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248 Cards in this Set

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What is Piercing the Corporate Veil?

Strips away the corporate form shield of personal liability to allow 3P's to access SH assets (AKA alter ego liability)

How often do courts PCV?

Very rarely. There is no bright line rule, and each case is treated sui generis on a fact by fact basis

D identity matters why?

Although contrary to how it should be, Courts seem more likely to PCV when individual SH assets are at risk, and less likely when business assets are at risk.

Critics say it should only apply when:

1. SH misleads a creditor, causing him to forego a personal guarantee




2. SH siphons off corporate funds so it is undercapitalized to pay debts

Three common scenarios:

1. Court pierces to get at individual SH assets




2. Court pierces to get at parent company assets




3. Court pierces to get at related entity assets

What is the general rule?

Courts will only pierce in extraordinary circumstances. Totally CL unless in TX. MBCA says nothing about it.

What factors are most important to a court?

1. Sham or to perpetrate a fraud




2. Ownership of the Corp. and Identity of the SH's




3. Ignoring Corporate formalities




4. Level of capitalization




5. Contracts vs. Torts




6. One-man corporations




7. Sophisticated Parties




8. Public Policy

PCV - 1. Fraud Factor - Is actual fraud required?

No. Courts in many JD's say that constructive fraud is sufficient (Dewitt v. Flemming)




UNLESS IN TX: TX has a statute that says P must show actual fraud, and failure to observe formalities is IRRELEVANT

PCV - 2. Ownership of the Corporation and Identity of the SH's

Courts are much more likely to PCV to get at a parent company's assets than individual SH's

PCV - 3. Ignoring corporate formalities (one of 2 most important factors)

Failing to comply with statutory requirements is big (e.g. not holding SH meetings, commingling assets, etc.)




BUT - this should only be a factor in contracts cases, not torts (since its unlikely that failure to do so would mislead a 3P by tort)

PCV - 4. Level of Capitalization (second most important factor)

Standard: was the corporation "grossly undercapitalized for the purposes of the corporate undertaking"




In addition to ammount. other factors:




1. did the SH's make alot of loans to the company? this could be seen as an investment


2. Buying signficant insurance weighs against PCV


3. Did individual D's make personal guarantees?


4. Could the corp. have been profitable?




Critics: this should be irrelevant in a K's case

PCV - 5. Contracts v. Torts

Courts should be less likely to PCV in K cases is the theory, but in practice courts are more likely to PCV in K's cases

PCV - 6. One man Corporations

Courts PCV in more than 50% of the cases where one man is the sole SH

PCV - 7. Sophistication of Parties

If the P was sophisticated, less likely to PCV.




Only relevant in K cases because impossible in tort cases

PCV - 8. Policy

SCOTUS on PCV:




Appropriateness depends on all 8 factors. Look to direct liability rather than PCV if possible (i.e. parent company actually operating subsidiary)

PCV in TX

Only state with a PCV statute. Requires:




1. P in a K's case must show actual fraud;


2. Failure to observe corporate formalities is irrelevant

Which law governs? (State vs. State)

Contracts - Internal affairs doctrine governs




Torts - Law of the state with the "most significant relationship to the occurrence and the parties"

Is PCV all or nothing?

No. Its determined on a creditor-by-creditor basis and on a SH-by-SH basis

Is there an exhaustion requirement in PCV cases?

No.

What is the general rule of parity among creditors in Corporations?

All creditors (3P and SH Creditors) have parity

What is the "Deep Rock Doctrine"?

A court will subordinate a SH creditor's claim and give 3P creditors priority when equitable principles demand it. (Pepper v. Litton)




AKA "Subordination"

What is the standard for subordination?

SCOTUS: whether or not under all the circumstances the transaction carries the earmarks of an arm's length bargain




A SH creditor should not be able to use insider status to drain the corporation of its assets b/c they stand on a par with 3P's




SH must be able to show GF and inherent fairness toward the corp. and toward 3P creditors (High Standard)




Like Meinhard, if a court cites Pepper, the D will lose

What is the payment priority on dissolution of a corporation?

1. Secured creditors


2. Unsecured creditors


3. SH's capital investments


4. Distribution of profits

Must a secured creditor wait until dissolution to claim its security?

No. Upon default, the creditor may foreclose.

Is the security claim exclusive? Or can secured creditor also claim other assets?

Not exclusive. If the sale of the security does not repay the loan, the creditor does not forfeit its right to the rest. Becomes an unsecured creditor.

Successor Liability - If corporation A buys all of the assets of corporation B, does it inherit A's obligations as well?

No. But there are exceptions.

Name the 4 exceptions to the general successor liability rule:

1. Express agreement to assume




2. Where the transaction amounts to a merger or consolidation, the company that remains has assumed all of the second company




3. Where the successor company is a mere continuation or reincarnation of its predecessor (e.g. the same directors, mgmt, SH's, etc.)




4. Fraudulent transaction

What rules govern the dissolution of the corporation?

14.06 - governs the resolution of known claims against the corp.




14.07 - governs the disposition of unknown claims against the corporation (roughly requires publication in a newspaper, time limit of 3 years)

MBCA 6.01 - What required components must the stock of a company have?

1. One or more class of shares with unlimited voting rights




2. One or more class of shares that shares in the assets of the company upon dissolution (can be same series that has voting)

MBCA 6.01 - If a company wants to issue preferred stock, it must:

1. Be set forth in the AOI.

What are the two types of preferred stock?

