发表于2024-11-19
Folk on the Delaware Genaral Corporation Law: Fundamental 2024 pdf epub mobi 电子书
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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
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