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Engler F05 Corporations

Engler F05 Corporations - I CHOOSING A FORM OF...

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I. CHOOSING A FORM OF ORGANIZATION [ 1] Limited Liability Company; Advantages to Corporations over LLCs; Internal Affairs Doctrine II. AGENTS AND EMPLOYEES [2] A. EMPLOYEE VS INDEPENDENT CONTRACTOR [2] Actual Authority; Direct Control Factors; The Economic Factors; Caselaw. B. APPARENT AUTHORITY AND RATIFICATION [3] Apparent authority; Ratification; Planning 1. TORT CONTEXT & FRANCHISES [3] C. INHERENT AGENCY POWER [3] D. FIDUCIARY OBLIGATION AS A FUNCTION OF AGENCY LAW [3] Doesn’t End When Leave; Trade Secret III. PARTNERSHIPS [4] Formation of Partnership; Default Rules re Control and Liability; Transferability; Two kinds of partnerships A. PARTNERS COMPARED WITH EMPLOYEES [5] B. PARTNERS COMPARED WITH LENDERS [5] Changing the Default Rules re Lenders C. THE FIDUCIARY OBLIGATIONS OF PARTNERS [5] Contracting around Loyalty? Leaving the Partnership & Soliciting Clients; Contracting for Expulsion IV. THE NATURE OF THE CORPORATION [6] A. PROMOTERS AND THE CORPORATE ENTITY [6] 1. DUTIES; DISCLOSURE; DISGORGEMENT [6] 2. CORPORATION BY ESTOPPEL; PROMOTER’S LIABILITY; DEFACTO CORPORATIONS [7] B. THE CORPORATE ENTITY AND THE “LIMITS” OF LIMITED LIABILITY [7] 1. THREE THEORIES OF IMPOSING LIABILITY [7] 2. PIERCING THE CORPORATE VEIL (2-PRONG TEST) [8] Tort v Contract; Fraud/injustice & Inadequate Capitalization; Why go after the corporation? Why go after the corporate shells rather than the stock interests? a. COVENTURERS IN THE CONTRACT SETTING [ 8] b. PARENT CORPORATIONS IN THE TORT (PRODUCT LIABILITY) SETTING [ 9] 3. THE CORPORATE GENERAL PARTNER [9] C. ROLE AND PURPOSE OF CORPORATIONS [9] 1. CHARITABLE GIFTS [9] Statutes re Charitable Gifts; Common Law 2. OUTSIDE CONSTITUENCIES [10] Retaining Earnings vs. Distributing Dividends 3. BJR [10] V. POWER DISTRIBUTION BETWEEN SHAREHOLDERS & MANAGEMENT IN PUBLIC CORPS [10] A. SHAREHOLDER STATE LAW POWERS [10] Corporate Structure; Electing the BOD; Cumulative Voting Alternative; Classified Board; Propriety Interests; Promoters Attempts to Maintain Control of the BOD; Low Vote / High Vote Solution; Preferred Stock. B. FEDERAL REGULATION OF THE PROXY SYSTEM [11] Constitutional Basis for SEA of 1934; Squeeze-out merger; Proxies; Proxy Statement 1. FINANCING THE PROXY FIGHT [11] Reimbursing the Insurgent Group; Picking your proxy fights wisely; Tender Offer; Subsidiary Merger C. PRIVATE ACTIONS UNDER FEDERAL PROXY RULES [12] Right to Private Causes of Actions under SEC rules. 1. SOLICITATION OF PROXIES; FALSE OR MISLEADING PROXY STATEMENTS & THE MATERIALITY REQUIREMENT [12] Materiality Requirement; Objective Valuation Issue; Causation Issue 2. RELIANCE & STANDING TO SUE: MORE ON MATERIALITY [13] Reliance not necessary if Material 3. TIE BETWEEN “ESSENTIAL LINK TO THE TRANSACTION” AND RELIANCE [13] D. SHAREHOLDER PROPOSALS: GETTING THEM, AND EXCLUDING THEM [13] General Shareholder Proposal Rule 1. EXCEPTIONS TO THE GENERAL RULE [13] E. SHAREHOLDER INSPECTION RIGHTS: GETTING THE SHAREHOLDER LIST [14] State Law Applies; NY Requirements; NOBO Lists.
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