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Business Organizations a) Sole Proprietorship – Ultimately flexible i) Formation –individual just decides to form – No formalities ii) Management- sole proprietor runs the business- No formalities iii) Financial Rights & Obligations – Sole proprietor keeps all profits and losses (no protection). Usually a small or modest amount of capital iv) Taxation – Pass through – all income from business is income of sole proprietor v) Liability to third parties – Sole proprietor PERSONALLY LIABLE for all debts of the business vi) Existence – Lifetime of the sole proprietor vii) Comments (1) Pass through taxation, flexible management, no formalities are all benefits (2) Personal liability, run by sole proprietor, and limited existence all downsides b) General Partnership i) Formation – Consent to form a partnership between parties, Agreement by the partners to participate in a common enterprise for profit. NO PUBLIC FILING NECESSARY by may file a statement of partnership authority. ii) Existence- Without a definite term dissolves upon the withdrawal of any partner OR may be terminated upon dissolution of agreement UPA- dissociation causes dissolution. RUPA- Dissociation causes dissolution if remaining partners elect not to continue iii) Management – Default rule one partner/one vote for ordinary business decisions, unanimous vote for extraordinary decisions such as adding a new partner or selling major asset of firm. iv) Financial rights and obligations- EQUAL SHARING OF PROFIT/LOSS, may be altered by contract. Any partner has the power to bind the partnership as a whole v) Taxation – pass through taxation vi) Liability – general partners are PERSONALLY LIABLE for the DEBTS OF THE PARTNERSHIP (big downside) – UNLIMITED LIABILITY vii) Comments (1) Pass through taxation, ability to attract a few partners for capital, and flexibility to contract all good. (2) Prevalent industries that use this are accounting, law and medicine (3) However, liability by all partners for debts of partnership is a big downside risk, GP suck!! (4) MALPRACTICE FOR A LAWYER TO DO THIS NOW c) Limited Partnership i) Formation – Filing of certificate with state officials, limited partnership agreement required ii) Duration- lasts as long as the parties agree so SPECIFIC TERM, or absent agreement, until a general partner withdraws iii) Management – General partner manages. Control is by general partner with limited partners prohibited from participating in management. ONLY THE GENERAL PARTNER HAS THE AUTHORITY TO BIND THE LP AS TO ORDINARY MATTERS. Limited partners can vote but cannot behind the LP ULPA – Uniform limited partnership act- removes control rule and specifics limited partners are limited partners. iv) Financial Rights and obligations – Profit/loss – determined by agreement; obligations – determined by agreement v) Taxation – Pass Through vi) Liability to third parties – GENERAL PARTNERS PERSONALLY LIABLE FOR DEBTS OF PARTNERSHIP, Limited partners are liable only to the extent of their investment so long as they do not participate in the control of the business. third parties may compel limited partners to satisfy their contribution obligations in limited partnership agreement. vii) Existence- specified terms viii) Comments (1) More protection than general partnership, only general partner is personally liable, but not total protection; pass through taxation – All are strengths (2) Limited management; some exposure to liability – Weaknesses d) Limited Liability Corporation & Partnership – LLC & LLP i) Formation – Formal, requires a filing of a certificate or article of organization, creature of statute ii) Duration- Approaching perpetual, varies by jurisdiction
iii) Management – Any form of management is permitted (1) Member managed - more like partnership, members have ability to bind the LLC in the same way as partners (a) This is when the LLC’s day to day operations are run by a LLC member (2) manager managed- corporate, members have no authority to bind the LLC (a) hire an outside person to manage the day to day issues iv) Financial Rights and Obligations (1) Vary by jurisdiction – Provides some shield against liability (2) Obligations for contribution: Vary by agreement (3) Financial structure very flexible v) Liability to third party- Personally not held liable vi) Taxation – Pass through taxation vii) Comments (1) Strengths – Flexible management, pass through taxation, provides liability shield (2) Weakness – Does not provide the vehicle for raising capital (3) Members and managers have a fiduciary duties of care and loyalty depending on manager managed or member managed (4) Member managed- Fiduciary duty is parallel those in a general partnership (5) Manager Managed - only managers have fiduciary duties; a member who is not a manager does not owe anyone a fiduciary duty e) Corporation i) Formation – Solely a creature of State statute; filing of a certificate of incorporation & articles ii) Duration- Perpetual, regardless of what happened to shareholders, directors, or officers iii) Management – Separation of management and ownership – management by board of directions and officers. Significant requirements for annual meetings and special meetings. (1) Shareholders vote on: (a) Election of directors (b) Extraordinary transactions (Mergers, acquisitions, sale of all assets, etc…) (c) Amendments to articles (d) Non-binding resolutions and requests for studies by shareholder proposal (2) Very formalized management – Officers managements, BOD – affairs and business iv) Financial Rights/Obligations – (1) Profit/loss sharing: Pro rata based on share ownership (2) No Obligation for contributions (3) Financial structure may have multiple classes of stock and debt (4) Financial structure strictly regulated by state and federal securities law. v) Taxation – Double Taxation vi) Comments (1) Strengths – Greatest vehicle to raise capital, corporate shield from liability, ability to manage large ventures (2) Weaknesses – Double Taxation, Lacks flexibility, Hippie Shareholders Agency a) Agency Relationships i) Principal – (employer) Liable to the third party in contracts ii) Agent – (employee) Acts on behalf of principal, may legal bind the principal, interacts with 3 rd party iii) Third Party – (customer) usually interacts with the agent, Who is an agent? i) The relationship of principal and agent necessarily involve some matter of business, but only that where one undertakes to transact some business or manage some affair for another by authority and on account of the latter, the relationship of principal and agent arises. ii) The Agent can bind the principal legal for actions taken by the agent on behalf of the principal, if the power is expressly or inherently granted to the agent. Fiduciary Obligations of Agents i) Reading v. Regem (page76) – Solider in uniform driving truck through war zone for money. RULE: A agent owes a duty of honest and good faith to his principal
(1) IF an agent acquires an asset for himself, which he obtained solely through opportunity arising as an agent for the principal, then the agent is accountable for that asset or benefit to his principal. General Automotive Manufacturing v. Singer (page 79) – Man working as manager of a repair shop and when shop couldn’t do the repair he would send it to another companies shop and keep the money if they customer paid over. RULE: Agent has a fiduciary duty to one’s principal, a duty of utmost good faith and loyalty as to not act adversely to the interest of the principle.
iii) MAIN POINT OF AGENCY – Agent has a duty not to unjustly enrichment himself while using a right, privilege, or opportunity granted to him solely as his position of an agent for the principal…. (1) Example – Agent watches animal for principle, and uses animal for an event that makes agent money, principle is entitled to the money, because of the agent’s fiduciary obligation to principle.... (2) Also if Agent fails to disclose all the facts regarding the Agents service to the principle, Agent may be able to avoid violating his fiduciary duty. iv) Comments (1) IF a person achieves fame through personal accomplishments, this could be argued against this duty because they did not gain this opportunity solely through their role as a agent (2) If the principal and agent relationship ends, does the fiduciary obligation end with it? (3) If the agent discloses all the facts surrounding his adverse conduct or potential conflict, the agent may avoid his fiduciary duty to act solely on behalf of the principle. (4) Agent violates his duty of loyalty to principle or Partner in 3 ways (a) Agent receives payment from 3rd party in connection with some transaction between the principal and the third party… (b) Agent makes a secret profit from the agency relationship by secretly transacting with the principal (c) Agent uses her position to make a personal profit from someone who has no relationship whatsoever to the principal, while acting on behalf of the principal III. Partnerships- an association of two or more persons to carry on as co-owners a business for profit. a) Characteristics of Partnerships i) Personal liability of partners; limited duration; dissolution on exit of one partner; limited transferability of ownership interests; “Pass-Through” taxation ii) Partnerships are not a good idea because all partners are liable for one partner’s acts and only unsophisticated people with no access to legal advice use partnerships. b) Partnership Formation i) § 15-202. Formation of partnership; powers ii) Except as otherwise provided in subsection (b), the association of two or more persons (i) to carry on as co-owners a business for profit forms a partnership, whether or not the persons intend to form a partnership, and (ii) to carry on any purpose or activity not for profit, forms a partnership when the persons intend to form a partnership. A limited liability partnership is for all purposes a partnership. iii) Subject to § 15-1206 of this title, an association formed under a statute other than (i) this chapter, (ii) a predecessor statute or (iii) a comparable statute of another jurisdiction, is not a partnership under this chapter. iv) In determining whether a partnership is formed under Section 15-202(a)(i), the following rules apply: (1) Joint tenancy, tenancy in common, tenancy by the entireties, joint property, common property or part ownership does not by itself establish a partnership, even if the co-owners share profits made by the use of the property. (2) The sharing of gross returns does not by itself establish a partnership, even if the persons sharing them have a joint or common right or interest in property from which the returns are derived. (3) A person who receives a share of the profits of a business is presumed to be a partner in the business, unless the profits were received in payment: (a) of a debt by installments or otherwise; (b) for services as an independent contractor or of wages or other compensation to an employee; (c) of rent; (d) of an annuity or other retirement or health benefit to a beneficiary, representative or designee of a deceased or retired partner;
(e) of interest or other charge on a loan, even if the amount of payment varies with the profits of the business, including a direct or indirect present or future ownership of the collateral, or rights to income, proceeds or increase in value derived from the collateral; or (f) for the sale of the goodwill of a business or other property by installments or otherwise. (4) A partnership shall possess and may exercise all the powers and privileges granted by this chapter or by any other law or by its partnership agreement, together with any powers incidental thereto, including such powers and privileges as are necessary or convenient to the conduct, promotion or attainment of the business, purposes or activities of the partnership. (5) Notwithstanding any provision of this chapter to the contrary, without limiting the general powers enumerated in subsection (d) of this section, a partnership shall, subject to such standards and restrictions, if any, as are set forth in its partnership agreement, have the power and authority to make contracts of guaranty and suretyship and enter into interest rate, basis, currency, hedge or other swap agreements or cap, floor, put, call, option, exchange or collar agreements, derivative agreements, or other agreements similar to any of the foregoing. c) Partnership by estoppel i) In order to establish a partnership by estoppel, four elements must be proven: (1) Plaintiff must establish a representation, either express or implied, that one person is the partner of another—i.e., that there was a holding out of a partnership (2) The making of the representation by the person sought to be charged as a partner or with his consent (3) A reasonable reliance in good faith by the third party upon the representation (4) A change of position, with consequent injury, by the third person in reliance on the representation. Partnership Property i) Any asset acquired in the name of the partnership is partnership property (1) A transfer directly to the partnership in its own name (2) A transfer to one or more partners acting in their capacity as partners AND the name of the partnership appears on the transfer document ii) If the partnership is not named, property acquired by one or more partners is partnership property if the document transferring title indicates the buyer was acting in his capacity as a partner iii) Property purchased with partnership funds is presumed to be partnership property Fiduciary Obligations of Partners i) Meinhard v. Salmon (page 105) (1) Joint adventurers, like copartners, owe to one another, while the enterprise continues the duty of the finest loyalty. Many forms of conduct permissible under normal circumstances, are forbidden by these fiduciary ties. (2) Factors to consider: (a) Are the parties’ joint adventurers or partners? (b) Did one member enjoy an opportunity or benefit coming to him by virtue of the venture? (c) A partner must disclose new opportunities arising out of the current venture or opportunities gained by one partner as virtue of the partnership…Duty of loyalty owed to each other by partners or co-venturers (3) Factors (a) Did the new adventure arise out of the partnership or co-adventure? A nexus of relation!! (b) Did one partner disclose to the other partner the opportunity? Duty may be satisfied (c) Did one partner gain secret profits due to his position in the venture? Or steer an opportunity away for himself? ii) Partners Conduct (1) The only fiduciary duties a partner owes to the partnership and the other partners are the duty of loyalty and the duty of care stated in (b) and (c) of this section. (2) A partner's duty of loyalty to the partnership and the other partners is limited to the following: (a) to account to the partnership and hold as trustee for it any property, profit, or benefit derived by the partner in the conduct and winding up of the partnership business or derived from a use by the partner of partnership property, including the appropriation of a partnership opportunity; (b) to refrain from dealing with the partnership in the conduct or winding up of the partnership business as or on behalf of a party having an interest adverse to the partnership; and
will to leave (b) Obligation to buy – firm other investors. (2) Example – Where one partner brings money and the other services. set price. Each partner does not violate a duty or obligation under this chapter or under the partnership agreement merely because the partner's conduct furthers the partner's own interest. A partner shall discharge the duties to the partnership and the other partners under this chapter and the duties under the partnership agreement and exercise any rights in accordance with the obligation of good faith and fair dealing. (d) Method – Cash. but this may be modified by agreement. subject to other applicable law. and the rights and obligations of the partner are the same with regard to the loan or transaction as the rights and obligations of a person who is not a partner. appraise. The partner contributing capital is NOT entitled to receive his money because partners were equally sharing profits and losses. Formation of Partnership Agreements i) Generally. disability. installment. and it was inserted in the agreement. divorce. consequences for refusal (c) Price – book.The dissolution of a partnership is the change in the relation of the partners caused by any partner ceasing to be associated in the carrying on as distinguished from the winding up of the business (a) Dissolution is not the same as termination ii) Departing partner is still liable on all firm obligations unless released by creditors iii) These default rules may be circumvented by a partnership agreement that lays out the specifics arrangement for when a partner leaves office. or a knowing violation of law. OR a dissociation may occur when a partner leaves where the partner is entitle to a liquidation value of his share on the day of dissociation (1) § 29. except: (1) May not Eliminate the implied contractual covenant of good faith and fair dealing ii) Courts try to give maximum effect and freedom of contract iii) In forming a partnership. g) h) Raising Additional Capital – Partnership – see page 136-39 i) May be avoided by proper planning & agreement ii) Pro-rata capital requirement – additional points buy in. 5 . and termination (1) Different mechanisms for when a partner leaves a partnership v) Sharing of losses (1) Default – losses are shared in the same proportions that profits are shared so equally if not sated otherwise. Lawyer must remember to draft a buyout clause (1) Any lawyer who advises people entering into a business venture and who fails to urge the adoption of a buy-sell agreement is guilty of malpractice. formula. financing (e) Protection against debts of partnership (f) Procedure for offering either to buy or sell iv) Winding up. intentional misconduct. iii) Pro-rata dilution – used to make up a shortfall when a partner fails to contribute capital. A partner's duty of care to the partnership and the other partners in the conduct and winding up of the partnership business is limited to refraining from engaging in grossly negligent or reckless conduct. partners can contract anything in the agreement. and the venture fails. f) Partner leaves Partnership i) A partnership may officially dissolve upon a member leaving.(3) (4) (5) (6) (c) to refrain from competing with the partnership in the conduct of the partnership business before the dissolution of the partnership. (2) Exit strategy is key!! (3) Price and valuation are important considerations – hire an appraiser (4) Agreement should provide a mechanism for the appraiser because it is hard to agree during a fight (5) Things to remember in Buyout Clause (a) Trigger events – Death. A partner may lend money to and transact other business with the partnership. Dissolution. relation to duration. Use points to represent capital needed.
made by agreement. Treasurer ect. used where funds are not suppose to be needed later.they own the corporation. membership requirements.iv) Penalty dilution – Points cost less after the intital funds. (5) Corporate Securities (shown below) VI. (c) Voting Rights.can convert shares to another security in the corporation (e) Redemption rights. including hiring corporate officers (CEO. f) Voting provisions. CORPORATION INFORMATION IV. indemnification provision V.manage affairs.allows the shareholder to acquire shares when the corporation issues new shares. provides incentive for partners to contribute more funds. management provisions. Constitutes and Terms (1) Corporate Actors (a) Shareholders. but are later requested.in the discretion of the directors when to give these out (b) Liquidation rights – these are given out by pro rata distributions when corporation closing.able to elect the directors and to approve significant corporate transactions proposed by the board (d) Conversion rights. each share represents an ownership interest in the corporation and gives the shareholder a bundle of rights and powers (b) Have financial rights to dividends when declared by the board and to a pro rata share of corporate assets on dissolution (c) have the right to elect directors and approve fundamental corporate transactions and liquidity rights that enable them to sell their shares (d) TWO COMMON CATEGORIES – common shares and preferred shares (ii) Basic Equity Ingredients (a) Dividends. v) Loan agreements – Partners make loans to the venture at interests vi) New partners added. elect board of directors (b) Board of directors. Financial Rights in Corporation (1) Equity Financing (i) Issuing shares of stock (a) Pay corporations for the shares. (f) Preemptive rights. Now able to say “to conduct any legal activities” e) Size/Composition of Board of Directors i) Many statutes don’t require this anymore ii) Also most stautes have gone away of the requirement of having at least three people on the board. comparable to stock at an open market. but junior to the claims of debt holders and creditors (2) Debt financing 6 . may also have numerous others ex: VP.Must be filed with the secretary of state c) Capital Structure of the Corporation i) Must specify the securities or shares the corporation will have authority to issue ii) Describe the various classes of authorized shares d) Purpose and Powers of the Corporation i) Just say purpose of corporation.General partner may sell new partnerships shares to anyone at whatever price. Articles of Incorporation (Certificate) a) Name of the Corporation b) Registered Office and Agent i) Registered office – where service of process of will sent ii) Registered agent. CFO) (2) Inside Directors (3) Outside or independent directors (4) Management/officers – president and secretary required by statute. Chief information.gives the shareholder the ability to force the corporation to repurchase the stock. The articles specify the amount to be paid in liquidation and the priority of payment. This protects exisiting shareholders proportional interests (voting and ownership) in the corporation (iii) Common Shares (a) (iv) Preferred Shares (a) This is senior to common shares as to dividends and liquidation rights. Not as important now a days because of the decline of the ultra vires doctrine.
