公司法 英文PDF电子书下载

Chapter One．The Corporation in Perspective 1

1.1 What Is a Corporation?The Concept of an Artificial Entity 1

1.2 What Is a Corporation?Other Theories 4

1.3 The"Nexus of Contracts"Theory 6

1.4 The Development of Corporation Law in the United States 12

1.5 Economic Analysis of the"Race for the Bottom" 14

1.6 What Explains Delaware's Success in Attracting Corporations? 16

1.7 The Model Business Corporation Act 18

1.8 The Federal Securities Laws 19

1.9 The Debate Over Social Responsibility and the Publicly Held Corporation 20

1.10 "Closely Held"and"Publicly Held"Corporations 22

Chapter Two．Unincorporated Business Forms 25

2.1 Unincorporated Business Forms In General 25

2.2 A Dictionary of Unincorporated Business Forms 25

2.3 Personal Liability and Taxes:The Most Important Factors in Selecting a Business Form 30

2.4 An Introduction to Federal Taxation of Business Forms 32

2.5 Taxation of"C"and"S"Corporations 35

2.6 Combining Partnership Tax Treatment and Limited Liability 37

2.7 Economic Effects of the Double Tax Regime 39

Chapter Three．Formation of Corporations 42

3.1 In General 42

3.2 Selection of the State of Incorporation 42

3.3 Mechanics of Creating a Corporation 43

3.4 Incorporators 45

3.5 Articles of Incorporation:In General 47

3.6 Articles of Incorporation:The Corporate Name 49

3.7 Articles of Incorporation:Period of Duration 53

3.8 Articles of Incorporation:Purposes and Powers 53

3.9 Articles of Incorporation:Capitalization 56

3.10 Articles of Incorporation:Registered Office and Registered Agent 58

3.11 Articles of Incorporation:Imtial Board of Directors 59

3.12 Articles of Incorporation:Limitation of Directoral Liability 60

3.13 Completion of the Organization of the Corporation:In General 61

3.14 Nature and Purpose of Bylaws 62

3.15 The Corporate Seal 63

3.16 Organizational Meetings 63

Chapter Four．The Limited Role of Ultra Vires 66

4.1 The Common Law Doctrine of Ultra Vires 66

4.2 The Modern Role of Ultra Vires 68

4.3 Ultra Vires Problems in Connection With Corporate Powers 69

Chapter Five．Preincorporation Transactions 76

5.1 Introduction 76

5.2 Subscriptions for Shares 76

5.3 Agreements to Form Corporation 79

5.4 Promoters in General 81

5.5 Promoters'Contracts 83

5.6 Liability of Corporations for Promoters'Contracts 87

5.7 Promoter's Fiduciary Duties 89

5.8 Organizational Expenses Incurred by Promoters 90

5.9 Premature Commencement of Business and the De Facto Doctrine 92

5.10 Corporations by Estoppel 95

Chapter Six．"Piercing the Corporate Veil"and Related Problems 98

6.1 "Piercing the Corporate Veil"In Context 98

6.2 Shareholder Responsibility for Corporate Indebtedness:Introduction 99

6.3 The Standard Rhetoric of Piercing the Corporate Veil 100

6.4 Piercing the Corporate Veil in Contract and Tort Cases 101

6.5 Inadequate Capitalization 104

6.6 Failure to Follow Corporate Formalities 107

6.7 Parent-Subsidiary Cases 109

6.8 The Concept of"Enterprise Entity" 113

6.9 Choice of Law Issues in"Piercing the Corporate Veil"Cases 113

6.10 The Federal Law of"Piercing the Corporate Veil" 115

6.11 Reverse Piercing 116

6.12 "Piercing the Corporate Veil"to Further Public Policy 117

6.13 "Piercing the Corporate Veil"in Taxation and Bankruptcy 119

6.14 Other Generalizations About"Piercing the Corporate Veil" 122

Chapter Seven．Financing the Corporation 123

7.1 Introduction 123

7.2 Basic Definitions:Common Stock;Authorized and Issued Shares 124

7.3 The Price of Common Shares 126

7.4 Par Value,Stated Capital and Related Concepts 127

7.5 No Par Shares 135

7.6 Shares Issued for Property or Services 136

7.7 Liability of Shareholders for Watered Stock 140

7.8 Treasury Shares as a Device to Avoid Restrictions on the Issuance of Shares 146

7.9 Current Trends Regarding Par Value 147

7.10 Other Types of Securities:"Equity"and"Debt"Securities 148

7.11 Characteristics of Debt Securities 149

7.12 Classes of Equity Securities;Preferred Shares 152

7.13 The Advantages of Debt Financing 160

7.14 Tax Consequences of Excessive Debt Capitalization in C Corporations 164

7.15 Debt as a Second Class of Stock in S Corporations 165

7.16 The Deep Rock Doctrine Revisited 166

7.17 Equalizing Capital and Services When Forming a Corporation 167

7.18 Issuance of Shares by a Going Concern:Preemptive Rights 170

7.19 Oppressive Issuance of Shares 175

7.20 Circular Ownership of Shares 177

7.21 A Cautionary Postscript:The Risk of Violating Securities Acts While Raising Capital 177

Chapter Eight．The Distribution of Powers within a Corporation:Special Problems 179

