their powers and the extent of their authority. Treasurer of Manufacturing Corporation had no such power expressly given or by bylaws or resolution of Board to make promissory notes. o Although alleged that treasurer had done so before and corporation paid on notes, no evidence that Credit Company was aware of these transactions.

46

CONTROL_______________________________________________________________________________ A question of who gets to call the shots CONTROL PROVISIONS IN CHARTER Model Act gives drafters of corporate charter [and amendments thereto] virtual free hand in arranging control of corporation. Power to manage corporation can be split among shareholders, directors, and officers in any way desirable. MBCA 8.01(b): power over management of corporation to BOD subject to any limitation set forth in articles of incorporation or in an agreement authorized by Model Act MBCA 2.02 allows articles of incorporation to contain provisions not inconsistent with law, regarding (ii) managing the business and regulating affairs of corporation (iii) defining, limiting, and regulating the powers of the corporation, it BOD, and shareholders MBCA 10.01 allows the free amendment of charters at any time ELECTING DIRECTORS Types of Voting Most states mandate straight voting unless the corporate charter provides for cumulative voting. Some states take the opposite approach and require cumulative voting unless charter calls for straight voting. - Straight voting: o Default rule o SHH have one vote per share and can vote all shares to fill each directors slot o Majority wins all seats 5 director slots, 500 shares common stock, 2 holders [A = 400; F = 100] A B C D E A Votes 400 400 400 400 F Votes [so A and his four friends get directorships, F loses majority wins, tough for minority] F 400 100

Class voting: o It may be necessary to give a minority interest the ability to elect directors to induce them to invest o Can be done by creating different class of stock, each with the ability to elect a certain number of directors, different proprietary rights

Model Act 8.04 if articles of incorporation authorize dividing the shares into classes, the articles may also authorize the election of all of a specified number of directors by the holders of one or more authorized classes of shares.

Weighted Voting: exception to the rule that each share has only one vote o Used as anti-takeover device o Also used to maintain control within a particular group without requiring proportionate investment maintenance o Can put a voting restriction on investors with large shares [Providence & Worcester Co. v Baker] o CANT have different voting rights within a class of stock [Arco Inc. v. Holmes A. Court] o General Rule Can have different voting

DGCL 151 classes may be vested with differing voting rights but that particular stockholders within one class of stock may not.

Cumulative voting: o More common than class voting o Mathematically designed to give minority SHH power to elect directors Model Act: SHH multiply # of shares by number of directors are allowed to elect

47

Can distribute as they see fit Required Shares = [[total shares] x [desired slots] / [total slots + 1]] + 1 F electing himself = [[500 x 1] / [5 + 1]] +1 = [500/6] + 1 93.33 needs 94 shares, has 100 can do!! The number of directors for election is important Majority will want a smaller # [i.e. staggered board, see below] Minority will want a larger # easier for them to elect some directors

o Calculation of Required Shares to elect a director:

A B C D E F A votes ? ? ? ? ? F votes 500 Here, A cannot keep F off the board because would have to have 5 people get 501 votes each. o Problems with cumulative voting: Directors looking out for interests of one SHH rather than for SHH generally Factions within board [F versus rest of them] May be possible to remove directors elected through cumulative voting w/ simple majority [not MBCA]

MBCA 8.08(c) director elected cumulatively may not be removed if the number of votes sufficient to elect him under cumulative voting is voted against his removal. DE Courts: majority removal of directors elected through cumulative voting OK, but subject to judicial scrutiny Other Voting Strategies - Frequency of Director elections o Default rule: directors are up for election annually o It is also possible to create a staggered board Only a certain # of directors come up for election each year This reduces the power of minority SHH same effect as small # of directors, more shares required to elect a director Comes up as anti-takeover device makes a boards takeover seem less attractive MBCA 8.06 Articles of incorporation may provide for staggered board by dividing board in 2 or 3. At annual meeting, directors shall be chosen for term of 2 or three years. Classification of Directors o Corporate planners sometimes divide directors into classes o Then there is less chance that a minority shareholder or shareholder group can elect even one director o Used to circumvent the effects of cumulative voting Super majority voting requirement o Can be imposed in a charter provision. o Mostly limited to specified actions of particular importance o Can be used as a means for impeding hostile tender officers. o Desirable to protect super-majority provision from being amended by vote of shareholders less than supermajority

48

MBCA 7.27(b) An amendment to the articles of incorporation that adds, changes, or deletes a greater quorum or voting requirement must meet the same quorum requirement and be adopted by the same vote and voting groups required to take action under the quorum and voting requirements then in effect or proposed to be adopted, whichever is greater. SHH MEETINGS - Requesting a Meeting o Need a certain % of SHH to convene a meeting [statute requires certain %, can be changed by charter] o Must direct request president of corporation to have a meeting - Purpose of meeting must request for proper purpose [Auer v. Dressel] o May be a proper purpose even if they cannot accomplish it directly [purpose may be to register view with board] o Examples: endorse a certain director, remove a member from the board, amend bylaws to clarify the class that elects/removes directors and necessary quorum - Shareholders CANNOT be required to attend a SHH meeting prefer to leave a corporation in deadlock [Hall v Hall] o Judges can order dissolution, may pressure to attend meeting o Even if could require that attended meeting, would still vote against eachother continued deadlock DIRECTOR REMOVAL - SHH have power to remove directors [Auer] o The system of corporate law puts power to elect board with SHH, should also give power to remove [inherent power, not in statute] - This inherent power is limited: o Can only remove for cause NOT for cause: Efforts to get control of the board [ Attempts to influence SHH Holding unlawful board meeting For cause Calculated plan of harassment [Campbell] Disclosure of trade secrets Competition with corporation Theft o When exercising this removal power, the officer has a right to: Timely notice So they know why they are being removed Needs to be in proxy statement Opportunity to be heard Should be able to present their side for SHH Corporation has to pay for it MBCA 8.08 charter can have provision for removal of director only for-cause Provisions to protect Directors from Removal o Amend the bylaws to clarify the class that elects directors, the class that removes them o Define the proper quorum for doing so Filling vacancies o SHH have power to decide who the board is composed of regardless of how/when spot opens up o Can be filled by SHH between annual meetings

FIDUCIARY DUTIES SHH

49

Fiduciary duties are a control device there is a judicial policing function of the corporate exercise of control, particularly in close corporations b/c there is no escape for those minority holders exerts a little control on corporate actors. - Corporate duty is described at different strengths in different states o Massachusetts [Donoghue]: deep fiduciary duty, sounds like Cardozo. Facts: gave opportunity to majority to sell back shares required to give to minority? Vests SHH with same duties that partners owe each other in general or limited partnership Emphasizes idea of equal opportunity Court alternative relief: (1) rescind first buy-back; (2) offer same buy-back to these SHH o New York [K&B]: moderate fiduciary duty Facts: corporation started to pay its SHH in compensation rather than dividends after plaintiffs stopped working there [may have done so for tax reasons, or to push out minority] Emphasizes need to protect the reasonable expectations of the minority SHH in a closely held corporation [sounds like K law expectancy damages] Also imposes somewhat of a status-based obligation on the majority o Delaware [Nixon]: nearly abandons idea of fiduciary duties Facts: corporation providing liquidity to some SHH [not all] thorough several devices: Key man insurance: provided liquidity to estates of key executives estates Employee Stock Ownership Plan [ESOP]: tax-advantaged way to give stock to employees through a trust, increased liquidity for employees, not other SHH Self-tender: corporation can offer SHH to buy back own shares, not offered to all SHH Fiduciary duty does NOT require treating everyone equally The court takes a heavily contractual approach Applies the Entire Fairness test [not BJR b/c even though was business judgment, had differential impact] Court holds that the entire fairness test is what parties would K for They would not K for 100% equality Noted that there was a reason to treat these people differently [not employees], they had not contracted for equal treatment While these cases could be distinguished on their facts [i.e. DE liquidity more attenuated] each of these cases moves along a continuum from a basis in fiduciary duties to one based on contract. Illustrates the debate over what a corporation is: o Nexus of K? only duty of good faith and fair dealing o Grant of authority by the state imposition of status-based duties Role of competition to attract businesses? o Strong theory that the K-based theory of SHH obligations is to attract people to the state; majority SHH are the ones who would decide to relocate there o Not clear whether the K-based theory is better or worse

Providence and Worcester Co. v. Baker Delaware Holding: upheld voting restriction on right of investors with large shares Shareholder entitled to one vote for each of first 50 owned and one vote for every 20 shares in excess Court found restricted the voting rights of the shareholder but did not create variations in the voting power of the stock itself Upheld original charter provision that limited voting rights of large shareholders Asarco Inc. v. Holmes A. Court New Jersey (1985) New Jersey district court enjoined issuance of preferred stock b/c would have caused shares within same class to have different voting rights. New preferred stock would have different voting rights depending on whether it is held by a 20% holder. If any person acquired 20%, each .10 of serious C share (preferred) would have 5 votes, except for person who owned 20%. Some stock holders (those with 20%) would have stock diluted by 5 fold.

50

New Jersey statute voting rights may be different among different classes or series but nowhere is it suggested voting rights may be different Some stock given super voting power more than one vote per share.

Auer v. Dressel (Nope, never got those papers on shareholder meeting) New York (1954) Facts: Proceeding brought by class A stockholder of R.Hoe Co., Inc. for order to compel president to comply with duty to hold meeting whenever stockholders owning majority of captial stock request. 55% of owners requested meeting. President said he did not receive notice. Also President alleged not proper purpose. Stockholders had wanted to vote on proposal to recommend that old president be reinstated, stockholders hear charges against 4 directors, and to change classes and voting requirements. Holding: Not within the discretion of a corporate officer to disobey the rules in the charter [in this case about calling a meeting] o Stockholders had proper purpose - may express their approval of previous president's conduct but will not directly be able to effect a change in the officers. o Stockholders who put directors in office may remove them BUT only with service of specific charges, adequate notice, and full opportunity to be heard o Can only remove them for cause Campbell v. Lewis (big confusing Loews mess involving director vacancy, removal, and for cause) Delaware (1957) Facts: Two factions fighting for control of Loew's. Each had nominated six directors and had 1 neutral director. Over time 4 directors resigned. Remaining five from one faction tried to hold a meeting to fill vacancies. Quorum was 7. President sent out notice to call meeting and fill vacancies and newly created directorships with his nominees. Bylaw said that stockholders could fill vacancies. P also argued that shareholders of DE corporation have no power to remove directors from office even for cause. Question of whether shareholders can fill newly created directorships between annual meetings? Holding: Under DE law shareholders do have the power to remove directors for cause even if bylaws provide only for removal of officers and employees. Stockholders have power to fill vacancies in between annual meeting bylaw not strongly worded enough to exclude newly created directorships from vacancies Stockholders have the ability to remove a director - EVEN IF VOTED IN BY CUMMULATIVE VOTING - for cause with majority vote. Remedy for removed directors exists with court. Procedures for director removal - directors entitled to be heard on own defense even though "matters for stockholder consideration need not be conducted with the same formality as judicial proceedings." both directors received letter even if did not contain specific statement of charges Where charges sufficient for cause? Failure to cooperate not legally sufficient basis for removal desire on part of directors to take control of corporation not legally sufficient BUT - "planned scheme of harassment" is legally sufficient Directors to be removed MUST be given a stockholder's list, upon request, in order to defend themselves when vote to remove is by proxy. Hall v. Hall (poor widow cant get shareholder meeting) Missouri (1974) Facts: Edward and Harry Hall each owned 50% interest in stock of Hall Contractors, Inc. Edward died leaving stock to widow. Harry and Edward had each been directors. After Edward's death, Harry appointed his wife Florence as director and then they appointed themselves president and vice president. Edward's widow tried to call a meeting - written and published notification for annual meeting as specified by bylaws. Harry, the only other stockholder, refused to attend. At later BOD meeting, Harry made resolution the offer sale of 3000 shares of capital stock which had been authorized but not issued. Edward's widow indicated desire to exercise presumptive right to purchase 1/2 of stock, but also contended invalid b/c approved by directors illegally holding office. Question if P have a right to relief based on the fact her 50% stock ownership was rendered impotent by refusal of Harry to participate in stockholders' meetings? Holder: NO, holder of stock under no obligation whatever to the corporation other than to make full payment of consideration for which stock is issued. No shareholder may be compelled to participate in stockholders meetings. BUT - appellant may move to dissolve the corporation or try by quo warranto the right of the individual respondents to continue in offices when statutory requirements for annual meeting subverted.

51

Donahue v. Rodd Electrotype Co. of New England, Inc. (Electric unfair stock purchase)[MASS FIDUCIARY] Mass. (1975) Facts: Harry Rodd was employed by Rodd Electrotype. Plaintiff's husband (now deceased) was hired as "finisher". Electrotype made available to Rodd and Donahue shares of common stock in subsidiary. Both invested. Royal of New England then purchased all shares owned by parent company - Harry Rodd in control. Donahue owned 20%. Harry placed sons on BOD. Also made gift of stock to be shared equally amongst his three children. Harry wanted to retire and negotiated with son, representing company, to have company purchase 1/2 his stock at what they decided would reflect book value and liquidate value of shares. Harry then resigned corporate office and gave remaining stock to children. Mrs. Donahue did not learn of transfers until after sale. Donahue did not ratify purchase of stock. Donahuues offered their shares to corporation under same terms but were refused. Holding: In a closely held corporation "when the corporation reacquiring its own stock to purchase it must do so with utmost good faith and loyalty to other, non-selling stockholders. [akin to partnership] o Controlling corporation must offer each stockholder equal opportunity to sell ratable number of shares at identical price. o In any case where majority stockholders have exercised power to deny the minority an equal opportunity, minority shall be entitled to appropriate relief. o Relief either Harry remitting purchase to corporation w/ interest OR Edward's widow receiving same sale price with interest. A.W. Chesterton Company, Inc. v. Chesterton 1st Cir (1997) Facts: minority shareholder had breached fiduciary duty by purposing to transfer shares to another corporation that would defeat the company's S tax election. Holding: there was oppression because transfer of shares would defeat shareholder expectations. o By electing type S status, shareholders had agreed not to act in a way that would jeopardize tax status. o Extended fiduciary obligations to minority holders as well as majority. In re Kemp v. Beatley, Inc. [NEW YORK FIDUCIARY DUTY] New York (1984) Facts: Closely held corporation that manufacturers table linens. Stock of 1,500 shares held by eight shareholders. Some stockholders no longer worked at corporation and alleged that they were being frozen out of dividends. Had been long standing policy to award extra compensation according to stock ownership. Then changed to award on basis of services rendered to corporation. Holding: Found that freezing out constituted oppressive action within meaning of 1104-a Business corporation law. Looked at fiduciary duty to meet expectations of petitioners that they would not be artbitrarily excluded from gaining a return on their investment and that their stock would be purchased by the corp. upon termination of their employment. Oppression arises only when majoritys conduct substantially defeats expectations that, objectively viewed, were both reasonable under the circumstances and were central to the petitioners decision to join the venture. Under N.Y. law found that involuntary dissolution can be ordered when found that directors or those in control of corporation had been guilty ofoppressive actions towards complaining stockholders. In following situations: (1) mistreatment of minority, (2) misapportionment of corporate funds by controlling shareholders, directors, or officers Remedy for freezing out was forced buy-out of petitioners shares. Remedy every order of dissolution, however, must be conditioned upon permitting any shareholder of the corporation to elect to purchase the complaining shareholders stock at fair value. Nixon v. Blackwell [non-employees screwed] [DE FIDUCIARY DUTY] Delaware (1992) Facts: Three groups of shareholders in non-public closely-held DE corporation selling wholesale and retail lumber. Class A loyal employees, Class B trust with beneficiaries of employees, Rest of class B bequeathed to family. Change in ownership left children only non-employee stockholders. Retirement plan allowing for cash or stock from trust as well as key man

52

insurance stock-buyback provision were alleged by non-employees to favor employee stockholders over non-employee stockholders. Holding: Defendants on both sides of transaction therefore entire fairness test applies. Found entire fairness test met. Fairness does not mean equal treatment. Court refused to impose minority protects that were not contracted for. Majority shareholders do not have duty to apply same liquidity to all shareholders. Heavily contract-oriented opinion. Contractual good-faith not impairing reasonable expectations of other party unless you need to in order to protect your own reasonable expectations. This is much weaker than FIDUCIARY DUTIES

53

DEADLOCK, DISSENSION, & DISSOLUTION Where a corporation ends in deadlock, the court or corporation may decide to dissolution of the corporation. Alternatively, the court or the parties may decide to buyout the dissenter in an effort to keep together the corporation OPPRESSION/DISSENSION - Dealing with dissension and deadlock among shareholders - Tends to deadlock; especially in close corporations DEADLOCK - Deadlock can occur at Director or Shareholder level - If BOD deadlocked o President has power to act for corporation on any matter within corporations usual course of business o Even if deadlocked, Pres can still act unfettered o Since President is typically also a board member, he/she can put into play wishes of one BOD faction. - Shareholders deadlocked and cant replace board that is dominated by one shareholder faction [WORST SCENARIO] DISSOLUTION Judicial Dissolution of Corporation MBCA 14.3 Involuntary - Shareholder may institute proceedings if: (1) Director or shareholder deadlocked, (2) Director or those in control have acted in illegal, oppressive, fraudulent manner, (3) Corporations assets being wasted - Secretary of State may initiate if: (1) Corporation delinquent in paying franchise taxes, (2) Delinquent in filing annual report, (3) Delinquent in notifying Secretary of changes to registered office or agent. - Attorney General can institute if: (1) Articles of corporation obtained articles of incorporation through fraud, or (2) Exceeding or abusing authority. Voluntary Dissolution of Corporation MBCA 14.01-14.07 Procedures for voluntary dissolution - Proposal recommended by BOD and approved by shareholders - File articles of dissolution w/ Sec. of State - Proceed to liquidate business by collecting assets, disposing of properties, discharging liabilities, distributing remaining prop to shareholders Buyout of Shareholder Petitioning for Dissolution MBCA 14.34 Provides buyout alternative to court ordered dissolution Closely held corporation or shareholders can elect to purchase at fair value all shares owned by shareholder petitioning for judicial dissolution Appointment of a Custodian or Provisional Director DGCL 352 shareholder having right to dissolve corporation can petition for appointment of custodian to manage company MBCA 14.32 appointment of one or more custodians to wind up companys business or manage it Contractual Provisions - Arbitration

