Professional Documents
Culture Documents
p. 16 Questions
Certificate of Designation
1. Not entitled
a. BoD gets to choose whether to pay dividends
b. Quarterly cumulative dividends
c. Any dividends that are skipped are supposed to be made up = if you want to resume
paying dividends to the Common Stock, you have to make up all skipped dividends on
the Preferred Stock – so technically, you don’t HAVE to pay dividends on PS but paying
these dividends is a condition for paying dividends on the Common Stock
d. If Company doesn’t pay dividends on Preferred Stock Can’t pay dividends on
Common Stock either
HB Korenvaes Investments, L.P. v. Marriott Corporation (Del. Ch. 1993) p.19: Class Notes in Red
1. Facts:
• Interesting: illustrates how certain type of transaction is done – a spinoff
• Spinoff = when corp takes a chunk of its assets and either distributes it to its SHs or
sells it off as a newly publicly traded company
• In this case spinoff to its shareholders
• Big Marriott: wants to reorganize its business
○ One entity: Host = owns real estate
○ International = services, operates hotels
○ Owners: shareholders of Big M
○ How can you get there?
1. Create new company
2. Transfer hotel-operating assets to new company
3. Pay dividend to SHs consisting of stock of new company
= Simple way to do the same thing (divide into two businesses): spin
off the real estate part
Or offer stock in IPO
• Dividend policies:
○ Host: won’t pay any dividends
○ Int’l: the same dividends as Big Marriott used to pay
○ Holder of Big Mar, from cash flow perspective: will get the same amount of
dividends
○ Host has no profits:
Operating profits (earnings before payments are made to providers of
capital) of Host are lower
Net income after interest expense lower b/c Host has a lot more
debt
Big M paid dividends to the CS holders, so must have paid dividends
to Preferred stock holders
PSH: no dividends paid after the spinoff
so PSH unhappy if you don’t convert
Read up to page 40
i. Marriott wants to reorganize by transferring its cash-generating services business
to a subsidiary called Marriott International, which will be spun-off and paid as a
special dividend to all common shareholders of Marriott.
1. Would fall within the case of paying dividends in form of capital stock in
the sample Cert of Desig’s anti-dilution clause
ii.Marriott will change name to Host Marriott, which will keep the debt-laden real
estate business which would be incurring a negative net income and hence not
paying dividends.
iii.Prior to the spin-off, Marriott was paying a cash dividend to shareholders. After
the spin-off, Host Marriott wasn’t going to pay any dividends at all while
International was going to pay the common shareholders the same dividends that
Big Marriott was paying prior to the spin-off.
iv.Thus, the spin-off will have no effect on common shareholders dividends.
However, preferred shareholders will only be left with Host Marriott which will
be debt laden and incurring a loss and so will not be paying any dividend.
v. Thus, preferred holders can either stay with Host as preferred holders and get no
dividends or convert to common before the split (and thus get International spin-
off shares and dividends).
vi.Plaintiffs want injunction to stop special dividend. The argue that the reason
Host is doing what it’s doing is because after distribution of the dividend the
preferred holders will be in a position to convert and control a majority of Host’s
common stock as per the Certificate of Designation which adjusts the preferred
stock conversion rate. The Marriott family wants to maintain control so Marriott
is going to stop paying dividends after transaction to coerce preferred holders
into converting.
vii.Issue: whether the planned transaction is consistent with the conversion
price adjustment contained in the Certificate of Designation.
viii.Court: While the suspension of dividends may influence PSH to convert,
there was no coercion and no violation of any implied right to good faith
that every commercial contractor is entitled to.
a. First, plaintiffs wrongly construed Big M’s actions as coercion.
Court says coercion was not involved and that this is essentially
a contract action, as the case involves the construction of the
rights and duties set forth in the charter.
i. Court has held that actions principally designed to
coerce SH in the exercise of a choice given to them by
charter, bylaws or statute, but those cases were based
on existence of fiduciary duty of directors with respect to
transaction under review
ii. This is not a fiduciary duty case though, but one of
construction of rights and duties set forth in the
certificate of designation
iii.The PSH’s protections against suspension of
dividends lie in the charter, and are several:
1. Cumulative dividends
2. Liquidation preference
3. Redemption price adjusted to reflect accrued
unpaid dividends
4. If prolonged suspension of dividends get right to
elect 2 directors
5. Conversion right
6. Restriction on the proportion of net worth that
may be distributed
a. This restriction is inherent in the formula
used to revise the conversion ratio:
formula doesn’t work if you give so
much away that new net worth is less
than PS’s share of net worth before the
dividend
iv.These provisions are a recognition of
1. The risk that dividends might not be paid.
2. The correlative right of directors to discontinue
dividends
b. Second, the discontinuation of dividends can be seen as a
prudent, good faith, business-driven decision.