1. Dividend preference - preferred stock gets dividend first before CS




2. Liquidation preference - Preferred SH's get paid first upon dissolution

What voting rights does common stock have?

Unrestricted voting rights on election of directors and all other matters at SH meeting

What voting rights does preferred stock have?

Generally non-voting (although can be set up differently)




May have contingent voting rights - right to vote if no dividend is paid or the AOI is amended in a way that affects the preference rights of the stock (e.g. creating a new class of preferred shares)

How is the dividend preference usually fixed?

Its generally a set amount at either a fixed dollar or a percentage of par value (or some other metric)

MBCA 6.04 - Does PS have a right to a dividend?

No. Just gets preference if and when the corporation declares a dividend.

The corollary to the above: Is PS a liability of the company?

No. So it does not show up on the balance sheets as a debt or obligation.

What is participating preferred stock?

Paid twice. Stock that gets preferred dividends and is entitled to participate again in dividends again on par with common stock.



What is cumulative participating preferred stock?

Cumulative means that if no dividend is paid, the amount is rolled over to when dividends are paid. Participating means you get the double dip.




All cumulative preferred dividends get paid before CS gets paid.

Does the MBCA allow upstream conversions? Do most JD's?

Yes.




No - most JD's do not allow them.

What are redemption rights?

Allows the corporation to demand the preferred shares back in return for a specified price.




Most states do not allow CS to have redemption rights, but the MBCA does.

What is par value?

Represents the minimum issue price (i.e. sets the floor on what stock can be sold for)

How does the MBCA treat par value?

No need to have it, but company can opt in if it wishes to establish a par value (2.02)




50% of states still have par value requirements.

What is watered stock liability?

Arises when shares are issued for less than par value - if a SH buys watered stock, they are liable for the difference

What types of shares may be "watered"?

1. Bonus shares - The SH receives the shares for nothing




2. Discount shares - Shares sold for cash but for less than PV




3. Watered shares - Shares issued for property less than the shares' par value



Enforcement of watered stock liability

The corporation or its creditors can enforce the statute

MBCA 6.02 - Watered Stock

A SH who purchases a corporation's shares from the corporation is liable to pay in consideration for which the shares were agreed to be issued

MBCA 1969 §19 - Forms of consideration for stock

neither promissory notes nor future services count as consideration b/c they represent a promise to pay in the future (might not happen)

New MBCA 6.21 - Forms of consideration for Stock

Anything goes: any tangible or intangible property or benefit, including cash, promissory notes, K's for services to be performed, etc.




BUT: Corp is allowed to put shares issued for promissory notes into escrow

Old Rule - Property for Stock

Some JD's, including TX, allowed promissory notes as consideration as long as they were secured by real property (not personal property)

New Rule MBCA 6.21 - Property for Stock

SH's can pay with property and pretty much anything

Old Rule - Valuation of the Property used as consideration

Directors had to assign dollar value to the property. Some JD's retain this rule.

New Rule MBCA 6.21(c) - Valuation of Property Used as Consideration

Directors just have to determine that the consideration is adequate (will be protected by BJR)

What states have PV?

About half, including TX. MBCA does not.

How does TX and (other PV states) treat PV?

AOI must have either:




1. a statement of the shares' PV; OR




2. a statement that the shares are without PV

What effect does having PV have?

May effect the stated capital, capital surplus, may create watered stock liability, may effect the ability of the corporation to make distributions

What effect does eliminating PV have?

Generally eliminates mandatory capital accounts, eliminates concept of watered stock, and changes the rules of distributions

What is the modern trend in PV JD's?

Set the PV very very low (nominal) and sell shares for much higher



What is the effect of setting a nominal PV in a PV State?

1. Avoid watered stock liability (least convincing rationale)




2. Preserve competitive position vis a vis the secondary markets (if the market price drops below the PV, no one will buy from corporation and everyone will go to secondary market)




3. Preserve flexibility in making distributions (most important reason)

What is the best way to preserve flexibility to make distributions in a PV state?

Set it nominally. This is even better than no PV in a PV state.

What is stated capital?

(# of shares sold) * (Par Value) = stated capital

What is capital surplus?

(# of shares sold) * (Price - PV) = capital surplus

What is earned surplus?

Surplus generated from earnings of the business.

In a PV State, when can you make distributions?

Out of capital surplus and earned surplus, but never out of stated capital.

Old Rule for capital surplus and distributions:

In most JD's, including TX, a max of 25% of consideration received could be allocated to capital surplus. Therefore, more flexibility with nominal PV shares than with no PV shares.

MBCA 1969 § 21 Rule for capital surplus and distributions:

Directors had near total flexibility; entire consideration was considered stated capital UNLESS the directors determined to allocate "any portion of it" to capital surplus

MBCA 6.40(c) - Rule for Distributions

Eschews PV concept, protects creditors with a 2 prong test:




1. Equity insolvency test AND




2. Balance sheet test

What is the equity insolvency test?

The corporation will, after paying its distribution, be able to pay its debts as they come due in the ordinary course

What is the Balance Sheet Test?

After the distribution is made, the corporation's assets exceed its liabilities

What are Treasury Shares?

Shares the corporation has bought back, either through a redemption or repurchase

Is PV relevant for the issuance of Treasury Shares?

No. Once the company has bought the stock back, it can then resell it for whatever price it wants.




PV is an issuance concept only, and the sale of Treasury Shares is not an issuance.




Implication: PV has nothing to do with the sale of shares on the secondary market

Are Treasury Shares considered issued, outstanding or what?

