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Representing Corporate Officers and Directors and LLC Managers, Third Edition

Representing Corporate Officers and Directors and LLC Managers, Third Edition

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Overview

Representing Corporate Officers and Directors and LLC Managers, Third Edition (formerly titled Representing Corporate Officers, Directors, Managers, and Trustees) is a guide to the practical aspects of corporate governance for attorneys, corporate officers and directors, LLC managers, and trustees. Following the repercussions of past corporate and accounting scandals, new legislation, rules, and standards by governmental bodies and society have greatly increased the focus on the responsibilities and liabilities of directors, officers, managers, and trustees. Increased SEC oversight, new NYSE and NASDAQ listing standards, new cybersecurity compliance guidance, new fiduciary and other duties, and new criminal penalties have all changed the landscape for those who control corporations. By logically laying out the steps to safe corporate governance, the analysis, cases, tables, and checklists guide the veteran and neophyte alike.

Representing Corporate Officers and Directors and LLC Managers tells you what to look for...what to look out for...and what steps to take to protect your corporate clients in today’s harsh regulatory environment. It’s the only up-to-date work of its kind to offer both in-depth analysis and practical guidance on key aspects of this critically important area.

This updated Third Edition thoroughly covers:

Directors’ duties of care and loyalty— including the different standards which have been imposed on directors regarding the duty of care...the duty of loyalty...the business judgment rule... when directors are entitled to rely on the advice of others...improperly influencing audits under the Sarbanes-Oxley Act... improper distributions...and more.

Conflicts of interest—with examples of conflict of interest transactions, and discussion of loans to or by directors and officers...secret profits...and the duty to safeguard confidential or inside information— plus, how certain transactions considered improper can be ratified and thus become legitimate.

Federal securities laws—including everything from overviews of the laws, the SEC, and securities themselves— to jurisdiction, pleading, remedies, and defenses in securities cases... criminal penalties...and attorneys’ responsibilities regarding liability under Sarbanes-Oxley.

Indemnification and insurance— with discussion of mandatory and permissive indemnification and the scope of indemnification in various states... when a director may be indemnified even if not wholly successful in defense of an action...directors’ and officers’ liability insurance...types and extent of insurance coverage...tax law treatment...and exclusions.

Tender offers—including antitakeover measures, two-tier and squeeze-out mergers, and golden parachute agreements, poison pill plans, and greenmail...potential liability in tender offers...and implementing mergers and acquisitions, with securities law, antitrust, tax, accounting, and labor law considerations.

Pages 1284
Last Updated 12/13/2018
Update Frequency Published annually
Product Line Wolters Kluwer Legal & Regulatory U.S.
ISBN 9781543805291
SKU 10066179-7777
Table of Contents

Corporate Directors and Shareholders

  • Corporate Managerial Structure
  • Shareholder Meetings
  • The Shareholder Rights Movement
  • “Say on Pay” Shareholder Votes and the Business Judgment Rule
  • Shareholder Democracy
  • Shareholder Democracy and the Proxy Environment
  • Corporate Directors and the Duty to Monitor
  • Monitoring the Chief Executive and Other Managerial Personnel
  • Other Corporate Directors' Functions
  • Corporate Directors' Authority
  • Election of the Board of Directors
  • Composition of the Board
  • Selection of Corporate Directors
  • The Role of Outside Directors
  • Legal Standards for Outside Directors
  • NYSE and NASDAQ Director and Corporate Governance Requirements
  • Broader Inclusion of “Knowledgeable Employees”
  • Piercing the Corporate Veil
  • Responding to Shareholder Proposals
  • Constituency Statutes
  • Special Liability Considerations Under the Sarbanes-Oxley Whistleblower Act
  • Form 1.13: Bylaw on Appointment of Employee Directors

 Corporate Officers

  • Corporate Officers
  • Relationship Between the Board of Directors and Corporate Officers
  • Chief Executive Officer
  • Fiduciary Duties of Corporate Officers
  • Sarbanes-Oxley Effects on Corporate Officers and Directors
  • Certification of Financial Reports Under Securities and Exchange Commission Rules
  • Executive Succession Planning
  • Corporate Secretaries
  • Form 2.02: Bylaw on Appointment of Officers

