CGN: Corporate Law Including Merger & Acquisitions Law (Sub-Topic)最新文献

{"title":"What do Exceptions in MAE Definitions Except?","authors":"Robert T. Miller","doi":"10.2139/ssrn.3854238","DOIUrl":"https://doi.org/10.2139/ssrn.3854238","url":null,"abstract":"MAE cases arising from the COVID-19 pandemic such as AB Stable and KCake have focused attention on the exceptions typically contained in the definition of the term “Material Adverse Effect.” That is, merger agreements typically define the (capitalized) term “Material Adverse Effect” to be any event that has or would reasonably be expected to have an (uncapitalized) material adverse effect on the target, other than certain excepted events such as general changes in business, market or industry conditions, changes in law, or force majeure events. The COVID-19 cases have exposed a latent ambiguity in this definition because, while the definition assumes that a single event causes a material adverse effect on the target, in the COVID-19 cases the causal background to the supposed material adverse effect was more complex, with one event (the pandemic) causing a second event (e.g., governmental lockdown orders) and the second event causing the material adverse effect on the target. If the MAE definition allocates the risk of both events to the same party, then clearly that party bears the risk of any resulting material adverse effect, but what happens if, say, the risk of a pandemic is allocated to the target but the risk of changes in law (such as lockdown orders) is allocated to the acquirer? Albeit only in dicta, AB Stable and KCake answered this question by saying, in effect, that if the risk of either event is allocated to the acquirer, there is no Material Adverse Effect. This article argues that this reasoning is unsound. The argument begins from the fundamental point that, under the express terms of the typical MAE definition, a (capitalized) Material Adverse Effect is an event that causes an (uncapitalized) material adverse effect;it is counterintuitive but plainly correct that a Material Adverse Effect is thus not a material adverse effect but an event that causes a material adverse effect. Furthermore, MAE definitions allocate risk on the basis of events, not effects, and they do so not because parties care about the events in and of themselves but because of the tendency of the events to cause material adverse effects. Hence, in allocating the risk of a certain event, the parties are allocating the risk not only of the event itself but also of all other events reasonably expected to follow from the event, up to and including any reasonably-expected material adverse effect on the target. This means, for example, that if the target bears the risk of a pandemic, it also bears the risk of everything reasonably expected to follow from any pandemic that occurs, including any reasonably-expected lockdown orders, up to and including any reasonably-expected material adverse effect, even if the MAE definition includes exceptions related to changes in law that would otherwise except lockdown orders. Even if the lockdown orders are mistakenly regarded as excepted, the pandemic was not excepted, and so if the pandemic would reasonably be expected to res","PeriodicalId":204227,"journal":{"name":"CGN: Corporate Law Including Merger & Acquisitions Law (Sub-Topic)","volume":"9 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2021-05-20","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"123800167","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Delaware’s Dominance, Wyoming’s Dare. New Challenges, Same Outcome?","authors":"Pierluigi Matera","doi":"10.2139/ssrn.3763106","DOIUrl":"https://doi.org/10.2139/ssrn.3763106","url":null,"abstract":"Despite an increased criticism, Delaware’s dominance has not been experiencing a significant decline: as of today, 67.8% of Fortune 500 companies are still incorporated in this jurisdiction. Nevada is known as Delaware’s most important competitor, with an aggressive strategy that overrode the effort of any other jurisdiction. Yet, its success has been limited to a specific market segment: small firms with low institutional shareholding and high insider ownership. \u0000Scholars suggest several explanations for both the rise and the staying power of Delaware. These explanations are essentially subsumed under the credible commitment theory and the network theory. According to the former, investors rely upon Delaware commitment towards the business community; whilst the latter emphasises how Delaware is profiting from the position achieved. The credible commitment theory and the network theory sometimes overlap and combine. Both predict that Delaware is hard to dethrone. \u0000In recent years, commentators have argued that this hegemony might be endangered by two different threats: the migration of cases induced by Delaware courts’ response to overlitigation; and the invasive growth of federal regulation—in particular, the possible introduction of a federal incorporation. Yet, criticism and predictions on Delaware’s decline are recurring and always follow the same pattern. Unsurprisingly, the migration turned out to be marginal; and the debate on a federal incorporation was revived in conjunction with a political campaign but fizzled out afterwards. \u0000I contend that a mounting challenge to Delaware’s dominance is mostly going off the radar. Wyoming is targeting a new segment of