54

Can include arbitration clauses to solve shareholder disputes in closely held corporation. Used in situations such as: o (1) Litigation substitute using arbitrator to decide if good cause for discharge of employee o (2) Appraisal proceeding to determine fair value of stock in close corporation for buy-out provision, o (3) Resolve argument over management policy

55

CONTRACTUAL ARRANGEMENTS People very creatively K around the default rules of corporate statutes the following cases illustrate the deference of DE courts to peoples contracts. Because they are contracts, people can make the same claims [unconscionability, K of adhesion], but the court will be unlikely to invalidate it in the absence of oppression. THREE GENERAL FORMS - (1) voting trust - (2) shareholders agreements, - (3) employment contracts Voting Trusts - Allowed people to sell their votes o Trustee votes shares according to terms of trust terms of trust can be specifically enforced o SHH are beneficiaries of trust o Uses: Family with younger generation given financial interest but not control Maintain particular control structure Protect a creditor loaning a substantial amount to the company - Creates problems because is separates votes from economic interest in the corporation - This concern is expressed in two special rules re: voting trusts: o Must be disclosed publicly o Has to be for 10 years maximum [Lehrman] - Factors used to determine if it is a voting trust [DE]: o (1) Voting rights of stock separated from the other attributes of ownership, o (2) Voting rights granted are intended to be irrevocable for a definite period of time, o (3) Primary purpose of granting voting rights is to acquire voting control of grant of voting rights is to acquire voting control of the corporation. Shareholders Voting Agreements - Agreements designed to control how will vote shares with respect to election of directors or other matters o i.e. how will vote on certain issues or in what configuration [Ramos] o These are valid Ks and are enforceable in event of breach - Scope can vary can contain provisions that govern anything the parties wish, so long as the agreement does not constitute an illegal voting trust and does not violate public policy - Problem when agreements among persons who are both shareholders and directors relate to matters which the corporation statute gives the directors control. o Because of directors fiduciary responsibility, courts have traditionally not favored agreements limiting the discretion or authority of the directors, including binding the directors to act in the future in agreed-upon ways Employment Contracts: - Can be used to distribute corporate control. In closely held corporation shareholders wish to work full-time. - Corporate statutes universally provide that corporations officers are to be chosen by directors and that officers may be removed by directors at will. o Therefore, specific performance not remedy of employment contract o Can provide for liquidated damages or salary escalator o Golden Parachute - Can get rid of Pres. with employment contract by creating CEO, CFO, taking away duties. CLOSE CORPORATIONS Some states have decided to treat close corporations differently Close Corporations v. Public Corporations DE Separate sections of code for close corporations Model Act Separate provisions sprinkled throughout Illinois Separate statute for close corporations

May allow SHH to K to do things that the statute requires be done by the board [Galler]:

56

o Decide what sort of dividends the board should give o Bind the corporation [i.e. to pension to widows of former employees] o SHH agree to cast votes in different way Not all courts/states treat them differently across the board o As the Galler court noted, this is really a question for the legislature o But the model is generally more relaxed SHH may hold some power that directors normally have.

Lehrman v. Cohen (2 family dispute Giant supermarket) Delaware (1966) Facts: 2 families own 2 classes of stock in Giant Supermarket. Amended certification of incorporation to create third class of stock with right to vote for 5th director to prevent deadlock AD stock which had no right to dividends or distribution of assets of corporation upon dissolution. Corporation can redeem stock at par value at any time. Later AL family unhappy with effect of non-distribution stock. Brought action on basis (1) creation, issuance, and voting of one share of class AD stock resulted in illegal voting trust under DE law. Holding: DE law limits voting trust to 10 years. - Criteria of voting trust under DE law: o (1) Voting rights of stock separated from the other attributes of ownership, o (2) Voting rights granted are intended to be irrevocable for a definite period of time, o (3) Primary purpose of granting voting rights is to acquire voting control of grant of voting rights is to acquire voting control of the corporation. - Not a voting trust b/c didnt separate stock ownership from voting rights of AL and AC stock - Supports idea of DE contractual view can make whatever private ordering you want. Ramos v. Estrada (2 latin TV stations merge. Voters cant agree) California (1992) Facts: BROADCAST and VENTURA merge - ownership interests continue with control set out by contract. New corporation TV is managed by board of 8 directors. Because they elect to be treated as S corporation- pass-through taxation, the corporations cant be shareholders, so they sign an agreement that SHH from each company will vote in a block. Breach. Person who breaches tries to say proxy and therefore can be revoked. Holding: Agreement not a proxy, it's a contract and you breached. Remedy of selling share back is fine doesnt constitute forfeiture. Voting agreements authorized by CA Code. Galler v. Galler (2 brothers drug company) Illinois (1964) Facts: Two brothers owned business equally. Then both sold six shares to loyal employee. One brother died. Employee sold all 12 shares to other brother. Wife of deceased brother brought action against surviving brother and wife to allow her to buy equal number of shares under shareholder agreement. Ds said shareholder agreement should not be enforced. Objectionable portions of shareholder agreement as follows: (1) stated purpose as relates to duration too long, (2) election of certain persons to specific offices for number of years, (3) requirement for mandatory declarations of stated dividends, (4) salary continuation agreements [should be decisions of BOD]. Holding: Court found no detriment in stock holder agreement as to minority stock interests, creditors, or public injury. Therefore enforced stockholder agreement and demanded Ds account for moneys received from extra stock. Courts have long ago quite realistically, we feel, relaxed their attitudes concerning statutory compliance when dealing with close corporate behavior, permitting slight deviations from corporate norms in order to give legal efficacy to common business practice

57

VEIL PEIRCING__________________________________________________________________________ Because limited liability is viewed as such an important discovery, you can imagine the judicial hesitation in getting rid of it by piercing the corporate veil. Although critics claim that limited liability is a social construction, we can tear it down. Importance of Limited Liability: social, economic, and legal value legit for an investor to create a corporation just to receive the benefits: - Encourages investors to invest - Allows people to spread risk of investments - Enables SHH to worry less about what directors are doing - Facilitates free transferability of shares - Works for businesses large and small Courts therefore, generally require a reason to tear down the separateness between SHH/corporation [Baatz] Definition: piercing the corporate veil allows for creditors to go through the veil created by the corporation to get at the corporations interests.

Determining whether to pierce veil: Only allowed if corporation is not separate from SHH, if corporation is merely owners agent. Seperateness is shown in two ways [Baatz]: 1) Put sufficient capital in the corporation, let it have some resources, financial capability to engage in separate business enterprises a. Some courts use undercapitalization as a showing that the parent either deliberately or recklessly created a business that will not be able to pay its bills or satisfy judgments against it b. A corporation that has enormous amounts of debt relative to capital is probably not sufficiently capitalized c. The fact that owners personally guaranteed loans is not sufficient to show undercapitalized [Baatz] d. Should have minimal legal quantity of insurance; more is not required [Walkowsky] e. There is a difference between undercapitalization and financial responsibility OK if undercapitalized but having high amounts of insurance 2) Have it live as corporations live, comply with corporate formalities a. Have charter, bylaws, directors b. Elect directors at yearly SHH meetings c. Directors meetings d. Signed consents e. Minutes of meetings f. Keep track of activities g. Make clear in name that is corporation [i.e. Arrow Bar, Inc.] h. Should NOT be run as if the SHH were partners i. Should NOT use corporate funds for personal expenses, or personal expenses for corporation w/out proper accounting Courts also look at roughly 30 other factors: 1) Important factor: Fraud [Sea Land]

58

a. If the corporation is trying to defraud people can pierce corporate veil

b. Fraud vitiates all [common law principle, common sense] c. Not all courts emphasize fraud 2) Courts may require a showing that piercing the corporate veil will injustice a. i.e. that the SHH is using the corporation to commit a wrong [Sea Land] b. The degree to which this is a firm requirement varies by jurisdiction c. Examples: i. Unjust enrichment ii. Interfere with someones right to adverse possession iii. Enable business people to skim out money/defraud creditors iv. To funnel out cash for themselves/defraud creditors 3) Other Factors: a. Commingling of funds and other assets of the corporation with those of the individual shareholders b. Diversion of the corporations funds or assets to non-corporate uses (to personal uses of the corporations shareholders) c. Failure to maintain the corporate formalities necessary for the issuance of or subscription to the corporations stock, such as formal approval of the stock issued by the BOD d. An individual shareholder representing to persons outside the corporation that he/she is personally liable for the debts or other obligations of the corporation. e. Failure to maintain corporate minutes or adequate records f. Identical equitable ownership in two entities g. A partnership or sole proprietorship and a corporation owned and managed by the same parties h. Failure to adequately capitalize a corporation for reasonable risks of the corporate undertaking i. Absence of separately held corporate assets j. Use of a corporation as a mere shell or conduit to operate a single venture or some particular aspect of the business of an individual or another corporation k. Sole ownership of all the stock by one individual or members of a single family l. Use of the same office or business location by the corporation and the single stockholder m. Employment of the same employees or attorney by the corporation and its shareholders n. Concealment or misrepresentation of the identity of the ownership, management or financial interests in the corporation, or concealment of personal business activities of the shareholders (sole shareholders do not reveal the association with the corporation, which makes loans to them without adequate security) o. Disregard of legal formalities and failure to maintain proper arms length relationship among related entities. p. Use of a corporate entity as a conduit to procure labor, services, or merchandise for another person or entity q. Diversion of corporate assets from the corporation by or to a stockholder or other person or entity to the detriment of creditors, or the manipulation of assets and liabilities between entities to concentrate the assets in one and the liabilities in another r. Contracting by the corporation with another person with the intent to avoid the risk of nonperformance by use of the corporate entity; or the use of the corporation as a subterfuge for illegal transactions s. The formation and use of the corporation to assume the existing liabilities of another person or entity Capital Formalities No Fraud, Etc. BAATZ A A A WALKOVSKY C? C? C? SEA-LAND F? F? ??

Tort v. Contract Cases - Seems like it would be easier to pierce corporate veil in tort cases b/c the plaintiff did not elect to deal with the corporation - But research shows that judges do not exhibit greater solicitude for tort plaintiffs than contract plaintiffs in regards to veil piercing.

59

Although a K plaintiff might not be able to pierce the corporate veil on grounds that he had the opportunity to deal with the corporation, i.e. if reasonable investigation would have disclosed corporation grossly undercapitalized assumed risk as contract claimant

Reverse Veil Piercing: Occurs where the plaintiff tries to make the other corporations held by the defendant SHH liable - Has to argue they are all the same, inseparable from the defendant - The P does this b/c there may be $$ in the other corporation. Statutory Version of Veil Piercing [Best Foods] Piercing corporate veil also triggered by federal and state statutory claims tax, workers comp, environmental law - Statute does not change general rule that parent corporations of subsidiaries enjoy limited liability o Same test applies for piercing corporate veil in parent/sub circumstances - But the statute may also provide another basis for the parents liability o i.e. CERCLA liable if operate the facility of a subsidiary Its OK for the parent to elect its own board members to serve on the subs board BUT when serving on subs board, has to wear sub hat not hat of parent Parent liable when departs from corporate formalities/chain of command i.e. officer of parent goes to sub and tells them how to run business liable Baatz v. Arrow Bar [Suing people serving drunk people] South Dakota (1990) Facts: Plaintiffs seriously injured when drunk person struck them on motorcycle. Sued the bar owners who had served automobile driver when intoxicated. Law established duty of care for bar owner/employee in serving intoxicated persons. Ds had personally guaranteed a loan to corporation. Ds argued should only be liable if one of them as owners personally served intoxicated person. Holding: Corporate veil not pierced. Personal guarantee of a loan is a contractual agreement and cannot be enlarged to impose tort liability. Corporate veil pierced if individual treats corporation as an instrumentality through which he is conducting personal business not shown here [had corporate formalities] Also didnt show that corporation was undercapitalized. Rejected argument that should be liable b/c signs didnt indicate it was a corporation mere failure upon occasion to follow all the forms prescribed by law for conduct of corporate activities doesnt justify disregarding corporate entity. Dissent: Arrow bar had reputation of serving intoxicated people. Corporate shield was created to escape individual liability in dram shop action. Walkovsky v. Carlton [taxicab case] New York (1966) Facts: Pedestrian was hit by a taxi cab and sued taxi cab company. Defendant stockholder in 10 coprorations each of which have 2 cabs and carry minimal liability insurance. P said that corporations were operated as a single entity, unit, and enterprise with regard to financing, supplies, repairs, employees, and garaging. Said that multiple corporate structure existed to attempt to defraud members of the general public injured by cabs. Holding: Even though D organized, managed, dominated, and controlled a fragmented corporate entity no allegations that he was conducting business in individual capacity. - Up to legislature to require more liability insurance for taxicabs. Dissent: Corporations were deliberately undercapitalized. Allows to amend complaint with roadmap of how to do so Sea-land Services, Inc. v. Pepper Source spicy case 7th Cir. (1991)

60

Facts: Sea-land Services shipped peppers on behalf of the Pepper Source. Pepper source didnt pay a bill and then dissolved after a judgment against them. Sea-Land brought action against owner and five business entities. Brought action to hold owner personally liable and then reverse-pierce the veils of the other corporations and hold them liable too. Holding: Didnt find fraud. Found not sufficient capital or correct corporate formalities. Didnt have single corporate meeting. Used bank accounts to pay for personal expenses. BUT need to show that honoring the separate corporate existences of defendant would sanction a fraud or injustice Under Illinois test dont need to show intent. An unsatisfied judgment is not enough to meet promoting injustice..if that was enough all plaintiff in veil piercing would show that. Need to show additional wrong present such as: Sea-Land was established to void its responsibilities to its creditors or another corporations will be unjustly enriched unless liability is shared by all. United States v. Bestfoods Supreme Court (1998), Stevens, J. Facts: One corporation forms subsidiary and owns 100% of stock. Sub is found to have violated CERCLA environmental law statute. United States brought action for cost of cleaning up industrial waste generated by chemical plant. Question of whether parent can be held responsible. Holding: Critical question is whether actions of agent of parent alone went well beyond accepted norms of parental oversight of subs facility. Remanded for consideration. Only when corporate veil is pierced may a parent corp. be charged with derivative CERCLA liability BUT CERCLA also states those who operate can be held liable. For CERCLA to operate means manage, direct, or conduct operations specifically related to pollution. cannot be enough to establish liability here that dual officers and directors made policy decisions and supervised activities at the facility. Gov. would have to show that despite the general presumption to the contrary, the officers and directors were acting in their capacities as CPC [parent] officers and directors not as [sub] officers and directors. parents do control their subs but through BOD

61

DIVIDENDS______________________________________________________________________________ See also: Capitalization Dividends: payment to the shareholders of a corporations profits Distributions: return to the shareholders of a portion of their capital contributions Tension between Debt & Equity - Lenders enter into fixed-rate loan arrangements: will get principal paid back at certain interest rate o Conservative investment o No upside if corporation does better than expected o They want corporation to act conservatively, are risk averse - SHH are owners, get piece of the pie if corporation does well, lose investment if corporation fails o Riskier investment o They are better off if the corporation does better o They want the corporation to engage in riskier projects b/c may be a good way to maximize value of the corporation over time; are risk-assuming Inherent conflict between lenders/SHH Assets Cash, equipment, property Liabilities debt [lenders] Equity Stock/SHH Limitations on Directors ability to Engage in Risky Behavior When a board distributes dividends contrary to the requirements of one of these provisions, they are personally liable to the extent of that distribution. Model Act 8.33 Directors who vote for or assent to an unauthorized distribution of corporate assets, including a dividend that is not allowed under statute, are liable to the corporation for the amount of the distribution or dividend in excess of the amount that could have been distributed lawfully - Provides protection if relied on opinions, reports, or financial statements prepared by legal counsel, public accountants or experts

Covenants with the lender [Most important restrictions] o Lenders paid off before SHH Cushion if encountering financial difficulty. Equity shrinks first before loans default. Shareholders have more at stake so if wont take excessively risky gambles o Equity cushion 2 functions: Provides cushion if corporation is facing economic difficulties More equity at stake SHH will not want to take risky gambles o Restrictions on debt Require certain debt: equity ratio Flat out limit on amount of debt Cant incur other debts o Require SHH personally guarantee loan [Baatz] o Maintain minimum SHH equity o Limitations on distributions Two functions: Makes sure corporation has money to meet obligations when come due