Majority view: treasury shares are issued but not outstanding




(# of treasury shares) = (# of issued shares) - (# of outstanding shares)




As non-outstanding shares, they have no voting rights, dividend rights, and no effect on quorum

Are treasury shares considered as an asset?

No. Like authorized but unissued shares, not considered an asset.

MBCA 6.31- view on Treasury Shares

They are authorized but unissued.

What is a promissory note?

A short term obligation to re-pay

What is a bond?

Long term obligation that come with a security interest



What is a junk bond?

Below investment grade debt, generally unsecured (despite the name)



What is a zero-coupon bond?

A bond purchased at a discounted face price that compensates its holder with repayment of the full face price instead of interest

What is a debenture?

A long-term unsecured promise to repay

What is a thin corporation?

a company with a high debt:equity ratio (e.g. 2:1)

What are the tax benefits of debt?

Interest paid to a lender is tax-deductible under the "ordinary and necessary business" exception. Therefore, companies can use interest payments to help zero out.

What is debt reclassification?

When SH's loan to a company, courts (and the IRS) will scrutinize and may reclassify it as equity if it is a de facto capital contribution

Two types of reclassification?

1. Reclassification for priority purposes - creditors will ask courts to reclassify during a bankruptcy proceeding to move the claim back in priority (old rule was that anything higher than 4:1 would be reclassified)




New rule: if there is more equity than debt to the SH's, then the SH's will win




2. Reclassification for Tax purposes - Primary factor:




Did the SH treat it as a regular debt obligation, requiring regular interest payment and principal over time?

Old IRS rule that still serves as a guidepost:

Guaranteed no re-classification if:




If the corporation's inside debt:equity ratio was less than 3:1, AND




The company's outside ratio was less than 10:1

What are the two primary purposes of SEA 1933?

1. (Most important) Registration requirement - to ensure that people who sold securities to the public for the first time made full disclosure of all material facts




2. To prevent fraud (which applies regardless of whether the securities have to be registered under the first purpose)

SEA 1933 Promotes Disclosure by:

1. Requiring the offeror's disclosure sheet to begin with a long statement of "risks to investors" AND




2. SEC will review this disclosure before it is released to the public (gives it teeth)


- However, it is important to note that this is NOT a merits evaluation (i.e. SEC isn't reviewing to determine if its a good investment)

Do the exemptions granted by Reg D or any of the other exceptions to the disclosure/registration requirements apply to the anti-fraud provisions of SEA 1933?

No. The ant-fraud provisions apply regardless of whether the shares fall within a registration exception

What does §5 of the SEA 1933 do?

Forces a company that is initially selling shares to the public to register them under § 5

What does the SEA 1934 do?

It's an omnibus compared to the narrow 1933 Act.




1. Establishes the SEC to regulate securities


2. §14 regulates the proxy voting process


3. Regulates the secondary market in securities (as opposed to 1933, which dealt only with first issuance)


4. Establishes a series of continuous disclosure requirements on corporations required to register under SEA 1934 §12(g)

What companies are obligated to provide continuous disclosures?

12(g): Corporations that:




1. have shares listed traded on a national exchange, OR




2. with 500 or more SH's of record and more than $10m in assets (DOUBLE CHECK - LIKELY GONE UP)

Downside of an IPO:

1. Disclosure is the biggest


2. Expense


3. Outside directors (a PHC must have some outside directors)


4. Risk

What is a security under §5 of SA 1933?

encompasses shares of stock, interests in a LP, or even the purchase of an investment contract (Smith v. Gross)

An investment contract constitutes a security when (under Howey):

1. the scheme involves an investment of money


2. in a common (shared) enterprise; and


3. with profits to come solely from the efforts of others


(Courts have read this as profit will be generated primarily by the solicitor)




e.g. investors agree to grow worms in a worm farm, profits come from D selling the worms (Smith v. Gross)

Is the sale of an interest in an LLC a sale of a "security" under SA 1933?

Maybe. Possible resolution:




If you manage like a corp - its a security


If you manage like a partnership -its not

What are the implications if an LLC interest is classified as a security?

If not registered under SA 1933, civil and criminal liability.

Unless it falls into an exception, does SA 1933 §5 require registration of ALL securities?

Yes.

What are the 3 main exemptions from registration under §5 of SA 1933?

1. §3(a) Provides a laundry list of specific securities that are exempt (e.g. securities sold by the fed. government, securities sold only via intrastate commerce, etc.)




2. §3(b) Provides a catchall: offerings of securities that are less than or equal to $5M. However, this is discretionary - SEC may but does not have to allow this exemption




3. §4 Provides a list of exempted transactions: (e.g. a transaction of an issuer not involving a public offering)

If you want to use a Regulation D exemption, when do you have to file a Form D?

Three times:




1. 15 days after first sale


2. 6 months after first sale


3. 30 days after last sale



How does Regulation D fit within the statutory framework of SA 1933?

Since §5 technically requires registration of all securities, Reg D gains its authority through the catch-all exemptions in 1933 SA

What are Regulation D's 3 Exemptions?

1. Rule 504


2. Rule 505


3. Rule 506

What is the standard for Rule 504?

1. Maximum offering price: $1M or less




2. Maximum number of purchasers: Unlimited




3. Information to be delivered to purchasers: None




4. Limitations on advertising or resale: No limit on advertisements, provided that:


(a) the securities are sold only in states that require the seller to deliver a disclosure document to the purchaser; OR


(b) they're sold in at least ONE such state AND the document is delivered to all purchasers




5. Sophistication requirement: None





What are the standards for Rule 505?