8.1 The"Statutory Scheme"In General 179

8.2 The Statutory Scheme:Shareholders 182

8.3 The Statutory Scheme:Power of Shareholders to Remove Directors 183

8.4 The Statutory Scheme:Directors 185

8.5 Elimination of the Board of Directors 188

8.6 The Statutory Scheme:Officers 189

8.7 Shared Responsibility With Respect to Corporate Operations 190

8.8 Shared Responsibility:Approval of Fundamental Corporate Changes 192

8.9 Shared Responsibility:Bylaw Amendments 193

8.10 Restrictions on Directors in Close Corporations 194

8.11 Delegation of Management Powers and the Statutory Scheme 202

Chapter Nine．Shares and Shareholders 203

9.1 Annual and Special Meetings of Shareholders 203

9.2 Shareholder Action by Consent 206

9.3 Record and Beneficial Ownership of Shares 207

9.4 Record Dates 208

9.5 Preparation of Voting List 210

9.6 Election of Directors:Cumulative or Straight Voting 211

9.7 "Classified"Boards of Directors 219

9.8 Other Devices to Minimize Cumulative Voting 220

9.9 Voting by Proxy 221

9.10 Irrevocable Proxy Appomtments 223

9.11 Vote Buying 225

9.12 Shareholder Voting Agreements 226

9.13 Voring Trusts:Purpose,Operation,and Legislative Policy 229

9.14 Voting Trusts:Use in Public Corporations 232

9.15 Voting Trusts:Powers and Duties of Trustee 233

9.16 Creation of Floating Voting Power Through Different Classes of Shares 234

9.17 Share Transfer Restrictions:Purposes,Operation,and Effect 236

9.18 Share Transfer Restrictions:Scope and Validity 239

9.19 Share Transfer Restrictions:Duration of Restraints 241

9.20 Share Transfer Restrictions:Procedural Requirements 241

9.21 Option or Buy/Sell Agreements:Who Should Have the Right or Privilege to Buy? 242

9.22 Option or Buy/Sell Agreements:Establishment of Purchase or Option Price 244

9.23 Option or Buy/Sell Agreements:Life Insurance 248

9.24 Selection of the Purchaser in Deadlock Buyouts 249

9.25 Deferred Payment of the Purchase Price 250

Chapter Ten．Directors 252

10.1 Number and Qualifications of Directors 252

10.2 Directors'Meetings:Notice,Quorum,and Similar Matters 254

10.3 Compensation of Directors 257

10.4 Filling of Vacancies on the Board 258

10.5 Hold-Over Directors 259

10.6 Necessity for Meeting and Personal Attendance 260

10.7 Telephonic Meetings 261

10.8 Action Without a Meeting 262

10.9 Directors'Objections to Actions 263

10.10 Committees of the Board of Directors 264

Chapter Eleven．Officers 268

11.1 Statutory Designations of Officers 268

11.2 Express Authority and Power to Act In General 270

11.3 Roles of Corporate Officers 271

11.4 Express Authority Delegated by Board of Directors 272

11.5 Inherent Power of the Corporate President 274

11.6 Implied Authority,Apparent Authority,Ratification,Estoppel,and Unjust Enrichment 275

11.7 Fiduciary Duties of Officers and Agents 277

11.8 Liability of Officers and Agents to Third Parties 278

11.9 Imputation of Knowledge to Corporation 281

11.10 Tenure of Officers and Agents 282

11.11 Long-Term Employment Contracts 283

Chapter Twelve．The Closely Held Corporation 286

12.1 The Meaning of"Closely Held"and"Publicly Held" 286

12.2 Management and Control of the Closely Held Corporation 287

12.3 "Oppression"and"Freeze-Outs" 289

12.4 Advance Planning in Closely Held Corporations 293