c. Thus, though the suspension of dividends may exert a powerful
influence, there has been no violation of the duty of good faith
that commercial contractor’s are entitled to expect
2. Court: More important claim is based on Charter Section 5(e)(iv) when
the assets of the firm are depleted through a special distribution to SH’s,
the preferred will be protected by the triggering of a conversion price
adjustment formula.
a. The # of shares into which the preferred can convert will be
proportionately increased in order to maintain the value of the
preferred’s conversion feature.
b. In a narrow range of extreme cases, the provision will not work to
preserve the pre-dividend value of the preferred’s conversion
right. (see examples on p. 24-25)
c. If this case fell within that narrow range, Marriot could be
prevented from declaring dividends of a proportion that would
deprive the PSH of the protection this section was intended to
afford, which would violate the rights of the PSH created by the
certificate of designation’s conversion feature. But this is not one
of those cases.
d. Rule: If, when declared, the dividend will leave the
corporation with sufficient assets to preserve the
conversion value that the PSH possesses at that time, it
satisfies the limitation that such a protective provision
implies
ix.HOLDING: Court held that while the suspension of dividends may influence
Preferred to convert, there was no violation of any implied right to good faith that
every commercial contractor is entitled to.
1. Plaintiffs wrongly construed this case as a breach of fiduciary duty. This
is essentially a contract action, as the case involves the construction and
interpretation of rights and duties set forth in the certificate of
designation. Marriott has a right to suspend dividend payments as a
business judgment. The court says the certificate of designation says
nothing on the matter although it has in the past helped preferred
shareholders when a company issued a gratuitous threat to delist the
preferred stock.
2. However, in this case, the court says the preferred shareholders are
protected by provisions in the certificate
a. (i.e., cumulative dividends, liquidation preference, right to elect
2 directors after prolonged suspension of dividends, Redemption
price adjusted to reflect accrued unpaid dividends, Restriction on
the proportion of net worth that may be distributed
b. (This restriction is inherent in the formula used to revise the
conversion ratio: formula doesn’t work if you give so much
away that new net worth is less than PS’s share of net worth
before the dividend).
c. These provisions are there because the shareholders recognize
the risk of being a preferred shareholder. The court recognizes
that the shareholders foresaw the problem and contracted for
protections. Thisis all the preferred shareholders are getting
since this is all they contracted for.
d. The preferred shareholders should have negotiated for the
contract to include a prohibition on in-kind dividends.
3. The court also found that a provision in the certificate 5(e)(iv) that
reduced the conversion price protected the value of the preferred
conversion whenever Marriott distributed assets to its common
shareholders.
0911 Corps
• Cap on how high PS will go once it becomes redeemable
• Redemption = forced repurchase of the shares; repurchase can also be on the market
• Balance sheet: snapshot at one point in time of the company’s financial condition
○ Two columns – one year beforehand, year end (compare the two)
○ Three segments
Assets: what co owns
Liabilities: what co owes
SHs equity: what’s left over
• NYT Balance Sheet Equity:
○ Preferred Stock: 200,000 authorized, 0 outstanding
○ Common Stock Class A: 300M; 150 M issued
○ Common Stock Class B: 840,000; 840,000 issued
○ Authorized shares: max number that company can issue comes from certificate of
incorporation comes from the SHs/SHs can modify this provision
○ authorized but not issued
○ authorized and issued shares: Company has sold or given the shares to the
shareholders
• Can company own its own stock? – when Company buys shares back
that it issued (repurchases) these are called = treasury stocks
○ Treasury stocks: “Common Stock held in treasury” column
• In parenthesis: parenthesis indicates negative number not a positive
contribution to the equity – number that REDUCES equity, since
company has used money to buy back the stocks
Treasury shares: number of shares that company has issued and since bought
back
• From perspective of corp law = same as shares that are authorized but
NOT issued – company can choose to sell or not sell in future – but if
company chooses not to sell them, nothing happens, they have no
function
• Company can convert it to shares that are authorized but no issued (b/c
they are the same thing anyways) – and accountants will make book
entries of this (“retire treasury stocks”) but no economic/functional
significance; only treated differently from accounting perspective
Issued and outstanding: number of issued shares – number of treasury shares
• These are the relevant ones.