merger or other combination) ii) Separate existence – (1) Is a legal person (2) has its own constitutional rights. in her personal capacity. equal protection and commercial speech. Nature of Corporations a) Essential Characteristics of a Corporation i) Perpetual existence (1) unless otherwise designated in charter/articles/certificate. (4) Shareholders can vote on many important matters. if the organizers (1) in good faith tried to incorporate. forming a corporation as the vehicle for investment by other people. Treasurer ect. promoter is still held liable unless the third part releases promoter.22(b). right to vote on some matters.) manage the day to day affairs of the corporation. and then forms the corporation later. i) Obligations of Promoters to Third parties for Pre-incorporation commitments (1) If a promoter signs a contract. (3) Even if corporation adopts the contract. (a) A promoter can also if the corporation is never made enforce the contract on the other side because he is individually responsible! (i) Promoter will not be held liable if there is a novation agreement which the corporation agrees to take over all rights and duties under the K and the other party releases the promoter from all liability under the K (4) Extent Promoters may bind a corporation Pre-Incorporation (a) De Facto Corporation (benefit) – Court may treat a firm not properly incorporated as incorporated. and fundamental changes to articles of incorporation or by-laws. (3) acted as a corporation. but is not required too. sale of all assets. shareholders are liable only to the extent of their investment in the corporation v) Centralized Management – Separation of ownership and control.A corporation is not personally liable for the acts or debts of the corporation except that he may become personally liable by reason of his own acts or conduct.taxing of corp dividends and other distributions iv) Limited Liability – (1) General shareholders. Only the board of directors acting as a unit can speak on behalf of the corporation or establish policy for the corporation.Due process for property interest.Shareholder does not badger management or board when they disagree. issuance of certificate of incorporation and organizational meeting to take place to elect the board. bankruptcy) (3) Shareholder dissolution (vote to dissolve. (2) MBCA § 6. drafts articles of incorporation. aka. officers and directors are not liable for third party debts of the corporation. the corporation may unilaterally adopt the contract. VP. (2) Officers (President. debt holders do not acquire rights to share in earnings (3) Corporate Earnings (a) Corporation can use funds generated internally by its businesses I. vii) Freely Transferable ownership interests – Public stock market strengths this right b) Promoters – A person who identifies a business opportunity. they simply sell. iii) Means Double taxation. (2) had the legal right to do so. fundamental transactions vi) Passive ownership by shareholders (1) Have limited voice. These people are voted into their positions by the board of directors (3) Directors and officers are agents of the Corp…Owe a Fiduciary duty to both the Corporation and the shareholder. 7 . (2) Or State Dissolution (judicial order. (3) Generally.(i) Corporation can borrow money (a) can be issued by third party (outside debt) or shareholders (inside debt) (b) Debts obligations by the corporation have to be repaid to principal with interest (c) Unless provided by contract. (2) Promoter is still liable if she signed for a contract in her personal capacity.election of board. policy and affairs of the Corporation. lays out business ground. (1) BOD manages the business. but in large corporations shareholders effectively have no voice (2) BOD manages affairs (3) Feet vote. every corporation must have a board of directors that manages the corporation.
party escapes liabilities. Insurance. However. At the time of signing the contract the promoter is individually liable i. (a) Pools together assets to satisfy the liabilities of any part of the enterprise. iii) Objective standard: Where a individual stockholders are carrying on a “dummy” corporation in their personal capacities for purely personal rather than corporate ends. the stockholder may be personally liable. skirt legal rules.disregards multiple incorporations of the same business under common ownership.KEY (ii) Otherwise this element would be present in every case ii) Usually forming a corporation provides a liability shield to the shareholders. the assets of individual owners or managers are not exposed. Believes that the corporation will soon form and indemnify him and ratify the contract 2. the promoter may violate this fiduciary duty. iv) Test from Illinois state law (1) Unity of interest and ownership that separate personalities of corporation and individual to no exist (2) Fraud or injustice would be promoted by finding a separate corporate entity (a) Injustice – where a party is unjustly enriched. if injustice would be promoted. directors. this limited liability shield may be pierced under the proper circumstances. without holding an individual or another corporation liability. Corporate Veil i) FACTORS IN SHOWING THAT CORPORATE VEIL SHOULD BE PIERCED (1) Must show that there was a failure to observe corporate formalities. the court is more likely to pierce the corporate veil. but it does not mean all the subsidiary’s controlled by the parent are liable for the actions of one subsidiary (3) Enterprise liability doctrine. and officers. (1) IF the stockholder is conducting the business in his individual capacity. Other side cannot get out of the contract because the corporation was not yet formed Promoters Obligations to the Corporation i) A promoter owes a fiduciary obligation to the corporation. but to protect the creditor from some conduct amounting to bad faith when a party hides behind a corporate veil.(b) Corporation by estoppels (debt or contract) – Situation in which the promoter goes out and contracts under the corporations name when the corporation is not yet formed. avoid creditors (b) Injustice does not mean the creditor will not be able to collect or it will be extremely difficult. Promoter signed a contract on behalf of the corporation when the corporation was not yet formed a. c) d) 8 . and (2) That there was injustice or a similar wrong doing (i) Must be more than just someone not getting paid . but also a holding company-subsidiary relationship (2) Factors do determine if the stockholders are doing business in their individual capacity (a) Shuffling of personal funds in and out of the corporation (b) Following of laws. scheme to bunch assets and liabilities in separate corporations. This applies to individual. e) Corporate veil –When a corporation does not follows corporate formalities and sometimes states require injustice or a similar wrongdoing i) Parent-Subsidiary relationship (1) Pay close attention between the relationships in piercing the corporate veil: Is a sister subsidiary liable for the other subsidiary! Is there a shareholder – entity relationship. The other party (1) thought it was a corporation all along (2) would earn a windfall if now allowed to argue that the firm was not a corporation (i) Southern Gulf Marine Co 1. therefore if the promoter does not reveal a conflict in interest or makes a secret profit off the corporation. or a subsidiary / Holding company / subsidiary relationship? (2) Parent subsidiary – Piercing the Corporate veil allows the parent to be liable for the subsidiary action. Capitalization requirements (c) Failure to maintain adequate corporate records or comply with corporate formalities (d) Commingling of funds or assets (e) Domination of one corporation’s assets by another corporation (3) Also.
Walkovsky v. Was intentionally using the corporations as a way to prevent the payments of their debts (iii) Reverse Peirce 1. Don’t like it talk to the legislature 1. such as separate books and board meetings Failure to Observe Corporate Formalities (a) This includes holding shareholder/directors meetings. 3. election of directors and offiers. Have to do it out of net earnings ect. and 8.promote injustice 1.(4) (5) (6) (7) (8) Borrow as much on assets so not a lot of cash And if you do have cash you pay dividends to the partner. Carlton a. The corporation was the controlling shareholder’s alter ego (ii) Second prong. the corporate form may be disregarded in the interests of justice. 5. Common business departments. Parent pays the salaries and other expenses of the subsidiary. keeping corporate minutes. undercapitalization and disregard for corporate formalities (b) In re Silicone Gel Breat Implants Products Liabilities (i) Determining whether the subsidiary and the parent company are the same entity (ii) Totality of the circumstances test for veil piercing. 4.thats all he gets. Common directors or officers. Go through a person to get to all of their other corporations a. Subsidiary receives no business except that given to it by the parent. (i) Common directors or officers (ii) Common business departments (iii) Consolidated financial statements and tax returns (iv) Parent finances the subsidiary (v) Parent caused the incorporation of the subsidiary (vi) Subsidiary operates with inadequate capital (vii) Subsidiary receives no business except that given to it by the parent (viii) The parent uses the subsidiary’s property as its own (ix) Daily operations of the two corporations are not kept separate (x) Subsidiary does not observe the basic corporate formalities. Subsidiary does not observer basic corporate formalities (iii) If these elements are met. If do everything right no matter how much it costs to get better and claim…. 2. Parent finances the subsidiary. 6. 7. Parent uses subsidiary property as its own. Factors considered in this case= Commingling of funds. issuance of stock. Court held that the enterprise liability doctrine was present here because Carlton’s corporations held out to the public as a single enterprise and were artificially separated into different corporations Parent-Subsidiary Piercing the Corporate veil Analysis (a) Corporate Control – when a corporation is so controlled as to be the alter ego or mere instrumentality of its stockholder. (i) This is just evidence that the corporation is their alter ego for their own personal affairs Commingling Assets and Affairs (a) Using a corporations bank account for personal expenses Undercapitalization and Purposeful Insolvency CASES (a) Sea Land (i) Own used his corporations as a way to transfer funds to protect them from having to pay their debts 1. then the parent company will be directly liable for the debts of the subsidiary (i) (ii) (iii) (iv) 9 . Daily operations are not kept separate. 1. Taxi case b.
Separate books and bank accounts for each corporation.Respect corporate formalities and take out the minimum insurance (2) Enterprise Liability. (i) CASE 1. Union a. and the general partner was a corporation that they set up and acted as directors for b. (1) First. Frigidaire Corp. Two people set up a partnership in which they were limited partners. and the limited partners create a corporation fulfill the role of general partner. Directors and officers are not personally liable for the debts that they cause the corporation to incur ii) Ways to Prevent Piercing the corporate veil and Enterprise Liability (1) Corporate veil. (i) Requires a showing that ownership and personal interest were not separate. (b) Apply the corporate veil analysis to determine if the limited partners violate the arrangement of liability. then (test later) iii) The shareholders injury is derivative of the injury to the corporation.DIRECT INJURYINJURY TO SHAREHOLDER (a) Wrongful act seen as separate and distinct from corporate injury (b) Denies or interferes with the rightful incidents of share ownership ii) Derivative action (1) Suit on behalf of the corporation to enforce corporate rights that apply to shareholders only indirectly in that it affects the value of their share of the corporation (2) A suit in equity against a corporation to compel it to sue a third party to enforce a right held by the corporation (a) Many states require security for corporate costs for nominal plaintiffs (i) Not Delaware iii) Double derivative actions (1) Shareholder of a parent company suing to enforce the rights of a subsidiary corporation iv) Questions to ask to figure out if it’s a derivative or direct suit (1) Who was injured? (2) Who will receive the relief? DERIVATIVE SUITS i) Derivative suit seeks to cause the corporation to seek recovery for a wrongful act that depletes corporate assets and thereby injures shareholders only indirectly by reason of the injury to the corporation. requires the shareholder to demand that the corporation vindicate its own rights. or (1) Shareholder is individually injured and needs to enforce her rights as a shareholder. (1) Misfeasance or misappropriation of corporate property (2) Enforcement of corporate contracts with 3rd parties c) 10 . unity of interests (ii) Promotes injustice or fraud (c) Note: If advising a client facing this situation. plus careful accounting for supplies. for borrowing of drivers ect. have the client request the limited partners sign the contract in their personal capacity. where only a general partner is liable for the debts of the partnership.general partner being a corporation managed by the limited partners (a) What about a situation of a limited partnership. (9) Limited partnership. v.II. Limited partners are not liable for the debts of the general partner 2. Derivative and Demand Suits a) Shareholder Derivative Actions i) THE BUSINESS AND AFFAIRS OF EVERY CORPORATION…SHALL BE MANAGED BY OR UNDER THE DIRECTION OF A BOARD OF DIRECTORS…Delaware state law section 141(a) b) Shareholders can bring either (Eisenberg v. ii) Allows the shareholder to step into the shoes of the corporation and seek its right to restitution that he could not demand on his own. because under this arrangement the corporation is solely liable. but if the corporation is a dummy corporation. Flying Tiger) i) Direct action. then the individuals will be liable. (1) Derivative suit is a suit in equity against a corporation to compel it to sue a third party to enforce a right held by the corporation.
mean s direct lawsuit… ii) If Direct claim. or uninformed. officers or controlling shareholders . BOD decision.(3) Actions against corporate directors for competing with corporation. OR whether it is to compel the performance of corporate cats with good faith requires the directors to take in order to perform a duty which they owe to the corporation. d) Indemnification i) Directors are indemnified against actions against most liabilities.In order for a shareholder to have standing and bring a derivative action. v) The invention of derivative actions led to strike suits. bad faith. that duty was owed to the corporation and only derivatively to its stockholders. Servers as a kind of alternative dispute mechanism that requires a challenging shareholder to first exhaust intracorporate e) f) 11 . iv) Derivative Litigation Standing . liquidity and voting rights. a derivative claim usually requires the plaintiff to serve a demand upon the corporation to bring a claim against the third party. then plaintiff must serve a written demand upon the corporation (2) Wait 90 days before filling suit. (1) If demand is required. No demand required: However.duties owed to the corporation. where small shareholders would bring suits simply to recover the legal fees of litigating such a suit. OR (3) No monetary recovery will accrue to the corporation as a result. (a) Cannot argue after demand was made that it should have been excused (i) Advantages of the demand: 1. Analysis for Shareholder Derivative Action i) What type of action is being brought Derivative or Direct? (1) Whether the object of the lawsuit is to recover upon a chose in action belonging directly to the stockholders. unless the plaintiff has been rejected by the corporation (3) If demand rejected it’s a complete bar unless one shows that it was not done in self-interest. (2) Plaintiff claims that the defendants are interfering with the plaintiff’s rights and privileges as stockholders. AND (a) This is so that one does not buy shares to buy a lawsuit (2) Plaintiff must have continuing interest throughout lawsuit. the shareholder must: (1) Have contemporaneous ownership with breach of fiduciary duty. Appropriation of corporate opportunity (4) Excessive salary suits (Disney) (5) Third party torts against the corporation (6) Correction of false entries in corporate records by directors (a) These are suits that generally enforce fiduciary duties of directors. OR ii) Denies or interferes with the rightful incidents of share ownership (1) Interference with the right to vote (2) Interference with preemptive rights (3) Dilution of voting rights (4) Enjoin improper voting of shares (5) Compel dividends (6) Improper uses of corporate machinery (7) Compel dissolution (8) Challenge improper expulsion of shareholders (9) Compel holding shareholder meetings (a) All these issues are generally to vindicate individual shareholders structural financial. which means the corporation will reimburse them if they are held liable for an action ii) BUT are not indemnified against breaches of duty of loyalty Direct Suits brought by Shareholders i) These are suits brought by shareholders where a wrongful act is seen as separate and distinct from corporate injury.
Allows the court to ascertain whether the board could have acted on the demand (ii) Disadvantages of the demand: 1. (b) In re Oracle Corp.DGCL § 141(c) (1) The Board of Directors will create a special committee of disinterested/independent directors for the purpose of determining. Rights after Demand Refusal (Zapata – 2 part test and Auerbach. §141(a) a. Have to make a demand before a derivative suit not matter what 3. Director interest may either be self-interest in the transaction at issue. This would be abdication and violation of fiduciary duties. good faith and a reasonable investigation. i. Demand requirement delays litigation while the shareholder waits for the board to act on the demand 3. the committees recommendation were entitled to full judicial deference under the BJR vi) Plaintiff’s rights when BOD refuses Demand. The corporation has the burden of proving independence. Must retain some powers iv) Demand may be futile (excused) if: (1) Demand is excused because of futility when a complaint alleges with particularity that a majority of the board of directors is interested in the challenged transaction.2.the board of directors were interested. (a) CASE (i) Marx v. illegal. (a) CASE (i) Grimes 1. or insufficiently informed.demand is made: directors have a reasonable time to analyze demand and reject a. This may be because of personal. The business and affairs of every corporation organized under this chapter shall be managed by or under the direction of a board of directors b. on behalf of the board. Forewarns defendants of an impending suit giving them an opportunity to take evasive actions 2. Akers 1. the position that the Corporation shall take with respect to the derivative claims alleged on its behalf. professional or social ties to the other directors (2) Demand is excused because of futility when a complaint alleges with particularity that the board of directors did not fully inform themselves about the challenged transaction to the extent reasonable appropriate under the circumstances (3) Demand is excused because of futility when a complaint alleges with particularity that the challenged transaction was so egregious on its face that it could not have been the product of sound business judgment of the directors. Universal Demand a. (a) Evidence that even a disinterested director may be solicitous to fellow directors who are being sued.Can compose and SLC to deal with this) (a) Court will review the independence and good faith of the committee and the bases supporting its conclusions. Derivative litigation 12 . (a) Unless plaintiff can show the committees members were themselves interested or had not acted on an informed basis. v) BOD may combat Demands by forming a SLC (special litigation committee). Futile Demand. Look at the type of recovery if plaintiff wins to determine whether a suit is direct or derivative 2. Board cannot delegate all of its powers out. In this case the demand was futile because it fell under the first exemption. dishonest. OR a loss of independence because a director which is (disinterested) in a transaction is controlled by a self-interested director. This is what NY statue imposes 2. Concession that the shareholder thinks the board is capable of addressing the problem iii) Demand may be rejected by any BOD if based on a valid Business Judgment (1) Then shareholder-plaintiff must show the boards response to the demand was self-interested.