1. Maximum offering price: $5M




2. Maximum number of purchasers: 35 + an unlimited number of accredited investors




3. Information to be delivered to investors: Yes to all the non-accredited investors




4. Limitations on advertising and resale: Yes




5. Sophistication requirement: None

What are the standards for Rule 506?

1. Maximum offering price: None.




2. Maximum number of investors: 35 + an unlimited number of accredited investors




3. Information to be delivered to investors: Yes to all non-accredited investors (more stringent info required than 505)




4. Limitation on advertising and resale: Yes - (identical to 505)




5. Sophistication requirement: Issuer must show that every non-accredited investor had the knowledge or business experience necessary to evaluate the risk

Rule 501 - What is an "accredited investor"?

1. Certain institutions - banks, savings and loans, insurance companies, institutional investors, non-profits with assets over $5M




2. Insiders - directors, executive officers or a general partner of the investor




3. Rich People - Any person who:


(a) individual or joint net worth is over $1M; or


(b) had an individual income in excess of $200K the last 2 years (or $300K if filing jointly)

Rule 506 - What is a Public Offering?

Rule 506 is a safe harbor re: what constitutes a public offering.




If it fits the exemption, not a PO.


If it does not fit, theres a chance to make a showing with specific facts

What is the Freeze Out Problem?

Often shares in a CHC have a restriction on transferability, and even if they don't, there is little market for CHC shares. Therefore, freeze out results when:




Minority SH's are at the mercy of the majority, who can prevent them from selling their shares, exercising control, using their votes, and force them to sell their shares below FMV

What are Preemptive Rights?

The rights that a SH has to buy a % of a new stock issuance that matches up with the % of the shares he owns




Allows a minority SH to prevent dilution re: voting rights and distribution rights

Old vs. New Theory of Preemptive Rights

Old - Preemptive rights are an inherent property right that attaches to all shares




New - Not a property right; conferred by statute; the AOI may grant or withhold

MBCA 6.30 - Are preemptive rights an opt-in or opt-out provision?

Opt-in. SH's do not have preemptive rights unless the AOI specifically provides for them.

New Texas Law - are preemptive rights opt-in or opt-out?

Opt-in. This is also the modern trend for most JD's.

MBCA 6.30(b) - in the event that you do opt-in, how do preemptive rights work?

1. SH has the right to maintain a proportionate interest in the corp.



MBCA 6.30(b) - Can a SH waive their preemptive rights?

Yes.




explicit - SH can waive a right, and a waiver in writing is irrevocable.




implicit - SH may waive a right by failing to assert it





MBCA 6.30(b) - What presumptions limit the effect of preemptive rights?

1. no PR's for shares issued as compensation




2. no PR's for shares issued to satisfy a conversion or option




3. no PR's re: shares issued within 6 months of authorization (1st SH should not have right to own 100% of shares)




4. no PR's for shares issued for anything but cash (i.e. no PR's for property consideration)

MBCA 6.30(b) - If you own preferred shares with no voting rights, do you get preemptive rights?

No. No preemptive rights for shares of any class of stock

MBCA 6.30(b) - If you own common shares, do you get preemptive rights for issuance of preferred shares?

No. Presumption that you do not, UNLESS the preferred shares are convertible. Which almost all are. So more like yes.

MBCA 6.30(b) - Are all of the above presumptive restrictions subject to change?

Yes. The corporation is free to alter these default rules with express statement in the AOI.




Therefore, those restrictions will apply if the company opts-in, unless it explicitly removes them.

Are there any limitations on waivers of preemptive rights?

Yes. If the majority makes a sham offer in order to induce the minority into not exercising, the minority can argue that he did not truly waive his rights. (Kaskowitz)




Essentially, this is a breach of a fiduciary duty.

Do preemptive rights apply when the shares were purchased in exchange for property?

No. Cash only.

Freezeout Tactics:

1. Don't pay dividends




2. Raise majority SH's salary - This allows the majority SH to wait out the lack of a dividend while the minority SH (presumably not an employee) cannot wait




3. Corporation loans money to majority SH - Another way to survive no dividend payments

Why is freezeout worse in the CHC context than in a partnership?

1. Voluntary dissolution is impossible




2. Judicial dissolution is rare b/c courts are reluctant to get involved due to protections of the BJR

Judicial Resolution to the Freezeout Problem:

Judges are very reluctant to get involved: the BOD's decision to pay out dividends is protected by the BJR and are totally discretionary.




But, the general rule is that: a failure to pay dividends is a breach of a fiduciary duty when the majority SH's are motivated by personal interest rather than corporate good.

What is the modern trend in this area?

For judges to employ a per se rule that SH's owe eachother a fiduciary duty. Greater than the duty a BOD owes to the company (Donahue v. Rodd)




This makes it almost on the level of Meinhard

What states refuse to institute a per se rule in this area?

Maryland and Texas -




Decline to establish a per se rule, say that SH duties to one another depends on the facts & circumstances of the particular case.




Deleware -




Resoundingly denounced the per se fiduciary duty among SH's




MA -




Have a rule that shifts burden to majority to show why it was a legitimate business move.

How can a company use redemption as a frezeout method?

Corporation redeems shares from majority holders at an inflated price, lowballs redemption offers to minority SH's.



What is the remedy if the courts determine that a redemption has been used improperly?

Courts will grant the minority SH a reverse preemptive right (allows them to sell back at the same price given to the majority SH's) (Donahue v. Rodd)

Is a reverse preemptive right remedy conditional upon having preemptive rights?