 Corporate Board Committees

  • Corporate Board Meetings and Committees
  • The Executive Committee
  • The Audit Committee
  • NASDAQ and NYSE Audit Committee Requirements
  • The Compensation Committee
  • The Nominating Committee
  • Form 3.01: Bylaw on Committees
  • Form 3.02: Bylaw on Appointment and Powers of Executive Committee
  • Form 3.03: Charter of the Audit Committee
  • Form 3.06A: Charter of the Nominating Committee
  • Form 3.06B: Policies for Nomination of Directors

Duty of Care and the Business Judgment Rule

  • Fiduciary Duties and the Business Judgment Rule: An Overview
  • State Statutes, Model Statutes, and the Duty of Care
  • Prudent Person in Like Position Standard
  • Personal Business Affairs Standard
  • Reasonable Inquiry Standard
  • Business Judgment Rule
  • The Rule of Common Law and Statutory Preemption
  • Checklist: A D&O Risk-Reducing Program
  • The Duty to Disclose
  • Cybersecurity Risks in Public Companies

Corporate Directors' Reliance on Others

  • Directors' Reliance on Advice of Counsel
  • Directors' Reliance on Advice of Corporate Employees and Experts
  • Directors' Reliance on Reports Issued by Board Committees
  • Checklist: Corporate Directors' Reliance Defense
  • Directors' Delegation to Board Committees
  • Directors' Reliance on Corporate Books and Records
  • Directors' and Officers' Dealings with Accountants
  • Improperly Influencing Audits Under Sarbanes-Oxley Act
  • Challenging Corporate Directors' Decisions
  • Supervision by Directors and Officers
  • Causal Relationship Between Director Breach and Damages
  • Corporate Director Expertise
  • Corporate Directors' Fiduciary Duties During Insolvency
  • Form 5.05: Code of Ethics
  • Form 5.07A: Certification of Form 10-Q
  • Form 5.07B: Certification of Form 10-QSB
  • Form 5.07C: Certification of Form 10-K
  • Form 5.07D: Certification of Form 10-KSB
  • Form 5.07E: Certification of Form 20-F
  • Form 5.07F: Certification of Form 40-F
  • Form 5.07G: Certification of Form N-SAR

Conflicts of Interest and General Loyalty Considerations

  • Introduction to the Duty of Loyalty
  • The Duty of Good Faith
  • Competition by a Fiduciary
  • Examples of Conflict of Interest Transactions
  • Loans to and by Directors and Officers
  • Directors' and Officers' Secret Profits
  • Voting Considerations
  • Minority Shareholders
  • Duty to Safeguard Confidential or Inside Information

Usurping Corporate Opportunity

  • Corporate Opportunity Doctrine: An Overview
  • Guth v. Loft: Line of Business Test
  • Interest or Expectancy Test
  • Fairness Test
  • ALI Recommendations on Corporate Opportunity
  • Major Elements of a Corporate Opportunity—In General
  • Acquisition of Competitive Interest
  • The Corporation's Rejection of an Opportunity
  • Corporation's Financial Capacity
  • Variations in Director Relationships
  • Closely Held Corporations and Corporate Opportunity
  • Pointers for Corporate Planning

Selling Corporate Control

  • Corporate Control
  • Specific Qualifications to the General Rule
  • Fraud Associated with Purchases from Minority Shareholders
  • Control and Closely Held Corporations
  • Nonselling Directors' Liability in Control Transactions
  • Impact of Federal Securities Law on Sale of Control Transactions
  • Government as a Controlling Shareholder

Tender Offers and Takeovers

  • Introduction to Tender Offers
  • General Issues in Tender Offers and Takeovers
  • Anti-Takeover Measures
  • Two-Tier and Squeeze-Out Mergers
  • Perfecting Appraisal Rights
  • Business Judgment Rule in Takeovers: Overview of Enhanced Scrutiny
  • Business Judgment Rule in Takeovers: Developments Post-Revlon
  • Poison Pill Plans
  • Pac-Man Defense to a Hostile Takeover
  • Defensive Antitrust Acquisitions
  • Golden Parachute Agreements
  • Greenmail
  • Williams Act
  • The General Trends of Defenses Against Tender Offers: From Litigation to Planning