NOW BJR doesn’t protect (i) Gross negligence or breach of loyalty. IF: (1) Acted on informed basis (2) In good faith (3) In honest belief that action was taken in the corporation’s best interests. (a) Interests (i) Corporations can deter meaningful derivative suits away from shareholders (ii) Corporate interest of riding itself of meaningless derivative suits (3) Comments (a) Factors for independence of SLC (SLC has the burden of proof) (i) Question – Whether the SLC can independently make the difficult decision entrusted to it? (ii) Outside members on SLC (iii) Compensation. but it appears to be violating the spirit of the demand.Judges are not business experts (3) Encourages directors to serve 13 . ii) BJR Presumption is proven. whether the motion should be granted. breach of trust. GOOD FAITH EXERCISES OF BUSINESS JUDGMENT (a) If board just acting stupidly then BJR and they are fine (b) If board does something really stupid…then still BJR and they are fine (c) So stupid there must be something else going on….(i) Finds that the lack of SLC independence despite the composition of it were unnamed board members and its use of reputable outside law firm. The directors are allowed to use BJR unless not in good faith. is it extreme? (iv) Material ties.Henry Ford). (2) IS tainted by conflict of interest or is otherwise self-interested (3) Is so egregiously bad that it amounted to a no-win decision (very rare). BUSINESS JUDGMENT RULE a) This is a rebuttable presumption that directors in performing their functions are honest and well meaning and that their decisions are informed and rationally undertaken (a) Its presumed that the directors do not breach their duty of care b) Directors and officers will not be personally liable to the corporation for mere mistakes in judgment. because the SLC members had a long standing professional/academic relationship with principal defendants through Stanford University. insulates board from judicial review (1) In practice – If a director avoids any conflicts of interest (duty of loyalty issues) and if they have gathered information and thought about their decision. or breach in duty of loyalty in the SLC to the corporation…. c) This rule shields directors from personal liability and insulates boards decisions from judicial review i) Reasons for the BJR (1) Encourages risk taking by the board (2) Avoids judicial meddling. oppression. (2) COURTS WILL NOT SECOND GUESS DIRECTORS DISINTERESTED. like clubs or social associations (b) Factors for Reasonable investigation – Due diligence (i) Investigation time (ii) Due Diligence (iii) Paper trial – report (iv) Meeting minutes and updates (c) Bad Faith (i) Probably a lack of effort. INFORMED. (2) The court should determine. This would prevent a corporation from providing independence and procedural. OR (4) Results from an obvious or prolonged failure to exercise oversight and supervision. fraud. courts will not permit plaintiffs to second guess that decision if it turns out bad. iii) BJR is rebuttable. so long as their business judgment was not tainted by breach of the duty of loyalty or gross negligence/malfeasance. friendship or familial relationships (v) Indirect ties. applying its own independent business judgment. III. IF: (1) Decision lacks a business purpose (almost anything. Also.
Smith Mftg.A. bad faith. then the court would probably have respected his business judgment. illegality or a conflict of interest (lack of good faith) i) Fraud (1) An example of this is a director who misleads shareholders in connection with shareholder voting (2) Director knowingly disseminates false or misleading information to public trading markets breach a duty of disclosure ii) Conscious disregard to duties (1) Directors who consciously disregard their responsibilities are held liable for violating the duty of good faith iii) Illegality (1) Directors who intentionally approve or consciously disregard illegal behavior by the corporation violate their duty of good faith. Ford Motor i) It is unlawful for the board of directors to conduct the affairs of the corporation for the merely incidental benefit of shareholders and for the primary purpose of benefiting others. Barlow i) If donations are made reasonably. iii) Moral: Directors cannot openly state their intentions are to conduct the business in a way that is detrimental to the shareholders interests. even if they were informed and the behavior benefited the corporation (a) Modern courts have felt the tension because approving illegal behavior maximizes profits for the corporation (2) Conflict of interest (a) A director who is personally interested in a corporation action because he stands to receive a personal or financial benefit loses the BJR presumption Role and Purpose of Corporations a) § The business and affairs of every corporation organized under this chapter shall be managed by or under the direction of a board of directors b) Business Judgment Rule – Great preference the court gives when it judges decisions affecting the business and affairs of the corporation. perhaps a duty of care complaint may arise (1) Ultra vires. (a) If businessmen are exposed to liability they will not want to do the job (b) This encourages qualified persons to serve as directors and take business risks without fear of being judged in hindsight Ways to overcome the BJR a) Fraud. This was a legitimate business interest because the neighborhood affected the long term interest of the business.a portion of the company’s earning or profits distributed pro rata to its shareholders. those donations fall within the Business judgment rule. ii) BJR still applies (1) All Henry Ford had to do.P. Wrigley – Baseball during the day i) Plaintiff claimed Wrigley was undermining the profits because he refused to have games at night ii) Wrigley’s business decision was upheld: (1) Wrigley claimed he was interested in the integrity of the neighborhood. (1) Dividend.Of or referring to an action taken within a corporations or persons scope of authority Dividend Policy – Henry Ford Case – Dodge v. V. If Ford would have stated the case was for a greater capital investment that was in the businesses best long term interest. d) e) 14 . usually because of exceptional corporate profits during the dividend period. Co. a directors has a fiduciary duty to the shareholders to maximize their profits. in good faith. the court will not second guess the directors c) Charitable Donations. v. usually in the form of cash or additional shares (2) Special dividends. and advances the interests of the corporation. ii) If the charity is one of the directors pet charities. OR a conflict of interests perhaps a duty of loyalty question arises iii) If the donation is unreasonable or excessive.IV. conscious disregard of duties.a dividend paid in addition to the regular dividend. was give the court a legitimate business purpose for hoarding the cash.
(2) Plaintiff failed to provide any evidence that Wrigley violated his Fiduciary duty to shareholders by undermining the profitability of the business. ii) Substantive due care – was the actual decision substantively rational? (1) Whether the complaint alleges waste of assets.” No protection for unintellige nt or unadvised judgment [Gross negligence].VI. sound business judgment would deem it worth what the corporation paid. In Re Caremaker Test iv) Comments Duty of Care: (1) American Express holding – The plaintiffs disagree with the boards business decision to distribute special dividends instead of taking a corporate tax deduction on a bad investment of shares in a different company they bought: the court holds the plaintiffs have no complaint because: (a) A complaint that an action is not the most beneficial is not enough. illegality or self-dealing by the directors to overcome BJR. Reasonable Belief. and other Insiders a) List i) Duty of Care ii) Duty of Loyalty (1) Duty of Disclosure b) Facets of Duty of Care. not have a conflict of interest. (a) Conflict of Interest.informed basis and ordinary care standards relate to the process of board decisionmaking and oversight (1) Informed in making decisions (2) Monitor and supervise corporate activities Duty of Care – Two Types i) Procedural due care – the process used in reaching a decision rational (due diligence) (1) Directors must make a reasonable effort to inform themselves in making decisions (2) Board of Directors may under § 141(e) rely upon records. No evidence…must show more than negligence like gross bad faith or recklessness. iii) Plaintiff can only show board breach duty of care for acting in bad faith (1) THE DESCRIPTION OF BAD FAITH (a) INTENTIONAL DISREGARD FOR DUTIES (i) ACTUAL INTENT TO DO HARM OR (ii) DELIBERATE INDIFFERENCE (b) YOU HAD A DUTY TO ACT AND YOU DID NOT ACT (i) DIRECTOR ACTS WITH THE INTENT TO BREAK A LAW 1. ii) Good Faith.Good Faith. c) 15 .. Directors. ….an exchange so one sided that no business person of ordinary sound judgment conclude that the corporation has received adequate consideration iv) Reasonable Care. and not approve or condone wrongful or illegal activities iii) Reasonable belief. reports and all other material the member reasonably believes are competent.a real or seeming incompatibility between ones private interests and one’s public fiduciary duties The Duties of Officers.directors are exculpated of liabilities if it’s a breach of care.This standard requires that directors be honest. or fraud. “What the corporation received is so inadequate in value that no person of ordinary. determination of whether a business judgment is an informed one turns on whether the directors have informed themselves “prior to making a business decision.a board decision must be related to furthering corporation’s interests. This entails the waste standard (1) Waste. of all material information reasonable available to them. must be recklessly or malfeasance (b) Board took board minutes where it consider all possible options (procedural) (c) Directors are entitled to use their honest business judgment on the information before them (2) Van Gorkom (a) Standard for procedural Duty of Care – presumption that a business judgment is an informed one. Reasonable Care i) 102b7.
Breach Substantive Care (i) The directors are granted great deference under the BJR. defendant held funds for plaintiffs. no reports (iii) Failed to read or understand the one document the board of directors had (iv) No formal reports. Where a director fails to act in the face of a known duty to act (iii) Waste Claim (substantive board decision) 1. The BJR will protect the board’s decision unless it cannot be attributed to any rational business purpose.” 1. and exercise reasonable prudence in the management of business affairs. (ii) Court holds in this case: BJR is an absolute bar for reviewing substantive Duty of Care decisions. Had she exercised her duty of care. In re Walt Disney (a) Plaintiff claim Breach of Duty of Care – Substantive Due Care (b) Plaintiffs claim the exchange was so one sided that no business person of ordinary. only where directors irrationally squander or give away corporate assets 2. sound judgment could conclude that the corporation has received adequate consideration. no malevolent intent 3. Gross Negligence – Without more is not bad faith. Court held the decision did not come close to the high hurdle required to establish waste because the agreement had a rational business purpose. (3) Factors to consider in entire fairness of a transaction – Substantive Due Care (a) The timing (b) Initiation (c) Negotiation (d) Structure of the transaction (e) The disclosure and approval by the directors (f) The disclosure to and approval by the shareholders (4) Brehm v. Court held the directors adequately informed itself a. and only procedural Duty of Care breaches may be challenged (c) In Re Walt Disney (i) “plaintiff may rebut the BJR if she shows the directors had either 1 breached their duty of care OR had not acted in good faith. used to rebut BJR 1.(b) Factors court thought were relevant (i) Directors had limited knowledge of the boards action (ii) Relied upon one 20-minute oral presentation of proposal and valuation of company.duty to monitor (a) Recognized a duty for directors to act honestly. Looked at the process the directors informed themselves. She had a duty to monitor the corporation and failed to do so. (b) Facts of the case. Looked at the procedure the directors used surrounding approval of agreement b. Rare case. determined it was sufficient (ii) Court Defined what is a violation of Good Faith may be. in challenging their substantive decisions. she could have prevented her sons from looting the company. United Jersey Bank. for the directors to rely on (v) Failed to have adequate valuation process for company in the buyout (vi) “Market test” failed to safe the directors lack of diligence because the deal was already lock ed up (c) BOD – Also failed to disclose all material information such as a reasonable stockholder would consider important in deciding whether to approve the offer…. 3. The trust relationship gave rise to a fiduciary duty to guard the funds with fidelity and good faith. Behavior between the previous two categories – intentional dereliction of duty OR a conscious disregard for one’s responsibilities a. in good faith. (5) Francis v. Subjective bad faith – fiduciary conduct motivated by an actual intent to do harm 2. Plaintiff claim the directors were Grossly negligent in approving the agreement 2. (c) Duty of monitoring elements 16 . Eisner. and therefore was an implied trust.
arguable. iii) Left the door open “other examples of bad faith yet to be proven or alleged” iv) Relates “the requirement to act in good faith is a subsidiary element. demonstrating a conscious disregard for his duties. learn the business and make reasonable attempts to detect and prevent the crime. The directors knew.Be familiar with the business Know the general financial status of the business Attend board meetings Inquire upon suspicion of wrong doing Use common sene Make sure that the information you are receiving is all the information that you need to be receiving. Directors took no steps in a good faith effort to prevent or remedy that situation. AND that such failure proximately resulted in the losses complained (g) They did all this so not liable for breaching duty to adequately monitor d) The Intersection of Loyalty and Good Faith i) Stone v. (i) Plaintiff could have avoided liability if she resigned. (4) Court held that the directors had not engaged in a deliberate failure to exercise oversight or a conscious disregard of their responsibilities (a) They implemented a monitoring system that followed the federal rule…the system failure was not enough to show a sustained or systematic failure of the board to exercise oversight. OR (b) Having implemented such a system or controls. (d) Plaintiff had a basic duty of care to oversee operations. Good Faith violation may exist if: (1) Directors intentionally act with a purpose other than that of advancing the best interests of the corporation (2) Directors act with the intent to violate applicable positive law. Ritter (Caremaker is still good law and same rule implemented in this case) BEAN LIKES THIS CASE (1) Derivative suit seeking personal liability for their failure to implement a monitoring system required by a federal banking law. OR 2. (b) Claim that directors breached their fiduciary duty of care in connection with alleged violations by Caremark employees of federal and state laws and regulations… (c) GOOD Case: Reread the standard of Duty of Care (d) Liability to the corporation for a loss may be said to arise from an unconsidered failure of the board to act in circumstances in which due attention would. or relinquished her duty prior to abuse (ii) Implied trust of holding money played an important role. Derivative Litigation (a) A board may have a duty to install corporate monitoring and reporting systems to detect illegal behavior. IF: 1.” (i) (ii) (iii) (iv) (v) (vi) 17 . AND 3. (2) Claiming that if they had better oversight they would have seen bank employees were doing illegal things (3) Standard for director oversight liability (a) Directors utterly failed to implement any reporting or information systems or controls. ii) Reaffirms Disney.” A showing of bad faith conduct is essential to establish director oversight liability. “of the fundamental duty of loyalty. “the fiduciary duty violated by that conduct is the duty of loyalty. OR (3) Fiduciary intentionally fails to act in the face of a known duty to act. (f) Test applied (i) Directors are liable for breach of duty by failing to adequately control employees. consciously failed to monitor or oversee its operations thus disabling themselves from being informed of risks or problems requiring their attention. (6) In Re Caremark International Inc. have prevented the loss (e) Duty to assure corporate compliance with external legal requirements. Should have known that violations of law were occurring. condition. Medicare and Medicaid payments and cannot bribe doctor….
BUT only indirectly (2) Duty of loyalty is not limited to cases involving conflict of interest. and in a manner inconsistent with its interests. CONFUSED ON HOW 141 NEED QUORUM BUT 144 DON’T NEED? SO JUST WHEN ONE CANNOT HAVE THE FULL BOARD BC THEY ARE INTERESTED THAT THE DIFFERENCE???? iv) Bayer v.§141b – a majority of the total number of directors shall quorum for the business transaction unless the certificate of incorporations or bylaws says something else. BUT failure to act in good faith may do so. or solely because the director or officer is present at or participates in the meeting of the board or committee which authorizes the contract or transaction. NO BJR defense. or other organization in which 1 or more of its directors or officers. regardless of the consequences to the company. or (b) 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 to the shareholders entitled to vote thereon. quorum (1) No contract or transaction between a corporation and 1 or more of its directors or officers. i) The agent is liable to disgorge any/all secret profits obtained from a transaction that breaches the duty of loyalty.VII. are directors or officers. association. thereby consciously disregarding their duties. or have a financial interest. proportionally (c) Quality in exchange. or between a corporation and any other corporation. by the board of directors. Beran – POSSIBLE EXAM QUESTION ABOUT THIS CASE. (a) Quorum. Explains the standard for good faith violations (1) Only a breach in the duty of care OR loyalty may result in liability. and any evidence of improvidence or oppression. partnership. which authorizes the contract or transaction. and the board or committee in good faith authorizes the contract or transaction by the affirmative votes of a majority of the disinterested directors.” (7) Factors considered: (a) The ultimate purpose of the action (b) Money involved. vi) Comments (1) Directors who fail to act in the face of a known duty. or (c) The contract or transaction is fair as to the corporation as of the time it is authorized. a committee or the shareholders. if: (a) 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 to the board of directors or the committee. (6) Test applied: “whether the action of the directors was intended or calculated to subserve some outside purpose. or solely because any such director's or officer's votes are counted for such purpose. yields to the rule of undivided loyalty. shall be void or voidable solely for this reason. fairness v) 18 . Duty of Loyalty – Duty of fiduciary to act on behalf of beneficiary. ANSWER THAT DGCL § 144 DEALS WITH THIS NOW (1) Used radio advertising for the company (a) His wife was one of the singers (2) Duty of loyalty is triggered when there is a question of self-interest interfering with the interest of the corporation (a) Courts will closely scrutinize a situation where a director or close personal or financial relation stands on each side of the transaction (3) The business judgment rule. BUT it encompasses cases where the fiduciary fails to act in good faith…. Generally described as a duty to avoid self-dealing or appropriation of opportunities of the principal. violate their duty of loyalty by failing to discharge that fiduciary obligation in good faith…. place beneficiary’s interests ahead of the fiduciary. (4) A conflict between self interest and fiduciary obligation. Interested directors. any indication of unfairness or undue advantage. approved or ratified. even though the disinterested directors be less than a quorum. ii) Directors and Managers iii) § 144. (2) Common or interested directors may be counted in determining the presence of a quorum at a meeting of the board of directors of a committee. and the contract or transaction is specifically approved in good faith by vote of the shareholders. the transactions will be voided… (5) Director dealings with the corporation are subjected to rigorous scrutiny where challenged the burden is on the director not only to prove the good faith of the transaction but also to show its inherent fairness….