62

Keeps more SHH resources at risk in the corporation, may reduce SHHs propensity to gamble excessively Distribution can be defined broadly i.e. all ways a corporation can transfer property to SHH; if defined too narrowly, can distribute through a different means BUT creditor has to realize that the corporation may need to distribute to SHH SHH need certain investment return allow distributions, but with limitations: Distributions up to a stated amount of net income Distributions up to a stated amount of cashflows Set # (i.e. $50k) Whatever is smallest Lender may also make an exception for distributions of more shares: Does not dilute equity, just cuts up pie into smaller pieces, does nothing to asset base This would allow the corporation to do a stock split just makes more pieces of pie May be less inclined to make an issue of stock in exchange for money Although this puts more equity into the corporation, will have to police it for sweetheart deals where the stock sells for less than value o Creditors should also create a trip wire so that if the corporation does not comply with these terms, the lender can withdraw, declare loan payable immediately [or work it out w/ corporation] o This is a business decision made by the clients These terms are contractual, subject to negotiation All terms have to be tailored to a particular transaction o Remember that if the lender includes too many K obligations, may be considered a partner [Martin v. Peyton]; but the above covenants are lending covenants, would not make a lender into a partner o Role of lenders lawyer: Draft covenants Propose to corporation and its lawyers Both sides negotiate Agree on set of covenants Lawyer need to understand objectives of both sides express it in K language Give lender assurance will get repaid Give corporation enough flexibility to run operations Statutory Restrictions: State corporate laws use different tests to decide when corporation may pay dividends in cash or property: o Utility of state law restrictions Lenders may be able to challenge distribution under state law [although preferable to rely on K requirements, statutes may be last resort] Corporation making distributions will also want to make sure the distribution is lawful [if not, BOD may be personally liable] o Absolute Priority Rule: debt takes priority to equity in bankruptcy o Require corporation to maintain a minimum level of assets to make a distribution. Two tests: Balance Sheet Test: A > L measured after distribution is made Stated Capital: A > [L + Cushion] measured after distribution more protective [DE] Net Worth Test: o Pay debts as become due. Two tests: Earned Surplus test: dividends may only be paid from companys earned surplus [accumulated retained earnings]; pays attention to cash flows is cash flow enough to pay debts when come due? Nimble Dividends: company may pay dividends if has current profits, even if does not have earned surplus; DE and other states: Can pay out of surplus of recent earnings: (1) capital surplus (2) reduction surplus [amount transferred from stated capital surplus]

63

(3) revaluation surplus [unrealized appreciation in companys fixed assets]

Facts: lose $50k when borrowing $40k Assets Cash $5000

Liabilities debt

$40,000

Equity Stated capital $1000 [par value x # stocks] Capital Surplus $9000 [amt. pd. By SHH above stated capital] Earned Surplus [$45,000] TOTAL ASSETS: $5000 TOTAL L + E: $5000 Traditional Rule: cant make distribution because we have no earned surplus [its negative] What if we make some earnings during the next year?? - Under nimble dividend provision, that amount is available to SHH - The theory for this is that it might be desirable to allow the corporation to distribute dividends and that they can make back the $ to pay back lenders the next year Insolvency test: corporation may not pay dividend if the corporation is insolvent at the time the (a) dividend is declared or if (b) the payment of the dividend would make the corporation insolvent Insolvent if: balance sheet liabilities greater than assets (could not meet obligations if liquidated) Going concern/ insolvency in equity: inability of a corporation to pay its debts as they become due in the usual course of business [insolvency in equity] Different states use different tests Traditional Rule: corporation entitled to make distributions only from surplus [earned surplus and capital surplus] Not able to make distributions from stated capital This has to do with the fact that creditors valued the idea of there being stated capital The problem with this is that at any time, the board can change the amount that was in stated capital [by changing the par value] staggering consequences [SHAZAAM!] The allocations are within the directors discretion i.e. which classes to distribute to, unless there is a preferred stock Delaware Approach: Can distribute either if A > L + stated capital [Randall v. Bailey] or current profits [nimble dividend]

DGCL 170 dividends may be declared and paid either from the companys surplus (balance sheet based test) or in the absence of surplus, out of net profits for current or proceeding year (nimble dividends test) - Surplus = excess of net assets (assets-liabilities) of corporation above the amount determined to be capital DGCL 154 stated capital = aggregate par value of outstanding shares. Capital surplus is the amount in excess of par value that shareholders pay for the shares. Earned surplus (accumulated retained earnings) come from corporations earnings. - DE blurs line between distributions and dividends by providing can be paid out of either surplus (capital or earned) - nimble dividends provision dividends to be declared/paid either out of surplus or profits of the current fiscal year and/or prior fiscal year (good for companies had losses in previous years which prevent it from having earned surplus even though corporation currently profitable)

The stated capital cannot be distributed No lender could rely on this o Could change par value to nothing, will reduce stated capital o Nimble dividends allows distributions to be based on last years earnings

64

DGCL 244(a) permits the directors to transfer from stated capital to capital surplus (ii) some or all of the capital represented by issued shares of its par value capital stock which capital is in excess of the aggregate par value of such shares; or (iii) some of the capital represented by issued shares of its capital stock without par value. - BUT transfers cannot be made unless assets remaining after such reduction shall be sufficient to pay any debts for which payment has not been otherwise provided. - Charter amendment decreasing par value of corporations shares or changing from par value to no par value stock provides another option for creating capital surplus out of which to make a distribution Transfer from stated capital to capital surplus to make distribution. 1987 Model Act Could distribute based on earned surplus only o Surplus = account on equity side of balance sheet. Not actual saving account/cash on hand o Only earned surplus represents company profitability!!!! There also needed to be minimum stated capital Also irrational to rely on this as a lender

Model Act (1987) 45 dividends in cash or other proper to be paid from companys unreserved and unrestricted earned surplus (retained earnings)

Modern MBCA Combines concept of distribution and dividends o Distribution means direct or indirect transfer of money or other property other than shares or incurrence of indebtedness by a corporation to or for the benefit of its SHH in respect of any of its shares o May be in the form of declaration or payment of dividend, a purchase, redemption or other acquisition of shares; a distribution of indebtedness or otherwise. More substantive, does not rely on stated capital Can distribute if after the distribution there is: o A > L [balance sheet test] AND o Pay debts when become due [equity insolvency] Determining whether can pay debts as become due depends on amount corporation needs to operate and operating cycle through with it generates the $$ to pay off debts May depend on type of business [dairy farm makes payments daily v. jet manufacturer makes payments rarely] o Doesnt matter what account is drawn from [in equity] as long as corporation not insolvent Although better than DE, still irrational to rely on this as a lender

Example: SHH invests $10,000, receives 1000 shares, par value $1 Assets Liabilities Cash $10,000 none

Equity Stated Capital $1000 Capital Surplus $9000 Earned Surplus 0 Deploy Cash to increase cash equity by $5000 Assets Cash $15,000 Liabilities none 0

65

TOTAL ASSETS: $15,000 o o

Equity Stated Capital $1000 Capital Surplus $9000 Earned Surplus $5000 TOTAL L + E: $15,000

1978 Act: distribute from Earned Surplus = $5000 DE: all but stated capital: $9,000 + $1,000 = $10,000 o MBCA: distribute all, but $1 in assets so that A > L, although you also have to be able to pay debts as come due Other Restrictions o Dividends must be paid out as specified in charter (preferred and common) and within classes on pro rata share-for-share basis. o Attempt by directors to favor one shareholder over another in payment of dividends in way not specified in charter considered an illegal dividend or unauthorized distribution of corporate assets.

How to Measure Assets, Earnings, Surplus: - Two approaches: o Generally Accepted Accounting Principles (GAAP): method for preparing financial records GAAP does a nice job of keeping track of a lot of economic activity/transactions But it is modest in its ambitions Principally keeps track of transactions as they occur, not at current market values Does not take into account legal concepts [because the rules about distributions are legal, does not get too far to think of concepts only in accounting terms] o Tied to legal apparatus of the corporation Relatively modern approach now the prevailing view Takes into account value in a corporation that does not show up on the balance sheet The board can make good faith estimations of the value of the company, not limited to what the balance sheet says Goodwill: the value of goodwill may not have been consistent with GAAP, but good will has a real value o If the board makes a substantive business judgment as to its worth, should be taken into account in deciding whether to distribute to SHH Land: corporation should be able to take into account appreciation and depreciation in value of land in determining whether to make distributions o The substance of the matter is the value of the land, not what accountants say that we should value it as, o So the board can make a business judgment about its worth Investment Securities: the corporation can value the investment securities at todays market Question whether corporation can include unrealized appreciation in assets when calculating either type of surplus for dividend purposes can only do so under 2nd approach

SHH Right to Dividends - SHH legal right to receive dividend only arises once dividends are declared - Expect preferred SHH, usually charter contains provisions to force declaration by making alternative unpalatable - Usually, will be able to vote on BOD instead of common shareholders if dividends not paid for four consecutive quarters Repurchase of a Corporations Own Shares [Distributions] Distribution in form of repurchase of shares very common permits use of corporate rather than personal assets, has favorable tax consequences, and does not affect relative interests of remaining shareholders.

66

Under DE and Model Act provisions controlling payment of dividends also apply to corporations redemption of own shares

DGCL 160 corporation broad powers to deal in own stock but prohibits redeeming capital stock when capital of corporation impaired or purchase or redemption would cause impairment of capital ONLY out of surplus. MBCA 6.4 repurchase is like dividend. Both controlled under 6.4 When a corporation buys back its own stock, it does not receive anything of value in the hands of the corporation. o One cannot own 10% of itself and have ones total worth be 110% of assets. o BUT when corporation buys stock of another company reflected only on left side of balance sheet cash deducted, asset of stock increased - Announcement of share repurchase usually has favorable effect on share price. o Publicly held corporation with large amount of excess liquid assets is target for takeover However could backfire if aggressor company already owns some shares and price goes up o Better tax treatment for those who sell shares back to corporation capital gains o May want treasury sales for other purpose (corporate compensation) Treasury stock Repurchased stock that is not retired or canceled, it is issued but not outstanding. - T.S. may be resold at any value regardless of par value, b/c par value was already placed in stated capital, and amount remains in account so long as still issued. If canceled, par value taken out of stated capital. - Model Act doesnt follow concept of par value and Treasury stock - Treasury shares are not an asset, although they may be sold at some later time [much like authorized but unissued stock] Stock Dividends and Stock Splits - Stock dividends: o Dividends payable to corporations shareholders in corporations own stock rather than $ DGCL 173 if dividend is to be paid in shares of corporations theretofore unissued capital stock the board of directors shall, by resolution, direct that there be designated as capital in respect of each shares an amount that is not less than the average par value of par value shares being declared as a dividend, and in case of shares without par value being declared as a dividend, such amount shall be determined by the BOD. - Put par value or some other amount (if no par) in capital - NO CHANGE to capital if stock split/stock dividend MBCA 1.4 exempts transfers by corporation of own shares from definition of distribution. Restrictions of 6.4 do not apply. -

o Stock splits
Splits each SHHs share Does not dilute their ownership Stock splits and stock dividends have same effect Neither increases shareholders interest only cuts up pie into smaller pieces Why do corporations do this? o (1) Force down price of stock in publicly traded corporation that has risen too high. Extra commission stockbrokers for trading in odd lots market favor shares that trade at particular level o (2) Show that company is prospering and would be in position to distribute cash dividends but for managements decision to reinvest in business o (3) Necessary financial expedient when corporation is planning to sell shares to public for first time. HOW? o Stock Split: Charter amendment: (1) increase number of authorized shares; (2) split par value in half

67

o Stock Dividend: Charter amendment to increase number of authorized shares; Additional stock certificates
showing newly issued shares sent to stockholder Randall v. Bailey (shouldnt have paid dividends cooked the books) Supreme Court of New York (1940) Facts: Trustee appointed for bankruptcy suing company to recover amount of dividends declared and paid. P said there was no surplus and that capital was impaired. P alleged directors were personally liable to corporation for amount of dividends. D said surplus greater shown on books. P alleged following errors: 1. Improper to write-up land values above cost and take unrealized appreciation into account 2. Improper not to write-down to actual value cost of investments in and advances to subsidiaries and thereby fail to take unrealized depreciation into account. 3. Improper to include as an asset of so-called good will which company had value at 3 million. 4. Improper to include an asset of $400,000 cost of properties which had been demolished. Holding: (1) Land - substance of matter is what it is really worth. Shouldn't look at it just from accounting. Can also use good faith business judgment (2) Investment securities - also look at substance of investment securities - BOD doesn't get same Deference (3) Goodwill - OK to have good faith value of non-balance sheet item (4) Buildings - Can't pick and choose accounting measures for some and business judgment for others Found that when dividends were declared and paid, the value of the assets exceeded the total liabilities to creditors and stockholders by amount and therefore no impairment. MBCA 6.4 (comment) Can use departure from historical cost accounting. No particular method of valuation prescribed in statute. Ordinarily should not selectively revalue assets. Method must be reasonable under the circumstances Klang v. Smiths Food Holding: balance sheets are not conclusive indicators of surplus or lack thereof, can use reasonable assessment. - but mistake on unrealized surplus can mean directors held personally liable Judicial Review of Dividend Policy In suits for nondeclaration of dividends give shareholders heavy burden to show that decision not to declare dividend amounted to fraud, bad faith, or abuse of discretion

68

FIDUCIARY DUTIES [OVERVIEW] Overall Structure of Fiduciary Duties Officers/Directors Duty of care [judgment] BJR [deference] + Exculpatory Charter Hostile Takeovers [Intermediate] Generally the fiduciary duties of directors are owed to the SHH and to the corporation - Not usually owed to third parties - However, there are theories that the corporation may be liable to creditors [Francis] o Definition of corporation is capacious enough to include them [stretch] o Where corporation is in banking/reinsurance special case b/c it is tempting to keep a lot of money, but necessary to keep a lot of cash on hand. - Directors do NOT owe fiduciary duties before/after they are hired/fired owe only a duty of good faith in K [much lower standard] [Disney] Controlling SHH Duty of Loyalty [conflicts] Entire Fairness + DGCL 144 Procedures

69

DUTY OF CARE__________________________________________________________________________ The duty of care tells us that the board has to act with judgment; act like reasonable people in the same circumstances [Gross Negligence Standard] - General Standard of Care & Obligation to Monitor o Must act as reasonably prudent person in like circumstances basically they have to be drunk, wholly out of touch with what the corporation does, or not step in to prevent harmful actions of other directors despite flags things no reasonable business person would do MBCA 8.30(a)(b) / MBCA 8.31 Reasonably believes both subjective and objective (1) What particular director, acting in good faith, actually believes? (2) Could a reasonable person in a like position arrived at that belief?

o The relevant period of inquiry is when they made the decision, but it is an equitable doctrine, courts may look
o into what the board did afterwards [Van Gorkem] Duty of care standard focuses on the process by which corporate decisions are made, as opposed to the substance/merit of the decisions themselves Directors must be knowledgeable about the decisions they make on behalf of the corporation [VanGorkem]

MBCA 8.30(b), comment - Unless circumstances would permit a reasonable director to conclude that he/she is already sufficiently informed, the standard of care requires every director to take steps to become informed about background facts and circumstances before taking action on matter at hand. (1) review materials, (2) pay attention at meeting.