12.5 Traditional Protection Devices in Closely Held Corporations 294

12.6 Classes of Shares as Control Devices 295

12.7 Increased Quorum and Voting Requirements 298

12.8 Deadlocks 299

12.9 Involuntary Dissolution 301

12.10 Section 14.34 of MBCA(1984) 304

12.11 Fiduciary Duties of Shareholders of Closely Held Corporations 305

12.12 Resolution of Intracorporate Disputes by Arbitration 307

12.13 Special Close Corporation Statutes 308

12.14 Section 7.32 of MBCA(1984) 310

Chapter Thirteen．The Publicly Held Corporation 313

13.1 The Publicly Held Corporation in Perspective 313

13.2 The Internal Structure of Large Corporations 315

13.3 Profit Centers 317

13.4 The Corporate Headquarters 320

13.5 The Chief Executive Officer 323

13.6 Compensation of Senior Executives 324

13.7 Shareholders as"Investors"or"Owners" 326

13.8 Institutional Investors 328

13.9 Registration of Securities in Street Name or in the Name of Nominees;Book Entry 332

13.10 The Board of Directors:Theory and Reality 335

13.11 The Election of Directors in Publicly Held Corporations 337

13.12 "Inside"and"Independent"Directors 339

13.13 Relationships Between the CEO and the Board 340

13.14 The Modern Board of Directors 342

13.15 The"Chicago School"of Law and Economics 347

13.16 Share Prices and The Changing Body of Shareholders 352

13.17 The Takeover Movement of the 1980s 353

13.18 Proxy Regulation in Publicly Held Corporations 354

13.19 Disclosure Requirements in Connection With Proxy Solicitations 356

13.20 Shareholder Proposals 359

13.21 Private Actions for Violations of Federal Proxy Rules 362

13.22 Proxy Contests 364

13.23 Federal Regulations Relating to Proxy Contests 368

13.24 The Modern Takeover Movement 368

13.25 Defensive Tactics 373

13.26 State Legislative Responses to the Takeover Movement 375

Chapter Fourteen．Duties of Directors,Shareholders and Officers 378

14.1 The Director as a"Fiduciary" 378

14.2 Duties of Shareholders and Officers 379

14.3 Sources of Law Relating to Duties——Common Law,State and Federal Statutes,"Federal Common Law" 380

14.4 Duty of Care 381

14.5 The"Business Judgment Rule" 385

14.6 Section 102(b)(7)of the Delaware GCL 391

14.7 The Business Judgment Rule in Takeover Contests 392

14.8 The Business Judgment Rule in Derivative Litigation 395

14.9 The Duty of Loyalty 398

14.10 Self Dealing 399

14.11 Interlocking Directors 404

14.12 Executive Compensation 405

14.13 Corporate Opportunities 409

14.14 Fairness to Minority Shareholders 413

14.15 "Fairness"and the"Business Judgment Rule" 415

14.16 Shareholder Ratification 418

14.17 Exoneratory Provisions 419

14.18 Statutory Duties and Statutory Defenses 420

14.19 Purchase or Sale of Shares or Claims Under State Law 423

14.20 Duties of Directors of Financially Distressed Corporations 427

14.21 Rule 10b-5 428

14.22 Rule 10b-5 as an Anti-Fraud Provision 431

14.23 Rule 10b-5 as a Prohibition Against Insider Trading 431

14.24 Rule 10b-5 as a Protector of the Issuer 437

14.25 Rule 10b-5 as a General Prohibition Against Wrongful Conduct 438

14.26 Section 16(b)of the Securities Exchange Act of 1934 439

14.27 Transfers of Control 442

Chapter Fifteen．Indemnification and Insurance 448

15.1 Definitions of Terms 448

