Baker&Taylor Table of Contents：

Preface

Acknowledgments

FORMATION

Incorporators; how corporation formed;

purposes

Comment to Section

Scope and application of statute

Formation of corporation

Other corporations

Contents of certificate of incorporation

Comment to Section

In general

Name of corporation

Address of registered office and agent

Corporate business or purpose

Authorized shares of stock

Membership of nonprofit corporations

Incorporators' addresses

Names of directors

General permission clause

The certificate must not contain

provisions contrary to law

The certificate may contain provisions

permitted or required in the bylaws

Compromises and arrangements

Preemptive rights

Greater-than-majority vote requirements

Duration of corporate existence

Stockholder liabilities

Director liabilties

Overview, policy and purpose of section

102(b)(7)

Permissible scope of exculpatory

provisions

Persons protected, forms of relief

barred, acts prior to effective date

Claims by creditors when the

corporation is insolvent

Types of claims barred

Duty of loyalty claims

Claims involving acts or omissions not

in good faith, intentional misconduct

or a knowing violation of law

Claims under section 174

Claims involving transactions involving

an improper personal benefit

Procedural issues

Consideration of an exculpatory

provision on a motion to dismiss

Consideration of an exculpatory

provision on a full record

Waiver of an exculpatory provision

Effect of an exculpatory provision on

demand analysis

Effect of section 102(b)(7) on other

certificate provisions

Construction of certificates of

incorporation

The facts ascertainable provision

Execution, acknowledgment, filing,

recording and effective date of original

certificate of incorporation and other

instruments; exceptions

Comment to Section

In general

Execution of documents

Acknowledgment of documents

Filing of documents

Effective date of documents

Effect of nonrecordation

Certificate of correction

Certificate of incorporation; definition

Comment to Section

In general

Certificate of incorporation and other

certificates; evidence

Comment to Section

In general

Commencement of corporate existence

Comment to Section

In general

Powers of incorporators

Comment to Section

In general

Organization meeting of incorporators or

directors named in certificate of

incorporation

Comment to Section

In general

Bylaws

Comment to Section

In general

Role of the bylaws in the corporation

Adoption and amendment of bylaws

Presumption of Valid adoption

The stockholders' power to adopt and

amend bylaws

The board of directors' power to adopt

and amend bylaws

Adoption or amendment by formal action

Adoption or amendment by implication

Construction of bylaws

Content of bylaws

Bylaws must not conflict with the law

or public policy

Bylaws must not conflict with the

certificate of incorporation

Bylaws must not destroy or impair

vested contract rights

Bylaws must be reasonable and equitable

Board-adopted bylaws held to be

inequitable

Board-adopted bylaws held not to be

inequitable

Stockholder-adopted bylaws held to be

inequitable

Stockholder-adopted bylaws held not to

be inequitable

Bylaws may be scrutinized under the

Unocal and Blasius standards

Effect of violation of a bylaw

Proposed bylaws and hypothetical abuse

Emergency bylaws and other powers in

emergency

Comment to Section

In general

Jurisdiction to interpret, apply, enforce

or determine the validity of corporate

instruments and provisions of this title

Comment to Section

In general

POWERS

General powers

Comment to Section

Allocation of corporate powers among

officers, directors, and stockholders

Sources of corporate power

Specific powers

Comment to Section

In general

Powers respecting securities of other

corporations or entities

Comment to Section

In general

Effect of stock acquisition

Effect of lack of corporate capacity or

power; ultra vires

Comment to Section

In general

Conferring academic or honorary degrees

Comment to Section

In general

Banking power denied

Comment to Section

In general

Effect on corporate names

Private foundation; powers and duties

Comment to Section

In general

REGISTERED OFFICE AND REGISTERED AGENT

Registered office in State; principal

office or place of business in State

Comment to Section

In general

Registered agent in State; resident agent

Comment to Section

In general

Designating a registered agent

Commercial Registered Agent

Change of location of registered office;

change of registered agent

Comment to Section

In general

Change of address or name of registered

agent

Comment to Section

In general

Change of agent's address or name

Resignation of registered agent coupled

with appointment of successor

Comment to Section

In general

Appointment of successor registered

agent

Resignation of registered agent not coupled

with appointment of successor

Comment to Section

In general

Resignation of registered agent

DIRECTORS AND OFFICERS

Board of directors; powers; number,

qualifications, terms and quorum;

committees; classes of directors; nonprofit

corporations; reliance upon books; action

without meeting, removal

Comment to Section

Management of the corporation by a

board of directors

In general

Delegation of responsibility

Abdication of responsibility

Fiduciary duty of directors and the

business judgment rule

The fiduciary duty of directors

Duty of care

Duty of loyalty

Duty of good faith

Independence

Duty to protect corporate information

Duty to monitor corporate operations

Persons to whom duties are owed;

