PUBLIC COMPANIES AND THE ROLE OF SHAREHOLDERSPDF电子书下载

Introduction 1

Chapter 1 The United States&Arthur R. Pinto 13

Chapter 2 Italy&Sabrina Bruno and Eugenio Ruggiero 55

Chapter 3 France&Alain Couret 97

Chapter 4 Germany&Stefan Grundmann and Florian Mdslein 139

Chapter 5 The United Kingdom&Dan Prentice 197

Chapter 6 From Shareholders' Rights to Directors'Duties: Liability and Accountability of Directors&Gustavo Visentini and Federico Raffaele 239

Chapter 1 The United States&Arthur R. Pinto 13

1. Listed Companies in the United States 13

1.1. Legal Background 15

2. The Ownership Structure 19

2.1. The Berle-Means Corporation-Separation of Ownership from Control 20

2.2. Institutional Investors 21

2.3. The Political Significance of Share Ownership to Household Savings 22

3. General Meeting of Shareholders 23

3.1. Allocation of Power and Shareholder Voting 25

3.2. Proxy Voting 28

3.2.1. Proxy Fights 30

3.2.2. Shareholder Democracy 32

4. Shareholder Rights, Duties, and Protection 33

4.1. Right to Information 33

4.2. Independent Directors 35

4.3. Gatekeepers 37

4.4. Fiduciary Duty 39

4.5. Controlling Shareholders 41

5. Shareholder Litigation 43

5.1. Federal Securities Law Litigation 45

6. The Role of Regulatory Authorities and Securities Markets 46

6.1. The SEC and Other Public Institutions 46

6.2. The Stock Markets 48

7. The Market for Corporate Control 49

7.1. Challenges to Management Control 49

7.1.1. Hostile Tender Offers 50

7.1.1.1. The Law 51

7.1.2. Proxy Fight to Change Management 53

8. Conclusion 54

Chapter 2 Italy&Sabrina Bruno and Eugenio Ruggiero 55

1. Listed Companies in Italy 55

1.1. Requirements and Procedures for Listing 55

1.2. How Developed Is the Public Securities Market? 57

2. The Ownership Structure 58

3. The General Meeting of Shareholders 65

3.1. The Powers of the General Meeting of Shareholders 65

3.2. General Meeting of Shareholders and Managerial Powers: Historical Background and the New Regime 66

3.2.3. Procedural Rules for Convening General Meeting 70

3.2.4. Attendance to the General Meeting and Exercise of Voting Rights 71

3.2.5. Resolutions of the General Meeting 77

4. Shareholders’ Rights, Duties and Protection 79

4.1. The Nature of the Shareholder 79

4.2. One Share: One Vote Principle 81

4.3. Rights of “Voice” for Minority Shareholders in Listed Companies 82

4.3.1. Initiative Powers for the Functioning of the General Meeting of Shareholders 82

4.3.2. The Board of Directors 83

4.3.3. Appointment of a Member of the Supervisory Board 84

4.3.4. Duties of Shareholders to Other Shareholders 85

5. Shareholder Litigation 87

5.1. Shareholders'Misconduct 87

5.2. Directors’ Misconducz 88

5.3. To What Extent and in Which Case May the Judiciary Intervene in the Company’s Affairs? 89

6. The Role of the Regulatory Authorities and Securities Market 90

6.1. Market Authorities 90

6.2. Issuers’ Disclosure Obligations 90

6.3. Conduct of Intermediaries and Institutional Investors Concerning Exercise of Voting Rights 91

6.4. Enforcement of Disclosure Obligations 91

7. The Market for Corporate Control: Takeovers 93

7.1. Takeovers and Exit Rights 93

7.2. The Mandatory Bid Rule 94

Chapter 3 France&Alain Couret 97

1. Companies Listed in the National System 97

1.1. Requirements and Procedures for Listing a Company 97

1.2. How Developed Is the Public Securities Market? 98

1.3. What Conditions Have Led to This Situation? 100

2. The Ownership Structure 103

2.1. Data Regarding Corporate Ownership 103