the market for corporate charters: i.e., cryptocurrency businesses. This jurisdiction is attempting to attract these incorporators by enacting liberal legislation and providing their companies with a safe harbour. \u0000Wyoming’s aggressive stance provides the motivation to canvass causes and consequences, criticism and challenges to Delaware’s dominance. The investigation might generate insights as to why Wyoming’s strategy will succeed or fail. In fact, this market segmentation approach is the same tactic that Nevada adopted, though Wyoming is applying the strategy to a sector that has meaningful growth potential and is pushing it to the point of introducing exemptions to state securities laws and banking regulation. \u0000The application of the credible commitment theory and of the network theory to Wyoming’s approach suggests that the strategy of building a reputation and proving a commitment to tech-incorporators is correct but is also conditioned upon a confluence of events which also needs time. Wyoming should develop an expertise that is too costly to be easily replicated by other jurisdictions and earn a share of the charters market before federal legislature and regulatory bodies pre-empts Wyoming’s law for cryptocurrencies. \u0000To the extent that Wyoming’s strategy proves to be effective,","PeriodicalId":204227,"journal":{"name":"CGN: Corporate Law Including Merger & Acquisitions Law (Sub-Topic)","volume":"308 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2021-04-05","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"128285903","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Company Law - A Real Entity Theory","authors":"Eva Micheler","doi":"10.2139/ssrn.3783696","DOIUrl":"https://doi.org/10.2139/ssrn.3783696","url":null,"abstract":"This book advances an entity theory of company law. It builds on the insight that organizations or firms are autonomous actors in their own right. They are more than the sum of the contributions of their participants. They also act independently of the views and interests of their participants. This occurs because human beings change their behavior when they act as members of a group or an organization. In a group we tend to develop and conform to a shared standard. When we act in organizations routines and procedures form and a culture emerges. These over time take on a life of their own affecting the behavior of the participants. Participants can themselves affect organizational behavior and modify routines, procedures and culture but this takes time and effort. \u0000 \u0000Organizations are a social phenomenon outside of company law. Company law finds this phenomenon and provides it with a legal structure. It makes available legal personality and a procedural framework facilitating corporate decision making and corporate acting. Company law evolves with a view to supporting autonomous action through organizations. \u0000 \u0000It will be shown in this book that a framework that conceives companies as vehicles for autonomous organizational entities that are characterized by their routines, procedures and culture explains the law as it stands at a positive level. The framework also helps to formulate normative recommendations guiding law reform and judicial decision making. \u0000 \u0000An entity approach is sometimes associated with a normative argument advocating for more influence for stakeholders such as employees. This book does not take a position on the normative question whether stakeholders should have more influence than they currently have. The thesis of this book holds irrespective of how the law fine-tunes the influence over corporate decision making.","PeriodicalId":204227,"journal":{"name":"CGN: Corporate Law Including Merger & Acquisitions Law (Sub-Topic)","volume":"230 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2021-02-11","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"133725338","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Corporate Law of Malaysia : Getting to Know Malaysian Companies and the Companies Act","authors":"M. Y. Ng, Chee Fei Chang","doi":"10.2139/ssrn.3779693","DOIUrl":"https://doi.org/10.2139/ssrn.3779693","url":null,"abstract":"This article introduces the law of companies in Malaysia. It encapsulates the enactment of the Companies Act 2016 that replaces the previous 1965 Act, explains different methods of business trading, the concept of limited liability and the doctrine of sperate legal entity. The writing of this article employs the hermeneutics analysis of relevant legislation(s). It provides a quick and simplified reference for students and non-practitioner.","PeriodicalId":204227,"journal":{"name":"CGN: Corporate Law Including Merger & Acquisitions Law (Sub-Topic)","volume":"45 2 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2021-02-05","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"116645981","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"A More Equitable Corporate Purpose","authors":"Veronica Root Martinez","doi":"10.4337/9781789902914.00009","DOIUrl":"https://doi.org/10.4337/9781789902914.00009","url":null,"abstract":"The appropriate focus of corporate purpose has long been debated by scholars, investors, and legal counsel alike, with the majority of these arguments focused on the seeming dichotomy between shareholder wealth maximization and stakeholder capitalism. These modern debates are inextricably tied to theoretical