Where directors are ignorant, they may be held liable [Francis] To avoid a Van Gorkem situation should paper the deal keep a paper trail of everything looked at, basis for decisions This standard is criticized for being overly formalistic But if there is a BOD populated by people who want to reach a reasonable conclusion, forcing them to read it all may better decisions Should ask questions of experts when there are red flags, even though not required to consult experts to meet standard [Van Gorkem] DE has a statutory provision allowing directors to rely on experts incentive for boards to seek advice from people who know more; although the directors should ensure these experts back up their results with data [VanGorkem]

MBCA 8.30(e) allows directors to rely on a wide range of information MBCA 8.42(f)(1) allows directors to rely on officers [both within limits] 8 Del. C. 141(c) evidence of a reasonable, good faith reliance on reports as protection against breach of duty of care

o Directors have a duty to monitor: Old Rule: Directors are not required to create a system of corporate espionage [Graham] Modern Rule: creates more of an affirmative duty to monitor [Caremark]

Likely a response to heavy regulations of corporations, sentencing guidelines [require corporations to establish internal controls] Where the board establishes and maintains a system of control, will not be personally liable unless the system shows a sustained or systemic failure or attempt to assure [Caremark] For example, should review financial statements and ask questions if something jumps out [Francis]; or if anything comes to their attention generally [Graham]

70

Presents a hard case where the corporation commits a crime after the directors have taken significant steps to protect it [Caremark] SOX imposes specific certification requirements on CEO and CFO Must design internal controls to promote reliable financial reporting and must disclose discovered control deficiencies Courts give a lot of deference to the directors in determining what is in the best interests of the corporation

Requires defining the corporate purpose There are cases [Dodge] that suggest can only be for SHH/profit But most cases give the boards more leeway; will be treated as business judgments unless unlawful [Wrigely] In response to tender offers, many states enacted other constituency statutes, which allowed directors to consider factors other than SHH o Were controversial o PA: could consider other entities, short or long term, risks of liability, community o ALI 2.01: any purpose is enhancing corporate profit and shareholder gain but can also take into account ethical considerations and may devote reasonable amount of resources to public welfare, humanitarian, educational, and philanthropic purposes broad meaning of economic returns o Despite their breadth, these statutes dont mandate that the corporation consider these factors o Unresolved Question: whether experts should be held to a higher standard Should be: we want them to exercise their expertise Should not be: we dont want to deter them from being directors Purpose is to police directorial judgment It is hard to breach the duty of care because: o Courts use business judgment rule to presume that directors act within the requirements of the duty of care if act in good faith and not grossly negligent or reckless; includes decisions with any rational business purpose; only applies to conscious decisions [not prolonged inattention/failure to monitor] Used as a defense for directors to suits challenging their judgments [Malpiede] There is economic theory behind the BJR [Joy v. North]; Daredevil v. Chicken Theories on relation between BJR/Duty of Care: (1) Theoretically, possible that BJR rule is overcome, but no breach of duty o Directors still have chance to argue did not violate the duty of care standard o BUT we dont have support for this in cases (2) When BJR not met breach of duty of care The BJR does NOT apply in cases where the directors have violated the law [AT&T] automatic violation of duty of care b/c ordinarily prudent person doesnt violate the law BJR is part of judicial common-law elements continue to evolve, so it is not specifically codified o Corporations can adopt an exculpatory charter provision Purpose: (1) Convince qualified directors to serve (2) Reduce costs of D&O insurance premiums in the market Versions: DGCL 102(b)(7): individual corporations can include in their charter [Arnold, Towson] o eliminating or limiting the personal liability of a director to the corporation or its stockholders for monetary damages for breach of fiduciary duty of director, provided that such provision shall not eliminate the liability of a director: (i) for any breach of the directors duty of loyalty to the corporation or its stockholders, (ii) for acts or omissions not in good faith or which involve intentional misconduct or a knowing violation of law, (iii) under section 174 of this Title [unlawful payment of stock], or

71

(iv) for any transaction from which the director received any improper personal benefit. Virginia 690 [p. 567 in text]: alter standards of fiduciary duties imposed on corporate directors shall discharge duty in good faith business judgment in best interests of the corporation. [Tyson] ALI: allow SHH to limit the amount of director liability provision for charter adopted by SHH DE and VA create exceptions for good faith What is good faith? o Cases are still unresolved o May be own duty [Disney, VA statute]; requires directors to process information, not to make irrational decisions o May just be part of DOL [Stone v Ritter] o May be part of DOC Many suits have followed suit. Some apply to officers, some to officers and directors Cynical View: When adopted by the SHH question of whether it is a true contractual provision if rationally apathetic group votes on it, do they really understand the bargain? SHH tend to be rationally ignorant o Where informed shareholders ratify the directors acts directors not liable When elected by shareholders question of whether it is a true contractual provision if rationally apathetic group of people vote on it, do they really understand the bargain Outside Francis and VanGorkem, there are very few cases that hold directors liable for breach of duty of care when act under normal business conditions; standard is probably lower now than it was for Van Gorkem

Joy v. North (economics of BJR) 2nd Cir. (1982) Holding: A corporate officer who makes a mistake in judgment as to the economic conditions, consumer tastes or production line efficiency will rarely, if ever, be found liable for damages suffered by the corporation. Economic theory of BJR: (1) Shareholders take on risk of business judgment in buying stock (2) Judicial second-guessing judges are not likely to be better than corporate directors at making business decisions. (3) Relationship of risk to reward shareholders benefit from directors who are willing to make bold decisions (value = probability * gain/loss) Daredevil v. Chicken Two fact patterns: value of gamble is the average of the probability of the outcome x gain/loss 1) 40% chance of big payoff; 40% chance of not-so-big payoff; 20% chance of a big loss V=P x G/L 0.40 x 15 = 6.0 0.40 x 1 = 0.40 0.20 x -13 = -2.6 [ouch!] 3.8 [nice!] 2) 40% chance of medium payoff; 40% chance of slightly low payoff; 20% chance of low payoff V=P 0.40 0.40 0.20 x x x x G/L 6 2 1 = = = 2.4 0.80 0.20 3.4 [fine]

Francis v. United Jersey Bank crazy lady fails to notice sons robbing company New Jersey (1981)

72

Facts: Father died and left two sons and wife in control of reinsurance business. Mrs. Pritchard was not active in business and knew nothing of corporate affairs. Incapacitated and bed-ridden for six months after husbands death. Sons began siphoning money for corporation in forms of loans. Took 12 million. Held: Wife personally liable for negligence in failure to stop other directors from illegal acts when breached duty of care. Directors must discharge their duties in good faith and with degree of diligence, care and skill of ordinary person in like circumstances Determination of liability of director requires finding that: (1) had duty to clients of P&B, (2) breached that duty, (3) breach was proximate cause of losses to clients Proximate cause b/c if had obtained and read financial statements would have discovered illegal activities Where it is reasonable to conclude that failure to act would produce a particular result and that result has followed, causation may be inferred Duties: (1) Director should acquire a rudimentary understanding of business of the corporation. (2) Must generally monitor corporate affairs and policies (3) must attend meetings as a matter of practice o Director who is absent is said to concur in action taken unless file dissent with secretary (4) Maintain familiarity with financial status of corporation by regular review of financial statements (5) Duty may require director to consult with outside counsel or take reasonable means to prevent illegal conduct by co-directors Rare Case !!! In re Caremark International Inc. Derivate Lit. (Directors did care to monitor) DE (1996) Facts: Allegation that members of Caremark breached their fiduciary duty of care in connection with alleged violations by Caremark employees of federal and state regulations applicable to health care providers. Company had been charged with several felonies. Suit then filed on behalf of company to recover losses from BOD as individuals. Violated scheme inducing referral of Medicare/Medicaid patients. Holding: Record didnt establish lack of good faith in monitoring responsibilities or known violation. Corporation needs to have system of internal control. BOD needs to make sure system is created, tested, working reasonably, etc., did so here. Failure if sustained or systematic failure to attempt to assure Need to prove for failure: (1) directors knew or (2) should have known that violations of law were occurring and, in either event (3) that the directors took no steps in a good faith effort to prevent or remedy the situation and (4) such failure proximately resulted in losses complained of Smith v. Van Gorkom What do you think about $55/share? / Jerry and Jay commit breach DE (1985) Facts: Class action brought by shareholders of defendant TransUnion Company after cash-out merger of TransUnion. Company had problem of too much cahs and too many investment tax credits. Didnt have enough income to sufficiently use Income Tax Credits. Decide to do have another company do leveraged buy-out (borrow money, buy equity and then repay debt using target assets/cas flow). Jerry, CEO, made deal with friend. Says what do you think of $55/share? Have Board meeting with one nights notice. CFO says $55 within fair range. Approve 2 hours later. CEO signs unread agreement at social function, amendments not written in as BOD thought. Proxy sent and shareholders approved. Holding: Found breach of duty of care by (1) failure to inform themselves of all information reasonably available to them and relevant to their decision to recommend the Pritzker merger, (2) by their failure to disclose all material information such as a reasonable stockholder would consider important in deciding whether to approve the Pritzker offer. BJR doesnt apply. Didnt ask CFO about study

73

Didnt secure for themselves any right to test market to ensure price was fair Unless directors had before them adequate information regarding the intrinsic value of the company, upon which a proper exercise of business judgment can be made, mere advice of legal counsel is meaningless. Activities after Sep. 20 amending Merger agreement to permit market test were not sufficient to ratify agreement b/c Van Gorkom only presented oral testimony didnt actually look at agreements 8 Del. C. 141(c) evidence of a reasonable, good faith reliance on reports as protection against breach of duty of care BUT took a unified position one for all Shareholders could have ratified but here shareholders not fully informed. Didnt approach from duty of loyalty prospective Dissent Majority didnt take proper consideration of combined business experience of BOD. Should view entire record not shortened period Framework: Factors: value: market test: expertise: reliance: Post-9/20: shh approval: 1/26 BoD Other: Upshot: BJR whole period $55 deal price 90-days star power DGCL 141(e) validation whole process v. v. v. v. v. v. v. v. DC 9/20 $38 market serious constraints fast shuffle unreliable inadequate information cannot cure

3 Musketeers v. one-by-one paper the deal

Shlensky v. Wrigley Illinois (1968) Facts: Shareholder sued corporation that owned Chicago National League Ball Club for duty of care breach in not installing lights in stadium. Couldnt play night games, and losing money. Held: BOD is allowed to evaluate their decision in light of the surrounding neighborhood. Do not have to make decisions solely with the goal of making money for shareholders. Can take into account other interests. We do not mean to say that we have decided that the decision of the directors was a correct one. That is beyond our jurisdiction and ability. We are merely saying that the decision is one properly before directors and motives alleged in amended complaint showed no fraud, illegality, or conflict of interest in their making of that decision. Also, no allegation is made that there will be a net benefit to the corporation from such action [installing lights] considering all increased costs. Dodge v. Ford Motor Co. business organized and carried on primarily for the profit of shareholders. Directors must pursue profit as objective. In the 1980s corporate America was able to have states elect statutes that BOD can have wide latitude in what they consider in making decisions BUT statutes do not give non-shareholders any enforceable rights ALI 2.01 any purpose is enhancing corporate profit and shareholder gain but can also take into account ethical considerations and may devote reasonable amount of resources to public welfare, humanitarian, educational, and philanthropic purposes broad meaning of economic returns In responding to unsolicited tender offers can take reasonable response Arnold v. Society for Savings Bancorp, Inc. (disclosures covered) DE (1994) Facts: Merger proxy statement alleged to contain omissions and misrepresentations. Cetificate of incorporation had liability provision limiting director liability. P arguing that liability limitation did not extend to disclosure violations. Held: Liability limitation covering breach of fiduciary duty covers fiduciary disclosure requirements. No affirmative proof that Ds knowingly and deliberately failed to disclose facts they knew were material. No duty of loyalty violations.

74

Malpiede v. Towson (negligee people cant be held grossly negligent) DE (2001) Facts: Fredericks of Hollywood was solicitating merger agreements. After rounds with two potential bidders ended up rejecting $9 bid and going forward with Knightsbridge merger for $7.75/share. BOD commenced deal without a lot of wiggle room. Shareholder class action alleged breach of duty of care and good faith. Trial court found no breach of loyalty and charter precluded damages for breaches of care. . Holding: Exculpatory provision in charter is affirmative defense. Properly raised by Ds. Had P alleged such well-pleaded facts supporting a breach of loyalty or bad faith claim, the section 102(b)(7) charter provision would have been unavailing as to such claims, and the case would have gone forward. Even if the Ps had stated a claim for gross negligence, such a well-pleaded claim is unavailing b/c Ds have brought forth Section 102(b)(7) charter provision which bars such claims. WLR Foods, Inc. v. Tyson Foods, Inc. 4th Cir. (1995) Facts: Tyson Foods, Inc. tried to acquire WLR Foods, Inc. WLR adopted defensive measures not to be taken over. Tyson challenging ruling that defensive measures were valid legal means for WLR to use against hostile takeover. Holding: Upheld decision of district court in discovery question to allow Tyson foods to access to info about procedures but not actual substantive information used by Ds in making decision. VA statutes rejects reasonable Person standard and eliminates comparison of conduct in question to idealized standard Trier of fact only need find GOOD FAITH and determine whether conduct in question was a product of directors own business judgment of what was in best interest of corp.

75

DUTY OF LOYALTY______________________________________________________________________ As fiduciaries, directors of corporations have to subordinate their own interests to those of the corporation when they are in conflict referred to as interested director transactions. Generally polices conflicts of directors, has more teeth than the DOC [although there are also special procedures]. Context Duty of loyalty arises where - Director sells property to the corporation - Where the director sells property to corporation, where the director is on both sides of the transaction - General conflicts Entire Fairness Review: - Historically all interested transactions void - Now they are subject to entire fairness review - Looks at whether the transaction was fair procedurally and substantially o Procedurally: Whether directors were involved What they looked at How it came to them Can rely on the views of other informed directors [Disney] Looks at whether there were any efforts to benefit the interested directors [Marciano] o Substantively [substance of decision] May compare to other similar decisions [i.e. other leases in the area], need to be truly comparable [Lewis] Can try to show conditions have changed to show is fair [Lewis] Market value [Lewis] Procedural/Substantive Fairness sliding scale [more of one need less of the other]

ALI 5.02(a)(2)(A) test of fairness is objective test, director must show within range of reasonableness - Full business context of a transaction needs to be considered, particularly when it is not in the best interest of the corporation to forgo a transaction with a director or senior exec. - Examples of conflicting interest transactions directors transactions with the corporation, directors compensation arrangements, transactions between corporations with common directors. Burden of Proof - Directors have the entire burden in proving fairness after P shows the director had conflict of interest - Who has the burden of proof is important b/c will be very difficult to prove/disprove unfairness for the side that has it DGCL 144 Procedures Safe Harbor - DE authorized a statute that allows for the creation of procedures that directors can use to avoid the transaction from being subject to entire fairness review sanitize interested business transaction - Procedures: o (1) Disinterested informed director approval o (2) Disinterested informed SHH approval o (3) Proves the K was fair o Note that 1 and 2 less useful where corporation is in deadlock [Marciano] - What does informed mean? o Aware of all relevant facts of directors conflicts of interest AND all relevant facts of transaction DE 144 (a) No contract or transaction between a corporation and 1 or more of its directors or officers. . . shall be void or voidable solely for this reason. . . if: (1) The material facts as to the director's or officer's relationship or interest and as to the contract or transaction are disclosed or are known . . . . [and deal approved in good faith by] majority of the disinterested directors . . . ; or

76

(2) The material facts . . . are disclosed or are known to the shareholders . . . and the contract or transaction is specifically approved in good faith by vote of the shareholders; or (3) The contract or transaction is fair as to the corporation as of the time it is authorized, approved or ratified, by the board of directors, a committee or the shareholders. ** taken literally, shareholders would not have to be disinterested, BUT according to Prof. Cunningham they do!

Effects [Wheelbarator]: Assuming interested director and o No special process BOP on board Standard is entire fairness o 144(a)(1) independent/informed decision by disinterested directors Shifts BOP to SHH, or Some courts would end inquiry here [rare] o 144(a)(2) independent/informed decision by disinterested SHH [murkier] At a minimum, shifts BOP SHH SHH have to prove it was unfair There is some chatter that the SHH would have to prove that BJR was not met If that is the case, SHHs lose May not make sense b/c the 144 procedures were supposed to simplify things But it may be that the judges just want to make sure was fair Another option is to have the judge show = fair o 144(a)(3) transaction fair Not clear whether this provision changes anything about the common law So courts have to struggle with this a bit There is no clear statement from DE on the BOP in these cases, but courts will be hesitant to relinquish common law tradition that directors have the BOP

Model Act 8.61(b) If shareholder approval followed, OR if transaction is fair to the corporation, then a directors conflicting interest transaction is immune from attack on any ground of personal interest or conflict of interest of the director - Subject to condition that boards action must comply with care, best interest, and good faith in authorizing transaction by majority of disinterested directors (even if less than quorum) Compensation Agreements - Compensation arrangements with directors/ senior executives are necessary in all cases - When directors have personal interest in application of corporate payments [i.e. fixing own compensation], BJR no longer applies and burden directors to demonstrate transactions were approved in good faith and were fair [Cohen v. Ayers] - ALI 5.03 Fine if [Cohen v. Ayers] o Compensation received by director or senior exec is fair to the corporation when approved; OR o Compensation authorized in advance by disinterested directors, the compensation is ratified by disinterested directors who satisfy the requirements of BJR; OR o The compensation is authorized in advanced/ratified by disinterested shareholders and does not constitute corporate waste [Cohen v Ayers]; OR o Could show ratified after full disclosure by: (1) disinterested directors or (2) shareholders If ratified then BJR applicable again Relationship between Duty of Loyalty and Good Faith NOT clear - What is the duty of good faith? Two theories: o Disney (dicta, not followed by other DE S.Ct. Jutices) can be considered either together or separate to same result

77

 Burden of proof is on the plaintiff [like BJR] [Disney, note 95] o Stone v. Ritter: it is part of the Duty of Loyalty If it is part of the duty of loyalty, BOD will have to show acted in good faith BUT Disney said SHH had Burden of Proving acted in bad faith Good faith: not a concrete rule/definition; could be stated as: o Intentional dereliction, conscious disregard, disloyal [Disney, Trial Court at trial] o Conscious, intentional disregard [Disney, Trial Court at motion to dismiss] What are we trying to police? There are three types of bad faith: o Axiomatic bad faith trying to cause harm, no need to have a separate rule for this o Gross negligence bad faith this is duty of care, not bad faith o But there may be something in the middle, perhaps the duty of good faith exists to police that Compare to intermediate duty in struggles for control Concept of good faith appears in 2 provisions in DE o 102(b)(7): breach of duty of care no monetary liability of directors unless the directors breached duty of good faith o 145: director cannot be indemnified if did not act in good faith

Why did the two Disney Cases come out differently? Two theories: 1) Deference to DE: the first case was a motion to dismiss, but after the facts were developed, it was clear there was no claim 2) More cynical view: around the time first case was decided, there was a lot of corporate scams, which led to SOX; clipped DEs wings a bit, freaked out DE, Chandler was implying that DE would be tough to prevent federal government from taking over regulation of corporate law entirely; but by time second case was decided, things had settled down Disney v. Stone v. Ritter: - Stone v. Ritter: essentially argues that Disney got it wrong o Lack of good faith is a necessary condition for liability, but NOT sufficient not a separate duty o Just because acted in conscious disregard does not mean is ipso facto liable, there must be more b/c good faith is not a third duty, it is part of duty of loyalty o Standard: the entire fairness test is not entirely applicable b/c there is no duty, but could be used w/ changes o BOP: this case tells us nothing about the BOP In traditional analysis, directors of have BOP to prove fairness Most likely the same - Why did this case come out differently from Disney? o Change in times o Wanted to retain business in DE, support DE bar Lewis v. S.L&E, Inc. (Tire company not paying rent) 2nd Cir. (1980) Facts: Father was majority shareholder of SLE and LGT. SLE was land company. Leased space to LGT a tire dealership in Rochester, NY. In Feb 1956, SLE granted LGT 10 year lease on newly expanded property. 1962 - father transferred stock in