No.

Economist criticism of per se fiduciary duties and reverse preemptive rights:

Gives minority too much power; allows them to impose costs on other investors even in the absence of fault

What are the options for a minority SH caught in a freeze-out?

1. Sell to majority at low price




2. Sell to someone else at FMV (near impossible due to closed market, no one wants to buy a minority position in a CHC)




3. Litigate - costly, unlikely to win




4. Dissolution - the best alternative

How to get a voluntary dissolution if you're a minority SH:

The MBCA and virtually every state require an affirmative vote from a majority of SH's to dissolve, so this is unlikely.




However, MBCA requires only a majority of the SH's present AT THE MEETING...so you could sneak one in here. Still, most states have not adopted this.




2.

MBCA 14.30(a)(2) - How to get an involuntary dissolution if you're a minority SH:

Court "may" (not "must") dissolve in 1 of 4 situations




Each of them are rare, and even then courts are reluctant.

MBCA 14.30(a)(2) - Situation One

1. SH's are deadlocked in management


2. SH's are unable to break the deadlock


3. Irreparable injury is ongoing or threatened




This is rare in CHC freezeouts b/c usually no deadlock since only the minorities are pissed

MBCA 14.30(a)(2) - Situation Two

The directors are acting in an illegal, oppressive, or fraudulent manner

MBCA 14.30(a)(2) - Situation Three

1. The directors are deadlocked AND




2. For at least 2 consecutive annual meetings, have not elected new directors

MBCA 14.30(a)(2) - Situation Four

Corporate assets are being misapplied or wasted

What are the Tax Implications on redemption?

When a company redeems, SH pays capital gains tax only on the gain (sale price - purchase price)

What is the exception to the Tax Rule on Redemptions?

When a redemption operates as a dividend.




If the corporation does a proportionate redemption (each SH owns same % after redemption), this is a dividend.




Therefore, in this event - the entire amount (not just gains) received is subject to FIT

MBCA 6.40 - Who has discretion to declare a dividend?

It is entirely up to the BOD

MBCA 6.40(c) - When can a company make a distribution?

If it meets the equity insolvency test and the balance sheet test.



What is the equity insolvency test?

The corporation would still be able to pay off debts as they come due in the ordinary course of business

What is the Balance Sheet Test?

The corporations total assets would not be less than:




1.the sum of its total liabilities plus




2. (unless the AOI specifies otherwise) the amount that would be needed to pay those with preferential rights (superior to those receiving the distribution) upon dissolution

MBCA 1.40(6) - What is a distribution?

A direct or indirect transfer of money or other property (except its own shares) or incurrence of indebtedness by a corporation to or for the benefit of its shareholders in respect to any of its shares

What does in respect of its shares mean?

Essentially that you are being paid due to your ownership of the stock or in relation to your ownership of the stock.




e.g. a payment of salary is in relation to services rendered

MBCA 1.40(6) - What forms may a distribution take?

1. Dividend


2. Purchase, redemption, or other buyback of its shares


3. Distribution of indebtedness;


4. Or otherwise

Would a promissory note given to a SH in respect of his shares qualify as a distribution?

Yes.

If Corporation A distributes shares of Corporation B to its SH's on a 1-for-1 basis for each share of Corporation A that they own, is this a distribution?

Yes. However, remember that the MBCA excludes transfers of the company's OWN shares.

If the company does not have money on hands right now, but anticipates it, can they meet the equity insolvency test?

Yes.

Who can directors rely on to provide information to make this judgment?

officers, lawyers, accountants, or anyone with specialized knowledge.

For the purposes of the balance sheet test, does the corporation treat liquidation preferences owned to senior securities as a liability?

Yes. For this test only. Must include amount that you would have to pay upon dissolution as a liquidation preference to preferred holders.

MBCA 6.40(e) - When do these tests have to be satisfied?

Depends on the type of distribution being authorized.

MBCA 6.40(f) - If a corporation pays a distribution by taking on indebtedness to a SH, how is that debt treated?

It is at parity with the company's other general unsecured creditors. But the "Deep Rock" doctrine can circumscribe this.

MBCA 6.40(e) - Timing of meeting the test for stock buybacks (redemptions, etc.)

The effect of a distribution is measured as of the earlier of :




1) the date the money or other property is transferred; or




2.) the date that the SH ceases to be a SH with re: to the acquired shares

MBCA 6.40(e) - Timing to meet test for distribution of indebtedness

The effect is measured "as of the date the indebtedness is distributed"

MBCA 6.40(e) - Timing to meet test for dividends

1. If the payment occurs within 120 days after the date the distribution is authorized, the effect is measured as of the date of the authorization




2. If the payment occurs more than 120 after authorization, effect is measured as of the date the payment is made

What is the TX Law on Distributions?

Applies the same two tests, with some slight variations.

TX Balance Sheet Test

Corporation's net assets - stated capital




net assets = assets minus liabilities

Therefore, a TX corporation can make a distribution in the amount of: (assuming its met insolvency test)

[(Assets) - (Liabilities)] - (PV * # of shares outstanding)

Under the traditional view, an impermissible SH agreement was:

An agreement to decide in advance how they would vote as directors

What is the modern trend on SH agreements in CHC's?

It makes sense to allow in a company where the same people who own the shares are running the company, due to the limited market for shares in a CHC (Galler)

MBCA 8.01(b) - What is the limitation on this general rule that states that "all corporate powers shall be exercised by the BOD"?

MBCA 7.32 - Added in 1992 to underscore the modern trend.