understandings of the firm, first articulated in the 1930s, which focused on the relationship between managers of firms, those firms’ shareholders, and other constituents, or stakeholders, of the firm. And while much is debated regarding the appropriate conception of corporate purpose, the initial understandings of the firm that undergird those arguments is widely accepted. Corporate governance literature has, however, largely failed to consider one important factor that would have influenced the development of theories of the firm in the 1930s—the historical context of exclusion in which those theories arose. \u0000 \u0000This Chapter argues that corporate leaders and scholars engaged in debates about the appropriate role and purpose of the corporation today must also consider how women and people of color fit—or more specifically, failed to fit—into the original understandings of the corporation’s purpose. In response to the #MeToo and #BlackLivesMatter movements, corporate leaders and scholars have actively entered into a period of study and contemplation about the ways in which corporations might contribute to the creation of a more equitable and just society. That focus is admirable and necessary. But it is equally important to consider whether and how traditional notions of corporate purpose were influenced by the sexist and racist policies that permeated American society when foundational pieces of corporate scholarship were debated and developed. Once historical realities are considered, “A More Equitable Corporate Purpose” may, perhaps, reveal itself.","PeriodicalId":204227,"journal":{"name":"CGN: Corporate Law Including Merger & Acquisitions Law (Sub-Topic)","volume":"29 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2021-01-25","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"129472713","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Ratification of Defective Corporate Acts - H.B. 20-1013","authors":"Herrick K. Lidstone, Kylie Santos","doi":"10.2139/ssrn.3691245","DOIUrl":"https://doi.org/10.2139/ssrn.3691245","url":null,"abstract":"A number of changes to the Colorado Business Corporation Act and the Colorado Corporations and Associations Act became effective July 1, 2020 as a result of S.B. 2019-086. One change planned for 2019 but which was delayed until H.B. 2020-1013, was a provision for “ratification of defective corporate acts,” which became effective September 14, 2020. <br><br>The Colorado provision follows similar provisions in a number of other states, including Delaware, and provides that defects in authorizations of share issuances and other corporate actions shall not be void or voidable solely as a result of a failure of authorization if a prescribed statutory ratification process is followed. Colorado established this process in C.R.S. § 7 103 106 which is now effective for all Colorado corporations.<br><br>This paper provides a discussion for practitioners when they recognize that several corporate acts may need to be ratified and provides a procedure to determine which corporate acts should be ratified first, and how the ratification process should occur.","PeriodicalId":204227,"journal":{"name":"CGN: Corporate Law Including Merger & Acquisitions Law (Sub-Topic)","volume":"194 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2020-09-11","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"133416935","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Foreign Wrongs, Corporate Rights and the Arc of Transnational Law","authors":"Jason MacLean, Chris Tollefson","doi":"10.2307/J.CTV176KTTB.5","DOIUrl":"https://doi.org/10.2307/J.CTV176KTTB.5","url":null,"abstract":"This peer-reviewed chapter reflects on the challenge and the aspiration of bringing transnational corporations (TNCs) more fully and coherently under the rule of international law. An extensive literature ruminates upon the dis-junction between the extant norms of our international legal order, many of which continue to cling to antiquated Westphalian-era suppositions, and the massive changes that have attended the ascendance of TNCs in the post-World War II era and the associated privatization of global authority and governance. The place of corporations in international law remains at once unclear and hotly contested as a matter of theory, doctrine and politics.","PeriodicalId":204227,"journal":{"name":"CGN: Corporate Law Including Merger & Acquisitions Law (Sub-Topic)","volume":"16 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2020-06-17","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"133220864","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Passive Investing and Corporate Governance: A Law and Economics Analysis","authors":"D. S. Lund","doi":"10.2139/ssrn.3623381","DOIUrl":"https://doi.org/10.2139/ssrn.3623381","url":null,"abstract":"An important debate in corporate governance is whether passive funds — a term that includes ETFs and index funds — have incentives to provide adequate oversight of their portfolio companies. One set of scholars contends that agency cost problems likely thwart passive fund stewardship for several reasons. First, passive funds suffer from an acute collective action problem because any investment in improving the performance of a company will benefit all funds that track the index equally, while only the activist fund will incur the costs. Indeed, these scholars point out that investments in stewardship are