2.2. Who Are the Institutional Investors (Banks, Pension Funds, Insurance Companies, Hedge Funds, Etc.)? 105

3. The General Meeting of Shareholders 108

3.1. The Power of the General Meeting of Shareholders 108

3.2. General Meeting and Managerial Powers: Historical Background and the New Regime 110

3.3. Procedural Rules for Convening General Meetings 110

3.4. Attendance to the General Meeting and Exercise of Voting Rights 111

3.5. Resolutions of the General Meeting 112

4. Shareholders’ Rights, Duties and Protection 113

4.1. The Nature of the Shareholder 113

4.2. One Share—One Vote Principle 114

4.3. Rights of Voice for Minority Shareholders in Listed Companies 115

4.3.1. Initiative Powers for the Functioning of the General Meeting 115

4.3.2. The Board of Directors 117

4.3.3. Appointment of a Member of theSupervisory Board 118

4.4. Duties of Shareholders to Other Shareholders 118

4.5. How Are Shareholders' Conflict of Interests Situations Prevented and Enforced? 118

5. Shareholder Litigation 119

5.1. Shareholders’ Misconduct 119

5.2. Directors’ Misconduct 120

5.3. To What Extent and in Which Case May the Judiciary Intervene in the Company’s Matters? 120

6. The Role of Regulatory Authorities and Securities Markets 122

6.1. Market Authorities 122

6.2. Disclosure Obligations Concerning Issuers 123

6.3. Conduct of Intermediaries and Institutional Investors Concerning Exercise of Voting Rights 124

6.4. Enforcement of Disclosure Obligations 125

6.5. What Is the Role Played by the Internet? 126

7. The Market for Corporate Control: Takeovers 126

7.1. The Takeovers EC Directive 126

7.2. The Mandatory Bid Rule 126

7.2.1. Which Transactions/Actions Generally Trigger a Mandatory Offer? 126

7.2.2. Which Are the Principal Exemptions from the Mandatory Offer Requirement? 127

7.3. Takeover Defenses and Shareholders’ Approval 127

7.3.1. Pre-bid Period 128

7.3.1.1. Barriers to the Purchase of Company Share 128

7.3.1.2. Barriers to Exertion of Control in the General Meeting 129

7.3.1.3. Barriers to Exertion of Control in the Board of Directors 131

7.3.1.4. Barriers to Exertion of Control over the Assets of the Company 132

7.3.1.5. Creation of Financial Burdens as a Consequence of the Transfer of Control 133

7.3.1.6. Regulatory Problems 133

7.3.2. Post-bid 134

7.3.2.1. Reduction of Shares Acquirable by Bidder 134

7.3.2.2. Increase of the Cost of the Bid 135

7.3.2.3. Creation of Regulatory Problems 136

7.3.2.4. Search for Alternative Bidder 136

7.3.2.5. Bid for the Bidder 136

7.4. Which Rules Apply to Takeovers? Which Interests Are Protected by These Rules? 137

Chapter 4 Germany&Stefan Grundmann and Florian Mdslein 139

1. Listed Companies in Germany 139

1.1. Economic Importance 139

1.2. Historical Development 141

1.3. Business Financing and Legal Implications 143

2. Ownership Structure 146

2.1. Evolution of the Ownership Structure 146

2.2. Ownership versus Control Structure 147

2.3. Recent Changes to Ownership and Control Patterns 150

3. The General Meeting of Shareholders 154

3.1. The Allocation of Powers between General Meeting and Board 154

3.1.1. Historical Background 154

3.1.2. No Interference of the General Meeting with Current Business Operations 155

3.1.3. Appointment and Dismissal of Board Members 156

3.1.4. Specific Decision Rights 157

3.2. Operation of the General Meeting 160

3.2.1. Attendance 160

3.2.2. Proxy Voting 160

3.2.3. Convening of Shareholders 162

3.2.4. Agenda 163

4. Shareholders’ Rights 164

4.1. Ownership Structure and Legal Implications 164

4.1.1. Ownership Structure and the Representation on the Board 164