•
09 12 2008 Friday
• Debt has maturity (date at which it must be paid); interest rate; can be redeemable or convertible;
• Debt can also have other features that are restrictions or affirmative reqs on the way the
company conducts its business
○ E.g. restrictions on amt of dividends that company can pay
○ Limitations on amt of other debt that company can incur
○ General ability to have these restrictions will come up a lot in discussion of creditor
rights
• Priority structure of debt:
○ All debt has priority over equity
○ Within same company:
Debt gets paid first
Then pay equity (preferred first, then common)
○ Priority within debt
If company doesn’t have enough money to pay off all of its debt, how are assets
allocated among its creditors?
General Rule:all debt has equal priority, unless there is specific reason/category
that changes this
• If there isn’t enough money to pay off all creditors within same class,
they are paid off pro rata
○ Each creditor gets paid the same fraction of the claim (proportion
of the debt owed to her): divide assets by the debt pay off
each creditor this fraction of what they are owed
09 12 2008 Friday
• Debt has maturity (date at which it must be paid); interest rate; can be redeemable or convertible;
• Debt can also have other features that are restrictions or affirmative reqs on the way the
company conducts its business
○ E.g. restrictions on amt of dividends that company can pay
○ Limitations on amt of other debt that company can incur
○ General ability to have these restrictions will come up a lot in discussion of creditor
rights
• Priority structure of debt:
○ All debt has priority over equity
○ Within same company:
Debt gets paid first
Then pay equity (preferred first, then common)
○ Priority within debt
If company doesn’t have enough money to pay off all of its debt, how are assets
allocated among its creditors?
General Rule:all debt has equal priority, unless there is specific reason/category
that changes this
• If there isn’t enough money to pay off all creditors within same class,
they are paid off pro rata
○ Each creditor gets paid the same fraction of the claim (proportion
of the debt owed to her): divide assets by the debt pay off
each creditor this fraction of what they are owed
Corps 0916
• Financing firm
○ Discretion as to how much you raise in form of equity and debt
• Capital structure: relationship between equity and debt
○ More debt in capital structure more leveraged is the firm
Leverage = amount of debt in capital structure
What leverage does in terms of finance
• Increases riskiness of the equity
• Generally increases the expected rate of return on the equity
○ Generally if certain technical condition is satisfied = if
expected rate of return on assets exceeds interest rate
○ Distinguish operational side of firm from ways the firm is financed
Hypothesis: operations of the firm and financing of the firm are independent
matters (usually true)
• Firm that uses $100,000 in capital
• Operational side/Assets side: Will produce operating profits, regardless
of how financed
Each year:
○ 16,000; or
○ 12,000; or
○ 8,000
• Compare two ways of financing the firm:
○ All equity: 100,000
○ Mixed
50,000 debt 10% interest rate
50,000 equity
• Expected rate of return on assets
○ Each profit has same likelihood of happening
○ Expected profits / total capital
○ Expected rate of return on assets: 12,000 12%
○ Technical condition satisfied: 12% > 10%
• Leverage increases riskiness of equity,
○ Case 1: All equity
Expected rate of return on equity:
• 12%
Possible rate of return
• 16% - 33% likelihood
• 8% - 33%
○ Case 2: Mixed
Creditors: $5,000 interest even in worst case scenario
(8,000), still enough money; good deal
Equity holder: Expected profits after interest for equity
holder: 7,000
Expected rate of return: 14%
Downside: 3,000/50,000 = 6%
Upside: 22%
○ Increases expected rate of return on equity: 12 14%
○ Increases riskiness of equity: swings
+-4% (with probability of 1/3)// +-8% (with probability
of 1/3)
Plus, minus 8% is riskier than plus minus 4%
• Conceptual explanation
○ Risk is inherent in the operations
○ Risk that is in the project is defined by the numbers given on operational side
○ Capital structure: APPORTIONS risk
○ Let’s say, this project involves a 100 units of risk
When we have all equity capital structure: for each 1000 dollar inv’t 1 unit of
risk
Mixed structure:
• Debt: for each 1000 dollar inv’t 0 risk (always gets 5000 in each case)
• Equity: for each 1000 dollar inv’t 2 units
○ Risk of equity has doubled
○ Reflected in two facts:
1) Swings have doubled 4 % swing to 8%
1 unit of risk in case 1, got 12% return for 1 unit of risk
= gets extra 2 return
0 unit of risk, gets 10%
For 2 units of risk, should get 4 extra return
2) more risk, more return
• Finished with introductory segment
• NOW: relationship between corp, shs, and creditors
• Prb on p. 36
○ Policy arguments
○ To understand what drives what the law is
• Company ABC Enterprises
○ Andrea 75% shares
○ Tamara 25% shares
○ Debt 5M
○ Liability 2M
○ 50,000 past salary to A
○ 500,000 in past due wages to employees
○ 4 M total assets
• Should Andrea have to pay Rich from her own money? = DISCUSSION
○ St: Rich should get paid from company before Andrea – Andrea should be subordinated
WHY?