potential conflicts

Time when persons become fiduciaries

Directors' conduct as stockholders

Directors of corporate general partners

Impact of a controlling stockholder

Oppression of minority stockholders

Director conduct opposed by a majority

of stockholders

Knowing participation in a breach of

duty

Duties of directors acting through

other entities

Directors' right of equal access to

board information and to participate in

board action

The business judgment rule generally

Presumptions

Substantive rule of law

Rebuttal of the presumption

The gross negligence standard

Proof of injury to stockholders

Role of financial advisors

Director decisions made under special

circumstances

Materiality of a director's interest

Effect of stockholder ratification

Application of the business judgment

rule to director inaction

Effect of a personal interest on the

part of directors

Application of the entire fairness rule

Reliance on experts and others

Postponement of stockholder meetings

Impact of an independent majority

The business judgment rule and

committees

In general

Interested transactions

Selection of members and advisors

Use of committee not required by law

No requirement of unanimity

Interest of committee members

Director's fees

Abstention

Access to legal advice

Damages

Response to a threatened change in

control

The Unocal standard of review

When Unocal applies

Decisions disapproving board action

Decisions upholding board action

Threats to ``corporate culture''

Refusal to entertain offers; other

related matters

Application of the business judgment

rule

Action interfering with stockholder

voting rights

Effect of a decision to sell the company

The Revlon rule

Lock-ups and similar provisions

``No-talk'' provisions

Other contractual provisions affecting

the auction process

When Revlon duties come into effect

Alternatives to an auction

Challenges to the auction process

Stockholder rights plans

Background

Adoption of rights plans

Trigger reductions

Continuing director provisions

Cases denying forced redemption rights

Cases ordering redemption

Delayed redemption

Bidder standing

Unconventional rights plans

Business judgment in the context of

parent-subsidiary relations

The corporate opportunity doctrine

In general

Presentation of opportunity to the board

Offers extended only to directors

Financial stability of the corporation

Other examples

Remedies

Application to controlling stockholders

Legislative changes relating to

corporate opportunity doctrine

Executive compensation

Competition by directors

Insider stock transactions

Waste of corporate assets

Fiduciary duty to creditors

In general

Examples

Application of business judgment rule

Number of directors

Qualifications of directors

Lawyers as corporate directors

Terms of directors and related matters

Terms of directors

Resignation of directors

De facto directors

Removal of directors

Directors and officers as employees

Nomination of directors

Quorum at directors' meetings

Required vote of directors

Notice of meetings of directors

Committees of the board

Classification of directors

Director reliance on employees

Director reliance on corporate

information

Directors' action without meeting

Place of directors' meetings

Conduct of meetings by telephone

Compensation of directors

Officers; titles, duties, selection, term;

failure to elect; vacancies

Comment to Section

In general

Required officers

Multiple office-holding

Election of officers

Terms of officers

Powers and duties of officers

Bonds

Vacancies

Nonprofit corporations

Compensation of officers

De facto officers

Loans to employees and officers; guaranty

of obligations of employees and officers

Comment to Section

In general

Interested directors; quorum

Comment to Section

Background

Evolution of the meaning of section 144

Relationship with the business judgment

rule

Judicial analysis of section 144

Transactions covered by section 144

The burden of demonstrating compliance

with section 144

The nature of a disqualifying interest

Abstention

Effect of disinterested director

approval

Effect of stockholder approval

In general

Stockholder approval---void and

voidable acts

Void acts

Voidable acts

Ratification, how accomplished

Fairness

Interlocking directorates

Interested directors and quorum

Application to nonstock corporations

Indemnification of officers, directors,

employees and agents; insurance

Comment to Section

In general

Police of the statute

Types of actions subject to

indemnification

The ``by reason of'' requirement

Agents

Wholly-owned subsidiaries

Right to indemnity

Procedural considerations

Need for demand

Statute of limitations

Fee petitions

Jurisdiction

Indemnification in relation to

compromises

Partial liability situations

Advancement of litigation expenses

Nonexclusive clause

Selection of counsel

Contribution

Fees incurred to enforce

indemnification rights

Forum selection clauses

Arbitration

Litigation trusts

Submission of matters for stockholder vote

Comment to Section

In general

STOCKS AND DIVIDENDS

Classes and series of stock; redemption;

rights

Comment to Section

In general

Rights of stockholders in general

Voting rights

Preferred or special stock

In general

Voting rights

Redeemable shares

Dividend preference

Rights on dissolution or liquidation

Directors' power to fix preferences and

rights

Convertible securities

Controlling stockholders

Fiduciary duties owed by controlling

stockholders

Economic interest of controlling

stockholders

Entire fairness

Transfer of control by controlling

stockholders

Effect of corporation being in vicinity

of insolvency

Employee stock ownership plans

Tracking stocks

Adherence to corporate formalities

Issuance of stock; lawful consideration;

fully paid stock

Comment to Section

In general

Services actually performed

Property transferred

Promissory notes

Effect of issuance of stock without

consideration

Determination of consideration by

directors

Determination of when stock is issued

Consideration for stock

Comment to Section

In general

Determination of amount of capital;

capital, surplus and net assets defined

Comment to Section

In general

Calculating the present value of assets

Fractions of shares

Comment to Section

In general

Partly paid shares

Comment to Section

In general

Rights and options respecting stock

Comment to Section

In general

Duration and transferability of options

Consideration for options

Connotations of the term

``consideration''