particularly costly for the passive fund portfolio manager, which lacks the firm-specific information necessary to participate in governance in a beneficial way. Second, passive fund portfolio managers may have inadequate incentives to invest in beneficial stewardship because they capture only a small fraction of the gains. And third and finally, passive fund portfolio managers have ample incentive to be excessively deferential to management, who are often their clients. These scholars conclude that because of these flawed incentives, the rise of passive investing portends economic harm and justifies wide-ranging regulatory intervention — from incentivizing passive fund stewardship, to restricting passive fund voting rights. Another set of scholars contend that passive fund stewardship is likely to be as good as, if not better than, stewardship by other investors. They contend that passive funds compete for investor dollars not just against other passive funds, but also against actively managed mutual funds. This competition provides an incentive for passive funds to invest in stewardship that will attract asset inflows. In addition, the large size of the institutional investors that offer passive funds affords them economies of scale and scope in stewardship. And because these large institutional investors have massive stakes in portfolio companies, capturing even a small fraction of any gain will substantially increase their take home pay, providing an incentive to be engaged for a small number of material votes that occur each year. These scholars contend — in the words of Adam Smith, and later, Jack Bogle — that the invisible hand is all that is needed. This is a chapter from the forthcoming Encyclopedia of Law and Economics (Adam Badawi, ed., 2nd edition 2020).","PeriodicalId":204227,"journal":{"name":"CGN: Corporate Law Including Merger & Acquisitions Law (Sub-Topic)","volume":"15 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2020-06-09","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"124876978","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Elementos Característicos de las Sociedades por Acciones Simplificadas en Ecuador (Characteristic Elements of the Simplified Share Companies in Ecuador)","authors":"P. Noboa-Velasco, E. Ortiz-Mena","doi":"10.2139/ssrn.3582137","DOIUrl":"https://doi.org/10.2139/ssrn.3582137","url":null,"abstract":"<b>Spanish abstract:</b> Las sociedades por acciones simplificadas se caracterizan por la reducción de barreras de entrada para su constitución y de salida para su cancelación registral, así como por la erradicación del anacrónico imperativismo normativo en su funcionamiento. Por estos motivos, esta nueva especie societaria constituye, sin duda alguna, la innovación más grande del Derecho Societario del Ecuador en las últimas décadas. Como derivación de la vigencia de la Ley Orgánica de Emprendimiento e Innovación, este ensayo analizará las principales características de las sociedades por acciones simplificadas del Ecuador. <br><br><b>English abstract:</b> Among its advantages, the Simplified Share Companies in Ecuador are characterized by the abolition of obsolete requirements for their corporate incorporation and legal extinction. The regulation of the Simplified Share Companies has facilitated their internal organization in matters of corporate control and direction, since the shareholders, given the flexibility provided by the Entrepreneurship and Innovation Act, have complete liberty to determine the internal structure of the company. For these reasons, the Simplified Share Companies have revolutionized the Ecuadorian corporate legal framework. This paper will analyze the essential characteristics of this new type of business structure.","PeriodicalId":204227,"journal":{"name":"CGN: Corporate Law Including Merger & Acquisitions Law (Sub-Topic)","volume":"34 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2020-04-21","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"131817978","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Review of Company Law on Merger and Acquisition in India Using SCP Paradigm","authors":"Kaushik Ghosh, M. Mukhopadhyay","doi":"10.2139/ssrn.3545442","DOIUrl":"https://doi.org/10.2139/ssrn.3545442","url":null,"abstract":"The role of government in Mergers and Acquisitions (M&A) and governance with respect to the same need to be re-defined as M&A gains cutting edge phenomena. The paper intends to review, summarize and discuss various institutional laws regarding mergers and acquisitions (M&A) in India and thereby recommend fruitful policy guidelines for institutions and managers participating in merger and acquisition deals. This paper provides a review of the Report of the expert committee on company law on M&A published by Ministry of Corporate Affairs (MCA). The paper on M&A by MCA has summed up thirty-four points which can be classified under five broad aspects 1. Structure and Objective, 2. Implementation, 3. Potential Benefits, 4. Potential Constraints and 5. Proposed Remedies. These are further analyzed in the light of Structure, Conduct and Performance (SCP) paradigm.","PeriodicalId":204227,"journal":{"name":"CGN: Corporate Law Including Merger & Acquisitions Law (Sub-Topic)","volume":"491 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2020-02-27","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"127743374","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}