78

SLE to six children. At that time 2 children (Richard, Alan, and Leon) were already shareholders, officers, and directors of LGT. Children entered into an agreement that on June 1, 1972 all SLE stockholders who were not shareholder of LGT would transfer all SLE stock to LGT within 30 days at the price equal to book value of SLE stock as of June 1, 1972. 10 year lease expired. LGT continued to occupy premises and pay SLE old rate of $14,400 per year. Real estate taxes increased, but rent paid in lease remained the same. - 1 brother (Donald) and sisters owned SLE stock but not LGT stock - On June 1972 date for stock transfer Donald sought financial information from Richard (president of SLE) because believed SLE stock was undervalued. Richard refused. Donald commenced sharholder derivative suit. - Claim - defendant directors wasted the assets of SLE by "grossly undercharging" LGT for occupancy and use of property - LGT intervened in suit and requested specific performance of SLE stock sale. Donald did not contest duty to sell stock, but wanted to await judgment of court first. Holding: Because directors of SLE were also officers, directors, and/or shareholders of LGT, the burden was on defendant directors to demonstrate that the transactions between SLE and LGT were fair and reasonable. Donald not required to sell SLE shares w/o an upward adjustment in the June 1972 book value of SLE to reflect the amount of fair rental value of the property that exceeded the $14,400 which was actually paid by LGT for 19661972. D has burden to show fair and reasonable to corporation. not shown. Marciano v. Nakash Jordashe Jeans Delaware (1987) Facts: Marcianos and Nakashes formed joint venture to market designer jeans (Gasoline) and sportswear.Marcianos made designer jeans in California. Nakashes were owners of Jordache Enterprises in NY. Nakashes advanced approximately $2.3 million of personal funds to Gasoline to allow corporation to apy outstanding bills and acquire inventory. Nakashes became general creditors of Gasoline. Loans were not approved by Gasoline BOD because board was in deadlock. Holding: Court found that even though interested directors, under DE Statute 144, found transaction was fair. Deals approved by officers not shareholders or board b/c of deadlock. Therefore court looked to fairness test (are loans on fair terms to corporation?) o A finding of fairness is particularly appropriate in this case b/c evidence indicates loans were made by Nakashes with bona fide intention for assisting Gasolines efforts to remain in business In re Wheelabrator Technologies, Inc. Shareholders Litigation DE (1995) Facts: no facts(?) Holding: DE law distinguished between acts of directors (or management) that are void and voidable Shareholder ratification of voidable director conduct result in claim-extinguishment when (1) directors act in good faith but exceed the corporate purpose, (2) directors fail to reach informed decision making approving transaction Effect of shareholder ratification in duty of loyalty SHIFT burden/standard of review. Objecting stockholder has the burden of showing no person of ordinary sound business judgment would say that the consideration received for the options was a fair exchange for the options granted. Judge in Wheelbarator tries to explain what happens under 144 for all circumstances [some of which is based on no case law] No Special process Director Interested Independent, Independent, Fair Informed Informed BoD Vote Shh Vote 144(a)(2) 144(a)(3)

Common Law 144(a)(1)

79

Burden/ Standard Majority Shh

Board/ Fairness B/P = Maj Shh

Shhs/ Unfair ? To come

Shhs/ [BJR?] ? To come

Meaning?

** In brackets b/c it is not clear if it changes the standard as well as shifting the burden, if so really harsh on SHH In re The Walt Disney Co. DE (2003) Facts: President hired. CEO had recruited and alleged were friends. President works for 1 year and then tenders non-fault termination. Receives $140 million. Alleged no good faith and outside business judgment rule. Holding: After 30 day trial found no liability. Presidents liability Pre-hiring: K is arms-length, not fiduciary Rejects notion of de facto officer liability Firing: CEO action No BoD action or role Not fiduciary afterwards Director liability - Duty of Care Issues (continued) b. Charter Authorized Compensation Committee to Act DGCL 141(c) c. Director-by-Director or as Collective No Breaches d. Committee Failed Best Practices Legal Duty Less Stringent Directors Sufficiently Informed B. Presidents Non-Fault Firing; Pay Day 1. CEO Authority to Fire (v. Board)? Charter Article Tenth: Board has ultimate power By-Law IV: Chairman/CEO power over officers TC: Concurrent power SC: Ambiguous; extrinsic evidence supports concurrent power 2. CEO + GC non-fault termination decision no basis supported for-cause termination 3. Directors Reliance on CEO + GC entitled to rely; advice relied upon accurate

Good Faith Issues Defining Bad Faith (Absence of Good Faith?) TC at Trial: intentional dereliction, conscious disregard, disloyal TC at MD: conscious, intentional disregard (subjective motive?) SC: no substantive difference between formulations good faith issues distinct from duty of care issues Pl proved neither* * Note 95: Plaintiffs have burden of proving bad faith [akin to Pl having burden to overcome BJR; unlike common law duty of loyalty where Def has burden] Waste Burden: Plaintiffs Test: So one-sided no business person would do it Reality: Rare, akin to unconscionable, onerous standard Applied: Payday was contractual obligation

80

Original contractual obligation not fatal incentives for President to orchestrate own no-fault hiring not even close to stringent standards to show waste Presidents extraordinary reputation/friendship with CEO Justice Jacobs: Dicta Meditating on Good/Bad Faith [Law undeveloped; unchartered; offers guidance]

Stone v. Ritter DE (2006) Facts: Replay of Caremark-type situation. Holding: Dicta lack of good faith as necessary condition for liability [not sufficient] failure to act in good faith does not ipso facto mean liability may result. Duty of loyalty encompasses good faith. Applied: Not remotely alleged here (complaint dismissed) Dicta: lack of good faith as necessary condition of liability [not sufficient] failure to act in good faith does not ipso facto mean liability may result in liability as subsidiary element of duty of loyalty so good faith not a third duty with care and loyalty duty of loyalty encompasses absence of good faith Cohen v. Ayers (7th Cir. 1979) When directors have personal interest in application of corporate payments (fixing own compensation) BJR no longer applies and burden shifts to directors to demonstrate transactions were approved in good faith and were fair.

81

OTHER DUTIES CORPORATE OPPORTUNITY DOCTRINE The corporate opportunity doctrine is part of the duty of loyalty. It focuses on directors and officers pursuing economic opportunities on their own behalf. Is more well-established, although not very uniform. Context - Comes up where a director/officer is presented with a business opportunity that they would like, but which the corporation would also like to have o Classic example: fiduciaries starting a business that offers the same services or products to the same general market as the corporation - The duty of directors also applies to officers Standard key inquiries p. 615 - The question is whether they can take advantage of it, or if they have to leave it to the corporation 2 versions: o Strict: Must always give opportunity to the corporation o More lax: Looks at whether the opportunity really belongs to the corporation equitable approaches: Multi-factor test [Broz; DE] Did the opportunity come to individual in individual capacity? Strong, but not dispositive factor Could the corporation financially take advantage of it? Can the corporation exploit this opportunity, or have they been in and out of bankruptcy protection, subject to loan limitations? Does corporation have an expectancy interest in it? Has corporation acted in a way that indicates it is interested in opportunity, or expects it to be offered to them [or is the corporation selling off its towers]? Is it in the corporations line of business? Fourth factor is sometimes separate: subjects disclosure did the corporate fiduciary disclose the opportunity to the directors, or was he secretive? What sort of disclosure was given? Focus on Fairness [these states dont know what they are doing] Disclosure and Approval [ALI, Northeast Harbor] Allows directors to rely on procedures to be more confident that they have not violated the corporate opportunity doctrine [like 144] o Require corporate directors to disclose to fellow directors and have fellow directors evaluate whether they want it or not (or disclose to interested shareholders) Maybe this is the way to go, allows directors to get up there and make own decisions [ME has done so, not DE] This approach is not without controversy: o Sometimes the opportunities may arise in the context of a competitive market, may not have time to convene a meeting of the board, so the strong version of this rule might prevent the exploitation of opportunities that it could reasonably exploit, o May deter people from participating on boards [esp. if serving on lots of boards] o DE approach may be more practical Fiduciary Duties [Veasey, Broz] - Fiduciary agrees to place the interests of the corporation before his or her interests in appropriate circumstances. o The fact that he uses agrees makes it seem like a K, even though fiduciary duties are status-based o By appropriate circumstances, he should mean always o He also states that fiduciaries may be conflicted in subordinating their interests but that is what fiduciaries DO! o Also, Vesey notes that the DIRECTOR or OFFICER makes the call if it belongs to the corporation to decide whether to take the opportunity but that does not give much certainty to those D&Os Other courts may have stricter definition of fiduciary duties [i.e. Wienberger] -

82

Duty Decision

Broz Fiduciary agrees to put corporation first in appropriate circumstances If the director/officer believes corporation not entitled, may take it

Northeast Harbor Punctilio of honor most sensitive [Mienhard]; unbending, inveterate command to do so Board or SHH after full disclosure cf. DCGL 144, Note: BOP

Broz v. Cellular Information Systems, Inc. DE (1996) Facts: Robert Broz is president and sole shareholder of RFCB and also Director of Cellular Information Systems. Opportunity existed to purchase cellular phone. Broz purchased license for RFBC. Seller of license approached Broz because thought RFCB was likely candidate CIS was contracting to sell licenses already acquired b/c emerging from bankruptcy Broz spoke to CIS CEO and to counsel for CIS about his interest. CIS was bought by another group, PriCellular (tender offer) and Pricellular during tender offer bid with Broz for license. Holding: Found not to be duty of loyalty violation. No usurpation of corporation opportunity. In order to have corporate opportunity doctrine in play must: (1) be opportunity which corporation is financially able to undertake, (2) in the line of the corporations business (3) one which the corporation has an interest or reasonable expectancy, and (4) by embracing the opportunity, the self-interest of the director will be brought into conflict with the corporation o CIS not financially capable of exploiting opportunity, not clear that CIS had expectancy of license, CIS was aware of Broz intentions and conducted activities in manner consistent with obligations to CIS MAY TAKE if: (1) the opportunity is presented to the director in his individual and not corporate capacity, (2) the opportunity is not essential to the corporation, (3) the corporation holds no interest or expectancy in the opportunity, (4) the director or officer has not wrongfully employed the resources of the corporation in pursuing or exploiting the opportunity o No factor dispositive If Director or officer believes corporation not entitled, may take for themselves Northeast Harbor Golf Club, Inc. v. Harris Maine (1995) Facts: Opportunity presented to President of Golf Club to buy property. Conflicting duty presented because President of Golf Club and also real estate investor herself. President didnt disclose plan to purchase property to BOD. President later divided property among her children and began process to develop subdivision. Board members testified Pres. had told them would not develop properties. Holding: Found breach of fiduciary duty under corporate opportunity doctrine. Factors: (1) subjects capacity approached because president of golf course, (2) Corporations expectancy part of running a golf course might be managing property. (3) corporations ability possible. Golf course not in chapter 11 bankruptcy. Subjects disclosure didnt disclose. Punctillio of an honor most sensitive INTERMEDIATE DUTY - Arises in the context of hostile takeovers - The duty of care may be a little weak, the duty of loyalty may be a little strong - Created in the intermediate form to look at fairness to some degree, but gives some deference like under duty of care WASTE - Hard to establish [akin to dumping cash into the Potomac River] - Doctrinally a good thing to argue - Burden: on plaintiffs

83

Test: so one-sided that no business person would do it Reality: rare, akin to unconscionable, onerous standard [Disney]

84

CONTROLLING SHAREHOLDERS_________________________________________________________ Do the owners have a contractual duty to each other?? The corporation? Why impose a duty on controlling SHH?? - They must pay what they owe for their stock - They have to adequately finance the corporation [or loans will be subordinated] - Can generally do whatever they want [i.e. transfer stock w/out restrictions] o BUT practical/doctrinal problems arise when that owner has power through ownership to control the corporation through election of directors o When SHH have a voting interest that significant control, they are controlling SHH because can create a de facto board Doesnt always have to be someone who has a majority of shares; Power to elect directors can occur at lower #s, particularly where = rationally apathetic board Where that number resides is a question of fact o To the extent that we have imposed a fiduciary duty on directors, these SHH should also have to bear some duty Controlling SHH on both sides of Transaction - Controlling SHH loyalty duties o The framework for fiduciary duties may not work well b/c not making same decisions, not fiduciaries - (a) To begin a complaint against a controlling SHH, a minority holder must show: o (1) controlling SHH on both sides of transaction and o (2) Got a benefit that the minority did not get Met where parent does not sue for breach of K between subs b/c benefits parents, hurts minority SHH of sub [Sinclair] Not met where the extra amount controlling SHH gets is due to their greater share, such as with a distribution or dividends [Sinclair]; although would be different if controlling SHH owned a different class of stock that got everything, other class got nothing. - (b) If proved, burden controlling SHH to prove overall fairness o Slight presumption that controlling SHH transactions are fair Cant be shown with a breach of K b/c where there is a breach, someone generally sues [Sinclair] May be able to make the argument was fair where parent engages in transactions with some subs, not others, can show was [Sinclair]: (a) not within excluded subs ability to exploit; (b) not within their line of business; (c) compare capacities in which came to them The assessment involves 2 steps [Wienberger] Fair Dealing [process] easier to evaluate for judges/lawyers Who was involved? How quickly was it done? Disclosures? SHH approve? With information? Fair Price [substance] lawyers/judges not as good at this part Whoever has the BOP on this will lose b/c fair prices tend to exist in a range; that is why the focus is on process and burden-shifting Mechanism to determine fair price? o DE courts initially used block method, only considered 3 things and required expert testimony o As business valuation matured, had a rich set of methods that made DE system seem archaic was abandoned, but judge still has to weigh all of the testimony [harder for him to figure out] o Tendency is for the investment bankers to try to estimate future cash flows Way around this [Kahn v Tremont]: Establish an independent committee that approves the transaction Split boards in half interested/disinterested

85

Have disinterested in a different room, approve transaction If mimics arms length transaction mentioned in Weinberger, burden minority SHH [will likely lose] The court will also look at the integrity of this committee, if beholden to the majority unable to show fair process Definitions outside / independent / disinterested sometimes used interchangeably BUT just because someone is outside, could still have conflicting interests

Sale of Control Control is valuable, blocks of shares with control tend to have more value. - Some argue that the premium should corporation because it belongs to the corporation [losing argument] - The general rule is that Controlling SHH can keep the premium they receive for the sale of their shares: o Current legal trend absent looting or corporate assets, conversion of corporate opportunity, fraud or other acts of bad faith, a controlling stockholder is free to sell, and a purchaser free to buy, that controlling interest at a premium price. o ALI agrees if premium paid for opportunity to exploit minority shareholders, sale should be discouraged by requiring premium to be shared. - The exception to that rule is the doctrine of looting: o Prohibits controlling SHH from selling shares to a jerk o Looting is the idea that the buyer exploits/hurts the corporation o If the controlling SHH sells to someone they know will loot, the premium the corporation [not the SHH] o To avoid this, controlling SHH should get assurances from buyer about his plans, should avoid selling to jerks - Perlman v. Feldman: is an interesting case where even though there was no looting, the corporation divested the premium from Mr. Feldman, and is also unique in that the premium SHH [not corporation], but this case can be distinguished on three grounds: o (1) Feldman wore three hats: director, officer, controlling SHH o (2) Occurred in context of tight govt controls [Korean War, steel shortage] o (3) End buyers were the buyers was likely would circumvent ability of company to make a profit b/c could get steel at lower price Cash-Out-Merger It is OK to engage in a cash-out merger between parent-sub, but needs to be arranged as an arms length transaction [Wienberger] - Where a controlling SHH is on both sides of deal, can rig it to get more benefits [will be able to sell higher/buy lower] o Generally no duty to tell other side o There is when there are people on both sides, particularly where there is a fiduciary role in one corporation to get information [i.e. tell SHH about the possibility of getting a higher price for shares, that there had been a time constraint in performing studies] - In these cases, controlling SHH will have to show entire fairness - To avoid judicial review, can use procedures to eliminate the impact of their being on both sides [create an arms length negotiation] by allowing directors only on one side negotiate with each other. o People mess this up all the time [mostly b/c are trying not to have an arms-length deal] o If advising controlling SHH, make sure they do this b/c goes a long way in avoiding litigation - Approval of the SHHs goes a long way too [common device in controlling SHH transactions], but only where SHH is informed, receive all pertinent information. Sinclair Oil Corp. v. Levien DE (1971) Facts: Parent corporation owns 97% of stock. Public shareholders own 3%. Three categories of transactions that P complains violated controlling shareholders duty to corporation: (1) Dividend controlling shareholders put their own people on BOD and BOD declared very large dividends, (2) Corporate opportunities parent engaged in corporate opportunities with other subs, (3) breach of output contract of partly owned and wholly owned sub didnt sue for breach.