i) Broz owned a cell phone company and also was on the board of another cell phone company (1) Opportunity came along to Broz in his own individual capacity. Broz v. They were not interested. Inc. (a) Financially able to take opportunity? (b) Is the opportunity at corporations line of business? (c) Does corporation have a financial interest or expectancy? (d) Is the opportunity advantageous to the corporation? iii) Factors considered in whether the business opportunity puts the officer in direct conflict with the corporation (1) Is the corporation capable of exploiting the opportunity – Financially?? Any other limitations? (2) Is the opportunity in the interest of the corporation – Look at facts (3) Did the corporation have an interest or expectancy in the opportunity (a) Interest.look at facts iv) The director must examine whether the opportunity is rightfully belonging to the corporation.takes something which. Examining the facts. (4) Is the opportunity advantageous to the corporation? (5) Embracing the opportunity would create a conflict between director’s self interest and that of the corporation …. based on one of the factors articulated above. the BJR is thrown out the window Corporate Opportunities & Duty of Loyalty i) A corporate fiduciary agrees to place the interests of the corporation before his or her own in appropriate circumstances…. ii) Standard: (1) “When the transaction is challenged in a derivative action against the interested directors. authorizes the contract or transaction by the affirmative votes of the majority of the disinterested directors. v) To be overly safe. the director may still not have violated his duty of loyalty IF the court reviews the entire transaction under an “entire fairness standard. they have the burden of proving that the transaction was fair and reasonable to the corporation.b) (d) Conformity to industry standards (8) In this case there was no indication that the wife received any personal enrichment from this situation therefore BJR applies v) Benihana of Tokoyo v.. the law will not permit him to seize the opportunity for himself.” (3) Another thing to remember “Corporate action may not be taken for the sole or primary purpose of entrenchment.” Lewis v. Inc. but the law does not require it. (1) IF the material facts as to the director’s relationship or interest and as to the contract or transaction are disclosed or are known to the board of directors and the board in good faith. S.” (a) This is because when there is a conflict of interest. (1) Objective is to deter appropriations of new business prospects belonging to the corporation ii) Corporate officer presented a business opportunity which the corporation is financially able to undertake. in the ordinary course of things. He discussed his interest in the opportunity with the company he was on the board for. i) Deals with the burden of proof the parties face when a duty of loyalty claim is filed regarding directors and an interested transaction. if the material interest is disclosed and approved (2) If the material interests of the transaction are not disclosed. Cellular Info. if the director believes. then he make take it for himself….L. Buy-out company claimed that Broz breached his duty of loyalty by taking the opportunity c) d) 19 . System Inc. the director could disclose the opportunity to the board. so he took the opportunity (2) Company that he was on the board for was bought out by another company that was interested in the opportunity. & E. or an opportunity of interest or reasonable expectancy…if the officer embraces the opportunity and his interest is brought into conflict with that of the corporation. would come to the corporation. (a) The director does not violate her Fiduciary duty of loyalty.something to which the firm has a better right (b) Expectancy. that the corporation is not entitled to the opportunity. Benihana. an opportunity in the corporations business and is of practical advantage.
(3) Lesson: A dominant shareholder-Director may not manipulate the company’s assets. its relationship with the corporation must meet the test of intrinsic fairness. such as stock. (a) Duty differs depending on whether the party is voting as a stockholder OR voting as a director f) g) Ratification 20 . Shareholders Litigation i) The opportunities offered to directors place certain inside directors in an obvious conflict between their self-interest and the corporations interest… ii) Apply the corporate opportunity analysis above: enough available money? iii) If corporate opportunity does not apply. Would these be corporate opportunities under In re ebay? What about under Borz? Dominant Shareholders – Duty of Loyalty i) Must have a dominant shareholder – Usually a parent-subsidiary relationship. but may be harder if the Board is dominated by the Majority stockholder. BUT when he votes as a director he represents all the stockholders in the capacity of a trustee for them. This action is ok. where the parent controls the subsidiary. Only parent got in trouble for was not enforcing contracts which was a detriment to the sub…. (2) If a dominant shareholder controls a corporation. again projects weren’t corporate opportunities so parent under no obligation …. THAT when voting as a stockholder he may the legal right to vote with a view of his own benefits and to represent himself only. Class A shares could be redeemed by corporation at anytime for 60 dollars. AND cannot use his office as a director for his personal benefit at the expense of the stockholders…. The standard of intrinsic fairness involves both a high degree of fairness and a shift in the burden of proof. The Parent corp. but when it does so. puppet-puppeteer relationship. (1) HYPO: Instead of offering IPO shares. (3) KEY: Looking for a situation where the dominant shareholder receives. that its transactions with the corporation were objectively unfair. causes the subsidiary to act in such a way to benefit the dominant shareholder at the expense of the minority shareholders (4) FACTUAL ANALYSIS iii) Zahn v.e) (3) The court found that there was no breach of loyalty because Broz had discussed this situation with the original corporation and they were not interested in it In Re Ebay. by virtue of its domination of the subsidiary.. (4) Difference: a stockholder is voting strictly has a stockholder versus when voting as a director. subject to careful judicial scrutiny. it occupies a fiduciary relation toward the minority shareholders (2) Facts: There was class A stocks and class B stocks.this was okay because everyone obtained the dividends….5 million or (b) sets of TaylorMade r7 CGB MAX Irons. Inc. Goldman Saks tries to secure eBay business by offering the directors gift of (a) below market mortgages for up to 12. in such a way that the dominant shareholder profits at the expense of the minority stockholder. Did the director obtain the opportunity solely through his position as a director at eBay. allocated projects to different affiliates. and therefore the parent is on both sides of the transaction (1) Shareholder acting as shareholders owe one another NO fiduciary duties (2) Controlling shareholders OWE fiduciary duties ii) Sinclair Oil Corp v. so they got paid more.also dividends are BJR. eBay may have a right to money through this duty. The controlling shareholders had the corporation redeem all the minority shares and then liquidated the corp. if it can be proven that the Board of Directors is disinterested.Sinclair was the parent corporation of Siven. Declared dividends on the subsidiary corporation…. (a) Therefore: The burden is on the dominant shareholder to prove. if so agency law provides an agent owes a duty of loyalty to the principal. (b) This standard will be applied when parent has received a benefit to the exclusion of the minority shareholders of the subsidiary and at the expense of the minority shareholders of the subsidiary. Transamerica (1) The majority has the right to control. Class A shares were entitled to twice as much liquidation then class B. Class B shares held voting control. Levien (1) Facts.
Inc. proceeding any admin proceeding. IF the majority of shareholder votes casted were cast by the directors (dominant shareholders). AND expenses of defense can be substantial.. ii) This rule does not apply. (1) A corporation shall (don’t have to) have the power to indemnify a person from the threat. in their capacity as shareholders iii) THIS rule would apply. Roven i) §145(e) – the corporation may pay an officer or director’s reasonable expenses in advance – discretionary (1) Advancement. the burden is on the director to prove she did not act in bad faith…or prove her good faith. and also may advance those fees if so approved j) Actions brought by or on behalf of the corporation against a director cannot be indemnified k) Waltuch v. Indemnification and Insurance a) Indemnification. pen ding or completing. so long as the party promised to pay back legal fees if it is ultimately determined the agent is not entitled to legal fees. d) Types of liability may vary. ii) Under §145(a) – (this is discretionally indemnification) A corporation may not indemnify a director if she acted in bad faith. i) A corporation may not have a clause in its articles of Corporation that contradict or override Delaware Corporate law.A corporation must indemnify certain individual for legal expenses if they acted in good faith. directors. 145f does not expand corporate power to exceed 145a.Payment by a principal to the agent for liabilities incurred by its agent in connection with the agents action on behalf of the principal i) Doing this could create a moral hazard…think health insurance example.Most statutes permit advance of legal fees upon undertaking i) Undertaking is just a written promise to repay the legal fees if not successful on the merits or otherwise. was justified in her actions. or iv) When the person derived an improper personal benefit v) No retroactive liability limitations i) Corporation may pay for legal fees. Conticommodity Services. ii) Acts not in good faith iii) For intentional or illegal breaches. even if no damages are awarded f) When is a good time to prohibit a corporation from providing insurance or indemnification to its directors g) Indemnification cant be put directly in the articles of incorporation h) Corporation has the right to insure or indemnity officers. the corporation had a duty to advance legal fees. investigating by the SEC derivative action if the person: (a) Acted in good faith and in a manner that is not or not opposed to the best interests of the company and had no reason to think acts were combatful (b) Termination by any proceeding. if successful on the merits) (1) Success – if a director was sued. l) Citadel Holding Corporation v. or plea shall no create a presumption that one did not act in good faith.is when pursuant the 145 the corporation advances the director money for legal fees.A corporation is required to indemnify its officers and directors for the successful defense of certain claims (legal fees.the payment of those fees after they’ve been paid by the claimant c) Advancement. under the employee contract. regarding action the corporation takes…. e) Damages may be very large. In addition.” i) It is simply the corporation’s reimbursement of litigation expenses and personal liability of a director sued because she is or was a director. (1) Indemnification rights continue even after director has left the corporation (a) Indemnify if director was successful in defending the action or (b) The director though unsuccessful in her defense. Claim that shareholder ratification shifts the burden of proof to an objecting minority shareholder.VIII. b) Reimbursement of legal fees. if the majority of votes cast were “disinterested” shareholders …therefore there is a factual basis to apply this rule…. and the suit was dismissed without him paying a settlement or if the defendant was vindicated (settles with no admittance of wrong doing) iv) Under § 145(f) – permits the corporation to grant indemnification rights outside the limits of 145a…. ii) However. and employees of the corporation in breaches of duty except: i) breach of duty of loyalty. Delaware applies only to “liability of a director to the corporation or its stoc kholders for monetary damages for breach of fiduciary duty as a director. i) 21 . iii) Under §145(c). v) Point of case.
So write it to be clear and percies ii) Permits members to engage in private ordering with substantial freedom to contract to govern their relationship. iii) Lawyer tip: (1) If dealing with an LLC. is treated like a limited partner. and someone takes over company and off the board. iv) Rule: LLC are given broad discretion to contract the structure of the LLC. Put it in your certificate The Limited Liability Company a) Characterizations of LLCs i) Afford some sort of Limited Liability ii) Partner style pass through taxation iii) Require some sort of public fillings. Therefore. (2) Should be put into a written form because if oral then there can be statute of fraud issues.” vi) Interpretation of agreements may be a problem. Takes from AGENCY LAW (a) Comments: (i) A member of an LLC is liable on a contract entered on behalf of the LLC. if the LLC is not fully disclosed. the principles of agency law apply notwithstanding the LLC Act’s statutory notice rules. New guy says we will not be indemnified anymore but you say it says I can be indemnified for things that I did when I was a director…can you get away with this? i) In scoon v. (2) When a 3rd party sues a manager or member of an LLC under an agency theory. when it comes to liability ii) If members and officers fail to treat LLC as a separate entity. AND allowing shield of liability would promote fraud or Injustice (unjust enrichment. this effects the analysis Fiduciary Obligation – LLC c) d) e) 22 . This is a drafting matter. varies by state iv) Laws are still developing. then circumstances will be used to determine intent.) The LLC will not shield the members from liability. troy deleware held a former director does not get indemnification when the board changes bylaws. and agent discloses. iii) Comments (1) By nature LLCs are more flexible with less Corporate formalities. and only when no provision is given will the default rules of the act dictate the relationship. unless the member fully disclose they are acting on behalf of the LLC and the identity of the LLC.IX. flexibility. the agreements are given its plain meaning of the words. Piercing the LLC Veil i) LLCs will be treated no differently than corporations. m) HPYO: In Delaware have indemnification and you are on the board. Ask for personal guarantee if the deal is questionable. pulls precedent and theories from Corporate and partnership law v) Flexible management. So if something is ambiguous extrinsic evidence is allowed in. by arrangement b) LLC and liability – Notice Requirement i) Constructive notice – A party is put on notice that it is dealing with an LLC if the company’s articles of organization are filed publicly ii) Liability (1) Constructive Notice – Applies where a 3rd party attempts to sue a member of a LLC simple due to their status as members or managers of the LLC. similar to certificate of corporation. then the member may be held personally liable. But in bylaws says “you will be indemnified”. v) “Policy of the Act is to give maximum effect to the principle of Freedom of contract and to the enforceability of LLC agreements. iii) Holding: right to advancement for legal fees is different than the right to indemnification… . provided they do not contravene any mandatory provisions of the Act… iii) Under LLC. something more than failure to collect debts. OR if a provision is inconsistent with a mandatory statutory requirement. with the freedom to contract. LLC Operating Agreements i) This is a creature of contracts – members can virtually unlimited discretion to define the terms of their relationship in the operating agreement (1) If dispute arises then one uses theory of contract interpretation. by converging personal/ownership interest.
subject to such reasonable standards as may be set forth in the operating agreement. given its financial condition (4) Whether the company is operating within the scope of the business purpose clause in its operating agreement g) Document Inspection Rights i) Members are afforded access only to those documents and other information enumerated in that section. physicians. doctors.X. the members have a fiduciary duty to each other (default rule if nothing said about it or its ambigous). disability. dentist.professional types. f) Judicial Dissolution i) To get this one has to establish that “it is not reasonably practicable to carry on the company’s business in conformity with its operating agreement ii) TEST (1) The existence should consider in evaluating the reasonably practicable standard (2) The absence of a mechanism in the operating agreement to circumvent the deadlock and (3) The inability of the company to operate. who runs it day to day (i) Control over the business (i) Divorce. death. and parties my contractual agree that no Fiduciary Obligation exists. In a LLC. this obligation may be removed through the LLC operating agreements.GOOD FOR FINAL (a) Management (i) Rachel day to day operations (ii) Misha wants to slowly move himself into the business (iii) Leah just wants to give money (b) What happens if/when the business fails (c) Distribution/Dividends from the business (d) Payback periods (e) Potential liabilities arising from the business (f) Merger and acquisition (g) Voting rights (h) Operations. ii) Statutorily qualified by the requirement that the demand for access be for ant purpose reasonably related to the members interest as a member of the limited liability company (1) Agreement can make this more narrow or more broad h) DRAFTING AN LLC i) First. ii) However. like a partnership.S. Taken from partnership law. attorneys) or L3C (company is for profit but the purpose is for non profit reasons) ii) Name – have to make sure its not being used (1) Check State of Michigan’s Department of Labor & Economic Growth website (2) Google to see if someone else is already using that name (3) Check U. is this a LLC or PLLC (professional limited liability. A member just wants out (ii) Adding new members later to increase capital in business (iii) Selling business (j) Insurance (k) Buying new property (l) Meetings (m) Right of first refusal (n) Employment contracts (o) Amendments to operating agreement (p) Arbitration clause to resolve disputes (q) Shout out provision Disclosure and Fairness a) b) Definition of a Security Two broad Categories i) 23 . members of LLC owe one another the duty of utmost trust and loyalty. bankruptcy. trademark website iii) Articles of Organization iv) The Operating agreement (1) ISSUES TO THINK OF….
the number of unites offered (c) The size of the offering (d) The manner of the offering iii) Comments (1) Whether the particular class of persons affected need the protection of the Act (2) Exemption questions turns on the knowledge of the offerees (3) The higher the number of offerees. including stock. BarChris Construction Corp. iv) Escott v.” The Securities Act of 1933 i) Governs the offering and sale of “securities” to the public ii) Company must file a Registration statement with the SEC with their initial public offering (1) This includes a prospectus which is distributed to prospective investors when the company goes public or makes a secondary offer Registration Process of Securities i) The SEC prohibits the sale of securities unless the company issuing the securities has registered them with the SEC ii) Private vs. vi) Quarterly disclosure of financial information vii) Rules for proxy solicitations (1) Cause of actions under this section (a) Material Misstatement or omission in connection with the sale or purchase of any security (b) Insider trading 24 . iii) Investment contract . iv) Ban on Short Swing profits by corporate insiders.c) d) A list of rather specific instruments.a contract. (3) Material Test: (a) Maters are material if: facts that the average prudent investor would tend to deter him from purchasing a security are facts that have an important bearing upon the nature or condition of the issuing corporation or its business (4) Objective standard: Would the average prudent investor believe the facts would have an effect on the investors decision i) ii) e) f) Rule 10B-5.” iv) Economic reality of a particular instrument: (1) Investment contract – is a passive investment with a promise of return off profits (2) Investment contract – “an investor. and bonds A general. catch all phrases. (1) Ineffective registration statement due to some defective error (2) Test: (a) Did the registration statement contain false statements of fact or omit facts that would prevent it from being misleading. must be sufficient basis of accurate information upon with investor may exercise his skills. Disclosure under the Securities Act & Exchange Act (page 447) ’34 Act includes public reporting obligations: i) Governs the trading of stocks ii) This focuses on public reporting and other obligations of a public company and upon secondary trading markets (NASDAQ) iii) Securities Fraud & 10b-5 promulgated thereunder. such as. v) Annual disclosure of financial information. sophistication. the more likely the offering is public (4) Offerees relationship – does offeree have information. transaction or scheme whereby a person invests his money in a common enterprise and is led to expect profits solely from the efforts of the promoter or a third party. evidence of indebtedness. as a result of the instrument. and any instrument commonly known as a security. (b) Were the false statements or omissions “material” (c) Do defendants establish affirmative defenses. is left unable to exercise meaningful control over his investment” versus a security “such as voting rights and control. notes. Public Offering (1) Four factors relevant to whether an offering qualifies for exemption or private offering (a) The number of offerees and their relationship to each other (b) The issuer. investment contracts.