Application of section 157 to the

``consideration'' concept

Director participation in receipt of

options

The consideration to be received upon

exercise of options

Preemptive rights

Procedural matters

Conflicts of law

Standing

Necessary parties

Limitation of actions

``Phantom stock'' and stock

appreciation rights

Stockholder rights plans

Convertible debentures, when-issued

stock, and warrants

Definition of rights

Backdating and related concepts

Stock certificates; uncertificated shares

Comment to Section

Nature of the stock certificate

Limitations on the stockholder's right

to the certificate

Relation of section 158 to the Uniform

Commercial Code

Shares of stock; personal property,

transfer and taxation

Comment to Section

Stock as personal property

Causes of action and measuring damages

for conversion of stock

Stock owned by nonresidents

Transfer of stock as collateral security

Effect of transfer on the books of the

corporation

Requiring the corporation to record the

trasfer

Corporation's powers respecting ownership,

voting, etc., of its own stock; rights of

stock called for redemption

Comment to Section

In general

Powers of acquisition

Restrictions on

acquisition---impairment of capital

Capital impairment defined

Enforceability of contracts to purchase

Restrictions on acquisition---improper

purpose doctrine

Restrictions on

acquisition---restraints on alienation

Restrictions on acquisition---other

limitations

Discriminatory tender offers

Powers incident to ownership of

acquired stock

Restrictions on powers incident to

ownership of acquired stock---voting

rigthts

``Dutch auction'' self-tender offers

Self-tender offer as part of leveraged

recapitalization

Purchase versus redemption

Issuance of additional stock; when and by

whom

Comment to Section

In general

Equitable and other limitations upon

issue of shares

Liability of stockholder or subscriber for

stock not paid in full

Comment to Section

In general

Stockholder liability

Proceedings for assessment and

enforcement

Stockholder defenses

Payment for stock not paid in full

Comment to Section

In general

Subscriber liability

Failure to pay for stock; remedies

Comment to Section

In general

Revocability of preincorporation

subscriptions

Comment to Section

In general

Formalities required of stock subscriptions

Comment to Section

In general

Lost, stolen or destroyed stock

certificates; issuance of new certificate

or uncertificated shares

Comment to Section

In general

Judicial proceedings to compel issuance of

new certificate or uncertificated shares

Comment to Section

In general

Procedure under section 168

Jurisdiction of Court of Chancery and

relief

Situs of ownership of stock

Comment to Section

In general

Effect of Shaffer v. Heitner

Rights of bona fide purchasers of shares

Dividends; payment; wasting asset

corporations

Comment to Section

In general

General application

Corporate formality

Fund from which dividend payable

Valuation of capital

Trust and estate problems with dividends

Court supervision of dividend

declaration

Obligation of corporation after

dividend declared

Special purpose reserves

Comment to Section

In general

Liability of directors and committee

members as to dividends or stock redemption

Comment to Section

In general

Declaration and payment of dividends

Comment to Section

In general

Liability of directors for unlawful payment

of dividend or unlawful stock purchase or

redemption; exoneration from liability;

contribution among directors; subrogation

Comment to Section

Proper plaintiff to enforce directors'

liability

The exception under section 102(b)(7)

Proper defendant

STOCK TRANSFERS

Transfer of stock, stock certificates, and

uncertificated stock

Comment to Section

The UCC, the situs of stock, and

attachment law

Issuer's duty to transfer stock

Constructive delivery of stock

Restrictions on transfer and ownership of

securities

Comment to Section

In general; reasonable restrictions on

stock transfers

Statutory restrictions set forth in

section 202(c)

First refusals and first options

Buy-and-sell agreements

Consent restrictions

Automatic sales or transfers

Prohibitions concerning designated

persons

Restrictions for certain purposes

presumed reasonable

Nonexclusive clause

Effect of transfers in violation of

restriction

Requirements for creating restrictions

on transfers

Business combinations with interested

stockholders

Comment to Section

In general

Terms defined

``Business combination'' defined

``Interested stockholder'' defined

``Prior to such date'' defined

``Voting stock'' defined

Exclusions from coverage

Board approval

The 85% exclusion

The two-thirds stockholder vote

exclusion

Opt-outs and opt-ins

Closely held companies

Inadvertent interested stockholders

Competition with a board-approved

transaction

Constitutional questions

General treatment of tender offers

apart from statutory regulation

Voluntary tender offers and conditions

thereon

Nonvoluntary, coercive, and otherwise

threatening tender offers

Disclosures

Actionably coercive

Otherwise threatening offers

Bidder standing

MEETINGS, ELECTIONS, VOTING, AND NOTICE

Meeting of stockholders

Comment to Section

Place of meetings

Duty to hold annual meeting

No duty to attend meeting

Other business at annual meeting

Time of annual meeting

Advance notification bylaws

Failure to hold annual meeting

Failure to hold annual meeting on

initially scheduled date

Initial meeting date specified in bylaws

Initial meeting date set by board

Failure to hold meeting within 13 months

Procedure

Enforcement of the right to a meeting

Affirmative defenses

Court's discretion in ordering a meeting

Other sections of the Corporation Law

Written consent in lieu of annual

meeting

Special meetings

Special meeting bylaw amendments

Voting by ballot

Enjoining of stockholders' meetings

Voting rights of stockholders; proxies;