• B/C Andrea is CEO of company and profited from negligence of
company; part of her responsibility to prevent negligence
• Should A be subordinated to everybody (creditors, other employees etc)
since she profited from all of their work/money etc?
• BUT Tamara also profited from the company?
K: The people who really profit from risk are the SHs then doesn’t make sense
to hold A liable as CEO and T (SH) not liable
• Puts Andrea on the hook for salary and SH (since her personal assets are
at stake)
• Not an uncommon arrangement – many non-publicly held companies
have CEOs = SHs
Proposed rule: If company pays dividends after the verdict, then SHs have to
return the money???
• Basis: SHs claim on the money is as good as or worse than Rich and
creditors’ claim on the money
• Rich’s claim: design defect strict liability regime
○ Company NOT found to be at fault; Andrea SURELY not at fault
○ SO no finding of fault as far as company and Andrea concerned
○ K: so what’s the basis for holding Andrea at fault?
○ K: company can have insurance against product design defects
claim; BUT Rich can also have health insurance
If CEO has personal liability if things go bad, and since the benefit of risks are
reaped by the SHs, then would cause CEOs to be overly cautious
Also an incentives issue: want managers to take on necessary risk
If CEO is personally at fault, then it is taken for granted that she can be sued
personally
Rule against excessive CEO salaries?
• To protect creditors and SHs
• Different rule necessary for protecting creditors v. SHs?
○ Limit for SHs: lower limit
How would you formulate such a rule?
○ Limit for creditors:
Interest: as long as enough assets of company left to
fully pay the creditors
• Should Andrea have to pay the Bank?
○ Should Bank get paid ahead of the employees?
○ Should Bank get paid from Andrea?
If rule says: Bank only has rights spelled out in K fair b/c the bank can write it
into K (on dividend payment restrictions)
• BUT: if the legal rule is unless K says otherwise, A has to pay back
dividends that she rec’d within 1 year of the filing of bankruptcy
• could also say that Andrea should have spelled out her rights into the
K
Problem with Ks – K with entity, hard to K with SHs in remote places
• But could have rule saying if company pays dividends in violation of K,
then you can go after the recipients of the dividends
• What protects creditors who cannot bargain?
○ E.g. Rich
○ Possible rule: Creditors who cannot bargain should get priority over the bank?
If there is a bank, bank will have incentive to bargain on part of Rich
E.g. buy washing machine – breaks down warranty claim notion of
contracting to protect yourself is impossible practically speaking
• But this is b/c the claims are minimal warranty claims are really small
• These claims are so small, amounts to such small risk are diversifiable
• So they won’t get claimed big deal. Don’t amount to huge claim
• Usually, financial claims are the ones that are big
○ If this were the rule: Bank would ask company to get insurance against tort claims
Very common thing even today
• If Andrea had transacted in business in personal capacity then she would liable to Rich from her
personal assets
• Then why should she be any less liable in personal capacity just b/c she formed a company?
○ It’s her company – she gets the upside, she should suffer the downside
○ She owns the business why should Rich suffer?
Maybe all the SHs should pay from personal assets
○ Andrea has more control over whether accident happens or not; if things turn out well
Andrea benefits then why does Rich, who doesn’t get profits, only suffers!
○ Even with incentives issue, still can’t answer WHY RICH should bear the grunt
○ E.g. getting into car: bearing risk that you will get into accident that will exceed your
insurance payment and you will go bankrupt
○ Argument is that limited liability form: creates too much risk
○ Company: the lowest cost avoider; but when taking precautions, will think of SHs, not
Rich
• If you are taking unnecessarily high risk, then you can protect yourself through insurance
○ Not a finite resource; if demand goes up, supply of insurance companies will go up too
• Continue on Thurs: finish Gleneagles case; may do Costello ~pg 51