Provides that SH's in CHC's are free to encroach on the authority of the BOD or even dispense with it altogether

What case was the turning point on SH agreements?

Galler v. Galler



What is the standard in Galler?

In a CHC, as long as the agreement is designed to accomplish something practical, it should be enforceable:




1. no public injury


2. No complaining minority interest


3. No prejudice to the creditors

What is an integrated closed corporation statute?

Statutes adopted by some states that allow CHC's to impinge on the authority of the BOD provided they put the state and public on notice

Does TX have a closed corporation statute?

Yes.

How do you get the benefits of a closed corporation under Texas Law?

A simple statement in the COI: "this is a closed corporation"

Are there maximums on the number of SH's for these rules to apply?

In some states. DE has such a rule.

Are these statutes exclusive? (if a CHC is a CHC but fails to make the election, should they be excluded from the rule?)

DE - Exclusive




NY - Not exclusive. Corp. should be able to amend its AOI and elect it, so long as no one is harmed by the agreement




TX - Unresolved.

MBCA 7.32 - Are SH agreements that deprive the BOD of some or all of its power enforceable?

Yes. So long as it fits under the statute.




However, these agreements are only enforceable if it is a CHC. (7.32(d))

Common Law Approach to Removing Directors

SH's could only remove a director for cause; some sort of actionable misconduct. Directors had due process to rights in removal proceedings

MBCA 8.08 - How can SH's remove directors?

With or without cause, unless the AOI provide that they may only be removed for cause

MBCA 8.08 - If a corporation provides in its bylaws that it can remove directors only for cause, can it?

No. Can still remove without cause. Has to be in the AOI.

MBCA 8.08(b) - If a director is elected by one class of SH's, who can remove him?

Only that group that elected him.

MBCA 8.10 - If a vacancy occurs on the BOD, who can vote to fill it?

Unless provided otherwise in the AOI,




Either the SH's or the BOD

MBCA 8.10(b) - if the vacancy was held by a director elected by a particular voting group, who can vote to fill it?

Only that group that elected him

Who is entitled to vote a particular share?

The record owner. Not the beneficial owner.




However, the beneficial owner can go to a court to force the record owner to give him a proxy

MBCA 7.07 - When does the corporation determine who is the record owner?

On the record date. This may not be more than 70 days prior to the meeting.




If the record date is not set in the bylaws or AOI, the BOD can determine it.

MBCA 7.05 - What and when are SH's entitled to receive notice of a meeting?

Entitled to receive notice of: the date, time, and place of a meeting no fewer than 10 days before or more than 60 days before.




If its an unscheduled meeting, notice must contain information re: meeting's purpose

MBCA 7.06 - Can SH's agree to waive notice? If so, how?

Yes, but it must be in writing.




Implied waiver - if SH shows up to the meeting and participates w/out objection

What is a quorum?

The minimum number of shares, not shareholders, that must be represented at a meeting in order to take action

MBCA 7.25(a) - What constitutes a quorum?

A majority of the shares of the voting group entitled to vote on the matter, unless the AOI provide otherwise



MBCA 7.25(b) - Once a quorum is established, can SH's break it by leaving?

No. Quorum remains effective until the end of the meeting

MBCA 7.27 - How can you change the quorum requirements?

Only through the AOI.

MBCA 7.27 - Can you raise and lower quorum requirements? If so, how much?

Raise - Can raise all the way to unanimous




Lower - Not in the text, but in the comments. No floor, theoretically can have no quorum

Under TX Law, can you lower quorum requirements? If so, how much?

Yes - but it may not be lowered to less than 1/3

MBCA 7.25(c) - How are votes tallied in a meeting? Do abstentions count?

In an vote for anything but the election of the BOD:




Vote is approved if the votes cast in favor of the matter are greater than the votes cast against it. Yays outnumber the nays.




(i.e. Abstentions DO NOT count)

Texas Rule - How are votes tallied and do abstentions count?

Matter only passes if it gets a majority of the votes cast, including abstentions.




(i.e. abstentions count as no votes)

MBCA 7.04 - How can SH's take action without a meeting?

If there is unanimous consent.

DE Rule - How can SH's take action without a meeting?

So long as there is consent from the minimum number of shares needed to take action on that issue at a SH meeting.

MBCA 7.28 - How are directors elected?

Unless provided for in the AOI, directors are elected by a plurality of the votes cast by the shares entitled to vote.




Default rule is straight voting.

What is a plurality?

The most yes votes (i.e. not necessarily a majority)

MBCA 10.22 - In a PHC, can a corporation alter its voting to majority in its bylaws?

Yes.



MBCA 7.28 - Can company amend its bylaws to provide for cumulative voting?

No. It must be adopted in the AOI.




Corollary - if a company opts in under its AOI to have cumulative voting, it takes an amendment to the AOI to go back

Texas Rule - What is the default for electing directors?

After 09/01/2003 - SH's do not have the right to cumulate voting unless the corporation opts in

What is straight voting?

A SH has one vote per share, per slot in the election and the number of votes a SH may cast in favor of a particular director is capped at the number of shares he owns.




Example - F has 100 shares, Director slots A, B, and C are open. F has 100 votes for A, 100 for B, and 100 for C.

What is cumulative voting?

A SH has one vote per share per slot up for election, and the SH may cumulate those votes and allocate them among the slots however he wants




Ex. F has 100 shares, and A, B, and C are up for election. F can vote all 300 for A, or 150 for A and B, or however.