deal later occurred and shareholders brought a rule 10b-5 claim…. or artifice to defraud (b) To make any untrue statement of a material fact or to omit to state a material fact necessary in order to make the statements made. or of the mails or of any facility of any national securities exchange. AND (5) In the Purchase or sale of any security vi) Basic Inc. (a) To employ any device. OR (3) Untrue statement of a material fact.g) (i) Trading while in possession of material non public information Required Disclosure Obligations i) Public companies that have more than $10 million in assets. (a) To use or employ. (3) To fulfill the materiality requirement: (a) There must be a substantial likelihood that the disclosure or the omitted fact would have been viewed by the reasonable investor as having significantly altered the total mix of information made available. (2) In connection with the purchase or sale of any security. practice. practice. any manipulative or deceptive device or contrivance in contravention of such rules and regulations as the commission may prescribe as necessary or appropriate in the public interest or for the protection of investors… iii) Rule 10b-5 (1) It shall be unlawful for any person. iv) Elements to establish a Fraud Claim: (1) Economic loss (2) Scienter – Wrongful state of mind. Levinson (1) Directors made statements denying the corporations involvement in a merger deal. or course of business which operates as a fraud or deceit upon any person. in connection with the purchase or sale of any security registered on a nationally securities exchange or any security not so registered…. scheme. OR (4) Engage in any act. scheme. or (c) To engage in any act. (2) Material: (a) An omitted fact is material if there is a substantial likelihood that a reasonable shareholder would consider it important in deciding how to vote. v. OR Omit to state a material fact necessary to prevent such statements from being misleading. by the use of any means or instrumentality of interstate commerce or of the mails. AND (2) Employ any device. manipulate or defraud (3) Proximate cause of the loss by the misrepresentation (4) Material misrepresentation (5) In connection with a purchase or sale of a security (6) Reliance on the transaction v) Comments: (1) A person to. directly or indirectly. or any facility of any national securities exchange…. (4) Test: (a) Materiality will depend at any given time upon a balancing of both the indicated probability that the event will occur and the anticipated magnitude of the event in light of the totality of the company activity… (b) Probability/magnitude approach (Merger deals) 25 . by the use of any means or instrumentality of interstate commerce. directly or indirectly. not misleading. in the light of the circumstances under which they were made. or artifice to defraud. OR more than 500 Shareholders ii) Exchange act § 10(b) – APPLIES TO ANY SECURITY…NOT JUST REGISTERED OR PUBLICLY TRADED SECURITIES (1) It shall be unlawful for any person. intent to deceive. or course of business which operates or would operate as a fraud or deceit upon any person.
ix) Dura Pharmaceuticals. the minority shares are valueless because the shares have no power in the corporations actions (3) Why does Rule 10b-5 apply here (a) Economic loss (b) Scienter – Intent to use a scheme to defraud. Inc. whose evaluations of the information and trades quickly influence securities prices…in this case there were no public disclosures (b) Court held ORAL FRAUDS have not been allowed to proceed as class actions. (b) Instructions to investment bankers (c) Actual negotiations between principals or their intermediaries (7) Fraud on the Market Theory – 10b-5 – Only applies in larger markets. must be a statement through some instrument of mass communication. manipulate. Prudential Securities. such as a buyout that results in the death of the corporation. intent to deceive (c) Causation – causal connection between the statement and the loss (d) Material Misrepresentation – substantial likelihood to change a reasonable investors mind (e) Reliance – Fraud on the market (f) In connection with the sale of a security 26 . compared to a larger corporation acquiring a smaller one… (d) FACTUAL ANALYSIS (5) Factors – Magnitude (a) The size of the two corporate entities (b) The potential premiums over the market value (6) Factors – Probability (a) Board resolutions. to allow disseminated information to flow (2) If the information is NON-Public (not mass communication. (1) Fraud on the Market Challenge (a) Assumes that information is public and reaches professional investors. if the deal is larger for the corporation. so an investor’s reliance on any public material misrepresentations. Brouda (1) Places the burden of proving that the defendant’s misrepresentations caused the loss for which the plaintiff seeks to recover…. but arm lengths transaction) then the fraud on the market doctrine does not apply. BUT the directors may rebut the presumption that the misrepresentation did not lead to a distortion in the price of the stock. no proximate cause of the loss by the misrepresentation (3) Must prove the non-public information affected the price of stock. v.(c) The information may become material earlier in negotiations. where information is instantaneously factored into the market price… (a) A buyer of stocks does so in reliance on the integrity of the market price. OR the individual plaintiff traded or would have despite the statements…. or defraud… (3) Scope of Interpretation – No implied private right of action against those who AID and ABET violations of Rule 10b-5…limits scope of liability. vii) West v. the class has found the threshold facts for proving their loss. v. Inc. (2) Plaintiffs must adequalely allege and prove the traditional elements of causation and loss…must show a causal connection between the misrepresnatation and the inflated purchase price or deflated selling price… x) Santa Fe Industries Inc. Green (1) Freezing out or Squeezing out of Minority shareholders by the Majority (§253 Delaware law) (2) Minority shareholders may have no meaningful market for their shares. because if no dividends are paid. therefore may be presumed for purpose of rule 10b-5 (b) One a material misrepresentation is found. IF the Fraud on the market doctrine does not apply… burden on the plaintiff viii) Random Comments on Rule 10b-5 (1) Standing: Plaintiff must actually buy or sell shares (economic loss) (2) Scienter – Requires proof of a state of mind that is the person making the false statement must have made it with an intent to deceive..
(4) Under Rule 10b-5. also known as the proxyholder iv) Incumbent managers will solicit proxies form the shareholders. (6) 10b-5 does not regulate transactions which constitute no more than internal corporate mismanagement (7) This case respects that corporations are state law creatures. Fairchild Engine & Airplane Corp. not excessive or unfair or illegal (a) Required to have a board meeting and elect board every year so it’s a business judgment to use money for proxy. Beneficial Corp.Rosenfeld v. and the managers may vote on behalf of the shareholders. satisfy the requirement of a security under rule 10b-5? (2) Court holds “a purchaser of an option contract. i) “Management may look to the corporate treasury for reasonable expenses of soliciti ng proxies to defend its position in a bona fide policy contest… ii) Test: XI. (2) Board nominates slate of directors ii) Statements must fully disclose the major issues (1) Proxy statements have to be filed with the SEC but they do NOT mean its approved and that is has been full disclosure b) Proxy Fights i) Insurgents may seek to take control of the firm by electing themselves and their allies to the board ii) Contentions can also arise when issues that require shareholder approval are scheduled for determination at the annual meeting. rule or regulation… (1) Can use corporate funds if reasonable.. or a special meeting (1) Amending the articles of incorporation (2) Liquidate the firm (3) Sell all or substantially all of the assets (4) Engage in a merger iii) Proxy –a shareholder may appoint a legal representative. satisfies the purchase of a security requirement.C. and Rule 10b-5 will not be used to override state law….therefore. so the person with most proxies usually wins v) Proxy Fights – An insurgent group tries to oust incumbent managers by soliciting proxy cards and electing its own representatives to the board (1) Many defenses have arisen to fend off tender offers c) Strategic Use of Proxies – Levin v. a cause of action exists for conduct alleged must be fairly viewed as “manipulative or deceptive within the meaning of the statute (5) Prevents using rule 10b-5 for the breach of corporate fiduciary duty alleged in this complaint…abuse of the minority for the gain of the majority…. Inc. and may bring a claim if the other 10b-5 requirements are satisfied…) Problems of Control – Proxy Fights a) Proxy Statements i) Board selects the date of the stockholders meeting and the record date. d) 27 . i) The right of an independent stockholder to be fully informed is of supreme importance ii) The court concludes that MGM’s current management was within its rights when it used Corporate money to fund the management solicitation of proxies and advertised in the papers iii) The court held “the action violated no federal statute or S. use state law for transactions involving internal corporate transactions… xi) Deutshman v. 525 Reimbursement of Costs . No one challenges this if there is no alternative slate iv) Suggest to use Duty of loyalty claim to try and circumvent the Management business judge in using corporate funds to solicit proxies (1) PROBLEM ON PG. This is usually 60-90 days prior to the annual meeting (1) Record date necessary because of the time required to prepare and mail the materials by which proxies are solicited and then to receive and count when response are sent in.E. (1) Does the purchase of options. Metro-Goldwyn-Mayer.
(a) Issue: What causal relationship must be shown between such a statement and the merger to establish a cause of action based on the 14a-9 violation? (b) Test for causal relationship (i) Where the misstatement or omission in a proxy statement has been shown to be material: that determination embodies a conclusion that the defect was of such a character that it might have been considered important by a reasonable shareholder…. OR it can give the group a copy of the shareholder list and let it distribute its own material. but less capital requirement for proxy fights v) Private Actions for Proxy Rule Violations (1) J. they have the right to incur reasonable and proper expenses for solicitation of proxies and in defense of their corporate policies. Can damages be proven 3. (i) QUESTION 2 ON PG. Difficult of unscrambling the egg 2. iv) Economics of Proxy fight: (1) Due to high expense. and furnish a benefit on the corporation and all shareholders.e) (1) When the directors act in good faith in a contest over policy.. because false and misleading proxy statements are prohibited under §14(a) of the Securities Exchange Act….” (ii) Flexible.I Case co. or private advantage and in the belief that such money was used in the best interest of the shareholders and corporation (1) Its shareholders money and incumbents get it if they stay in power and if they don’t. and are not obliged to sit idly by… iii) To prevent use: Plaintiff must establish that such money was not spent for personal power. the new guys cannot get paid UNLESS shareholders say okay. electric Auto-Lite Co. (ii) Required that the defect have a “significant propensity to affect the voting” = material defective is one that a reasonable proxy voter would find substantially affect how he votes… (c) 2nd issue: How should the court handle a remedy after a merger has been complete. Fairness of the merger terms (d) 3rd Principal: “”Private shareholders who are successful in derivative lawsuits. from all the circumstance s. (d) Test for implied right under 14a-9 (i) Merger was approved at the meeting by a small margin of votes (ii) Would not have been approved but for the false and misleading statements in the proxy solicitation material (iii) Case stockholders were damages thereby (2) Mills v. factors considered: 1. “the court concludes. Borak (a) Court found a private right of action under § 27 to bring suit for violations of §14(a) (b) Under securities act cannot make false or misleading statements in proxy statements (c) Holds: Private parties have the right to bring claims for deceptive proxy statements. V. 542 POTENTIAL EXAM QUESTION (3) Seinfeld v. is the remedy that would be most equitable to do so. “is setting aside the merger in the best interests of the shareholders as a whole?” (i) The relief that is to be granted is one that. tender offers may be more appealing because investor can obtain all the profits of improvements accompanied in increased share price. (a) Fighting personality…no reimbursement…fighting policy yes reimbursement Regulatory Scheme on Proxy Fights i) Courts construe the concept of solicitation broadly ii) Each person who solicits proxies must furnish each shareholder with a proxy statement iii) Management has the choice of either mailing the insurgent groups material to the shareholders directly and charging the group the cost. individual gain. whereas proxy control does see the same potential. Bartz (a) Did not inform the shareholders how much the stock option was worth (b) What SEC rule 14a-9 prohibits: (i) Prohibits solicitation of a proxy by a statement containing either: 28 . shall be award attorneys fees in such a suit the plaintiff was successful in establishing a cause of action.
but these reviews are rare. the fact would have actual significance in the deliberations of the reasonable shareholder. Dole Food Company. Just establish a substantial likelihood. iv) Losing party can in theory seek judicial review by the U. OR (c) Statement is not otherwise significantly related to the issuer’s business iv) Does significantly related. is not otherwise significantly related to the registrants business (a) This doesn’t work here because health care impose large costs on company g) h) 29 . Court held: B-S valuation method is not material STOCK. An omission of material fact that makes any portion of the statement false or misleading Material is: (i) A fact is material if there is a substantial likelihood that a reasonable shareholder would consider it important in deciding how to vote” Does not have to change a vote.A shareholder is able to propose issues to be put into the proxy statements ii) If management believes a shareholder proposal can be excluded. for less than 5 percent of its net earnings and gross sales for its most recent fiscal year. AND. OR 2. and this is an objective test. SEC referees shareholder proposals i) Rule 14-a8. Iroquois Brands i) Case about shareholder worried about geese feed… ii) A corporation may refuse to allow information concerning shareholder proposals to wish to be included in proxy materials being sent in connection with the next annual shareholders meetings… iii) Focuses on Rule14a-8 (1) A proposal that relations to operations which account for less than 5 percent of the issuers total assets at the end of its most recent fiscal year. and for less than 5 percent of its net earnings and gross sales for its most recent fiscal year. it will issue a so called no action letter. which simply states that the staff will not recommend that the commission bring an enforcement proceeding against the issue if the proposal is excluded. so the door is open (1) BEAN THINKS THIS IS WEIRD.S. iii) If the SEC staff agrees. A false or misleading declaration of material fact. (2) AND. The NYCERS v. it files a notice with the SEC that the firm intends to exclude the proposal. OPTION.(c) (d) (e) (f) f) 1. relate to a significant ethical or social significance?? v) Rule: “The last significantly related to the issuers business” is not limited to economic significance. CALL AND PUT Shareholder Proposals – Lovenheim v. i) The shareholder request the corporation evaluate the impact of various health care reform proposals being considered by national policy makers on the company… ii) Dole sent a letter to the SEC. and is not otherwise significantly related to the issuer’s business (2) Cannot omit a proposal in a proxy statement IF: (a) State is related to operations that account for greater than 5 percent of total assets (b) Statement relates to greater than 5 percent of its net earnings and gross sales for its most recent fiscal year. that under the circumstances. circuit court of appeals. asking for a NO action letter because Dole believe it could leave the could exclude the proposal from its proxy statement iii) A corporation may omit a shareholder proposal from its proxy statement for a number of enumerated circumstances: Corporation has the burden to show that a proposal fits within an exception (1) Ordinary Business Purpose – Where the proposals involve business matters that are mundane in nature and do not involve any substantial policy or other considerations (a) This exception does not apply to – “because it doesn’t deal with Dole’s benefits package” (b) Test: “Would the proposal have a large financial consequence on the corporation” (2) Insignificant Relationship – Where proposal relates to operations which account for less than 5 percent of total assets at the end of its most recent fiscal year. Inc.
BJR iii) Court held.” ix) The proposed bylaw was invalid because it interfered with the board’s ability to fully discharging their fiduciary duties to the corporation and its shareholders. Inc. Edison Co. shareholders are entitled to amend the corporate bylaws. Con.i) (3) Beyond Power to Effectuate – Where the proposal deals with a matter beyond the registrant’s power to effectuate (a) It simply proprses that dole study something! Not beyond effectuate Austin v.. which would allow workers to retire earlier ii) Corporation puts forward to exclusions to exempt the shareholder proposal: (1) Proposal deals with a “ordinary business operation” (2) Proposal deals with “redress of a personal claim or grievance” or “designed to benefit to the proponent”. is a substantive change or procedural change to the board’s discre tion vii) Even if found procedural (which is acceptable). the board of directors would breach their fiduciary duties if they complied with the Bylaw. or “to further a personal interest” iii) SEC normally grants “No Action Letters” for the exclusion of proposals dealing with company pension proposals iv) This matter is one of collective bargaining between the corporation & employees. if possible.” AFSCME v. of N. collective bargaining is always a “ordinary business operation. – Factual analysis. and then (2) whether the Bylaw at issue here falls within that permissible scope. i) Shareholder wanted to add a proposal to the proxy statement. the bylaw proposal is improper if it conflicts with corporate law: (1) whether the Bylaw would violate any common law rule or precept viii) Test: “consider any possible circumstance under which a board of directors might be required to act. AIG ???????? i) raises the question of whether a shareholder proposal requiring a company to include certain shareholdernominated candidates for the board of directors on the corporate ballot can be excluded from the corporate proxy materials on the basis that the proposal “relates to an election ii) Court Held: hold that a shareholder proposal that seeks to amend the corporate bylaws to establish a procedure by which shareholder-nominated candidates may be included on the corporate ballot does not relate to an election within the meaning of the Rule and therefore cannot be excluded from corporate proxy materials under that regulation iii) Exception. the proposed bylaw falls outside the universe of permissible bylaws authorized by Section 109(b)… vi) Rule: Whether or not a bylaw is process-related must necessarily be determined in light of its context and purpose. Under at least one such hypothetical. v) Section 102(b)(1) contemplates that any provision that limits the broad statutory power of the directors must be contained in the certificate of incorporation. AFSCME i) Shareholder proposal recommend that the corporate bylaws be amendment “so that a group of stockholders(nominators) who nominated a director for election on the board may be reimbursed for reasonable expenses related to his election on the board ii) Current law: gives the board of directors the discretion to reimburse the cost of expenses in this scenario. alter or repeal the bylaws of a Delaware corporation.BJR iv) Test to apply to see if proper: (1) the scope or reach of the shareholders’ power to adopt. but limited by: “shareholders’ statutory power to adopt. construe it in a manner consistent with the law. v. Accordingly.11 Therefore. Inc.” “presumption that the Bylaw is valid and. amend or repeal bylaws is not coextensive with the board’s concurrent power and is limited by the board’s management prerogatives under Section 141(a)…may not interfere with the board’s ability to manage the business affairs of the corporation….Y. for allowing a corporation to exclude the shareholder proposal on a proxy statement (1) the town meeting rule – “if the proposal relates to an election for membership on the company’s board of directors or analogous governing body” iv) Rule: Court held “proposals that amendments to corporate bylaws are non -excludable” under the town meeting rule. in relation to an election CA. the proposed Bylaw can only be in CA’s Certificate of Incorporation. and therefore violated § 141(a) j) k) 30 . as distinguished from its bylaws.
