2.1.1 Equity Securities
Five to ten minutes on this one unit: what the exam wants, the idea in plain words, then straight into the trap and the practice.
The outline wants what a charter's silence means, the two Rule 144 numbers, and the pairs of words that sound alike: restricted against control, rights against warrants.
Start with what a corporate charter does not say, because several of these questions turn on a silence. Cumulative voting exists only if the certificate of incorporation provides for it; Delaware's own section 214 says a certificate may provide for it, not that it must, so silence means one vote per share per seat. Pre-emptive rights are written as a denial: section 102 gives a stockholder no such right unless it is expressly granted in the certificate. Treasury shares, meaning shares the corporation has bought back and holds itself, neither vote nor count toward a quorum under section 160, and they still exist, which is why they can be reissued later. Authorised shares are a charter number too, so a board that wants more than the charter allows has to amend the certificate first, and that is a stockholder act, not a board one.
Rule 144 carries two numbers worth holding cold. The holding period before restricted stock may be resold is six months where the issuer files reports under the Exchange Act, and one year where it does not, so read the filing status in the stem before anything else. An affiliate's own resale volume is then capped at the greater of one percent of the class outstanding, or the average weekly reported trading volume over the preceding four weeks. Greater, not smaller.
Two labels get swapped constantly. Restricted describes how a share was acquired, in an unregistered sale. Control stock describes who is holding it, an affiliate, meaning a person who controls, is controlled by, or is under common control with the issuer. An officer who buys her own company's shares on the open market holds control stock; the shares themselves were registered when they were issued, so restricted is the wrong word for them.
The rest of the unit is vocabulary with sharp edges. A class of preferred stock can be created with full, limited or no voting powers, in section 151's own three words, so non-voting preferred is ordinary rather than an exception. Rights are struck below the market price and live for weeks; warrants are struck above it and live for years. And one American depositary receipt is not automatically one share: the SEC's investor bulletin on international investing says a receipt can represent one share, several, or a fraction, and that ratio is what drives its price.
A cap sounds as though it should be the smaller of the two tests, so candidates reverse Rule 144's volume limit. The rule sets it at the greater of one percent of the class outstanding or the average weekly volume of the last four weeks, and the reversal is the most common error on this item.
1 trap this unit sets that are not about one rule on its own. Read them once now, and again the night before.
Common trap: Cumulative voting helps the largest shareholder, because pooling votes gives the biggest holder the most concentrated power. Correct: Cumulative voting favours the MINORITY holder. It is the only mechanism by which a holder too small to win any seat under statutory voting can concentrate her votes and compete for one at all. Ask what the option is worth to each holder, not who owns more votes: and note that how many seats are up decides how far a given stake actually gets. Then check the charter: DGCL ยง214 says a certificate of incorporation "may provide" for cumulative voting. No charter provision, no cumulative voting.
1 question on this screen, from this outline item's own pool, so some will test a rule you met earlier in the unit. Pick an answer, say how sure you are, then reveal. Being sure and wrong is the most useful thing that can happen here, and the coach treats it that way.
A corporation's charter is silent on cumulative voting. How are its directors elected?
How sure are you?
Unit: SIE outline 2.1.1