Advantages of Cumulative voting

It is democratic in that it allows SH's with minority interests to get seats on the board. Increases diversity of view points on the board, reduces risks of conflicts of interest on the board.

Disadvantages of Cumulative Voting

Elects partisan members to the board, which is not how a BOD is supposed to function (should rep all interests). Creates friction on the BOD, which promotes inefficiency. MGMT may be less likely to take needed risks.

What is the critical formula for the number of shares that a SH needs to be able to elect "n" directors?

SH > n*( S/ (D+1))




SH = number of shares the SH has


n = number of directors to be elected


S = total number of shares voting


D = number of directors to be elected (not the total number of directors on the BOD if it has a staggered board)

MBCA 8.06 - How may the company provide for a staggered board? How many classes of directors may there be?

Company may provide for a staggered board in which different classes of directors are elected at different times. Must do so in AOI.




The corporation can create 2 or 3 classes.




Does not specify a minimum number of directors needed to create such a board

Old Rule - How many directors did a company need to have in order to create a staggered BOD?

Only allowed for staggered boards if the company had nine or more directors

Most states require what for staggered boards?

Only if there are 3 or more directors and only if the company does not have cumulative voting

Effect of staggering:

Frustrates cumulative voting by making the denominator larger; functions as a shark repellant, making takeovers more difficult

Other ways to frustrate cumulative voting:

1. Increase the numerator by increasing the number of shares voting




2. Freeze out the minority director by denying access to information, refusing to appoint to committees, etc.




3. Eliminate cumulative voting




4. Reincorporate in a JD that does not have cumulative voting

How would you go about eliminating cumulative voting?

Must make an amendment to the AOI.

MBCA 10.03 - What is required to amend the AOI?

Depends. If it is one of the listed things under 10.05 (change name, etc.), you just need BOD approval.




For most substantive changes, you need BOD and SH approval. (10.03)

MBCA 8.08(c) - If the company authorizes cumulative voting, what is required to remove a director?

A director may not be removed if the number of votes against her removal would be sufficient to elect her under cumulative voting.




The number of votes is counted at the meeting where the removal is held, not where the election was held.

MBCA 7.28(d) - what is required for a SH to exercise their cumulative voting rights?

1.) The meeting notice or proxy statement must conspicuously state that cumulative voting is authorized; OR




2.) A SH with the right to cumulate must give the company notice 48 hours before the meeting. At that point, all SH's in that voting group would have right to cumulate.

Does cumulative voting apply to anything other than the election of directors?

No. That's why it is only discussed in 7.28.

MBCA 7.30 - How does a voting trust work?

1. SH turns over their shares to a trustee, and only the trustee has the right to vote those shares. Trustee must provide a list of members in the VT.




2. In exchange, the SH receives a voting trust certificate, which is freely transferrable and confers all rights except the right to vote.

MBCA 7.30 - Is there a time limitation on voting trusts?

No. Up until recently, you had a 10 year limit. Not anymore.

MBCA 7.31 - What is a Voting Agreement?

It's just a contract among SH's as to how they will vote in an election. Totally enforceable.

Were voting agreements enforceable under the traditional view?

Yes. It was always acceptable to agree in advance how SH's would vote. What was impermissible was SH agreements that agreed in advance how they will run the company.

What is proxy voting?

Process of a SH letting someone else vote his shares




Proxy refers to both the instrument and the person doing the voting

MBCA 7.22 - What is the standard term of a proxy?

11 months, unless provided otherwise in the AOI (i.e. its only good for one SH meeting)

MBCA 7.22 - a proxy is revocable unless:

1. The appointment form states that it is irrevocable, AND




2. The appointment is coupled with an interest

What does "coupled with an interest mean"? What are some examples?

1. The person who is given the right to vote the proxy also has a stake in the corporation




2. Examples (per 7.22): proxy has agreed to purchase the shares, proxy giver has pledged the shares to the proxy as collateral for a loan, the proxy is the beneficial owner, an employee, a party to a voting agreement created under 7.31

MBCA 7.22(f) - When does an irrevocable proxy become revocable?

When the interest with which it is coupled is extinguished (e.g. employee gets fired, beneficial owner sells shares, etc.)

Is the MBCA list of interests for irrevocability exclusive? Is New York's?

MBCA - No. List is non-exclusive. (e.g. CEO could be an irrevocable proxy, even though not listed)




NY - Yes

To whom does the trustee of a voting trust owe a fiduciary duty?

"for whose benefit the VT was created"

When do issues arise concerning Voting Trusts? (Abercrombie)

When courts decide that it is unenforceable because it appears to be a voting trust (as opposed to a voting agreement); but did not comply with the statutes




This was more of an issue when time limits were strictly enforced in VT's.

In establishing whether the court will treat it as a voting trust, which 3 factors matter?

1. Voting rights of stock are separated from other aspects of ownership




2. Voting rights are intended to be irrevocable for a period of time




3. the primary purpose of the grant is to acquire voting control of the corporation

Example of an unenforceable trust:

Group of SH's arrange to vote together to take control of the company, they appoint an agent to vote their shares collectively, and turn over their shares in exchange for a receipt. The agreement was not time-restricted, so therefore it did not comply with a statute because in effect it was a VT (Abercrombie)

Examples of agreements that were determined not to be VT's:

1. appointment of an arbitrator (Ringling)




2. creation of a class of voting shares (Lehrman)




3. Creating a class of shares with no rights other than to elect a director (this is a disembodied right to vote, and it is enforceable)

MBCA 6.27 - What is a buy/sell agreement?