the Corporation bears the burden of proving that stockholder does not have a proper purpose: (1) Improper purpose includes: (a) IF the stockholders seeks the list to well them to marketers. e) State Ex Rel. AND the manner of communication selected should be within the judgment of the shareholder…. i) Under rule 14a-7.manage the affairs and business of the corporation… Shareholder Inspection Rights – a) Generally corporate financial records for public companies are available from the SEC disclosure filings required under the Exchange Act b) Close corporations generally do not have a publicly disclose their financial statements c) § 220: Inspection of books and records A stockholder of record will have the right to inspect the stockholders list for any proper purpose (1) Written demand under oath (2) Required by a stockholder of record (not stock held in street name through a broker) (3) Stating a proper purpose Crane Co. Inc. May be okay in amending the Certificate of Incorporation. vii) Corporation B rejected request to view the shareholder list. i) Plaintiff sought the NOBO list.The court held the proper purpose must be germane to this interest as a shareholder. ii) Proper purpose test applies…. iv) With Stockholder list. i) x) d) f) 31 . federal law does not grant any laws. iii) Generally state corporate laws provide shareholders have a right to inspect certain corporate books and records. (1) This right is derived from the shareholders beneficial ownership of corporate assets and the concomitant right to protect his investment x) Principle – this right to view corporate assets should be liberally construed in favor of the stockholder whose welfare as a stockholder may be affected – (tender offer) xi) The corporation trying to prevent access to the shareholder list must prove: (1) Sustains the burden of proving an improper purpose…. and then attempted to exercise a known common law right to inspect corporate records ix) Court Held: A shareholder desiring to discuss relevant aspects of a tender offer should be granted access to the shareholder list. UNLESS it is sought for the purpose inimical to the corporation or its stockholders. Pillsbury v. but generally Close corporations do not have to publicly disclose their financial statements…. but state laws may grant such a right…. or use it for political purposes. BUT seeking list to solicit proxies OR for purposes of valuing the investment are Proper v) Crane vi) A corporation attempting to purchase a large stake in Corporation B. OR interferes with the Board’s duty to exercise its fiduciary duty to the corporation and shareholders…. give it to creditors. OR to give you the shareholder list instead… ii) This section deals with the battle over shareholder identity. Honeywell. a shareholder has the right to force the corporation to either: mail your proxy materials to the shareholders and bill you for the costs.. But a shareholder may not offer a shareholder proposal that interferes with a statutory right. list of beneficial owners who do not elect to have their names removed.not to affect a political or social question… Sadler v. but offered to mail the materials viii) Corporation A purchased a large stake in Corporation B. requested the shareholder identity on the theory Corporation B had a fiduciary duty to its shareholders to hand over the list. v.XII. NCR Corp. such as to solicit a proxy to influence the corporation to improve the value of the company or long term well being….. i) Plaintiff wanted access to the shareholder list because he wanted to solicit a proxy involving the corporations involvement in manufacturing cluster bombs for the Vietnam war…. Anaconda Co. with some concern with investment return… iii) Plaintiff stated the only reason he purchased stock was to solicit the proxy and influence the company to stop manufacturing the cluster bombs iv) Court Held: “A shareholder has a purpose germane to his economic interest as a shareholder.
identifies the brokerage firms and other record owners who bought shares in a street name for their customers…. Blackhawk Holding Corp. g) Shareholder Voting Control – Problems of Control i) Stroh v. 30 (2) Articles of incorporation must say that it’s a closed corporation (3) Restriction on stock transfer (4) Management by stockholders ii) Closely held corporations have special rules because of the special relationship shareholders usually have with the corporation…. usually because they hold officer or other employment positions with the firm (4) Illiquidity of shares iv) Public corporations organizations are (1) Have thousands of shareholders who are unrelated except through their common ownership of the firm (2) Shareholders are passive investors. which contains a majority of the stock holders. thereby the incumbent manage had all the access it needed. iv) Court construed the shareholders rights generously and held: “permit a qualifying shareholder to require the compilation and production of such a NOBO list…” v) Reasoning: The management in power would be able to defeat the proxy.brokerage firms must compile a NOBO list at a corporation’s request… iii) Issue the court answers is whether a shareholder may request a corporation compile a NOBO list. so the NOBO list is required to protect the interest of the shareholders…. candor (1) Shareholders many not act out of avarice in derogation of loyalty to other shareholders (a) Test for improper freeze out (i) Minority please and proves prima facia case of breach of duty of good faith by majority (ii) Control group must demonstrate a legitimate business purpose for its actions (iii) Burden shifts to minority to demonstrate a less harmful alternative vi) Delaware: XIII. varies by state statute (1) DGCL specifies max. good faith.(1) NOBO list. and for each non answered proxy. a) 32 . (1) Principal – “proprietary rights conferred by the ownership of stock may consist of one or more of the rights to participate (a) In control of the corporation (voting rights) (b) In its surplus or profits (dividends or liquidation rights) (c) Distribution of its assets (2) The rights to earnings and the rights to assets – the economic rights – may be removed and eliminated from the other attributes of a share of stock…only the man agement incident of ownership may not be removed… (3) Principal – A corporation may establish different class of stock that allow a shareholder to maintain control of the corporation with a smaller amount of capital investment…there is nothing wrong with a corporation that develops a scheme to maintain control through varying stock classes…. it would count as a vote for the incumbent management. (2) CECE – records of how many stocks the wall street companies hold for their investors ii) CEDE list. not active managers or employees of firm (3) The firm is not primary source of shareholders income (4) Shares are freely transferable v) Masachusetts: shareholders in a closely held corporation are like partners and owe each other fiduciary duty of loyalty.a list of beneficial owners of shares who do not elect to have their names removed from the list. Closely Held Corporations Introduction i) Closely held corporations are corporations with a small number of shareholders. by simply denying the NOBO list. iii) This is a firm organization (1) Having relatively few shareholders who are often family (2) Significant shareholder participation in the operation of the business (3) Firm is the primary source of income for the shareholders. and handover the shareholder list….
for the purpose of vesting in said person or persons corporation or corporations.(1) Shareholders do not owe each other fiduciary duties. but to resolve the deadlock…probably lawyer malpractice. (3) Moral: Voting trusts or stock pooling agreements are allowed! (4) Statute authorizes vesting for the right to vote for a limited period of time. when voting for board of directors. from time to time determine… (6) In this case. Galler 33 . no party was justified to empower to other to vote their shares. (a) Agreement must harm no one (b) Beneficial agreement – really like insurance for both parties.) (7) The provision must pass a reasonable analysis (a) Does the agreement enable parties to take unlawful advantage of the outsider shareholder (b) Offend a rule of law OR public policy of the state viii) McQuade V. even though it interferes with the BJR (3) Close Corporation application (a) Where the directors are the sole stockholders. n…. Dodge (1) Facts: Clark was the only one that knew the formula to the medicine and was going to tell the son for the promise that get ¼ net income from corporation. Giving out to many dividends so not getting all money was entitled to. Stoneham (1) Facts: P and D had an agreement that they will use their best endeavors to elect eachother and keep themselves on the board. Ringling (1) Parties had an agreement to vote together. there seems to be no objection to enforcing an agreement among them to vote for certain people as officers… (4) In this case. protect both shareholders (c) SP granted because employment compensation is main source of investment return DIFFERENCE BETWEEN McQUADE AND DODGE M was designed to protect minority shareholders that were not party to the agreement C has no minority shareholders. or corporation or corporations authorized to act as trustee. or a majority of their group. .. (2) Logical and practical test (a) If the enforcement of a particular contract damages nobody – not even. who may be designated Voting Trustee or Voting Trustees. in any perceptible degree the public-one sees no reason for holding it illegal. the rule is unnecessary x) Galler v. the agreement did not authorize the arbitrator to cast the votes for the deadlocked party. UNLESS found void as to offend a rule or public policy (3) Rule: Voter agreements may not control the directors in the exercise of the judgment vested in them by virtue of their office to elect officers and fix salaries… (4) Rule: “Directors may not by agreements entered into as stockholders abrogate their independent judgment…not interfere with the BJR!! (5) Agreements to vote may not place limitations on the power of directors to manage the business of the corporation by selection of agents at defined salaries… (6) Contract is also void is if violates the public policy or law of the state…here it contravenes local law ix) Clark v. the right to vote thereon for any period of time determined by such agreement. they must bargain for that protection prior to investing vii) Ringling Bros. the parties agreed to settle the dispute through an arbitrator… (2) “Stockholders my be agreement in writing deposit capital stock of an original issue with or transfer capital stock to any person or persons. If the minority needs protection. need a more clear voting agreement (agreement did not construe as creating powers to vote each other’s shares. which allows the directors to manage the business and affairs of the corporation. and if a dispute arose.-Barnum & Bailey Combined Shows v. an agreement may be valid even where there is a conflicting statutory requirement or it violates the BJR. (5) Shareholders may lawfully contract with each other to vote in the future in such way as they. (2) Stockholder agreements to vote are enforceable.
Unless: (a) There is a complaining minority interest appears (b) fraud or apparent injury to the public or creditors is present (c) clearly prohibitory statutory language is violated (5) Factual analysis under the circumstances xi) Ramos v. Estrada (1) Case of a shareholder voting agreement for use in close corporations (2) Shareholders in a close corporation will enter in voting agreements to prevent certain abuses such as limiting the transferability of stock in the company to ensure the company does not pass into the control of persons whose interest might be incompatible with the interests of the company and of the stockholders. use week 9 game plan) (1) Various stock classes (2) Supermajority voting requirements on certain issues (3) Prohibition on director interference with shareholder vote (4) Cumulative voting (5) Class voting (6) Voting Trusts (7) Irrevocable proxies (8) Vote pooling agreements (9) Shareholder agreements (10) Involuntary dissolution & forced sale agreements STOCK STUFF i) Cumulative voting. board’s decision is judged under the BJR (c) If plaintiff carries the burden.(1) Brothers owned a corporation and each owned 50/50 of the stock. and minority shareholders may be squeezed out of their economic benefit of the corporation… (4) Agreements between shareholders in close corporations will be upheld even though goes against corporate norm.means each share carries a number equal to the number of directors elected ii) Straight voting. iii) Tools to avoid oppression of shareholders through sharing control (Know these. (b) If plaintiffs fails to carry burden. such as preferred class of stock. who becomes the nominal. the board must present compelling justification for their action to interfere with the shareholder franchise ii) Close Corporations (1) Principle issue for shareholders in closely held corporations: oppression of minority shareholders and minority shareholders attempting to avoid this. c) 34 . b) Shareholder Voting Control i) Corporate Control (1) Issue various class of stocks. which allows a group to shareholders to maintain control (2) Board of Directors controls the voting process…if a plaintiff challenges – Blasius standard (a) Plaintiff must demonstrate the boards primary purpose was to interfere with or thwarting the exercise of a shareholder vote.means that each share gets one vote for each director (1) Majority can defeat cumulative voting by amending articles of incorporation to stagger the election of directors so that fewer directors are being elected each year iii) Class Voting (1) The articles of incorporation divide shares in to classes and give each class a specific number of directors (a) Problem: Must plan and draft for contingency of holder of class dying and creating vacancy iv) Voting trust (1) An agreement among shareholders under which all of the shares owned by the parties are transferred to a trustee. record owner of shares. (2) Shareholders entered the agreement with the intent for the support and maintenance of their immediate families… (3) Policy for enforcing agreements is that minority shareholders are more venerable to abuse than minority shareholders in the public corporation because no market exists to sell the shares.
THEN it is open to the minority stockholder to demonstrate that the same legitimate objective could have been achieved through an alternative course of action less harmful to the minor ity’s interest.(a) Disfavored: courts have issues about the separation of the vote from the stock. if any. excessive compensation in and of itself is not enough iii) iv) Wilkes v. expediency or self interest in derogation of their duty of loyalty to the other stockholders and to the corporation. Glamore Motor Sales. (1) Closely held corporation where the friendships between the shareholders deteriorated.” (3) When a minority stockholder in a close corporation bring suit alleging a breach of good faith duty owed to them by the majority.no possibility of shareholder deadlock. (1) Plaintiff was a shareholder and an employee at the defendant’s corporation….The court will examine the business purpose advanced by the majority. against the practicability of a less harmful alternative… (5) Factual analysis (a) Legitimate business purpose (b) Wrongful conduct by minority v) Ingle v.MBCA (ii) Decisions must be approved by the vote of a majority of the shares present.Closely Held Corporations i) Key things for small corporations when organizing legal person to go forward…think of exit strategy! ii) Freeze-out is: (1) Majority takes action designed to isolate the minority from the financial benefits they would ordinarily have received from the corporation (2) Factual Analysis of the circumstances – Must prove bad faith in a plan to freeze out minority. 35 . (i) Loss of control (ii) Still possible for board oprress (b) Advantage. the court must analyze the action taken by the majority stockholders in the individual case…. Springside Nursing Home.. (4) Court must weigh the legitimate business purpose. since everybody puts their shares in the trust and trustee votes v) Irrevocable proxy (1) Generally shareholder proxies are revocable at any time (2) Irrevocable proxy permanently “separates vote from the stock” (a) Courts don’t like this (i) They require that the irrevocable proxy also be coupled with an interest in the corporation vi) Shareholder Agreement (1) Enforceable if agreements just to elect parties to agreement to board positions (a) Usually unenforceable if they contain additional directions to board vii) Quorum (1) In order for shareholder to take action. and one of the active shareholders was forced out of the corporation management and cut off to all corporate economic benefit… (2) “Stockholders in close corporations must discharge their management and stockholder responsibilities in conformity with this strict good faith standard…They may not act out of avarice. Inc. there must be a quarom at the meeting (a) This is a majority of the shareholders entitled to vote (i) Votes casted in favor > votes casted against . –DGLC viii) Pre value – minimum price at which shares may be sold (1) Specific in articles of incorporation ix) Stock Split (1) Effected by changing par value through amendment to articles (a) Ex: par value cut 1 dollar to 50 cents (b) New shares issued on 2-1 basis x) Entrenchment affect? d) Abuse of Control . Inc.
OR don’t complain (d) Courts will not rewrite K if one gets the short end of the stick vi) Brodie v.. (6) Case deals with Remedies: (a) Was the plaintiff entitled to a forced buyout of her shares by the majority (b) Remedy should “restore the minority shareholder whose benefits which she reasonable expected.” (6) If a shareholder uses his veto power. And if deadlock minority has duty of good faith and loyalty. Jordan (1) Facts: P wife of husband who owned shares from working there dealing with the day to day operations. the buy -back agreement did not violate the majority’s duty of loyalty or good faith (5) Consider (a) If the plaintiff argued the price was unfair or violated his good faith in oral understanding (b) How about if the majority failed to exercise the buy-back option (c) Agreements show a clear intent and reasonable expectation of party’s…if you make your bed. for 30 days to repurchase all of the shares of stock then owned by such stockholder…(buyout agreement). deprive minority of employment opportunities. the rights an employee has in an at will employment relationship… (4) In the case of a buy-back shareholder agreement. seems he must have a reasonable business reason for such decision. high rent to their properties.(2) Plaintiff signed shareholder agreement. that stated any stockholder shall cease to be an employee of the corporation for any reason. (2) Stockholders in a close corporation owe one another a duty of utmost good faith and loyalty (3) Stockholders violate this duty when they act to “Freeze out” the minority (4) Freeze outs are: (a) Majority stockholders ruse to declare dividends. the majority upheld the agreement.ensure you bargain a decent buy back agreement. which would have avoided the penalties… (4) Issue is: Did the shareholder violate his fiduciary power by using the veto powered agreed upon… (5) Even if a shareholder bargains for protection through a shareholder agreement: “the shareholder may not act recklessly in running serious risks which are inconsistent with any reasonable interruption of duty of utmost good faith and loyalty. Inc. when she asked for information about the company she was refused. He died. Atlantic Properties. (5) These examples all frustrate the minority’s reasonable expectations of benefit from their ownership of shares…. especially if the reasons are for personal benefit…. (7) This is a dead lock case…corporation cannot do anything. but has not received because of the fiduciary breach. you are going to sleep in it…. corporation to sell its assets at an inadequate price to the majority sharehol ders…. AND causing reckless losses to the corporation will not provide such a justifiable business reason. (Case looking at minority breaching fiduciary duty to majorityrefusing to accept an idea to avoid tax liabilities) (1) Defendant inserted a shareholder agreement provision that provided veto power to any one of the shareholders by requiring basically unanimous approval for corporation decisions… (2) The failure to act lead to tax penalties assed by the IRS (3) The Corporation incurred substantial penalty taxes and legal expenses largely because on shareholder reused to approve a declaration of dividends. drain of corporations earnings through bonuses and salaries. which means will vindicate the plaintiffs interests (9) Factual analysis vii) Smith v. and repurchased the shares at the agreed to price…since the plaintiff had to right to employment. Blackwell 36 . (3) Court distinguishes a majority’s duty to a minority shareholder v. shall have the option. viii) Nixon v.” (7) Court has broad equitable powers to fashion remedies for breaches of fiduciary duty in a close corporation (8) Must determine: (a) Minorities reasonable expectations of ownership (b) Whether such expectations were frustrated (c) If so.