86

Holding: Found not liable on (1) because both majority and minority shareholders received same benefit therefore BJR, (2) also did not overdo corporate opportunity doctrine therefore BJR. Did find breach for #3 controlling shareholder on both sides of transaction and controlling shareholder decided not to sue. Therefore, burden shifts to controlling shareholder to prove fairness of not suing for breach. Perlman v. Feldmann sale of control 2nd Cir. (1955) Facts: Feldman was dominant shareholder, president of the corporation and chairman of BOD of Newport Steel Corporation. Buyers were end-users of steel who were interested in securing a source of supply in a market becoming ever tighter in Korean War. Ps alleged that portion of consideration was for premium of controlling stock. Holding: Controlling shareholders are allowed to sell their stock for a premium and keep the premium. BUT exception looting doctrine prohibits controlling shareholders from selling their controlling shares at a premium to a jerk someone who is going to exploit the corporation at the expense of the minority shareholder When a sale necessarily results in a sacrifice of this element of corporate good will and consequent unusual profit to the fiduciary who has caused the sacrifice, he should account for his gains. Special case because also was on BOD cant sell office as fiduciary Weinberger v. UOP, Inc. merger DE (1983) Facts: Class action suit by minority shareholders of UOP challenging elimination of minority shareholders through cash-out merger between UOP and majority owner, the Signal Companies, Inc. In 1974 Signal agreed to purchase 1,500,000 shares of UOPS authorized by unissued stock at 21/share. End of 1977, Signal still had left over cash. Did feasibility study by four directors of UOP that were officers of Signal. Feasibility study concluded good investment to buy shares at up to $24. Executive Board meeting of Signal where UOP president invited to attend. UOP president, Crawford, said that proposed price range of $20 - $21/ share was generous. Crawford retained Lehman Brothers to render fairness opinion. Lehman Brothers had been acting as UOPS investment banker for many years. Hired partner in Lehman Brothers and long-time director Glanville. Granville didn't actually conduct study but instead assembled three-man team to do fairness opinion and then telephoned conclusion that 20-21 was fair to Granville. March 7, 1978 UOP sent letter to shareholders advising them of negotiations. Merger not submitted to shareholders until annual meeting. At shareholder meeting, merger became effective and each share converted to right to receive $21 cash. Holding: Breached fiduciary duty to minority stockholders. Feasibility study conducted by officers of Signal who were on BOD of UOP - prepared by UOP directors, using UOP information for exclusive benefit of Signal. Nothing done to disclose feasibility study to outside UOP directors or minority shareholders Inquiry - what information defendants had and measure against what gave to minority. Germane information information that reasonable shareholder would consider important in deciding whether to sell or retain stock When on two boards, one is parent and one is subsidiary, duty must be exercised in light of what is best for both companies. Can do cash-out merger but must look like arms length transaction. Need to show entire fairness in price and process. Kahn v. Tremont Corp. DE (1997) Facts: Tremont Corporation purchased 7.8 million shares of stock of NL Industuries. Tremont was controlled by Valhi that owned 44% of its stock. The shares of NL were purchased from Valhi by Tremont. Valhi was 90% owned by a trust for family. Controlling share-holder self-dealing transaction. Property (NL shares) traded for cash (after artificially inflating value) o Dutch auction - each shareholder of NL would decide how many, if any, shares to tender and at what price within a designated price range. NL would then determine the lowest uniform price that would enable to purchase 10 million shares. o Benefits to Valhi of selling shares of Tremont (1) tax savings from not being majority shareholder (2) Position to deconsolidate NL from financial statements improving access to capital markets. Holding: Decided that was interested transaction and buyer needed to show that $11.75/share was fair transaction. o Special Committee designated of three outside directors BUT all had significant prior business relationships with Simmons or Simmons' controlled companies. o Controlling shareholder will continue to control special committee.

87

Board approved with three most interested members of baord abstaining while other two members voted with special committee o Burden does not shift to SHH to show unfairness since independent committee was not really independent.

88

CHANGES IN CONTROL__________________________________________________________________ Structures of changes in control are generally contractual, with some statutory provisions. Courts will generally defer to whatever structure is elected. Basic Deal Structures - (1) Merger o Defined by statutory procedure o Two corporations merge one [like marriage]; S + B SB o Can be a triangular merger, meaning that it occurs between two corporations and a wholly owned subsidiary of one of them may be structured as such for tax reasons (2) Asset Deal: a.k.a. stock for assets or cash for assets o Can pick and choose some, not all, of what buyer has the two are combined, buyer gets some of the A&L of seller and vice versa o The transfer of assets/liabilities is contractual o Some liabilities [particularly regulatory ones] come along with the assets o Some additional parties may have to consent to the transfer [i.e. lenders] (1) Merger s + b = SB traditional standard combination (2) Asset Deal b(gives stock or money), s(gives assets and liabilities) = Bs A&L, Ss A&L pick and choose what you like / also called cash for assets or stock for assets (3) Stock Deal* b(gives money or stock), s(shareholders give earnings, shares) = B(if buying majority) owns subsidiary just buying shares. Not cherry-picking. Can pay with cash or shares of itself (another company). If buyer owns majority of shares then owns a subsidiary. could be done through tender offer or friendly sale. *tender offers are a form of stock deals Merger consolidate with or sell assets to another corporation Tender Offer acquiring corporation purchases directly from the shareholders of the target corporation a controlling interest in the companys stock Negotiated Changes In Control Acquisition Forms Purchase of assets buyer negotiates for assets that it wants and can limit liabilities it undertakes; usually negotiated as a package deal for a lump sum Purchase of assets buyer negotiates with target shareholders for purchase of stock and they are free to sell or not independent of each other Target shareholder vote not required no rights to appraisal Corporate entity remains intact same name and agreements remain Buyer could be left to deal with minority shareholders if not all shareholders willing to sell Stock for Assets acquiring corporation trades stock to acquire assets of target corporation Dilution of acquiring companys assets unless shareholders of acquiring corporation have preemption rights Can form subsidiary to keep newly acquired corporation separate Stock for Stock can use own stock to acquire stock of target corporation Merger acquisition carried out in conformity with a states corporation law. Target absorbed by acquiring corp and ceases to exist. REQUIRES approval by requisite number of shareholders in BOTH target corporation and acquiring corporation Can sometimes be skirted with triangular or subsidiary merger Can qualify as tax-free acquisition

89

ALI 6.01 A transaction in control of the corporation to which the corporation is a party should require approval by the shareholders De Facto Mergers Under corporate law statutes, shareholders voting and appraisal rights are dependent on the type of transaction. Farris v. Glen Alden Corp. (cant go from mining to conglomerate) Penn. (1958) Facts: Glen Alden, corporation that engages in principally in mining anthracite coal and started manufacturing air conditioning units. List purchased 38.5% of Glen Alden stock, and put own Directors on BOD. Two corporations entered into reorganization agreement. Glen Alden would acquire all assets of List. Glen would issue stock to List. Glen Alden would assume List liabilities. Solicited proxy vote and majority of Glen Alden shareholders approved. Shareholder alleged solicitation was defective because (1) did not give notice to the shareholders that true intent and purpose was to effect a merger, (2) failed to give notice of right to dissent to plan of merger and claim fair value of shares (3) did not contain copies of a text of certain sections of Business Code. Holding: Found reorganization agreement was actually a de facto merger. Under PA law, if shareholder of domestic corp which becomes party to a merger or consolidation, entitled to fair value of shares upon surrender. Question of whether if didnt sell would end up forcing to give up stock in one corporation and against his will accept stock in another. Found would because instead of coal mining would be shareholder of large conglamorate with much bigger assets and bigger debts o Also because of additional shares issued of List, would have less proportional interest in new corp. than had in Glen Alden. o Glen Alden didnt acquire List, List acquired Glen Alden Hariton v. Arco Electronics, Inc. (here were dissolving corp, have this stock OK) DE (1963) Facts: Arco and Loral Electronics are New York corporations engaged electronic equipment business. Entered agreement where Arco would sell assets to Loral and Loral would give shares of Loral. As part of complete liquidation of Arco, Arco would distribute Loral shares to former-Acro shareholders. Held: Found transaction had same result of merger, but since merger statute and sale of assets statutes were different, and didnt need to give same rights as merger. Model Act 11.01 standardizes procedural requirements and consequences of various types of transactions. Dissenter rights in mergers and share exchanges, sales of all or substantially all assets, and in amendments to articles of incorporation that significantly alter shareholders rights. Therefore, not likely that de facto merger problems will arise under Model Act Cheff v. Mathes DE (1964) Facts: Holland Furnace Company manufactures warm air furnes, etc. Employed unique practice of having retail salesman. Maremont wanted to take over Holland. Maremont had been involved in liquidation of number of businesses. Maremont informed CEO that his company then owned 100,000 shares of Holland and he wanted to be on BOD. Substantial unrest among employees of Holland that Maremont seeking control of Holland. Board authorized purchase of company stock on market with corporate funds. Mrs. Cheff also made personal purchases. Holland Board decided to purchase large block of Maremont stock. Had to borrow substantial sums from commercial institutions. Holland stock price rose. Stockholder sued saying that purchases of stock by Holland were for the purposes of insuring the perpetuation of control by incompant directors. Holding: Purchase of own stock was OK Burden on directors to justify purchase as one primarily for corporate interest, but not same burden as when self-dealing interest DIRECTORS MUST SHOW THAT REASONABLE GROUNDS TO BELIEVE A DANGER TO CORPORATE POLICY AND EFFECTIVENESS EXISTED.

90

If directors satisfy burden by showing GOOD FAITH and REASONABLE INVESTIGATION, will not be penalized for honest mistake of judgment if mistake appeared reasonable at time made. Premium OK because cannot expect seller not to want a premium for controlling interest Other possibilities of reasons for shareholder unrest rebutted. To contrary found evidence that board, RELYING ON INVESTIGATION, reasonably believed danger

The Venacular See pg 683 Defense Mechanisms Popular defenses include blank check preferred stock as well as classified boards, poison pills, golden parachutes, and advance notice requirements Advanced Notice Requirements require shareholders give advance notice of directors nominations containing shareholder activism Enhanced Scrutiny Unocal Corp. v. Mesa Petroleum Co. DE (1985) Facts: Tender offer by Mesa for shares of Unocal. 2-tiered tender offer offer to buy a bear majority of stock of corporation with promise/threat that after gaining majority to effect a merger (once majority shareholder can do / but would have majority shareholder f.d.). [like Weinberger] 2nd tier receives only IOUs Board sees threat of Mesa as liquidator and greenmailer. Wants to respond reasonably Board makes tender offer of their own buy shares of $72 of debt/share. Open to all shareholders (not 2 tiered) but not open to Mesa! Holding: Judge says BOD action was reasonable response. Because of threat need to be excluded. BUT didnt completely tie the hands of the aggressor b/c aggressor can still make all-cash offer. Standard BOD facing hostile bids of control have burden to prove (1) reasonable investigation, (2) threat to corporate policy and effectiveness (3) responded to threat proportionally. Proportionality factors for takeover bid - inadequacy of price offered, nature and timing of offer, questions of illegality, impact on constituencies other than shareholders, quality of securities being offered in exchange. Here coercive because of two-tiered tender offer coupled with greenmail $54 offered at front too low and junk bonds in back BJR still applies, but omnipresent specter that board acting primarily for own interests Enhanced duty calls for judicial examination at threshold before protections of BJR may be conferred Fiduciary duty to shareholders act in best interest of coporaionts and includes protection from perceived harm from third parties or others shareholders. But not absolute. Tender offer standard If (1) reasonable response, (2) to threat to corporate policy and effectiveness and (3) response proportional THEN director action subject to protection of BJR !!! - posed threat when deciding that a threat was posed, BOD can take into account whether offer confuse shareholders, disrupt corporate policy, etc.

designed to

Selective self-tender in Unocal later outlawed by Federal Securities Regulation all-holders rule tender offers need to be open to all holders of designated class of securities.

91

Reasonable Response Standard Differences between ALI and Unocal ALI places burden on shareholders to show defensive tactics not reasonable / Unocal puts burden on directors to show was reasonable ALI differentiates between actions to enjoin (subject to reasonableness) and actions to hold directors personally liable (directors cant be held liable if comply with ordinary BJR standards) Duty of Loyalty Some courts view actions in response to tender offers under Duty of Loyalty Once BOD decides to take action (especially if evidence shows took actions in self-interest of issuing shares to employee purchase plan and appointing themselves as voting trustees) must prove FAIR and REASONABLE Poison Pills DE Supreme Court upheld poison pill as defensive tactice in Moran v. Household International, Inc., 500 A.2d 1346 (Del. 1985) Flip-over pills grant target shareholders rights in bidders securities Flip-in pills grant target shareholders rights in the target corporations securities Revlon, Inc. v. MacAndrews & Forbes Holdings, Inc. (He cant break us up, only you can break us up) DE (1986) Facts: Revlon BOD made deal with Frostmann to purchase Revlon assets and with no-shop and fee if transaction aborted. Revlon was faced with hostile bidder and took appropriate defensive mechanisms to respond under Unocal. Then took action with third party that would lead to same effect of breaking up company that hostile bidder had in mind. Holding: Once take action that would lead to sale, must auction off to highest bidder. duty of board thus changed from preservation of Revlon as a corporate entity to maximization of the companys value at a sale for the stockholders benefit Board made support of notes covenant integral part of deal even though primary responsibility to shareholders Lock-up option with Forstmann ended auction at the expense of shareholders and directors breached primary duty of loyalty Lock-up not per se illegal but cannot foreclose further bidding to shareholders detriment. No shop also not per se illegal, but board primary duty is that of auctioneer Refinements of Enhanced Scrutiny Paramount Communications, Inc. v. Time, Inc. Supreme Court of DE (1989) Facts: Two corporate giants (Time and Warner Communications) planned business combination between themselves in merger of equals. Times BOD carefully considered merger options and deemed Warner to be good partner maintain journalistic integrity. Time to control board, but Warner to receive approximately 62% of Time-Warner. Hostile bidder threatened to disrupt merger. Paramount made all-cash offer to purchase outstanding shares of Time. Time took steps to protect Time-Warner transaction. Decided to recast merger as outright cash and securities acquisition of Warner. Time would make all-cash offer for Warners outstanding stock. Rejected Paramounts higher second offer. Shareholders assert Revlon claim saying agreement with Warner effectively put time up for sale. At first, tried to deal TRIANGULAR MERGER. Wouldnt require vote of Time shareholders b/c using subsidiary only Warner shareholders BUT if on NYSE do need shareholder approval for triangular mergers Holding: Action taken by time was under Unocal standard and was reasonable response to perceived threat. Applying Unocal, we reject the argument that the only corporate threat posed by an all-shares, all-cash tender offer is the possibility of inadequate value. Times BOD by entering into initial merger agreement did not enter into auction requiring Revlon duties. Absent narrow facts of Revlon, BOD is not under per se duty to maximize shareholder value in the short term, even in context of a take over

92

Two circumstances that implicate Revlon duties (1) corporation initiaties an active bidding process seeking to sell itself or to effect, a business reorganization involving clear break-up of company, (2) target abandons long-term starategy and seeks an alternative transaction involving break-up of the company Failure to negotiate cannot be said to be uninformed especially when 12/16 members were outside directors Directors not obliged to abandon a deliberately conceived corporate plan for a short-term shareholder profit unless there is clearly no basis to sustain corporate strategy

Paramount Communications v. QVC DE (1993) Facts: Paramount planned strategic alliance with Viacom, Inc. Each share of Paramount common stock to be converted into .10 Class A voting stock, .90 Class B non-voting stock, and $9.10. Paramount adopted no-shop provision and agreed to termination fee of $100 million. Also Viacom given option to purchase 19.9% of Paramount if a triggering event (lock-up option) could pay with subordinated note of questionable marketability and could elect to require Paramount to pay cash difference equal to purchase price and market price. QVC offered to pay $10 more per share. Viacom raised offer price. Then QVC raised price. Adopted defensive measures to twart unsolicited, more valuable tender offer from QVC. Holding: Found that unlike Time, deal changed Paramount from disaggregated population of owners to a controlling shareholder. Therefore, Revlon duty applied. Conduct was not reasonable to process or result. Pending sale of control implicated in the Paramount-Viacom transaction required Paramount Board to act on informed basis to secure the best value reasonably available to stockholders. None of the defensive measures are illegal per se but must be employed reasonably! Irrespective of the present Paramount Boards vision of a long-term strategic alliance with Viacom, the proposed sale of control would provide the new controlling shareholder with the power to alter that vision Because of the intended sale of control, the Paramount-Viacom transaction has economic consequences of considerable significance to Paramount stock-holders. Once control has shifted, the current Paramount stockholders will have no leverage in the future to demand another control premium. As a result, the Paramount stockholders are entitled to receive, and should receive, a control premium and/or protective devices of significant value Dont need breakup just pending sale of control Time-Warner stock for stock trade resulted in Time being controlled by a fluid aggregation of unaffiliated stockholders both before and after merger. If stock for stock trade and one company was private company then might result in sale of control. Under facts of this case, Paramount directors had the obligation: (a) to be diligent and vigilant in examining critically the Paramount-Viacom transaction and the QVC tender offers, (b) to act in good faith, (c) to obtain and act with due care on, all material information reasonably available, (d) to negotiate actively and in good faith with both Viacom and QVC Defensive measures were not reasonable and limited their ability to exercise fiduciary duties Williams v. Greier - Unocal analysis should be used only when a BOD unilaterally (w/o shareholder approval) adopts a defensive measure to perceived threat. If BOD recommends and shareholders approve weird defensive measure entitled to BJR 3 Circumstances for higher Revlon duty: (1) Revlon break-up (2) QVC sale to controlling shareholder (3) conscious, manifest decision to sell Model Act Separate provision for share-to-share merger. Can sign commitment to exchange shares (and submit to shh) and then if approved, happens DGCL doesnt have separate share-to-share exchange under model act Deal Protection
o