limitations

Comment to Section

Voting rights of shares

Voting by ``interested'' stockholders

Proxies

Nature of the proxy relationship

Form of proxy

Presumptions

Due execution of proxies

Setting proxies aside

Use of extrinsic evidence

Revocation of proxies

Irrevocable proxies

Powers and duties of proxy holders

Proxy fight expenditures

Disclosure requirements

The materiality requirement

Disclosure in connection with

stockholder action

Disclosure without a request for

stockholder action

Duties of the corporation, its agents,

and others

Purposes of transaction

Defensive measures

Acquisition proposals

Financial experts and disclosure

Valuation methodology

Soft information

Litigation disclosures

``Buried'' information

Executive compensation

Inadvertent errors

Supplemental disclosures

Discovery of information through

litigation

Schedule 14D-9

Impact on litigation

Information that may generally be

omitted from disclosures

Information that is not factual

Day-to-day functioning of a corporation

``Whether'' an event occurred

Self-flagellation

Obvious information

Publicly disclosed information

Facts not known to the disclosing party

Confidential facts

Stockholder claims based on false and

misleading statements

Type of action and standing

Fraud

Procedure

Injunctions

Damages

Attorneys' fees

Waiver

Fixing date for determination of

stockholders of record

Comment to Section

Purpose of record date procedure

Voting by record owners

Record date in consent proceedings

Record date vs. closing books

Other matters related to record date

Cumulative voting

Comment to Section

In general

Devices diluting cumulative voting

Absence of a cumulative voting provision

Voting rights of members of nonstock

corporations; quorum; proxies

Comment to Section

The inapplicability of DGCL sections to

nonstock corporations

Voting power of nonstock corporation

members

Quorum

Quorum and required vote for stock

corporations

Comment to Section

Quorum at stockholders' meetings

Vote at stockholders' meetings

Voting rights of fiduciaries, pledgors and

joint owners of stock

Comment to Section

Voting of fiduciary-held stock

Voting rights of pledgors and pledgees

Multiple interests in shares

Treasury shares and shares held by

majority-owned subsidiary

Shares held of record by another

corporation

Shares held by partnerships

Redeemed shares

Voting trusts and other voting agreements

Comment to Section

In general

Preemptive effect of the statute

Voting agreements

Effect of section 218 on voting

agreements

Equitable powers over voting trust

Powers of voting trustees

Rights of beneficial owners

List of stockholders entitled to vote;

penalty for refusal to produce; stock ledger

Comment to Section

Voting list

Voting list---penalty for nonproduction

Stock ledger

Interrelationship with section 220

Inspection of books and records

Comment to Section

In general

Who may inspect

Authority to inspect on behalf of

stockholder

Beneficial owners

Joint owners

Sharing of information

Directors

Documents subject to inspection

Stock list materials

Books and records out of state

Books of affiliated corporations and

persons

Restrictions on inspection

Procedure for securing inspection

The demand on the corporation

Judicial procedures

``Proper purpose''

Statutory standard

Case law

Examples of proper purpose

Examples of improper purpose

Burden of proving purpose

Burden of proving a credible basis to

find probable corporate wrongdoing

Specificity of stated purpose

Scope of pretrial discovery

Residual jurisdiction and common-law

inspection rights

Unclean hands defense

Relationship to section 219

Relationship to SEC rules

Attorneys' fees

Voting, inspection and other rights of

bondholders and debenture holders

Comment to Section

In general

Notice of meetings and adjourned meetings

Comment to Section

Notice of meetings

Annual meetings

Special meetings

Time of notice

Who must give the notice

Adjourned and breakaway meetings

Vacancies and newly created directorships

Comment to Section

Who may fill vacancies

Concurrent or exclusive powers to fill

vacancies

Relief and remedies

Form of records

Comment to Section

Form of records

Cost of conversion

Interrelationship with section 220

Admissibility of records

Contested election of directors;

proceedings to determine validity

Comment to Section

Nature of the proceeding

Who may apply for review

Transactions covered

Issues for judicial decision on review

of election

Issues considered by courts

Issues not properly considered

Powers of court

Stay of the proceeding

Relation to section 211

Other forms of relief

Award of attorneys' and experts' fees

Mootness

Appointment of custodian or receiver of

corporation on deadlock or for other cause

Comment to Section

Grounds for appointing custodian

Stockholder deadlock

Director deadlock

Abandonment of corporate business

Action for appointment of custodian

Appointment and duties of custodian

Close corporations

Liability of the custodian

Federal court jurisdiction

Prior case law

Powers of Court in elections of directors

Comment to Section

In general

Persons entitled to vote

Types of relief

Contempt power

Consent of stockholders or members in lieu

of meeting

Comment to Section

In general

Unanimous written consent

Nonunanimous written consent

Mechanics of the consent procedure

Record date

Date requirement

Who may consent

Revocation of consents

Prompt notice

Disclosure obligations

Limitations on the board's authority to

regulate the consent procedure

Stockholder consent to sale of assets

Timing of consent solicitation

Waiver of notice

Comment to Section

Written waivers

Waiver by attending meeting

Exception to requirements of notice

Comment to Section

In general

Voting procedures and inspectors of

elections

Comment to Section

In general

Notice by electronic transmission

Comment to Section

In general

``Electronic transmission'' defined

Exceptions

Notice to stockholders sharing an address

Comment to Section

In general

Exceptions

AMENDMENT OF CERTIFICATE OF INCORPORATION;