v. Inc. wasteful conduct (ii) Liquidation is reasonably necessary for the protection of the rights and interests of the complaining shareholders (c) Some significant change in the corporate structure. oppressive. such death of shareholder or transfer of shares (b) Shareholder may petition the court for involuntary dissolution of the corporation under state statute (i) Showing illegal. under 10b-5 and close corporations the corporation must disclose all the material facts before the purchasing of their stocks (7) For damages. oppressive or fraudulent or alternatively. Jordan missed out on the opportunity. but in a close corporation arrangement….” (4) Close Corporations have a fiduciary duty to disclose material facts when buying back their own stock (5) The firm may have negotiated a term. ix) Jordan v. the omitted fact would have assumed actual significance in the deliberations of the reasonable shareholder” AND “would have been viewed by the reasonable investor as having significantly altered the total mix of information made available. Duration.(1) A stockholder who bargains for stock in a closely held corporation can make a business judgment of whether to buy into such a minority position. when a majority purchase their own stock must disclose to sellers all information that meets the standard of materia lity” (3) Materiality: (a) A substantial likelihood that. and Statutory Dissolution i) Situations where minority shareholders have been treated unfairly by majority shareholders. under all the circumstances. Jordan must prove causation…Or because of the omitted material disclosure. or contracted away this duty (6) 10b-5 requires that a director must disclose or abstain. Coppock (1) Plaintiff is seeking a forced buyback of her shares of the closely held corporation (2) Majority shareholders are in a position to squeeze out minority shareholders at unreasonably low prices because there is no market for minority shares of a Closely held Corporation (3) Methods to buy back minority shareholders at fair value – EXIT OPTIONS FROM A CLOSE CORPORATION (a) Articles of inc. that it did not have to disclose all material facts. and if so on what terms (2) The tool of good corporate practice are designed to give a purchasing minority stockholder the opportunity to bargain for protection before parting with consideration. (1) Shareholder sold back stock in a closely held corporation when there was a pending sale of the defendant firm and would have made his stocks worth much more (2) Rule: In close corporations.the director does not have the option to abstain if the corporation is buying back its stock…. the shareholder may demand a statutory right of appraisal (d) A purchase may be justified as an equitable remedy upon a finding of a breach of fiduciary duty between directors and shareholders and the corporation or other shareholders. and are seeking court order dissolution in certain circumstances and general equitable powers of the courts ii) Alaska Plastics. Duff and Phelps. Inc. fraudulent. or bylaws provision that provides for the purchase of shares by the corporation contingent upon the occurrence of some event. It would do violence to normal corporate practice and our corporation law to fashion an ad hoc ruling which would result in a court imposed stockholder buy-out for which the parties had not contracted…. (4) Involuntary dissolution and Liquidation is AN Extreme REMEDY (a) Involuntary liquidation requires a showing of “illegal.therefore. therefore he must prove he would not have sold the company if he had known of the possible tender offer… WITH FAMILIES GET BUYOUT ARRANGEMENT Control. the fiduciary duty owed to other shareholders required that the corporation offer such benefit equally… (6) These incidental benefits bestowed upon the controlling shareholders may be construed as Constructive Dividends (7) FACTUAL ANALYSIS = equal benefit IF special benefits exist for majority e) 37 . such as a merger. constituted a waste or misapplication of corporate assets” by the majority shareholders (5) Where a majority or controlling shareholder takes advantage of a special corporate benefit.
(3) Relationship established by contracts. the plaintiff is stuck in the deal. Shareholders must be evenly divided 2. Deceit (c) Oppression – Conduct that substantially defeats the minority shareholders reasonable expectations (d) MORAL – As a lawyer. however in this case the provision only allows either party to leave voluntarily. Pedro (1) The court was proper in awarding the difference between a buyout agreement and the fair market value of those shares (a) “If the fair value of the shares is greater than the purchase price for the buyout as calculated from the formula in the SRA. Talcott (1) Restaurant case…Haley head of day to day. Directors must be evenly divided and therefore unable to make corporate decisions 2. and it provides no insight on who should retain the LLC if both parties would prefer to buy the other out (b) The exit mechanism fails as an adequate remedy because it does not equitably effect the separation of the parties.TEST (a) The corporation must have two 50% stakeholders (deadlock) (b) Stockholders must be engaged in a joint venture (c) They must be able to agree upon whether to discontinue the business or how to dispose of its assets (8) What about where an exit provision exists through the LLC agreement? (a) That would dominate if it could apply equitable. iv) Pedro v. the difference is the measure of respondent’s damage resulting from having been forced to sell his shares in the company… (2) The reasonable expectations of a shareholder are those at inception and develop during the course of the shareholders relationship with the corporation and with each other (here: implied lifetime employment contract) (3) Reasonable expectations (may be) – a job. Talcott financed and then made the land be an LLC and both guaranteed on the mortgage (2) Plaintiff is seeking dissolution of the LLC because it is not reasonable practicable to carry on the business in conformity with the limited liability company agreement…. The deadlock must threaten irreparable injury to the corporation or advantage of the shareholders (ii) The Deadlock must threaten irreparable injury to the corporation or prevent the business of the corporation from being conducted to the advantage of the shareholders (iii) Shareholder Deadlock: 1. so the status quo continues (5) Absent intervention by the court. and economic security for his family (4) Must ascertain the intent of the parties to the employment contract (a) Consider the written and oral negotiations of the parties (b) The parties situation 38 .(8) Notes: (a) Courts may also grant involuntary dissolution and liquidation for two other scenarios (i) Deadlock among directors 1. The shareholders must be unable to resolve the deadlock 3. MAKE SURE TO INSERT PROVISIONS TO DEAL WITH THESE ISSUES iii) Haley v. Fraud. a significant place in management. but clearly meant to be a joint venture (4) This involves a shareholder stalemate or deadlock: (a) Shares were spilt evenly. with no recourse (6) Rule: A member or manager may seek and receive a decree of dissolution of a LLC whenever it is not reasonably practicable to carry on the business in conformity with the LLC agreement… (7) 3 pre-requisites for a judicial order of dissolution . Because of their division the shareholders must be unable to elect a board of directors for two years running (b) Courts are reluctant to order liquidation absent compelling circumstances.Oppression.
iii) This was an agreement giving the plaintiff the first right to buy the stock. If I refuse to buy with my right to first refusal then you have to buy our stocks and bring us with. like the majority getting a benefit the minority does not have the ability to receive f) g) h) Transfer of Control – Closely Held Corporation i) Frandsen v. the minority has the first opportunity to purchase the shares vi) However. BUT in the transaction the corporation selling its principal asset. Inc. i) Rule: “Absent looting of corporate assets. canons of construction ix) If you desire to have the right to purchase upon a merger offer. the minority shareholders essentially get a new partner and are subject to a new master Zetlin v. i) Sales tax may be due ii) Other accounting and tax implications iii) Any time the majority sells its control.” ii) The controlling share of a closely held corporation commands a price premium…the added value an investor is willing to pay for the privilege of directly influencing the corporation’s affairs…. Sale of assets: target shareholders remain but their corporations will have only the case or shares or other value which the acquiring co. conspiracy. must clearly contract for that right… Merger: Target shareholders get cash or other value and only one of the corporations involved survives. and negligence.must should a breach in fiduciary duty of loyalty. ii) Plaintiff and defendant has an agreement that gave the plaintiff the rights to first refusal. fraud or other acts of bad faith. i) Acquiror/surviving entity gets all assets and all liabilities of the surviving entity. and a purchaser is free to buy. iii) See examples of potential problems on 698 i) 39 . (1) Plaintiffs sought involuntary dissolution of the corporation claiming damages for fraud.. not its stock iv) There is a difference between the sale of shares of stock and a merger v) A minority’s “right to first refusal” allows a minority shareholder from coming under the control of an undesired controlling interest because if the majority shares are offered for sale. that controlling interest at a premium price.. exchanged for the assets sold.(c) The type of employment (d) The particular circumstances of the case (5) In closely held corporations. Also had a tag along clause in it. ii) Sales tax avoided iii) There may be other tax implications iv) Licenses in the surviving entity remain valid. (2) “Liquidation is reasonably necessary for the protection of the rights or interests of the complaining shareholder or shareholders” (3) Involuntary dissolution “is a drastic remedy that should be appropriately limited. if it was offered for sale. Inc. a reasonable expectation by the employee-owner that his employment is not terminable at will v) Stuparich v. Jensen-Sundquist Agency. Acquiror has the purchased assets. Inc. in the case of a merger. and squeezing out the minority shareholder on the cheap viii) Court pulls out a doctrine stating that rights of first refusal are to be interpreted narrowly. but licenses in the non-surviving entity may be invalidated.” (4) Factors do determine if t is “reasonably necessary” to protect the interests of the minority shareholders through involuntary dissolution (a) How is the plaintiff injured (b) Is there an alternative method to remedying this injury (c) Are any fiduciary duties being violated (d) Majority shareholders who run the business are protected by the BJR for decisions they making regarding the operation of the company…. these concerns are not relevant because all the shares will be purchased. Harbor Furniture Mfg. conversion of a corporate opportunity. not just the majorities shares vii) This clause prevents a new controlling shareholder from getting power. Hanson Holdings. a controlling stockholder is free to sell.
j) V. banker. Essex Universal Corp. thus the party must prove the block of stock in question did not carry the equivalent of majority control. which prescribes the treatment of the shareholders of each corporation ii) Practical mergers – mergers that do not use statutory procedure (1) Company buys stock from the shareholders directly to gain control and then do a short form merger of the companies iii) Short form merger – Companies gains 90% of shares in another corporation.drafted by the parties.shareholders of target entitled to vote (b) Del 262. Held of record by more than 2000 stockholders and 3. and Takeovers a) Introduction i) Statutory mergers – mergers through a merger agreement and state law (1) Merger agreement. go to court to appraise ones shares ii) I think you will find Delaware is so unhappy with this provision that its hard for anyone to come out ahead…. Must prove the existence of circumstances which would have prevented the buyer from electing a majority of the board of directors in due course… k) 262 of Delaware Code i) If in minority and you think that the price that’s being offered is not fair or adequate Delaware says well you don’t have to take the deal…you can get an appraisal. Yates i) Defendant purchased about 25% of a public corporation.Its expensive to do this…litigation. it can merger without a vote 40 . Acquisitions. if the shares received have similar characteristics (2) Short form merger (a) Shareholders of subsidiary only (b) Sale of seller only iv) Appraisal Procedure (1) Dissenting shareholders must (a) Give written notice of intent to dissent before shareholders meet (b) Vote against proposition (2) Corporation must notify dissenting shareholders of their appraisal rights (3) Dissenters must tender share to corporation and demand payment (4) Dissenters must then sue for appraisal (5) Dissenters bear all the costs and only receive payment after final order.under present Delaware law appraisal is not available…if the shares relinquished are 1. and as part of the deal the seller was to deliver 8 of the 14 board of director positions because under the corporate charter resigning board members could select their replacement ii) The issue is whether this contract is on its face void? iii) Normal Rule: It is illegal to sell corporate office or management control by itself (but here there was 28. (1) Cant get an appraisal if its listed on the stock exchange. Mergers. v. (2) Cant get one if merger doesn’t need stockholder approval (3) cant get one if shares received have similar characteristics (4) Appraisal is available if holders are required to except anything than shares of stock of surviving iii) Who gets appraisal (1) Merger (a) MBCA.all shareholders of targetm usually acquiror shareholders unless: (i) Whale-minnow merger (Farris) OR (ii) Market out. as to a purchase of actual majority… v) Test: (1) The burden of proof is on the party attacking the legality of the transaction. Listed on a national securities exchange 2.3% of the stock also) iv) The test the court develops is that: If the buyer was contracting to acquire a majority of stock (in reality) then there is no reason why the contract should not similarly be legal.
is all information available Duty owed c) d) 41 . then the transaction is no longer simply a purchase of assets or acquisition of property. BUT a merger iv) Since the court found a merger. iii) Test thought iv) What may the minority demonstrate to force the majority shareholder to prove that the transaction was fair. viii) Fairness (1) Fair Dealing (2) Fair Price ix) Fair Dealing (1) Study of price was not disclosed. (3) However if minority is informed. the burden entirely shifts to the plaintiff to show the transaction was unfair to the minority…. Legislature abolished the De facto merger doctrine….BUT the burden clearly remains on those relying on the vote to show that they completely disclosed all material facts relevant to the transaction….b) iv) Acquisition. the Penn. Glen Alden Corporation i) Under Penn. i) Cash out merger between the majority owner. and UOP. where a selling corporation sells all of its assets in consideration of the buying companies shares of stock. which would give arise to appraisal rights iii) Delaware courts deny the de facto merger argument. one corporation dissolves.. a shareholder does not have dissenter and appraisal stemming from his corporations sale of all of its assets ii) Plaintiff argues in this case for a De facto merger. Arco Electronics.obtain all the assets of the company and give them stock in your company. as consideration for the transfer. so the same result is accomplished as by a merger… (1) In Delaware. UOP. This way you do not acquire liabilities like one would in a statutory merger Farris v. (1) Behavior suggesting a breach of duty of loyalty (2) Transaction is approved by uninformed majority of minority shareholders. and then the shares are distributed to the shareholders…After the sale has been completed the selling corporation is dissolved. Inc. i) Involves §271 of Delaware corporate law. Hariton v. its executives and directors take over the management and control of the survivor. burden stays with the plaintiff to prove unfairness of the transaction v) Note: Board of directors in this case had a duty to both Signal stockholders and UOP minority shareholders…. Signal. Inc. then controlling party bears the burden of proving by preponderance of evidence that the transaction was entirely fair. and those directors had a fiduciary standard (2) This showed a $3 per share price increase was still good for Signal and greatly increased the value of UOP shareholders value….sticky situation vi) Why were UOP minority shareholders uninformed? (1) Failed to disclose a study that showed the price range Signal would pay for UOP. its stockholders acquire a majority of the shares of stock of the survivor. corporation ii) Rule: (1) Burden is of the plaintiff attacking the merger to demonstrate some basis for invoking the fairness obligation (2) Where a corporate action has been approved by the majority of the minority shareholders. they are required to demonstrate their utmost good faith and inherent fairness of the bargain…. the dissenting stockholders were entitled to appraisal rights v) After this case. State corporate law. and hold that the Corporations have the right to this procedure under § 271 Freeze Out Mergers – Weinberger v.court found this omission material (3) Complete candor is required for minority shareholders are to be considered “informed” vii) When directors are on both sides of a transaction. a shareholder does not have a right to dissenters or appraisal rights when the corporation acquires all or substantially all of the property of another corporation by the issuance of stock. securities or otherwise shall not be entitled to the rights and remedies of dissenting shareholders… ii) So the court must find a way to justify the transaction as a “Merger” to allow dissenter rights iii) De Facto Merger: (1) A transaction between two corporations. its liabilities are assumed by the survivor. AND.
i) Massachusetts take on freeze out mergers ii) Test (1) Business purpose – Requires a showing of a legimate business purpose (If a purpose. which entitles them to $100 per share instead of the $40 they received ii) Court: “conversion of shares to cash that is carried out in order to accomplish a merger is legally distinct from redemption of shares by a corporation. where a majority shareholder violates the fair dealing prong of the Weinberger test. LLC Merger – VGS. for matters of procedural fairness…. valuation is not always the cause of an inherently unfair transaction…. deliberate waste of corporate assets. Hunt Chemical Corporation i) The issue here is whether appraisal are the only source of remedy available to minority shareholders who have been frozen out.Appraisal rights are not the sole remedy iv) Stockholders may claim that the price being offered is the result of unfair dealings!!!! De Facto Non-Merger – Rauch v. e) Coggins v. New England Patriots Football Club. v.. or gross and palpable overreaching are involved…court has power to fashion any form of equitable and monetary relief as may be appropriate xii) The real question in freeze out merger: Can the plaintiff show a breach in duty or loyalty or that the minority vote on the merger was uninformed of all the material facts surrounding the merger…. ii) Because of the fair dealing prong in the Weinberger test. Philip A. Inc. self dealing. Castiel f) g) h) 42 . misrepresentation.(2) Time constraints?? (3) Who initiated the deal? (4) What were the negotiations? Where there any? (5) Fairness opinion?? (6) Disclosure of the process to shareholders x) Fair Price (1) Comparative analysis of other merger premiums (2) Discounted cash flow analysis (3) Earnings potential of UOP (4) Any techniques or methods which are generally considered acceptable in the financial community and otherwise admissible in court…. iii) Holding: In a case. must show fairness) (2) Fairness Test – In the totality of the circumstances was it fair to the minority shareholder iii) Business purpose test (1) A director of a corporation violates his fiduciary duty when he sues the corporation for his or his family’s personal benefit in a manner detrimental to the corporation (2) Because the director standing on both sides of the transaction…she has the burden of showing that the transaction does not violate fiduciary obligations (3) Business factors (a) Any personal benefit gained my director (majority shareholder) (b) Legal duties (c) Financial gain for corporation (4) Assume Delaware fairness test iv) Remedies – under the circumstances a remedy where the interests of the corporation and of the plaintiffs will be further best Rabkin v.the procedure under which the transaction was completed may be unfair and in this case appraisal rights may not provide relief….in this case the preferred stock was subject to redemption by the corporation iv) Plaintiff may have sought appraisal rights if she believed the transaction was unfair….requires consideration of all relevant factors xi) In a case of fraud. Inc.” iii) Redemption – preferred stock may be subject to redemption by the corporation at its option or at the option of the holders of such stock or upon the happening of a specified event. RCA i) Plaintiffs are claiming a merger is actually a redemption of their class A stock.