Deal protection sometimes necessary b/c bidder invests substantial time and resources lining up control transaction

93

Deal protection examples - covenants that target board will use "best efforts" to obtain shareholder approval or at least to recommend that shareholders approve o FIDUCIARY OUTS - need to design measures providing bidding assurance while permitting target directors to discharge their fiduciary duties Ace Limited v. Capital Re Corp. (Can play footsie, cant give up BOD independent fiduciary duty) DE (2000) Facts: ACE filed motion for TRO against Capital Re. Capital Re wishes to cancel Merger with ACE and accept alternative all cash/all shares bid. ACE contends that under no-talk and termination provisions Capital Re cannot validly terminate the Merger Agreement. Boards decision whether to terminate was determinative b/c of stockholder agreements resulted in ACE having 46% of vote 6.3 - "no talk" - prevented officers, directors, agents from taking proposals from third party unless: (1) in good faith believed likely to be Superior Proposal (2) Board based decision on written advice of outside counsel (3) confidentiality agreement must be no less favorable than the one with ACE (4) must give ACE notice of intent to furnish info o ACE said violated agreement b/c didn't receive written advice of outside counsel Holding: Found Capital Re interpretation of provision more likely. No talk provision didnt require written advice of counsel. o better reading is that provision requires decision to "be based" on written advise but leave ultimate judgement about fiduciary duties to board o RS Contracts 193 - "promise by fiduciary to violate his [or her] fiduciary duty or promise that tends to induce such a violation is unenforceable on public policy grounds" o "One thing for a baord of directors to agree not to play footsie with other potential bidders or to stir up an auction. That type of restriction is perfectly understandable, if not necessary, if good faith business transactions are to be encouraged. Quite another thing for a BOD to enter into merger agreement that precludes board from considering other offers unless lawyer is willing to sign opinion." Can have defensive measure such as no shop but must be balanced o if receive SUPERIOR PROPOSAL then can consider Omnicare, Inc. v. NCS Healthcare, Inc. DE (2003) Facts: NCS was in financial difficulty. August 2001 - Omnicare gave bid for $270 but deal structured as asset sale in bankruptcy. Proposal was lower than debt. Would have provided only small recovery for Noteholders and no recovery for stockholders. Said would not consider transaction other than sale of assets. Other company, Genesis proposed transaction outside bankruptcy context. NCS executed exclusivity agreement with Genesis. Omnicare then submitted another bid. NCS used bid to negotiate higher price with Genesis. Omnicare submitted offer for higher amount. NCS Board withdrew its recommendation to stockholders to vote in favor of Genesis offer BUT STILL HAD TO SUBMIT TO SHAREHOLDERS under Deal Protection provision Holding: Found deal protection devices of the NCS board were both preclusive and coercive" - accomplished a fait accompli - NCS BOD had to submit and then shareholder voting agreements would be put into place o In applying judicial scrutiny to defensive devices designed to protect merger agreement must (1) determine that measures are not preclusive or coercive, (2) see if within "range of reasonableness" in making proportionality determination o NCS directors decision to adopt defensive devices to "lock up" merger mandated special scrutiny under two-part test Dissent, Chief Justice Veasey o Framework of DE corporate law based on enabling statute o Process of merger result of decision by directors and controlling shareholders to secure what looked like only value-enhancing transaction available on brink of bankruptcy. o Court must respect reasoned judgment of BOD and give effect of wishes to controlling stockholders o Deters bidders from engaging in negotiations like those present if always need fiduciary out.

94

Dissent, Justice Steele o Court asked to examine the decision-making process of the board should decline to interfere with the consummation and execution of an otherwise valid contract o At time NCS board and majority stockholders agreed to voting lockup, terms were best reasonably available to all stockholders balanced against risk of no deal at all.

OmniCare being replayed in BearSterns. No duty of care problem (target company exercised due diligence, good faith, etc) Tension in Omnicare o Majority opinion more weight on right of shareholders to get the best deal o Minority opinion more weight on bidder to need to lock up deal, exchange of certainties

Guaranteed In OmniCare, it was guaranteed that with omission of fiduciary out, the BOD could not consider deal that was better for minority shareholders In BearSterns, essentially guaranteed

95

DERIVATIVE LITIGATION________________________________________________________________ The Derivative Action Derivative action is neither the initial nor the primary protection for shareholders against managerial misconduct. Other protections professional standards by managers, oversight by outside directors, disciplinary power of market, shareholder voting Three sided action Plaintiff, Defendant, Corporation Rule 23.1 of the Fed. Rules of Civ. Pro Derivative action brought by shareholder in corporation in member in unincorporated association Complaint shall be verified and allege: (1) plaintiff was shareholder or member at the time of the transaction of which complains of OR share/membership thereafter devolved on plaintiff by operation of law (2) action is not a collusive one to confer jurisdiction Should also allege efforts to obtain the action desired from directors or comparable authority and, if necessary, from shareholders or members And reasons for failure to obtain the action OR making the effort Must represent the interest of shareholders or members similarly situated in enforcing the right of the corporation or association. Action shall not be dismissed or compromised without approval of the court. Notice of proposed dismissal or compromise shall be given to shareholders or members in manner court directs. Derivative Actions Under Federal Law Derivative actions can be brought under Sarbanes Oxley for black-out profits trading by officers or directors trading when pension plan participants cannot Difference of SOX to state corporate law pg 754 Distinguishing Derivative Suits Grimes v. Donald DE (1996) Facts: DSC Communications Corp. entered into Employment Agreement with James Donald, CEO. Donald entitled to substantial severance payments if in his good faith judgment there was "substantial interference by the Board in carrying out" the general management and affairs of DSC. Shareholder alleged board breached its fiduciary duties by abdicating its authority to Grimes. Holding: Shareholder's action was direct, not derivative o distinction between direct and derivative actions depends upon "nature of wrong alleged" and relief that could result if plaintiff were to prevail o If monetary recovery will not accrue to the corporation as a result more likely to be individual ALI 7.01 - derivative actions when corporation suffers or is threatened with a loss. Courts more prepared to permit the plaintiff to characterize the action as direct when the plaintiff is seeking only injunctive or prospective relief Who? What? DIRECT LITIGATION One or group of shareholders v. BOD Shareholders allege direct harm to them by BOD (customary to also name corp as D) - example: Honeywell (not receiving shareholder list, preemptive rights Both parties hire and pay for their own lawyers and costs (BOD might be indemnified/insurance) Plaintiffs damages or other remedies DERIVATIVE LITIGATION Shareholders (ON BEHALF OF CORP) v. BOD Corporation is suing, but brought by shareholders HARM to corporation as whole

Payment? Damages

Plaintiffs lawyer paid by corporation If remedy granted, remedy goes to

96

Control

are theirs keep Defendants lack control over plaintiff litigation strategies

Result

Typical purpose is (1) enforcement, (2) compensation, or (3) deterrence

corporation Defendants have considerable control over plaintiffs litigation strategy - can decide if case is Meritorious. Should be dismissed/settled Compensation may be slight so deterrence looms large.

Potentially skewed incentives: Risk of collusion between Plaintiffs lawyer and Individual Ds PLAINTIFFS LAWYER know coporation is paying fee. If they negotiate they will get that fee (guaranteed settlement), if they go to trial, risk of getting fee lost? INDIVIDUAL DS- also incentive to settle because entitled to be indemnified. If BOD pays individually then corporation likely to pay back if terms of settlement, BOD didnt do anything wrong, but harm happened PLAINTIFFS SHAREHOLDERS at best have small stake in suit (Stone v. Ridder) BUT Plaintiffs shareholders may prefer trial to settlement even if litigation costs to corporation exceed benefits if deterrence value compensates for excess Policy and Other Considerations (1) DISTRIBUTION- derivative action distributes the recovery more broadly and evenly than direct action shareholders other than plaintiff will share in recovery from a direct action only if the action is a class action brought on behalf of all these shareholders (2) PRECLUSION - derivative action will have preclusive effect that spares corporation and defendants from being exposed to multiplicity of suits (3) ATT'Y FEES - successful plaintiff entitled to award of attorney's fees in derivative action directly from corporation but in direct action plaintiff (4) Derivative actions more COMPLEX procedurally and impose additional restrictions on eligibility of plaintiffs Direct or Derivative o Shareholders Directly Harmed Dividends (Dodge v. Ford) Inspection (Pillsbury) Preemptive Rights (Katsowitz) Voting Rights (Datapoint; Campbell; Auer v. Dressel) Minority Oppression (Donahue; Nixon) Cash Out Merger (Van Gorkam) Entrenchment (Revlon; Unocal; Time; QVC; Ace; Omnicare) Corporation Harmed Legal Violation/Internal Control (Caremark, Stone, Miller) Excessive Compensation (Disney; Aronson) Business Quarrels (Schlonsky v. Wrigley- not having lights, BJR applies) Self Dealing (Lewis) Coproate Opprotunity (Perlman - took premium for control from corp; Broz) Controlling Shh Claims (Sinclair; Tremont) Greenmail Recovery (Cheff - took money out of corp and gave to hostile bidder)

The Demand Requirement o Fed. R. Civ. Pro. 23.1 shareholders in derivative action required to ask directors to persue lawsuit on corporations behalf unless can demonstrate sufficient reason for failure to make demand (1) DE Approach o Demand excused when reasonable doubt that BJR applies

97

o If BOD has changed composition Aronson v. Lewis [DE Approach] DE (1984) Facts: Plaintiff is stockholder of Meyers Corp. Meyers is wholly owned subsidiary of Prudential Business Maintenance Corp. Entered into transaction with Leo Fink who owns 47% if outstanding stock for outrageous automatically-renewing consulting contract. Fink to spend entire business time advancing Meyers interest. Board also approved interest-free loans to Fink. o P alleged that made no demand to Meyer's Board before filing derivative action because: (1) all of BODs are defendants and participated in wrongs complained of (2) Defendant Fink, having selected each director, controls and dominates every member of the Board and every officer of Meyers (3) Institution of this action would require the defendant-directors to sue themselves Holding: Held that demand was not excused (1) director defendant liability risk is insufficient to excuse demand directors are always defendants in derivative actions (2) Plaintiff showed no particularized pleadings that showed controlling shareholder controlled board (requires more than mere voting power). (3) Directors suing themselves argument was a bootstrap argument. o Demand is only excused if there is reasonable doubt that the board is disinterested or fully informed so that BJR would not apply (2) Universal Demand o Appeal avoid demand futility stage of litigation Model Rule 7.42 written demand required in all cases. Demand must be made at least 90 days before filing of lawsuit unless irreparable injury to the corporation will result from waiting longer. o ALI 7.03 also follows universal demand approach (3) New York Approach o Demand excused if specific factors present: interest, ignorance, egregiousness Marx v. Akers, NY (1966) demand excused in 3 situations: (1) complaint alleges with particularity that a majority of BOD is interested in the challenged transaction (2) complaint alleges with particularity that a BOD did not fully inform themselves about the challenged transaction to the extent reasonably appropriate under the circumstances (3) complaint alleges with particularity that the challenged transaction was so egregious on its face that it could not have been the sound business judgment of the directors. (4) Always (dispense with any need for demand) o Appeal avoid delay, BOD will have power to dismiss/settle later Directors Authority to Terminate a Suit and Special Litigation Committees o Appointed by BOD and consists of directors whose conduct is not in question o Special litigation committee must become fully informed AND act independently. Special Litigation Approaches: (1) New York strong deference, focus on special litigation attributes and process Auerbach v. Bennett [New York Approach] New York (1979) Facts: Summer 1975 General Telephone & Electornics Corp. made initial investigations to determine if company had engaged in questionable payments to public officials or political parties in foreign countries. Audit committee found evidence of such conduct and disclosed to shareholders in political vote - $11 million. Auerbach, a shareholder instituted shareholders derivative action. Corporation formed special litigation committee of 3 board members who joined after events in question. Special litigation found none of individual defendants had breached duty of care and that action would waste litigation costs with unliklihood of success and cause damage to corporation. Corporation and four individual defendants moved for dismissal. Supreme Court granted dismissal. Question of whether business judgment rules apply to decision of special litigation committee to terminate shareholder derivative action.

98

Holding: Looked at two-tiered action: whether decision of special litigation committee (second tier) in reviewing wrongful actions of bribes (first tier) insulated first tier action? o Business Judgment Rule does not foreclose judicial inquiry into the disinterested independence of members of special litigation committee. o Because independent and interested, and evaluated decision to dismiss on legal, ethical, commercial, promotional, public relations, fiscal and other factors, courts cannot inquire into the merits of decision. o Examines the process of selection of special litigation committee and whether independent and informed. If find this then do not inquire into substantive merits of litigation decision or original actions complained of. o Court looked at three possible areas of investigation: (1) whether SLC selected/followed appropriate procedures (2) substantive merits of SLCs decisions (whether wise), (3) whether bribes constitute violations requiring remedies o Because found (1) was fulfilled, didnt look beyond o Says court more qualified than BOD to determine if investigated/determined legal liability(?) (2) Pennsylvania stronger procedural oversight, still deferential, not looking at merits. FACTORS Cuker v. Mikalauskas (PA 1997) Courts should examine circumstances around the decision to determine if the decision itself should be protected by BJR. Factors bearing on the BODs decision include (1) whether the board or its special litigation committee was disinterested, (2) whether assisted by counsel, (3) whether it prepared a written report, (4) whether it was independent, (4) whether it conducted an adequate investigation, (5) whether it rationally believed its decision was in the best interest of the corporation (acted in good faith) (said adopted ALI, but actually ALI is closer to DE). Modest judicial overlay without probing merits. (3) ALI distinguishes suits alleging (a) duty of care violations BJR deference and (b) duty of loyalty violations or worse, process and substance o If under-lying complaint involves duty of care violation corporations motion to request dismissal subject to BJR subject of review (if not grossly negligent- ok) o If underlying complaint involves duty of loyalty violation court will consider whether special litigation committee (1) was adequately informed under the circumstances and (2) reasonably believed that dismissal was in best interest of corporation based on grounds court deems to warrant reliance. (4) Delaware DE two-step - dintinguishes between (a) demand made and refused cases here deference unless wrongful and (b) demand-excused cases here look at process (especially independence) and substance (court to use its own independent business judgment Zapata Cor. v. Moldonado [DE Approach] DE (1981) Facts: Derivative lawsuit in which demand was excused. Special litigation committee then seeks to dismiss. Special litigation committee consisted of two new directors. Held: A. IF DEMAND EXCUSED - Trial court is experienced in legal disputation and should hear evidence then (1) inquire into SLCs independence and good faith with burden on SLC. If not satisfy DENY the dismissal, (2) if satisfied that was done in independence and good faith apply own business judgment to balance relevant claims and interest. - if demand excused, then type of allegation that could lead to collusion, questioning board action B. DEMAND WAS MADE BUT REFUSED Dismissal decision respected unless wrongful - if demand made, then not in duty of loyalty type situation, special litigaiton decisions should be respected (5) NC & NJ apply Delaware 2-step to all derivative suits (Alford v. Shaw, PSE&G) (6) MBCA supports dismissals based on inquiry and allocates burdens according to wether decision was made by a majority of independent directors (burden on shareholders) or less than a majority of independent directors (burden on BOD) In re The Limited, Inc. Shareholders Litigation DE (2002)

99

Facts: Derivative suit where alleged that Companys directors committed corporate waste and breached F.D. of loyalty and due care by rescinding a Contingent Stock Redemption Agreement, and funding in part with monies of rescinded agreement a selftender offer that resulted in no consideration to the company. Company BOD decided to dismiss complaint, BUT 6 or 12 directors not disinterested. No special litigation committee. o One director had secured 25 million dollar gift from head of BOD for Ohio State no bright line test, but a gift of that magnitude could be considered as instilling a sense of owingness in director. Holding: Should have first formed Special Committee - and make independent, informed judgment on whether litigation should have proceeded o Because challenged transaction were approved by a unanimous board of 12, six of those directors were either interested or subject to disqualifying doubts about their independence. o Where the challenged actions are those of a BOD consisting of an even number of directors, plaintiffs meet their burden of demonstrating the futility of making dmenad on the BOD by showing have the board was either interested or not independent. Alternative Dispute Resolution INDEMNIFICATION/INSURANCE__________________________________________________________ o Ways corporation can protect directors (officers) from personal liability: (1) take advantage of EXCULPATORY statutes (put in articles of incorporation, statute diminish or eliminate directors liability for certain breaches of duty, (2) indemnification, (3) purchase insurance to cover cost of director/officer liability o Attract officers/directors with greatest capability without them having to worry personal wealth on line o BUT risk providing offers may create a moral hazard Area of state-only law not yet federalized Law in this area can come from a number of sources: statute, charter, bylaw, contracts. Hierarchy controls (if bylaw conflicts with charter, charter first. If charter conflicts with statute, statute controls)

o o

Exculpation 102(b)(7): exculpation adopted by DE after VanGorkem (case that held directors responsible for large sums of money; passed in order to make sure that directors were going to still want to serve on the board) certification of incorporation may also contain A provision eliminating or limiting the personal liability of a director to the corporation or its stockholders for monetary damages for breach of fiduciary duty as a director, provided that such provision shall not eliminate or limit the liability of a director: (i) for any breach of the directors duty or loyalty to the corporation or its stockholders; (ii) for acts or omissions not in good faith or which involve intentional misconduct or a knowing violation of law; Also (iv) says that if the directors violate rules re: dividends, cannot be exculpated Other states, MBCA also apply this exculpation statute to officers, consider the DE statute too narrow Indemnification Model Act, Subchapter E Indemnification (including advance for expenses) provides financial protection by the corporation for its directors against exposure to expenses and liabilities (1) Mandatory Indemnification DGCL 124 - TO the extent that a present or former director or officer of a corporation has been successful on the merits or otherwise in defense of any action, suit or proceeding referred to in subsections (a) and (b) of this section, or in defense of any claim, issue or matter therein, such person shall be indemnified against expenses (including attorneys fees) actually and reasonably incurred by such person in connection therewith. this is mandatory Subsection (a) non-derivative suits Subsection (b) derivative suits Fighting issue = what means to be successful on the merits addressed in Waltuch Note: statute does not specifically cover indemnification for costs of seeking indemnification should seek this as a director in K