15.2 The Need for Protection of Directors and Officers 449

15.3 Public Policy Limitations on Indemnification 450

15.4 Statutory Treatment of Indemnification 451

15.5 Advances for Expenses 454

15.6 D＆O Insurance 456

Chapter Sixteen．Shareholder's Suits 459

16.1 Direct and Derivative Suits In General 459

16.2 Derivative and Direct Claims Distinguished 460

16.3 Alignment of Parties in a Derivative Suit 462

16.4 Role of the Plaintiff's Attorney 463

16.5 Derivative Litigation as Strike Suits 466

16.6 Contemporary Ownership 467

16.7 Demand on Shareholders 468

16.8 Security-For-Expenses Statutes 469

16.9 Verification of the Complaint 471

16.10 Demand on Directors and Litigation Committees 472

16.11 Defenses in a Derivative Suit 477

16.12 Private Settlement of Derivative Suits 478

16.13 Res Judicata Effect of Derivative Suits 479

Chapter Seventeen．Class Action Suits 481

17.1 Securities Class Action Suits In General 481

17.2 SEC Disclosure Requirements 482

17.3 The Growth of Class Action Securities Litigation 483

17.4 Judicial Response to the Increased Litigation 485

17.5 The Private Securities Litigation Reform Act of 1995 486

17.6 Class Action Provisions 486

17.7 Safe Harbor Provisions 487

17.8 Discovery Provisions 489

17.9 Proportionate Liability Provisions 489

17.10 Settlement Provisions 491

17.11 Fee Shifting Provisions 491

17.13 Pleading Provisions 492

17.14 Damage Provisions 493

17.15 Aiding and Abetting Provisions 494

17.16 Auditor Disclosure of Corporate Fraud Provisions 494

17.17 What the Future Holds as a Result of PSLRA 496

Chapter Eighteen．Dividends,Distributions,and Redemptions 498

18.1 Cash or Property Dividends and Distributions 498

18.2 Share Dividends 500

18.3 Distributions of Rights or Warrants 504

18.4 Share Reacquisitions as Distributions 504

18.5 Shareholders'Rights to a Dividend 506

18.6 Statutory Restrictions on the Declaration of Dividends 508

18.7 Contractual Provisions Relating to Declarations of Dividends 514

18.8 Liability of Directors and Shareholders for Illegal Dividends 515

18.9 Shareholders'Right to Compel a Dividend 515

18.10 Tax Consequences of Failure to Pay Dividends in Closely Held Corporations 517

18.11 Corporate Repurchase of Its Own Shares 518

18.12 Redeemable Securities 521

Chapter Nineteen．Inspection of Books and Records 523

19.1 Inspection by Directors and Shareholders Compared 523

19.2 Common Law and Statutory Rights of Inspection by Shareholders 524

19.3 Corporate Records:What May Be Examined? 526

19.4 What Is a"Proper Purpose"? 528

19.5 Who Is Entitled to Inspect? 529

19.6 Inspection of Shareholders Lists 530

19.7 Financial Reports for Shareholders 532

Chapter Twenty．Organic Changes:Amendments,Mergers,and Dissolution 533

20.1 Amendments to Articles of Incorporation In General 533

20.2 Vested Rights 534

20.3 Voting by Classes 536

20.4 Mergers and Consolidations 538

20.5 Triangular Mergers,Cash Mergers,Short Form Mergers,and Related Developments 542

20.6 Cash-Out Mergers 544

20.7 "Upstream"and"Downstream"Mergers 545

20.8 Short Form Mergers 545

20.9 Fiduciary Duties in Mergers 547

20.10 Sales of All or Substantially All the Assets of a Corporation 548

20.11 The Right of Dissent and Appraisal 550

20.12 Voluntary Dissolution 554

Glossary 557

INDEX 593