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Ripeness -Test (Abbott Laboratories v. Gardner (1967): Congress amended Food, Drug & Cosmetic Act to require prescription drug manufacturers to print name EVERY time – court said issue is ripe for resolution; no reason to believe review will delay enforcement) (1) fitness for judicial consideration (2) hardship of withholding review -Compare Toilet Goods Assoc. [...]
share exchange 1. just like the triangular merger 2. is a more direct way for ZAP to merge under Terminix w/o Term having to set up the subsidiary 3. it’s a way for Terminix to force all the ZAP SH’s to sell them their shares (but only req’s a 2/3 vote)
Fundamental Changes – BTIs A. amendment of aoi - 2/3 of all shares entitled to vote B. merger - ZAP, Inc. could merge with Terminix, Inc. => everything of ZAP is absorbed into Terminix - Plan of Merger: who are the merging parties, terms, who survives the merger - effect on ZAP SHs: they can’t own ZAP stock anymore b/c ZAP won’t exist (sometimes $ sometimes new mergers shares, etc. the merger plan decides this) - approval: (gets approved by both corp’s SHs) - plan of merger - acted on by BOD (BOD could block by not submitted vote to SHs) - SH 2/3 vote (of all entitled to vote!) - file articles of merger - surviving corporation’s exceptions: if its a small merger that doesn’t affect the Survivor too much & dependent upon the plan of merger, then we can get around a SH vote - SH hold same no. of shares - doesn’t change voting proportions by more than 20% - SH’s right to dissent - appraisal => - gets fair value on his shares - you can merge a subsidiary into a parent; this also gets around SH approval (unless over 10% of the sub’s shares are not owned by Terminix) C. share exchange 1. just like the triangular merger 2. is a more direct way for ZAP to merge under Terminix w/o Term having to set up the subsidiary 3. it’s a way for Terminix to force all the ZAP SH’s to sell them their shares (but only req’s a 2/3 vote) D. sale of substantially all the assets outside the ord. course of bsns [outside scope = not going to continue any bsns] - use this if the parent doesn’t want to acquire any debts/liabilites of little corp.; they just want the assets and to acquire it as a going concern - process: - ZAP sells assets to Terminix; could even include selling its name to Terminix. - Terminix gives cash to ZAP. - ZAP, Inc. will usually dissolve, pay out the ¢ recv’d from sale, to the SHs. (Dissolution also requres 2/3 approval.) - bod must submit and 2/3 must approve (if P doesn’t want to => dissent & appraisal) - successor liability***what about later arising liabilities??? too bad b/c Texas does not recognize ‘de facto’ mergers! - what if tort occurs from product after dissolution? you can’s sue anyone E. Conversion 1. plan of conversion converst Inc. into an LLP 2. BOD submits, 2/3 vote 3. SHs can dissent 4. file art. of conversion & you’re done! F. Dissolution 1. BOD submits; 2/3 vote of SHs 2. pay off creditors/liabilities 3. then SHs split up rest of $
Fundamental Changes – BTIs A. amendment of aoi - 2/3 of all shares entitled to vote B. merger - ZAP, Inc. could merge with Terminix, Inc. => everything of ZAP is absorbed into Terminix - Plan of Merger: who are the merging parties, terms, who survives the merger - effect on ZAP SHs: they can’t own ZAP stock anymore b/c ZAP won’t exist (sometimes $ sometimes new mergers shares, etc. the merger plan decides this) - approval: (gets approved by both corp’s SHs) - plan of merger - acted on by BOD (BOD could block by not submitted vote to SHs) - SH 2/3 vote (of all entitled to vote!) - file articles of merger - surviving corporation’s exceptions: if its a small merger that doesn’t affect the Survivor too much & dependent upon the plan of merger, then we can get around a SH vote - SH hold same no. of shares - doesn’t change voting proportions by more than 20% - SH’s right to dissent - appraisal => - gets fair value on his shares - you can merge a subsidiary into a parent; this also gets around SH approval (unless over 10% of the sub’s shares are not owned by Terminix) C. share exchange 1. just like the triangular merger 2. is a more direct way for ZAP to merge under Terminix w/o Term having to set up the subsidiary 3. it’s a way for Terminix to force all the ZAP SH’s to sell them their shares (but only req’s a 2/3 vote) D. sale of substantially all the assets outside the ord. course of bsns [outside scope = not going to continue any bsns] - use this if the parent doesn’t want to acquire any debts/liabilites of little corp.; they just want the assets and to acquire it as a going concern - process: - ZAP sells assets to Terminix; could even include selling its name to Terminix. - Terminix gives cash to ZAP. - ZAP, Inc. will usually dissolve, pay out the ¢ recv’d from sale, to the SHs. (Dissolution also requres 2/3 approval.) - bod must submit and 2/3 must approve (if P doesn’t want to => dissent & appraisal) - successor liability***what about later arising liabilities??? too bad b/c Texas does not recognize ‘de facto’ mergers! - what if tort occurs from product after dissolution? you can’s sue anyone E. Conversion 1. plan of conversion converst Inc. into an LLP 2. BOD submits, 2/3 vote 3. SHs can dissent 4. file art. of conversion & you’re done! F. Dissolution 1. BOD submits; 2/3 vote of SHs 2. pay off creditors/liabilities 3. then SHs split up rest of $
In re Seaborg (C5P23): Patent for element 95 (Am). (A) Previous patent held by Fermi, discloses several nuclear reactors that create small amounts of Am. Patent doesn’t explicitly mention this, just scientific fact. Thus, must do inherent anticipation analysis, not regular anticipation. (B) Enablement (1) Fermi didn’t stress Am at all, we value the second patent. Doesn’t appear to enable it given Am in Fermi reaction is hard to detect, surrounded by junk from reactor. (2) However, new patent does point to Fermi’s reactor as other way to produce it, partially resting on fact that Fermi didn’t point this out. (C) Infringement/Anticipation Symmetry (1) Since Fermi patent did not anticipate, Fermi won’t be infringing on Seaborg’s patent if he continues using his reactor.
In re Schreiber (C5P21): Previous Swiss patent for funnel that dispenses oil. New patent for dispensing a few popped kernels at a time. (A) Why inherent anticipation analysis? Not anticipation because prior patent doesn’t say size of funnel is size ? X numbers of kernels get through. In the new patent, one element has a limitation. (B) Patent not granted because the shape of the top was inherently the size of the limitation laid out in second patent.
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Please, explain the holding in Virginia v. Hicks.
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Please, explain the holding in Youngberg v. Romeo.
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What are the facts in the case, Ward v. Rock Against Racism?
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Please, explain the holding in Virginia St. Bd. of Pharmacy v. Virginia Citizens Consumer Council, Inc..
Tuesday, October 6, 2009
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