4.1.2. Minority Shareholder Protection 166

4.2. The “One-Share—One-Vote Principle” and Its Limits 167

4.2.1. European Union 167

4.2.2. Germany 169

4.3. Specific Shareholders’ Rights and their Exercise 170

4.3.1. Individual Administration Rights 170

4.3.2. Administration Rights Which Require a Certain Minority 176

4.3.3. Pecuniary Rights 176

4.4. Interests and Duties of Majority Shareholders 178

4.4.1. Strong Conflict of Interests 178

4.4.1. Fiduciary Duties and Duties of Good Faith 180

4.5. Transferability of Shares 181

4.5.1. European Union 181

4.5.2. Germany 182

5. Securities Markets 183

5.1. Powers of Market Authorities 183

5.2. Disclosure and Trading Obligations 185

5.3. Enforcement 186

5.4. The Role of the Internet 187

6. The Market for Corporate Control: Takeovers 188

6.1. General Principles 188

6.2. Limitations to Acquisitions 189

6.3. Procedural Rules 191

Chapter 5 The United Kingdom&Dan Prentice 197

1. Listed Companies in the United Kingdom 197

1.1. Listed Companies and Ownership Structure 202

1.1.1. Requirements and Procedure for Listing 203

1.1.1.1. London Stock Exchange (LSE) 203

1.1.1.2. Alternative Investment Market (AIM) 204

1.1.1.3. Debt Market 205

2. The Ownership Structure 206

2.1. The Role of Institutional Investors 208

2.2. Blockholders 214

3. The Role of Regulatory Authorities and Securities Markets 216

4. The General Meeting of Shareholders 221

5. Shareholders Rights, Duties and Protection 222

5.1. Disclosure of Shareholder Voting: Institutional Investors 227

6. Shareholder Litigation 228

6.1. Investor Protection 229

7. Disclosure Obligations and Enforcement 229

7.1. Legislation 229

7.2. Listing Rules 230

8. Market for Corporate Control 232

8.1. Statistics 232

8.2. The City Code on Takeovers and Mergers 233

8.3. Panel on Takeovers and Mergers 235

8.4. Addendum 236

Chapter 6 From Shareholders'Rights to Directors'Duties: Liability and Accountability of Directors&Gustavo Visentini and Federico Raffaele 239

1. Introduction 239

2. The Fiduciary Relationship 241

2.1. Historical Background 241

2.2. Different Theories Concerning Fiduciary Relationships 243

2.2.1. The Atomistic Concept of Fiduciary Relationships 243

2.2.2. The Unified Concept of Fiduciary Relationships 244

2.2.3. Our Proposal 246

2.2.3.1. Fiduciary Duties 248

2.2.3.2. Noncontractual Fiduciary Relationships 249

3. The Fiduciary Relationship between Shareholders and Directors in Publicly Held Corporations 249

3.1. The Origins 249

3.2. Directors in Corporate Law 251

3.3. Corporate Fiduciary Duties 252

4. Current Theories in Relation to Director’s Duties 253

5. Establishing a New Model to Look at Corporate Fiduciary Relationships 255

5.1. Variables that Affect Corporate Fiduciary Relationships 255

5.2. Variables that Affect the Structure and the Characteristics of the Fiduciary Relationship 256

5.2.1. The Nature of the Financial Markets Determines the Structure of Shareholdings 256

5.2.2. Nature of the Fiduciary Relationship According to the Nature of the Shareholding Interest 257

5.3. Variables that Affect the Strength and the Effectiveness of the Fiduciary Relationship 259

5.3.1. Exercising the Vote 259

5.3.2. Claims for Damages 260

5.3.3. Conflicts of Interest 260

5.3.4. The Board of Directors 261

5.3.5. Information 261

6. The Italian Experience 261

6.1. The Financial System is Centered on Intermediation by Banks 261

6.2. State-Controlled Corporations and Private Companies 262

6.3. Recent Reforms 263

6.4. Company Law Reform 264

7. Conclusions 264