CHANGES IN CAPITAL AND CAPITAL STOCK

Amendment of certificate of incorporation

before receipt of payment for stock

Comment to Section

In general

Amendment of certificate of incorporation

after receipt of payment for stock;

nonstock corporations

Comment to Section

In general

The charter as contract and the power

to amend

Amending the statute

Amending the certificate

The constitutionality of

majority-approved certificate amendments

The contract clause

The due process clause

Procedure for amendment

Notice

Vote of stockholders

Class vote

Miscellaneous

Types of certificate amendments

The statute

Case law

Voting rights in general

Cumulative voting

Preemptive rights

Qualifications of stockholders or

members

Director qualifications

Economic rights of preferred stock

(except dividend accruals)

Creating new prior-ranking securities

Restriction on alienation

``Blank check'' capital stock

Conversion of stock and nonstock

corporations

Recapitalization

Dividend accruals and the ``vested

rights'' doctrine

Elimination by direct amendment

Elimination in course of merger

Creation of prior preferred stock

Judicial review of ``fairness'' of

recapitalizations via certificate

amendments

Miscellaneous

Retirement of stock

Comment to Section

In general

Power to retire stock

Status of retired stock

Reduction of capital

Case law

Reduction of capital

Comment to Section

In general

Ways of reducing capital

Limitation on capital reductions

Procedure for reducing capital

Case law

Restated certificate of incorporation

Comment to Section

In general

Foremer §246: Composite certificate of

incorporation

MERGER, CONSOLIDATION, OR CONVERSION

Merger or consolidation of domestic

corporations and limited liability company

Comment to Section

Introduction

Basic statutory requirements

The requirement of board approval

In general

The duties of care, loyalty, and good

faith

Stockholder vote

When a stockholder vote is excused

When stockholder vote is required

Consideration in mergers and conversion

of shares

Additional features of the statute

Abandonment of mergers

Amendment of merger agreements

Triangular mergers

Holding companies

Reference to facts outside the agreement

Filing procedures

Single execution

Amendment of certificate of

incorporation

General principles favoring mergers in

Delaware

Disinterested mergers

The ``entire fairness'' doctrine

Elements of ``entire fairness''

Scope of the doctrine

Majority stockholder action

Director conflicts

Fair price

Negotiated price

Market trading price

Post-merger elements of value

Recent offers

Liquidation or redemption price

Pending derivative claims

Fair dealing

Timing

Initiation and negotiation

Professional advisors

Structure

Disclosure to the directors

Approval of the directors

Disclosure to the stockholders

Purpose of the merger

Pleading and burden of proof in entire

fairness claims

Remedies

Remedies available

General exclusivity of the appraisal

remedy in ``fair price'' cases

Non-exclusivity of the appraisal remedy

in ``fair dealing'' cases

Consolidation of appraisal and entire

fairness actions

Laches in entire fairness actions

Specific performance

Rights of fiduciaries in mergers

Merger entered into in violation of

agreement

Merger or consolidation of domestic and

foreign corporations; service of process

upon surviving or resulting corporation

Comment to Section

In general

Interpretation of the statute

Merger of parent corporation and subsidiary

or subsidiaries

Comment to Section

Mechanics of a short-form merger

Short-form merger involving foreign

corporations

The 90% ownership requirement

Appraisal as exclusive remedy in

short-form merger

Consideration in short-form mergers

Disclosure obligations

Other matters

Merger or consolidation of domestic

corporation and joint-stock or other

association

Comment to Section

In general

Merger or consolidation of domestic and

foreign nonstock corporations

Comment to Section

In general

Merger or consolidation of domestic and

foreign nonstock corporations; service of

process upon surviving or resulting

corporation

Comment to Section

In general

Merger or consolidation of domestic stock

and nonstock corporations

Comment to Section

In general

Merger or consolidation of domestic and

foreign stock and nonstock corporations

Comment to Section

In general

Status, rights, liabilities, of constituent

and surviving or resulting corporations

following merger or consolidation

Comment to Section

In general

Survival of rights of a constituent

corporation

Survival of stockholder derivative suits

Exceptions to the general rule

The fraud exception

The reorganization exception

Rejected exceptions

The double derivative suit

Survival of liabilities and other

obligations of a constituent corporation

Jurisdiction of a court over a

constituent corporation after a merger

Powers of corporation surviving or

resulting from merger or consolidation;

issuance of stock, bonds or other

indebtedness

Comment to Section

In general

Effect of merger upon pending actions

Comment to Section

In general

Appraisal rights

Comment to Section

Limited nature of the appraisal remedy

The scope of the appraisal remedy

The general grant of appraisal rights

The ``market out'' exception

The exception to the exception

Appraisal in short-form mergers

Option to confer rights by charter

Appraisal of preferred stock

The corporation's obligations

Perfecting appraisal rights:

formalities for dissent

Written demand for appraisal

No vote for merger

Record ownership requirement

Rights of beneficial owners

The appraisal proceeding

Commencement of the proceeding

Procedural issues

Burden of proof

Discovery

Expert witnesses

Experts retained by the parties

Court-appointed experts

Settlement

Appeals

Stockholder status during appraisal

Termination or withdrawal of appraisal

rights

Standards for valuing stock

General principles

Going-concern value

Two-step transactions

Modern valuation approaches

Discounted cash flow

Other methods

The Delaware Block method

Asset value

Earnings value

Market value

Valuation of debt

Interest

Entitlement to interest

Rate of interest

Period of interest

Costs

Status of stock

Adversary proceedings

Merger or consolidation of domestic

corporation

Comment to Section

In general

Merger or consolidation of domestic

corporation and limited liability company

Comment to Section

In general

Conversion of other entities to a domestic

corporation

Comment to Section

In general

Conversion of a domestic corporation to

other entities

Comment to Section

In general

SALE OF ASSETS, DISSOLUTION, AND WINDING UP

Sale, lease or exchange of assets;

consideration; procedure

Comment to Section

Background

``All or substantially all'' assets

Gimbel's qualitative and quantitative

test

Parent-subsidiary context

Procedure for selling assets

Action by directors

Director consideration of what is

``expedient and for the best interests

of the corporation''

Notice to stockholders

Disclosure to stockholders

Vote by stockholders

Permissible types of consideration in

connection with asset sales

Judicial review of the sale for

``fraud'' and ``unfairness''

Discretion of directors and presumptions

Power and fiduciary duties of majority

stockholders

``Fraud,'' ``fairness,'' and personal

interest

``Fraud'' in its aspect of price

disparity

``Fraud'' in its aspect of personal

advantage or interest

Burden of proving fairness of asset

sales

Burden at trial

Burden at summary judgment

Burden at the preliminary injunction

stage

Burden at settlement

Valuation of assets

Methods of valuation

Elements of value

Earnings

Going-concern value

Market value

Book value and related estimates of

value

Other elements of asset value

Directors' estimates of value

Effect of sale of assets on the

corporation and the stockholders

Purchasing corporation's liability

Effect of sale of assets on creditor

rights

Liability of transferee

Liability of transferor's stockholders

Liability of transferor

Other liabilities

De facto mergers

Mortgage or pledge of assets

Comment to Section

In general

Dissolution of joint venture corporation

having two stockholders

Comment to Section

In general

Requirements of ``two stockholders''

and ``joint venture''

Two stockholders

Joint venture

Issues for judicial decision on

petition to discontinue joint venture

Bona fide disagreement

Affirmative defenses against dissolution

Matters outside the narrow limits of a

dissolution proceeding

Application of section 273 when no

petition for dissolution has been filed

Dissolution before the issuance of shares

or beginning of business; procedure

Comment to Section

In general

Dissolution generally; procedure

Comment to Section

In general

Majority vote of the whole board and

stockholders

Unanimous written consent of all

stockholders

Events not resulting in dissolution

``Overall fairness'' standard

Dissolution of nonstock corporation;

procedure

Comment to Section

In general

Payment of franchise taxes before

dissolution

Comment to Section

In general

Continuation of corporation after

dissolution for purposes of suit and

winding up affairs

Comment to Section

In general

After dissolution, a corporation may

engage in ``incidental and necessary''

business

Actions by or against the corporation

Service of process

Parties

The corporation as a party

The stockholders as parties

The directors as parties

The creditors as parties

Suits that may be maintained

Actions by the corporation

Actions against the corporation

Proceedings extending beyond three years

Instances of suits that may not be

maintained

Proclamation and voluntary dissolution

Trustees or receivers for dissolved

corporations; appointment; powers; duties

Comment to Section

In general

Discretion of the court to appoint a

receiver

Fiduciary nature of appointments under

section 279

Removal of liquidating trustees

Life span and termination of

liquidating trusts

Continued or extended existence of a

liquidating trust

Termination of a liquidating trust

Notice to claimants; filing of claims

Comment to Section

In general

Application of section 280 in In re

RegO Co

Overview

Early case law regarding dissolution

and the winding up period

Protections for future claimants,

directors and stockholders in the

dissolution process

Default rule of section 281(b)

The ``alternative'' set forth in

sections 280 and 281(a)