Form of CHC Shareholder agreement that restricts a SH's ability to transfer shares to someone else

Types of Buy/Sell Agreements

1. Cross-Purchase agreements - If one SH dies, retires, or wants out, the other SH's are obligated to buy him out




2. Stock redemption agreement - If one SH wants out, the corporation is required to redeem his shares (note: this would be a distribution, and therefore must satisfy 6.40)




3. Right of first refusal - SH must go to company before seeking 3P investors to buy his shares




4. Right to approve of 3P purchaser

Valuation is a big issue in buy/sell agreements; what are some of the methods?

1. Choose a fixed sum (dangerous)




2. Formula




3. Book value - this is dangerous b/c it may be higher or lower than FMV; may bear no relationship to actual value




4. Market value - difficult to assess in a CHC




5. Have the assets appraised - this can be expensive and controversial re: who gets to appoint the appraiser




6. Little Kid Dessert Method - One person sets price, the other gets to choose whether to buy or sell at that price (this is good, but assumes only 2 SH's with equal interest in the company)

MBCA 6.27 - What is the one limitation on buy/sell agreements?

Must be reasonable.

MBCA 6.27 - Do you have to provide for buy/sell agreements in the AOI?

No. Could be agreed to in bylaws, AOI, or just a SH Agreement between SH and company (or other SH's)

What is an example of an unreasonable buy/sell agreement?

A restriction barring all transfers to anyone

MBCA 6.27 - Is the buy/sell agreement enforceable against the SH or the transferee?

Both. Valid against the SH, so long as reasonable.




Valid against the transferee so long as:


1. it is reasonable; AND


2. the restriction is note conspicuously on the front or back of the certificate

MBCA 6.27 - Is there any way to enforce a buy/sell agreement against a transferee if the restriction is not included on the certificate?

Yes. It is enforceable if the transferee has actual knowledge of the restriction.

What is one downside of a ROFR?

It chills the SH's ability to find 3P investors, since they know company will come back and buy it if its at a decent price

Judicial dissolution at common law - When will courts dissolve a company?

If the dissolution will be beneficial to the stockholders or members and not injurious to the public

Judicial dissolution at common law - What factors weigh in favor of dissolution?

1. SH's and directors are deadlocked; there's so much hostility that nothing can be accomplished




2. Where the Sh has no other options to get out of the company (e.g. a minority SH)




3. If a fair buy-out offer would not work as a remedy

Judicial dissolution at common law - What factors weigh against dissolution?

1. Corporation is profitable during the litigation




2. Dissolution is not a neutral remedy - e.g. if there are 2 SH's, and only one knows how to run the business and could go out and start another business, this is prejudicial toward the other SH

What is the modern remedy for oppression, dissension, and deadlock?

Even where not authorized by statute (as in TX), many courts will fashion a buy-out remedy

What is oppressive conduct? (Davis v. Sheeren)

Conduct by a majority SH that substantially defeats the expectations that, when objectively viewed, were reasonable under the circumstances and were central to the minority owner's decision to invest

MBCA 8.24 - What is a quorum of the BOD?

A majority of the fixed number of directors

MBCA 8.24 - May a quorum be higher or lower? If so, can you provide for that in the bylaws, or does it have to be in the AOI?

1. Higher - permissible, unlimited ceiling




2. Lower - permissible, but cannot be lower than 1/3 (as opposed to SH quorum, which has no floor)




3. It may be amended in the AOI OR the Bylaws (note: a SH quorum may only be amended in the AOI)



MBCA 8.24 - What does it mean that a majority of the "fixed" number equals quorum? If one member resigns, does the quorum change?

This means that it must be a majority of the directors that are fixed in the AOI, not a majority of those currently in office.




If a director resigns, the quorum should not change (e.g. if 4 directors serving, and 1 resigns, the quorum is still 3)

MBCA 8.24 - Can a director break quorum by leaving before the vote?

Yes. As opposed to SH meetings, quorum is taken at the time of the vote.




TX Law is unclear on this point.

MBCA 8.24 - assuming a quorum is present, what is the standard for reaching a "yes" vote? Does this apply to the number of directors in office or the number of directors present at the time of the vote?

1. Affirmative vote by a majority




2. Of the directors present (not of those in office)

MBCA 8.24 - When is a director presumed to have voted yes?

If he is present at the meeting.

MBCA 8.24 - What three things negate the presumption that the director voted "yes"?

1. If the director objects at the beginning of the meeting




2. his dissent or abstention in the matter is taken down in the minutes




3. he delivers written notice to the presiding officer of the meeting of his abstention or dissent prior to the end of the meeting or immediately thereafter

MBCA 8.24 - May a director who voted "yes" in the meeting still preserve his right to dissent by providing it thereafter?

No. If he votes yes, its a yes.

What is the majority view (and Old MBCA view) on quorum required to fill a vacancy if one director resigns?

Any vacancy may be filled by a majority vote of the remaining directors.

MBCA 8.10 - What is the MBCA's position on quorum requirements to fill a vacancy?

It is required unless the remaining directors constitute fewer than a quorum. (i.e. only if a quorum is impossible)

What case is related to this?

Gearing v. Kelly

MBCA 8.05 - What is the term of an initial director? What is the term of every other director?

1. Expires at the first SH's meeting where directors are elected




2. Expires at the next meeting after their election (annually); UNLESS the board is staggered

MBCA 8.05(e) - in the event that there is a tie and the SH's cannot agree on a successor, what happens to the serving director's term?

It continues until the tie is broken and a successor is elected