the board will not be held liable for such decision. to 37. However. actions are proper when made in good faith that the corporate interest was served.” Intent to steal management of the firm v) Directors in a LLC owe a duty of good faith and loyalty. while the remaining shares would be cashed out with junk bonds purportedly valued at $54 ii) The Unocal Board approved a measure that if Mesa acquired 49% of the shares. b) Greenmail i) IS the purchase by a corporation of a potential acquirer’s stock at a premium over the market price ii) IRS applied a 50% tax rate to greenmail transactions Van Gorkom i) Read Case – Procedural Duty of Care…. so it can be argued…. Takeovers a) Cheffs v. if the board has acted solely or primarily because of the desire to perpetuate themselves in office. Pickens offered the first 37% of shares tendered $54 in cash. Mathes i) Cheff was Holland Furnace’s CEO and was facing a hostile takeover from Maramount through the acquiring of stock ii) Holland furnace used corporate money and assets to borrow money to purchase the Shares that Maramount (hostile actor) acquired in an attempt to gain control.i) The form in which the majority of directors used to Merger the LLC into a new Corporation were sound through Delaware law ii) The court found the majority of directors violate their duty of loyalty to the LLC. the use of corporate funds for such purposes is improper. vi) Test: (1) Did the board satisfy their burden of proof showing reasonable grounds to believe a danger to croproate policy and effectiveness existed by the presence of the Maraemont stock ownership: Reasonable fear (2) Factors: (a) Fear of the directors of possible takeover and liquidation of the Corporation (b) Any Dealings between the parties (c) Actions by the hostile party (d) Reputation of the opposing party (3) Once a reasonable threat is established. Castiel. § 160 a corporation is granted statutory power to purchases and sell shares of its own stock iv) The claim is that the stock purchases were improperly centered upon perpetuation of control (directors control) (1) Analogies – proxy funds to inform shareholders are ok.000 shares from Maramount iii) Under 8 Del. then Unocal would offer debt securities for the remaining shares valued at $72 c) d) 43 .5% in the Corporation (2) Castiel lost his majority voting power (3) Castiel was voted out of his position on the board of directors (4) After the merger he was effectively excluded from the day to day operations of the Corporation upon which he originally founded (how about equity) iv) Equity looks to the “intent rather than the form. even though hindsight indicates the decision was not the wisest course.Must cross the Tees and Dot the I’s Unocal Corporation v. i) The Unocal Board tried to block a two-tiered take offer from Mesa’s Boone Pickens. a fellow director and a majority shareholder… iii) Factors played in equity (1) Castiel went from having a 75% stake in the LLC. but using corporate funds for selfish purposes such as the directors to perpetuate themselves in office v) RULE: If the board were motivated by a sincere belief that the buying out of the dissident stockholder was necessary to maintain what the board believed to be proper business practices.look at the facts of the scenario vi) NO BJR for a breach in the duty of loyalty VI. thereby eliminating the perceived threat of a hostile takeover. purchased 155. Mesa Petroleum Co.C.
the Board’s decision is given a presumption of the BJR. OR (b) If OK under the Delaware Statute. or bad faith – which would have been used in the previous analysis ix) Summary. the boards action are strictly held to the fiduciary standards of Unocal. breach of a duty. procedural duty of loyalty – Van Gorkom vi) If the board meets this test. and will be difficult to overturn x) See Page 779 Poison Pills – Also. SEC banned the discriminatory offers not made to all shareholders.iii) The issues are: (1) Did Unocal board have the power and duty to oppose a takeover threat it reasonable perceived to be harmful to the corporate enterprise. entrenchment is not allowed (4) Reasonable investigation.. does the Corporate Charter place any limits on this Defense Measure (2) Did the board have reasonable grounds for believe that a danger to the corporate policy and effectiveness existed? (a) Factual analysis of the circumstances – Pickens was a greenmailer (b) Directors may satisfy this burden by showing good faith and reasonable investigation (3) Was the defense reasonable in relation to the threat posed (a) Good Faith? (b) What was the primary purpose. which require the directors to determine the bests interests of the 44 . AND board must show reasonable investigation (d) Once this standard has been met. the only chance of disproving the board’s decision is through a showing of fraud. Then…. the company was on the action block iii) Standard from Unocal: (1) When exercising its power to forestall a hostile takeover. Inc. then the board’s action is entitled to protection under the business judgment rule vii) Factors to determine if a Defensive measure is reasonable in relation to the threat posed… (1) Inadequacy of the price offered (2) Nature and timing of the offer (3) Questions of illegality (4) Impact on constituencies other than shareholders (5) Risk of nonconsummation (6) Quality of securities being offered “junk bonds” (7) The basic stockholder interest at stake viii) Once the board’s actions are entitled to the BJR. the board was taking measures to defeat a hostile takeover. AND reasonable investigation or procedural Duty of Care in determining the threat is legitimate (ii) The action must be in reasonable relation to the perceived threat and primary purpose not for entrenchment. there is an enhanced duty which class for judicial examination at the threshold before the protections of the business judgment may be conferred v) Test: (1) Does the board have the power: (a) Does the Delaware Statute authorize the Board to take this defensive action. no selective treatment allowed e) Revlon. (1) Defense measures used to defeat a Hostile offer: (a) Does the board have the authority to take this action under the Corporate law and Charter (b) If yes. (c) Did the board have reasonable grounds for believing that a danger to corporate policy and effectiveness existed (i) Board must show good faith in the perceived threat. ii) This case is broken into two separate parts: (1) First part. AND (2) Is its action here entitled to the protection of the business judgment rule iv) Because of the fact the BOD may be acting in their best interests. v. MacAndrews – Perelman i) Revlon took defense measures in regard to a hostile offer from pantry pride…. so the Unocal principles applied (2) Second part. once it became apparent the breakup of the company was inevitable.
consolidations. and therefore did not trigger Revlon duties to “maximize the gain of shareholders. but after merger with Viacom the Paramount shareholders would be subject to the control of a majority shareholder in Redstorm. YES – then apply the Unocal Standard vii) Threats that may be posed to a corporation in a Tender offer: (1) Value – concern over price and method of payment – junk bonds (2) Long term strategic benefit of the deal (3) Risk or uncertainty of the deal (4) Offer meet the corporate objectives or needs viii) The Board of Directors have the fiduciary duty to manage a corporate enterprise including the selection of a time frame for achievement of corporate goals… Paramount Communications v. and impose an enhanced duty to abjure any action that is motivated by considerations other than a good faith concern for such interests… iv) Upon. vi) In this transaction. Revlon duties are not triggered. This altered the board’s responsibilities under the Unocal standards v) The directors role changed from defenders of the corporate bastion to auctioneers charged with getting the best price for the stockholders at a sales of the company. the board’s duty changed from preservation of Revlon as a corporate entity to the maximization of the company’s value at a sole for the stockholders benefit. and the ensuing battle between the Paramount Board and the Time Board over the cash offer or merger with Warner ii) The Time board rejected the higher price Paramount Offer.corporation and its stockholders. A Termination Fee. then at the last second Paramount steps in with a $175 cash offer for Time. therefore the Paramount shareholders lose the right to affect the outcome of voting rights g) 45 . vi) Duty turns to maximizing the value to the shareholders. sales of all or substantially all of the assets of the corporation. paramount a public corporation had no dominant shareholder. including a No-Shop Clause. and A Lock Up fee iii) This case was brought by QVC.” iv) Three times that Revlon Duties may be envoked: (1) When sale or merger of the company results in a loss of control or corporate change (2) Corporation initiates an active bidding process seeking to sell itself or to effect a business reorganization involving a clear breakup of the company (3) Response to a bidders offer a target abandons its long term strategy and seeks an alternative transaction involving the breakup of the company v) If a board’s defense measures to a hostile takeover or tender offer are found to constitute only a defensive response and not an abandonment of the corporations continued existence. the Board’s duty changed. or does it have a destr uctive effect by locking up a deal. amendments to the certificate of incorporation. alleging Paramount Board failed its duty: iv) A court will subject the directors conduct to enhanced scrutiny to ensure that it is reasonable. by stating the Warner deal offered: (1) Greater long term value for the stockholders (2) Paramount offer did not pose a threat to Time’s Survival and its culture iii) The court found that the time – Warner deal did on constitute a “Change of control”. mergers. when there is approval of a transaction resulting in a sole of control. Time Incorporated i) Deals with a merger of Time and Warner. QVC Network i) Deal with bidding offers for paramount from QVC and Viacom ii) Paramount inserted various defensive measures in its merger agreement with QVC. OR the adoption of defensive measures in response to a threat to corporate control v) When Shareholders must approve action my majority vote: (1) Election of directors. or eliminating the bidding process ix) The Board must take action to obtain the best possible price for their shareholders… f) Paramount Communications v. when the company is put on the auction block viii) Does the board’s action have a benefit of maximizing profit for shareholders. the realization that the company would be broken up. and dissolution. including a duty of loyalty and duty of care vii) The SOLE DUTY IS TO MAXIMAZIE PROFIT FOR SHAREHOLDERS. though Unocal duties attach… vi) Was the revised merger agreement a defensive measure in order to protect against the paramount offer.
which was under bankruptcy and was trying to recover for its debt holders and also shareholders ii) Genesis initial started to negotiation with NCS or the purchase of the company. AND (2) A judicial examination of the reasonableness of the directors action in light of the circumstances then existing. Inc. ii) Defensive measures that deprive some board of directors of power. the Paramount directors had an obligation to take the maximum advantage of the current opportunity to realize for the stockholders the best value rea sonable available… viii) The Revlon Duties are raised when sale of control exists: (1) Directors have an obligation to reasonably seek the transaction offering the best value reasonable available to the stockholders… (versus time where the control was not shifted) ix) Factors to consider in determining the best shareholder value: (1) Evaluate the entire situation and the consideration being offered (2) Try to quantify the value of the offers. and certain circumstances where the court will subject the directors conduct to enhanced scrutiny to ensure that it is reasonable. xi) Features of enhanced Scrutiny test: (1) Determination regarding the adequacy of the decision making process employed by the directors. are inconsistent with the Board of Directors Fiduciary duties under Delaware law xv) Because control was already decided to be changed. but the voter agreement still existed vii) BJR. no shop. between NCS board members and genesis. which means that it is not coercive or preclusive. Inc.vii) Therefore. and the board withdraw its approval of the Merger agreement. lock up and termination fee: (1) These provisions inhibited the shareholders from receiving the maximum value through a bidding process. the actions taken by the Paramount Board was not reasonable. due to the “risk” of scaring away Genesis. i) Bidding war over a NCS. but use its offer as leverage with Genesis v) A shareholder voting agreement with Genesis. v. Board of Directors had a duty to seek the best reasonable value available to the stockholders xvi) Court held. “before the BJR is applied to their decisions. and the uncertainty of the Omnicare deal. or disenfranchise shareholders are not allowed iii) Any provision that limits a board’s ability to act or not act in a fashion which is inconsistent w ith exercise of fiduciary duties. or defensive merger agreement terms. (4) Just looking for a range of reasonableness. (3) Directors have the burden of proving they were adequately informed and acted reasonably…. or dissolution or break up of the company is inevitable xiii) Also have the duty to seeking the best value reasonable available for stockholders where there is a pending sole for control xiv) RULE: (1) To the extent contract provisions. but not a perfect decision xii) Revlon “when a board ends an intense bidding contest on an insubstantial basis. where bidders make similar offers. NCS Healthcare. ensured the merger agreement would pass a shareholder vote. and therefore were a breach of the directors duties h) Notes on Page 816 i) Defensive measures by an independent board are permissible if not Draconian. including the information on which the directors based their decision. and make a comparison of alternatives if feasible x) Test: Board must inform themselves of all material information reasonable available. and made a better offer to purchase NCS iv) However. the directors must decide which alternative is most likely to offer the best value reasonable available to the stockholders.” i) 46 . it is invalid and unenforceable. and ant an exclusivity agreement. NCS decided not to negotiate with Omincare. which NCS agreed too iii) Omnicare jumped into the deal. Omnicare. but Genesis refused to be a stalking horse. that action cannot withstand the enhanced scrutiny which Unocal requires of director conduct (1) May not play favorites. even if the board withdrew its approval of the merger agreement vi) Omnicare then sweetened the deal for NCS.
4 billion tax would become due. then the transaction may have been solved…The board disabled itself from exercising its own fiduciary obligations at a time when the board’s own judgment is most important xix) Defensive measures may not be draconian. xii) Unocal test: (1) Directors must demonstrate that they had reasonable grounds for believing that a danger to corporate policy and effectiveness existed. ITT Corp i) Offer by Hilton. viii) A merger agreement. they also cannot limit or circumscribe the directors fiduciary duties j) Hilton Hotels Corp. REQUIRES the directors show they acted in good faith after conducting a reasonable investigation. procedural duty of care (2) Examination of the reasonableness of the director’s action in light of the circumstances when then existing. is aimed at forcing upon stockholders a management sponsored alternative to a hostile offer xiv) Preclusive. iv) Where an acquirer launches both a proxy fight and a tender offer.where all the target board’s defensive actions are inextricably related. is not subject to the enhanced scrutiny ix) Rule: defensive devices adopted by the board to protect the original merger transaction must withstand enhanced judicial scrutiny under the Unocal standard of review. and took action to split of company into various entities AND classified or staggered the board into three classes with each director serving for three years. xi) The reasonableness test should decide whether “the director’s decision was. the Court should evaluate the board’s overall response. it necessarily invokes both Unocal and Blasius because both tests recognize the inherent conflicts of interest that arise when shareholders are not permitted free exercise of their franchise…in certain circumstances. makes a breakup of the corporate entity inevitable. the principles of Unocal require that such actions be scrutinized collectively as a unitary response to the perceived threat. within a rang e of reasonableness…. initiates an active bidding process seeking to sell the corporation. (2) Second part requires the directors to demonstrate that their defensive response was reasonable in relation to the threat posed REQUIRES a two stop analysis (a) Directors must establish that the merger deal protection devices adopted in response to the threat were not coercive or preclusive (b) Demonstrate that their response was within a range of reasonable responses to the threat perceived xiii) Coercive. including the justification for each contested defensive measure.(1) When a board adopts defensive measures in response to a hostile takeover proposal that the board reasonable determines is a threat to corporate policy and effectiveness (2) Revlon duties – when the board enters into a merger transaction that will cause a change in corporate control. which Hilton would be responsible for 90% iii) Unocal/Blasius Standard: (1) In assessing defensive action by a target corporation board of directors in a takeover context. deprives stockholders of the right to receive all tender offers or precludes a bidder from seeking control by fundamentally restricting proxy contests or otherwise xv) If defensive measures are either preclusive or coercive they are draconian and impermissible xvi) A vote may be nullified by wrongful coercion where the board or some other party takes actions which have the effect of causing the stockholders to vote in favor of the proposed transaction for some reason other than the merits of that transaction xvii) Therefore the voting agreement was Draconian and coercive because they accomplished approval for some other reason that the merits of the transaction xviii) If the board had negotiated a fiduciary out clause to protect NCS stockholders. 47 . a $1. also required 80% vote to remove directors without cause and 80% to overturn the classified board ii) Inserted a position pill that if Hilton obtained 50% holdings. on balance. and the results achieved thereby…. v. ITT rejected. with no change of control. even when that merger transaction does not result in a change of control… x) Features of enhanced scrutiny (1) Adequacy of the decision making process employed by the directors. the judiciary must recognize the special import of protecting the shareholders franchise within Unocal’s requirement that any defensive measure be proportionate and reasonable in relation to the threat posed.
it may not be done so for the primary purpose is to disenfranchise ITT shareholders xiv) Factors to determine if ITT board actions were taken with the primary purpose of sustaining control (1) Timing (2) Entrenchment (3) Stated purpose xv) Because shareholders only have two options: (1) Sell. changes in the bylaws or through shareholder vote. and Dormant Commerce Clause 48 . x) The defensive measures. but that power is not unbridled.v) These cases drawn a distinction between the exercise of two types of corporate power: (1) Power over the assets of the corporation. Preclusive xii) A classified board is ok. OR (2) Replace the Board xvi) Interference with the shareholder franchise is especially serious…any action that disenfranchises the shareholders is impermissible k) CTS Corporation v. as long as it is adopted in a proper manner. the nature of the threat will set the parameters for the range of permissible defensive tactics under the second prong of the Unocal test. AND (2) The power relationship between the board management and the shareholders vi) The board has power over the management and assets of a corporation. Dynamics Corporation i) See Case…Deals with Preemption. the court must examine whether the board purposefully disenfranchised its shareholders ix) The proportionality requirement. it must be within a the range of reasonableness xi) The ITT director’s action is preclusive because it will leave ITT shareholders no choice but to accept the Comprehensive plan and a majority of ITT’s incumbent board members for another year…. through a charter amendment. it is permissible. Commerce Clause. the power is limited by the right shareholders to vote for members of the board… vii) Unocal requires the two questions: (1) Does ITT have reasonable grounds for believing a danger to corporate policy and effectiveness exists? (2) Is the response reasonable in relation to the threat? viii) If the defensive measure touches on the issues of control. must not be preclusive or coercive (Draconian). AND xiii) The board cannot undertake such action for the primary purpose is to disenfranchise the shareholders in light of a proxy contest…thus if a classified board could normally be adopted.
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