Limits on stockholders' future

obligations

Appropriate amount of security for

future claimants

Trust administration matters

Fees for guardian ad litem

Payment and distribution to claimants and

stockholders

Comment to Section

In general

Payment of creditors

Distribution among stockholders

Preferred and common stock

Partly paid stock

Liability of stockholders of dissolved

corporations

Comment to Section

In general

Jurisdiction

Comment to Section

In general

Revocation or forfeiture of charter;

proceedings

Comment to Section

In general

Dissolution or forfeiture of charter by

decree of court; filing

Comment to Section

In general

INSOLVENCY; RECEIVERS AND TRUSTEES

Receivers for insolvent corporations;

appointment and powers

Comment to Section

In general

Insolvent corporations

Discretion of court to appoint receiver

Solvent corporations

Federal court jurisdiction to appoint

receivers

Payment of receivership expenses

Appointment of a receiver by a foreign

jurisdiction

Title to property; filing order of

appointment; exception

Comment to Section

In general

Notices to stockholders and creditors

Comment to Section

In general

Receivers or trustees; inventory; list of

debts and report

Comment to Section

In general

Creditors' proofs of claims; when barred;

notice

Comment to Section

In general

Adjudication of claims; appeal

Comment to Section

In general

Sale of perishable or deteriorating property

Comment to Section

In general

Compensation, costs and expenses of

receiver or trustee

Comment to Section

In general

Substitution of trustee or receiver as

party; abatement of actions

Comment to Section

In general

Employee's lien for wages when corporation

insolvent

Comment to Section

In general

Discontinuance of liquidation

Comment to Section

In general

Compromise or arrangement between

corporation and creditors or stockholders

Comment to Section

In general

Proceeding under the Federal Bankruptcy

Code of the United States; effectuation

Comment to Section

In general

RENEWAL, REVIVAL, EXTENSION, AND RESTORATION

OF CERTIFICATE OF INCORPORATION OR CHARTER

Revocation of voluntary dissolution

Comment to Section

In general

Renewal, revival, extension and restoration

of certificate of incorporation

Comment to Section

In general

Nature and scope of section 312

Case law on revival and renewal

Effect on liabilities incurred between

forfeiture and renewal

Application of section 312 in other

areas of the law

Renewal of certificate of incroporation or

charter of religious, charitable,

educational, etc., corporations

Comment to Section

In general

Status of corporation

Comment to Section

In general

SUITS AGAINST CORPORATIONS, DIRECTORS,

OFFICERS, OR STOCKHOLDERS

Service of process on corporations

Comment to Section

Service upon officer, director, or

registered agent

Service upon the Secretary of State

Service by other means

Failure of corporation to obey order of

Court; appointment of receiver

Comment to Section

In general

Failure of corporation to obey write of

mandamus; quo warranto proceedings for

forfeiture of charter

Comment to Section

In general

Attachment of shares of stock or any

option, right or interest therein;

procedure; sale; title upon sale; proceeds

Comment to Section

In general

Specific provisions of section 324

The director and officer service statute

In general

Specific provisions of section 3114

Scope and interpretation

Cases where personal jurisdiction found

Cases where personal jurisdiction not

found

Procedure

Text of the director service statute

Actions against officers, directors or

stockholders to enforce liability or

corporation; unsatisfied judgment against

corporation

Comment to Section

In general

Action by officer, director or stockholder

against corporation for corporate debt paid

Comment to Section

In general

Stockholder's derivative action; allegation

of stock ownership

Comment to Section

In general

Nature of the derivative suit

Individual and derivative actions

compared

Test used to determine whether claim is

derivative

Examples of derivative claims

Examples of individual claims

Merger-related claims

Entrenchment claims

Disclosure claims

Dilution claims

Bankruptcy context

Unclear situations

Recovery to the whole corporation

Who may sue

Concurrent ownership

Continuing wrongs

When stock is held

Continuous ownership rule

Who is a stockholder

Creditor standing

No separate benefit requirement

Adequacy of representation

The Bangor Punta doctrine

Other limitations

Jurisdiction

Statute of limitations in derivative

suits

Ripeness of derivative action

Demand on the corporation

In general

Demand futility

In general

Pleading burdens

Discovery not permitted

First Aronson inquiry: interest and

independence

In general

Substantial likelihood of liability

Financial interest in challenged

transaction

Directors' continued positions and fees

Family, social, or business

relationships

Related transactions

Allegations of lack of independence

Definition of controlling stockholder

Equal division of directors

Directors' public statements regarding

derivative action

Second Aronson inquiry: ``otherwise the

product of a valid exercise of business

judgment''