Implementing Mergers and Acquisitions

  • Overview of Mergers and Acquisitions
  • Confidentiality Agreements
  • Checklist: Steps in a Merger
  • Checklist: The Merger Agreement
  • Agreement of Merger (Delaware Corporations)
  • Securities Law Considerations in a Friendly Business Combination
  • State Securities Law Considerations
  • Antitrust Considerations
  • Tax Considerations
  • Accounting Considerations
  • Labor Law Considerations
  • M&A Broker Guidelines
  • M&A Activity Involving Closely Held Corporations, Controlling Shareholders, and Partnerships
  • Contract Right Between Stockholders of a Close Corporation to Permit One to Purchase Stock from the Other
  • The Standard of Review in M&A Transactions
  • A Glossary of Takeover Terms and Tactics
  • Form 10.05: Agreement of Merger (Delaware Corporations)
  • Form 10.14: Contract Right Between Stockholders of a Close Corporation to Permit One to Purchase Stock from the Other

 Liability Under Federal Securities Laws

  • Overview of Federal Securities Laws and Securities Defined
  • Liability Under the Securities Act
  • Liability Under the Exchange Act
  • Federal Laws Affecting Securities Fraud Claims Under State Law
  • Modernizing SEC Disclosure Requirements
  • “Admit Wrongdoing” Policy

Dividends and Other Corporate Distributions

  • Definition of Dividend
  • Declaration of Dividends
  • NYSE Notice Requirements for Dividend-Related Announcements Made Outside Market Hours
  • Funds from Which Dividends May Be Paid
  • Cash Dividends
  • Mandatory Provision for Declaration of Dividend
  • Stock Dividends
  • Dividend Payment on Jointly Held Stock
  • Stock Splits
  • Declaration of a Stock Dividend
  • Wasting Assets Corporations
  • Declaration of Cumulative Preferred Dividends
  • Directors' Discretion and Duty to Pay Dividends
  • Time for Declaration of a Dividend (Two Classes of Common Stock)
  • Directors' Discretion and Minority Shareholders
  • Necessary Dividends
  • Directors' Liability for Improper Dividends
  • Directors' Defenses in Improper Dividends Actions
  • Director's Right to Contribution in Dividends Actions
  • Liabilities of Stockholders in Dividends Actions
  • Form 12.02: Declaration of Dividends
  • Form 12.06: Mandatory Provision for Declaration of Dividend
  • Form 12.08: Dividend Payment on Jointly Held Stock
  • Form 12.10: Declaration of a Stock Dividend
  • Form 12.12: Declaration of Cumulative Preferred Dividends
  • Form 12.14: Time for Declaration of a Dividend (Two Classes of Common Stock)

Nonprofit Corporations and Hybrids

  • Overview of the Non-Profit Corporation
  • Fiduciary Duties of Officers and Directors in Nonprofit Corporations
  • Fiduciary Duties of Trustees of Charitable Trusts
  • Fiduciary Duties in Hybrid Organizations
  • Revised Model Nonprofit Corporation Act; State Statutes
  • Federal Tax Law Penalties Applicable to Nonprofit Corporations
  • IRS Reporting Requirements for Nonprofit Corporations
  • Accounting Rules Concerning Endowments to Nonprofit Organizations

Indemnification and Insurance for Corporate Directors and Officers

  • D&O Insurance and Indemnification: An Overview
  • Indemnification Statutes—In General
  • Specific States Indemnification Statutes
  • Indemnification and Contribution Under Federal Law
  • Directors' and Officers' Liability Insurance
  • Extent of Coverage in D&O Liability Insurance
  • Sarbanes-Oxley Act: Effect on D&O Insurance and Indemnification
  • Tax Law Treatment of D&O Indemnification and Insurance

Limited Liability Companies

  • Introduction to LLCs
  • LLC Articles of Organization
  • LLC Operating Agreements
  • Piercing the Veil of an LLC
  • Fiduciary Duties in LLCs Under State Law
  • Derivative Lawsuits by LLC Members
  • LLC Statutes and Minority Oppression Reforms
  • California's LLC Act
  • Professional LLC
  • Series LLC
  • Anonymous LLC
  • The Low-Profit Limited Liability Company (“L3C”)
  • The Benefit LLC

Table of Cases

Index

About The Experts
Volumes