100

Waltuch v. Conticommodity Services, Inc. 2nd Cir (1996) Facts: Suit filed against silver trader Norton Waltuch as vice-president and chief metals trader for Conticommodity Services, Inc. alleging fraud, market manipulation, and antitrust violations. All suits were eventually settled and dismissed with prejudice, pursuant to settlements in which Conticommodity paid over $35 to various suitors. Waltuch was dismissed with no settlement contributions. He had unreimbused legal fees of $1.2 million. Holding: Conticommodity required to indemnify Waltuch under DGCL 145(c) mandatory indemnification provision for officers or directors successfully defending lawsuits successful on the merits or otherwise. Success on merits or otherwise does not mean moral exoneration. Success = walking away without liability [dismissed w/ prejudice] and not having to make a payment Technical defense is also deemed success on merits or otherwise. Settlements (under DGCL 145(c)) - Settlement that is with prejudice and results in dismissal of case w/o payment or assumpation of liability successful on merits or otherwise - Settlement without prejudice not successful for meaning of statute Wholly or Otherwise Model Act 8.52 requires director to be wholly successful only if the entire proceeding on a basis which does not involve a finding of liability. Wholly means that cannot be entitled to partial mandatory indemnification if obtain dismissal of some but not all accounts. May result in occasional indemnification due to procedural defenses. (2) Permissive Indemnification Empowers but does not require the corporation to indemnify directors and officers in a wide range of circumstances Indemnification, Permissive: DGCL 145(a): A corporation shall have power to indemnify any person who was or is a party [to any suit (other than an action by or in the right of the corporation)] by reason of the fact that the pereon is or was a director, officer, employee or agent of the corporation - other than an action refers to derivative suits does not apply to those - Note that the application is broader than just directors, anyone you are inducing onto the team - has to be by reason of the fact that they serve one of these roles- this is addressed in Heffernan Derivative actions: 145(b) A corporation shall have power to indemnify any person who was or is a party or is threatened to be made a party to any threatened, pending or completed action or suit by or in the right of the corporationif the person acted in good faith and in a manner the person reasonable believed to be in or not opposed to the best interest of the corporation and except that no indemnification shall be made [if] such person shall have been adjudged to be liable to the corporation [except by order of the court of chancery] - So in a derivative suit, if director is held liable, not indemnified

DE Derivative basics: If lose no indemnification If settle tricky. MBCA deals with this by eliminating indemnification if settle b/c otherwise is a circularity BUT even in Model code, corporation can adopt charter provision that allows indemnification if settle derivative suit. Judge can police indemnification circularity reject settlement in derivative action if lawsuit inappropriately indemnifies

Heffernan v. Pacific Dunlop GNB Corp. (sells stock, gets sued, seeks indemnification) 7th Cir, (1992) Facts: Heffernan was a director of GNB Holdings. Pursuant to stock purchase agreement, sold 6.7% of interest in Holdings to Pacific. Pacific later sought to rescind purchase of Heffernans stock agreement under theory that it was materially misleading

101

in regard to disclosure of certain liabilities facing Holdings. Heffernan requested indemnification from Holdings under 145 of DGCL. 145(a) Corporation may indemnify anyone made party to suit b/c is/was a director Holdings bylaws make 145(a) mandatory Holding: Held suit was improperly dismissed. Substance of Pacifics allegations and the nature and context of the transaction giving rise to the complaint indicate that Heffernan may have been sued at least in part, because he was a director of Holdings and GNB. Heffernans status as director put him in position where, in performance of his duty, held to higher standard of knew or should have known of environmental liabilities of corp. Despite fact that Heffernan sold his own shares to Pacific, nexus existed between Hefferenans status as director and Pacifics suit. DE approach to indemnification is case-by-case By reason of the fact that phrase DOES NOT mean that director must be sued for a breach of duty tot the corporation for a wrong committed on behalf of the corporation to be entitled to indemnification Model Act Approach Model Act 8.51 as long as meets (1) good faith and (2) best interest of the corporation, director allowed indemnification even though he/she may not satisfy duty of care. Can be broadened by corporation through provision in articles of incorporation Can provide for indemnification to director for liability to any person for any action taken, or any failure as thte directors intentionally harming the corporation or improper financial benefit Can apply to officers as well as directors Corporation can also LIMIT rights to indemnification IDNEMNIFICATION not permissible for: (a) a proceeding brought by or in the right of the corporation that results in a settlement or a judgment against the director, (b) a proceeding that results in a judgment that the director received an improper financial benefit as a result of his conduct BUT Directors can propose to shareholders a limit of liability of directors in derivative proceedings Good Faith Not much guidance on this. One case says for permissive indemnification must be authorized by corporation and director/officer must have acted in good faith. Not clear whether good faith determination made by court or corporation Held nothing in rule restricts the court from making a good faith indemnification decision Court-Ordered Indemnification Model Act 8.54 provides for court-ordered indemnification in three situations: (1) if a director is entitled to mandatory indemnification (2) if the director is entitled to permissive indemnification to which the corporation has agreed to in a provision in the articles or bylaws, by board or shareholder resolution, or by contract, (3) if court determines, in view of all the relevant circumstances, that it is fair and reasonable to provide indemnification. BUT if adverse judgment in derivative proceeding or proceeding charging receipt of improper financial benefit, court may only order payment of expenses? Non-Exclusivity Statutes Waltruch v. Conticommodity Services, Inc. 2nd Cir. (1996) Facts: Waltruch trying to seek indemnification from Conticommodity. Tries to say that Article Ninth (?) in articles of incorporation of Conticommodity go around the requirement in DGCL 145(a) good faith reqirement for mandatory indemnification. 145(f) says Indemnification or advancement of expenses shall not be deemed exclusive of other rights to which those seeking indemnification or advancement may be entitled under other bylaw, etc. Holding: 145(f) does not permit a corporation to bypass good faith requirement of 145(a). Indemnification rights may be broader than those set out in statute, but cannot be inconsistent with scope of corporations power to indemnify BUT

102

PepsiCo, Inc. v. Continental Casualty Co., NY (1986) standards and process of DE corporate law only fall-back provisions. DE corporation may or may not adopt these provisions. Corporation indemnified without determining that directors acted in good faith and best interest of corporation. Insurance Some state law allows corporations to purchase insurance whether or not would have power to indemnify under indemnification provisions o Can buy insurance for amounts paid in settlement or adverse judgments in derivative actions Insurance doesnt cover fraudulent acts. Limited to: breach of duty, neglect, error, misstatement, misleading statement, omission or act. Recklessness sometimes covered. Losses must be fortiuitous caused intentionally Ps will sometimes not allege fraud so that will reach insurance D&O directors and officers two types: (1) covers corporation for responsibility to indemnify directors and officers (2) covers losses incurred by the directors and officers which the corporation is not permitted or required to indemnify Exclusions in policy define coverage more than public policy provisions Many times charges involving dishonesty excluded may be implicated by certain breaches of fiduciary duty Insurance applies only if covered claim against covered party. Why insurance broader than indemnification apparatus? Less risk to corporation itself Doesnt come out of pocket directly but not completely free Insurance involves 3rd party less need to police SECURITIES LAW________________________________________________________________________

Traditional Federal Securities Reg. o Scope - broad (by definition of "securities"), BUT with exemption o Focus - mostly disclosure (anti-fraud) o Acts - usually general (material/misleading) o SEC - details by rulemaking, enforcement mostly self-regulating o Fed Courts - check Congress/SEC o Plus - stock exchanges (NYSE, NASDAQ) o struggle of balancing power between federal overlay and state corporate law

Original Federal Securities Law Acts: Securities Act of 1933 primary offers/sales of [non-exempt] securities registration statements & prospectuses - circular describing something for sale o 1933 Act Registration Procedures and Risks - prepare/file preliminary prospectus; circulate final - extensive disclosure to Section 11 - time and expense plus exposure to section 11 Corporate deals potentially within scope - aside from basic initial public offerings (IPO) o Section 11 of 1933 Act Anti-fraud rule: "propspectuses for a security that contained an untrue statement of a material fact committed to state a material fact required to be stated therein or necessary to make the statements therein not misleading. [entile]ny person acquiring such security [to] sue those who signed it; all directors or partners of the issuer, everyone who consented to be named in in, including various expert experts such as accountants and engineers plus all underwriters with respect to security.

103

1933 Exemptions private placement accredited investors shareholder re-sales business offers / sales

Securities Exchange Act of 1934 secondary (listed securities or widely-held) annual, quarterly, special reporting (10K - annual, 10Q- quarterly, 8K- special) section 10(b) and Rule 10b-5 anti-fraud rules proxy rules section 14(a) and Rule 14a-9 anti-fraud rules tender offer regulations Section 14(d) and anti-fraud rules (141-d)

Principal Supplement Acts Trust Indenture Act of 1939 public offerings of debt Investment Company Act of 1940 regualtion of mutual funds, securities brokers/deals Williams Act of 1968 tender offers Foreign Corrupt Practices Act of 1976 accounting books and records, internal controls Sarbanes-Oxley Act of 2002 (SOX) extensive reporting/governance tinkering, including professional standards of securities lawyers what business is it of congress to tell us how to behave? Sarbanes-Oxley Act of 2002 o SOX Traditional Exercises CEO/CFO certifications of annual and quarterly financial statements and controls, subject to stiff criminal penalties enhanced disclosure of various complex financial arrangements and accoutning rapid and current disclosure basis don't wait until the end of the quarter - need to report if have something coming internal controls certified by management, audited by auditors - Bennett - case with people jumping out the window
o

SOX Encroaching (on state corporate law) Exercises board audit committee composition and authority - independent; select/supervise/pay outside auditor - financial expertise; have or disclose why not bans corporate loans to O&Ds corporate code of ethics - have or disclose why not - disclose all amendments or waivers professional conduct of securities lawyers - SEC rule: counsel to report violations to GC or QLCC - if inadequate response, then to audit committee or board - special rules for subordinate lawyers - debated but un-adopted "noisy withdrawal" concept

104

[past 5 years have show that encroaching works - better audits, etc] o In suits by shareholders do they also invoke SOX to lend credence to their argument? SOX provisions usually don't create private right of action Could put problem in Miller v. ATT&T - corporate officers violated duty of care in allowing breaking of state law - DUTY OF CARE Probably not implied private right of action for federal law o Question of whether there are implied private rights of action in anti-fraud provisions? Didn't say specifically whether shareholders could maintain actions for fraud Supreme Court -decided there was implied private right of action in Securities(?) Act Special Position of Securities Law Lawyers Two distinguishing characteristics of federal securities law practice: (1) usually securities lawyer who decides whether a particular transaction can proceed, or whether bc of legal problems, must be cancelled (2) Securities lawyer typically does not merely advice, but rather is usually active participant in process can be in middle of controversy PROXY REGULATION___________________________________________________________________ Three pillars of Securities Law: causation, materiality, culpability Illustrative Doctrines in Securities Regulation: Securities Regulation: There are significant direct intersections between federal law and state law. The scope of securities regulation is vast. Illustrative Doctrines in Securities Regulation: In context of proxy rules- when companies solicit proxy votes from shareholders, they have to circulate proxy statement that requires total truthfulness. CAUSATION: 3 important cases arising out of 14(a) and 14(a)(9): Mills v. Electric Auto Light- looks at doctrine in securities law called causation. This case looks at causation, looks at statement that has been made and the transaction being voted upon. If statement being made is essential link to transaction being voted on, causation is established. Cole v. Schenley Industries Virginia Bankshares- If proxy statement being circulated is not required by any laws/bylaws/charter, its just being done voluntarily, that is not essential part of transaction, there is no causal link between that and the transaction being voted on. There is always requirement of causation in securities law, but exactly what that looks like varies, and is beyond the scope of this court. MATERIALITY - Other pervasive question in securities law- question of materiality? How important is proxy statement? If its trivial, forget about it. If its material, then we care. TSC Industries: A fact is material in securities regulation, if a reasonable investor would consider it important in making an investment decision. Virginia Bankshares: facts are facts and opinions arent facts. Opinions are likely outside the reach.

Illustrative Doctrines II: Shareholders Proposals on Governance: SEC v. Transamaerica (3d Cirt, 1947) See slide- he flipped through this quickly. Shareholder Proposals on Social Matters: Roosevelt v. DuPont

GENERAL Mills v. Electric Auto-Lite Co. (Doesnt matter if fair if didnt do properly)

105

Supreme Court (1970) Facts: Shareholder is complaining about missing/omitted statements of material fact in proxy statement of disclosure. Jurisdiction under private action in 14(a). Facts resemble Weinberger v. UOP cash out merger orchestrated by majority to get rid of minority. Required 2/3 vote. Majority failed to say majority was in control of company and therefore on both sides of transaction. Issue is whether this missing material fact was causation. Causal relationship between proxy statement and transaction on which shhs are to vote. Held: Securities law is concerned with disclosure of all material facts not whether or not it was fair to fail to disclose. No need to determine with requirement of proof of whether defect actually had decisive effect on voting. Test Is the statement an essential link to consummating the deal? TSC Industries, Inc. v. Northway, Inc. (Another no facts, what is material?) Supreme Court (1976) Facts: No facts in this case. Context of 14(a)-9 proxy solicitation. Act bars false or misleading statements with respect to the presentation or omission of material facts Holding: Established definition of materiality for context of federal securities law. A fact is material if there is a substantial likelihood that a reasonable shareholder (investor) would consider it important in deciding how to vote (or in making other investment decisions Does not require proof of substantial likelihood that disclosure of omitted material fact would have caused reasonable investor to change his vote. Mixed question of law and fact trier of fact determines what are facts of significant importance, then ultimate question of materiality resolved as matter of law This concept of materiality has been generalized throughout all federal securities law (and even in other areas of law). Cole v. Schenley Industries, Inc. (Glen Alden returns with misleading proxy statement) 2nd Cir. (1977) Facts: Glen Alden purchased 18% of Schenleys common stock from Lewis Rosentstiel, founder and Chairman. Intention that minority holders would be afforded opportunity to sell shares to Glen Alden. Glen Alden announced proposed merger and solicited proxies. Alleged violation of (1) did not accurately show how much cash Schenley had, (2) did not adequately reveal how much cash would be transferred from Schenley to Glen Alden (3) did not reveal the value of a share of Schenley stock Held: Proxy solicitation was essential part of merger. If had known facts, might exercised appraisal rights and merger not have gone through. Doesnt matter if suit would have been successful (appraisal suit) Virginia Bankshares, Inc. v. Sandberg Supreme Court (1991) Facts: Similar to Mills and Weinberger case, but difference here is that majority holder owns 85% of the stock and the other people own 15%, both companies organized under VA law, and law then was that if there was a merger, minority shareholders didnt need to vote in short-form merger. Here, the 85% holder wanted to cash out minority, with board opining in voluntary proxy statement that price is high or fair. So, here not required to get Shh vote or proxy statement, but they sent out a voluntary one. Holding: Issue 1: Are reasons, opinions, beliefs actionable? Not standing alone, even if factual in some sense Issue 2: Whether voluntary vote was an essential link between statement and consummating vote on transaction? No, nothing in law or charter documents required the company to get a vote, so no essential link. So, this voluntary solicitation = not essential link. Court emphasized that not required by VA law or by corporations by-laws or required by contract or charter. Fradkin v. Ernst District -Ohio (1983) Holding: Distinction between liability of corporate issuer and outside accountants for proxy statement mistakes. Corporation issuing negligence standard Outside accountant scienter fault Shareholders Proposals

106

Rule 14a-8 sets up elaborate mechanism by which a shareholder may, if certain conditions are met, have a proposal of shareholders action included in proxy statement management sends to shareholders If included, management will have to provide means for voting on shareholders proposal

Securities and Exchange Commission v. TransAmerica Cor. 3rd Cir. (1947) Holding: cant use notice provision Proxy Rule X-14A-7 management given notice of proper subject for action by security voters to block shareholder proposals for things on which shareholders are entitled to vote. DE law permits shareholders to vote on amendments to by-laws. Roosevelt v. E.I. Du Pont De Nemours & Co. DC (1992) Holding: Proposals to accelerate environmental cleanup and proposal for reports on Research and Development on R&D marketing- All = Ordinary business operations (exclude) Proxy Contests Shareholder proposal mechanism does not serve as tool for wrestling control away from management. If this is desired, shareholders must solicit proxies for use at shareholders meeting and management will do so also. Proxy contests are expensive sometimes will do tender offer instead Proxy contest trying to gain voting control, maybe for only one question or for choosing directors If staggered board, harder to do. Tender offer trying to gain stock ownership Kennecott Copper Corp. v. Curtiss-Wright Corp. 2nd Cir. (1978) Holding: Language in proxy solicitation can be convoluted, and still not be misleading BUT other statements misleading. Remedy of adjourning annual meeting and permitting resolicitation not unconditionally joined from voting proxies.

107