Time for gauging demand futility

Effect of response to earlier demands

When the second part of the Aronson

test does not apply

A board's neutral position

Appellate review

Making a demand

In general

Contents of the demand

Effect of demand as an admission

A board's response to a demand

In general

Time allowed for board response

Wrongful refusal of demand

Standing to assert demand-related

defenses

Special litigation committees

In general

Stay of discovery

Sufficiency of the committee's

investigation

Concession of disqualification

Other means of terminating derivative

litigation

Retention of jurisdiction

Attorney-client privilege in derivative

suits

Representation of defendants

Settlement of derivative actions

In general

Burden of proof

Standard of review

Parallel litigation

Hearings and discovery

Unequal treatment of stockholders in

settlements

Settlement costs borne by corporation

Federal claims

Other considerations

Prophylactic benefits

Timing

Stockholders who do not benefit

Where released claims lack merit

Settlements affecting control

Notice to stockholders

Settlements in actions asserting

individual and derivative claims

Where notice is not required

Release of advisers

Violation of injunction

Standard of review on appeal

Award of attorneys' fees

In general

Determining amount of fees

Fee agreements

Non-monetary benefits

Disclosure cases

Entitlement to fees in settled and

mooted actions

Meritorious when filed requirement

Action taken before judicial resolution

reuirement

Causation

Bidders in contests for corporate

control

Computing the value of the benefit

Intervenors and objectors

Award of attorneys' fees where

complaint was not filed

Incomplete litigation

Disputes regarding the division of

attorneys' fees

Two competing actions

Nonparties

Other instances where fees are not

awarded

Discovery

Effect of liability of corporation on

impairment of certain transactions

Comment to Section

In general

Defective organization of corporation as

defense

Comment to Section

In general

De facto corporations

Disregarding the corporate entity

Usury; pleading by corporation

Comment to Section

In general

CLOSE CORPORATIONS; SPECIAL PROVISIONS

GENERAL COMMENT TO SUBCHAPTER XIV

Law applicable to close corporation

Comment to Section

In general

Close corporation defined; contents of

certificate of incorporation

Comment to Section

Close corporation requirements and

conditions

Restriction on number of stockholders

Mandatory transfer restrictions

Prohibition of public offerings

Special concerns with respect to

convertible securities

Stockholder qualifications

Drafting background

Formation of a close corporation

Comment to Section

In general

Election of existing corporation to become

a close corporation

Comment to Section

In general

Limitations on continuation of close

corporation status

Comment to Section

In general

Voluntary termination of close corporation

status by amendment of certificate of

incorporation; vote required

Comment to Section

In general

Issuance or transfer of stock of a close

corporation in breach of qualifying

conditions

Comment to Section

General requirements

Consequences of wrongful transfers and

remedies therefor

Effect of consent to stock transfer

Involuntary termination of close

corporation status; proceeding to prevent

loss of status

Comment to Section

In general

Corporate option where a restriction on

transfer of a security is held invalid

Comment to Section

In general

Agreements restricting discretion of

directors

Comment to Section

In general

Management by stockholders

Comment to Section

In general

Appointment of custodian for close

corporation

Comment to Section

In general

Appointment of a provisional director in

certain cases

Comment to Section

Grounds for appointment

Nature of the provisional director's

powers and duties

Operating corporation as partnership

Comment to Section

In general

Stockholders' option to dissolve corporation

Comment to Section

In general

Effect of this subchapter on other laws

Comment to Section

In general

FOREIGN CORPORATIONS

Definition; qualification to do business in

State; procedure

Comment to Section

In general

Registered agent

Distinguishable name

Transacting business in Delaware

Effect of qualifying as a foreign

corporation

Service of process and jurisdiction

Internal affairs limitation

Books and records; attachment

Additional requirements in case of change

of name, change of business purpose or

merger or consolidation

Comment to Section

In general

Exceptions to requirements

Comment to Section

Exceptions to requirements for

qualification

Effect of exceptions

Other exceptions

Annual report

Comment to Section

In general

Failure to file report

Comment to Section

In general

Service of process upon qualified foreign

corporations

Comment to Section

Service of process on the corporation

Service of process on foreign

corporations excepted from qualification

Change of registered agent

Comment to Section

In general

Penalties for noncompliance

Comment to Section

In general

Banking powers denied

Comment to Section

In general

Foreign corporation as fiduciary in this

State

Comment to Section

Requirements for foreign corporation to

act as fiduciary

Withdrawal of foreign corporation from

State; procedure; service of process on

Secretary of State

Comment to Section

In general

Service of process on nonqualifying foreign

corporations

Comment to Section

Service of process on nonqualifying

foreign corporations

The standard of ``transacting business''

``Transacting business generally'' prong

``Arise or grow out of'' prong

Comparison to section 3104 of Title 10

of the Delaware Code

Duties of Secretary of State

Actions by and against unqualified foreign

corporations

Comment to Section

In general

Suit by nonqualifying foreign

corporation

Suit against nonqualifying foreign

corporation

Foreign corporations doing business without

having qualified; injunctions

Comment to Section

In general

Filing of certain instruments with Recorder

of Deeds not required

Comment to Section

In general

DOMESTICATION OF NON-UNITED STATES ENTITIES

Domestication of non-United States entities

Comment to Section

In general

Temporary transfer of domicile into this

State

Comment to Section

In general

Transfer, domestication or continuance of

domestic corporations

Comment to Section

In general

MISCELLANEOUS PROVISIONS

Taxes and fees payable to Secretary of

State upon filing certificate or other paper

Comment to Section

In general

Reserved

Comment to Section

In general

Rights, liabilities and duties under prior

statutes

Comment to Section

In general

Reserved power of State to amend or repeal

chapter; chapter part of corporation's

charter or certificate of incorporation

Comment to Section

In general

Effect of reservation of power to amend

Retroactivity

Vested rights

Limitation on incorporation of law into

charter

Corporations using ``trust'' in name,

advertisements and otherwise; restrictions;

violations and penalties; exceptions

Comment to Section

In general

Publication of chapter by Secretary of

State; distribution

Comment to Section

In general

Penalty for unauthroized publication of

chapter

Comment to Section

In general

Short title

Comment to Section

In general

Table of Cases (Delaware Decisions)

Table of Cases (Other Jurisdictions)

Table of Statutes

Table of Uniform and Model Acts

Table of Rules of Regulations

Index