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CORPORATE FINANCE
LexisNexis Law School Publishing
Advisory Board
Paul Caron
Charles Hartsock Professor of Law
University of Cincinnati College of Law
Olympia Duhart
Associate Professor of Law
Nova Southeastern University, Shepard Broad Law School
Samuel Estreicher
Dwight D. Opperman Professor of Law
Director, Center for Labor and Employment Law
NYU School of Law
Steve Friedland
Professor of Law
Elon University School of Law
Joan Heminway
College of Law Distinguished Professor of Law
University of Tennessee College of Law
Edward Imwinkelried
Edward L. Barrett, Jr. Professor of Law
UC Davis School of Law
Paul Marcus
Haynes Professor of Law
William and Mary Law School
John Sprankling
Distinguished Professor of Law
McGeorge School of Law
Melissa Weresh
Director of Legal Writing and Professor of Law
Drake University Law School
LEGAL ASPECTS OF
CORPORATE FINANCE
FIFTH EDITION
Richard T. McDermott
Adjunct Professor
Fordham University School of Law
ISBN: 978-0-7698-5945-3
LL ISBN: 978-0-7698-5946-0
eBook ISBN: 978-1-5791-1715-3
Library of Congress Cataloging-in-Publication Data
McDermott, Richard T.
Legal aspects of corporate finance / Richard T. McDermott, Adjunct Professor, Fordham University School of
Law. -- Fifth edition.
p. cm.
Includes index.
ISBN 978-0-7698-5945-3
1. Corporations--Finance--Law and legislation--United States. 2. Securites--United States. I. Title.
KF1428.M33 2013
346.73'0666--dc23
2013010291
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PREFACE
This book is the result of my experience in teaching a class in Corporate Finance at the
New York University School of Law for 19 years and at the Fordham University School
of Law for 12. That experience, in turn, is based upon the 37 years I spent practicing
business law.
One of my objectives in the course has been to provide a forum in which terms and
concepts pertaining to corporate finance and related matters can be discussed, defined,
and explained in an atmosphere in which the students are not reticent to disclose that they
have not yet completely mastered the field of business law. When I began to practice
corporate and securities law, I was unfamiliar with the field, and began my education as a
bag carrier and note taker at conferences, while trying to appear as if I actually knew
what was going on. In some respects, my course and, to a certain extent this book, could
be entitled “Everything You Wanted to Know About Corporate Finance but Were Afraid
to Ask.” Indeed, I make it a point to admonish my students that the only “stupid”
question in my classroom is the one that is not asked. In addition to the cases, statutes,
and textual materials, I have included excerpts from various corporate finance documents,
such as debentures, trust indentures, preferred stock provisions, and acquisition
agreements. It has been my experience that it is helpful for students to study the actual
form of the documentation under consideration while they are also dealing with various
explanatory secondary materials. I have inserted the documentation examples in the text,
rather than as appendices, to encourage their being read with the other materials. I
subscribe to the view, originally espoused by Christopher Columbus Langdell of the
Harvard Law School (see Ames, Professor Langdell — His Services to Legal Education,
20 HARV. L. REV. 12 [1906]), that the most useful way of studying law is an analysis of
legal opinions deciding actual cases or controversies. I believe that the principles of the
case method can also be utilized to consider and analyze the corporate finance documents
themselves. Their terms, often the product of complex and sophisticated negotiations and
resulting in workable solutions to a myriad of business and financial issues, while at the
same time being responsive to decisional and statutory law, are in a very real sense “the
law of the case” with regard to a particular corporate finance transaction.
In the context of corporate finance and related transactions, the views of Professor
Langdell were supplemented by Paul D. Cravath, who, nearly 100 years ago, advised
young lawyers and general practitioners that:
The provisions of the modern reorganization agreement and the modern corporate
mortgage are the result of the experience and prophetic vision of a great many able
lawyers. Every new provision is suggested either by some decision of the courts or
by an actual experience or by some lawyer’s conception of a possible exigency.
Ordinarily in drafting a document a lawyer must draw chiefly upon his own
experience and the results of his own observation, but corporate mortgages and
reorganization agreements are public documents so that each lawyer can have the
benefit of the experience of many others. . . . I advise you to adhere to precedent
iii
PREFACE
and, in most cases, you will find the long reorganization agreement based on
precedent much safer than the agreement half as long drawn by your neighbor who
scorns precedent.
CRAVATH, REORGANIZATION OF CORPORATIONS IN SOME LEGAL PHASES OF CORPORATE
FINANCING, REORGANIZATION AND REGULATION 153, 178 (1917).
The materials in this book are those dealt with in my course in Legal Aspects of
Corporate Finance. As the title suggests, this book is for the most part concerned with the
legal aspects of corporate finance. Particular emphasis is placed upon the nature of the
legal relationships created by corporate finance transactions. Indeed, the matters dealt
with in this book and my course touch upon a number of areas of substantive law in
addition to state corporation laws, including contracts, torts, antitrust, negotiable
instruments, tax, securities, bankruptcy and creditors’ rights, environmental law,
constitutional law, and conflict of laws. It is important that students understand that
outstanding corporate practitioners are versatile lawyers who apply their substantive
knowledge to transactions. They are not technocrats engaged in some arcane subspecialty
with little connection to the law. In a sense, these lawyers do their “litigating” by
discerning and resolving issues at the negotiating table when transactions are being
structured. The study of case law is important in corporate finance because it is essential
that deal lawyers understand how judges approach disputes and construe documents in
this area. Having a “judge’s eye view” is thus of great value to one who is negotiating or
drafting documents, and the cases in this book were selected with that in mind.
September 4, 2012
iv
ACKNOWLEDGMENTS
v
TABLE OF CONTENTS
Chapter 1 CORPORATE FINANCE AND THE PROCESS OF
CAPITAL FORMATION . . . . . . . . . . . . . . . . . . . . . . . . . . 1
xi
TABLE OF CONTENTS
Chapter 6 DISTRIBUTIONS IN RESPECT OF EQUITY
SECURITIES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 655
INDEX . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . I-1
xiii