ATLAS/BRIEFINGLaw, organized for consequential decisions.

CORP · PRACTICE DESK

Corporate Operations & Risk

Governance records, indemnification and insurance, purchase-agreement risk allocation, and the documents that decide who absorbs a loss when a deal or a decision goes wrong.

Foundational briefing

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CORP-01 · 01

Board Minutes and Written Consents: Creating a Defensible Corporate Record

8 MIN · CORP

Minutes are written on a calm day and read on a hostile one. This brief sets out what belongs in the corporate record, when a written consent works, and the defects that undo both.

  • Corporate governance formalities are state law; Delaware and Model Act states share the basic architecture but differ in detail and in recent amendments.
  • Delaware permits board action by written consent in lieu of a meeting, but that consent must be unanimous — unlike stockholder consent.
  • Minutes should record that a decision was informed and deliberate; they should not record legal advice, deliberative debate, or draft conclusions.
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CORP-02 · 02

Director and Officer Indemnification: Bylaws, Agreements, and D&O Insurance

8 MIN · CORP

Protection for directors and officers is a stack of three instruments that fail in different places. This brief maps what each layer covers and what falls through the seams between them.

  • Indemnification is state corporate law; Delaware Section 145 is used here as the named example rather than a national rule.
  • Advancement of defense costs is a separate right from indemnification and is usually the one that matters first, and most.
  • Bylaws can be amended by the board; an individual indemnification agreement is a contract that cannot be changed unilaterally.
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CORP-03 · 03

Representations and Warranties in an Asset Purchase Agreement

8 MIN · CORP

A representation is not a promise about the future. It is a dated statement of fact that allocates a specific risk — and the qualifier attached to it usually decides who absorbs that risk.

  • Representations do three jobs at once: force disclosure before signing, support a closing condition, and define the indemnity that survives closing.
  • Asset deals do not automatically leave liabilities behind; successor-liability doctrines under state and federal law reach through the structure.
  • Knowledge and materiality qualifiers move risk to the buyer; disclosure schedules move it more quietly and more completely.
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CORP-04 · 04

Earnout Provisions in Business Sales: Metrics, Control, and Dispute Risk

9 MIN · CORP

An earnout bridges a price gap by paying later. This brief works through the four terms that decide whether it pays at all: the metric, the covenants, the accounting, and the referee.

  • Earnout disputes rarely concern whether the business performed. They concern what the contract defined as performance and who controlled the measurement conditions.
  • Metric choice sets the manipulation risk: revenue is hardest to distort, EBITDA invites allocation fights, and milestones can be blocked by buyer inaction.
  • Post-closing operating covenants are the seller's only real protection, because the implied covenant of good faith cannot rewrite terms the parties expressly agreed.
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CORP-05 · 05

Commercial Insurance Clauses: Additional Insureds, Waivers, and Indemnity

9 MIN · CORP

A contract can promise more protection than any policy delivers. This brief maps the gap between the insurance clause you negotiated and the coverage that responds when a claim arrives.

  • A certificate of insurance is evidence, not coverage. Only the policy and its endorsements create rights, and certificates say so on their face.
  • Standard additional-insured endorsements cover liability caused in whole or part by the named insured, not the additional insured's own independent negligence.
  • Primary and non-contributory status requires an endorsement. Contract language alone does not override the policy's other-insurance condition.
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CORP-06 · 06

Books and Records Demands: Purpose, Scope, and Response

9 MIN · CORP

An inspection demand is cheap for the sender and expensive to answer badly. This brief covers who may demand records, what purpose qualifies, how far the scope reaches, and what a company should do in the first two weeks.

  • Inspection rights come from state entity law and the company's own documents, so the answer changes with the state of incorporation and the entity form.
  • Delaware's Section 220 conditions inspection on a proper purpose, and courts limit production to records necessary and essential to that stated purpose.
  • Form errors sink demands: signature, oath, ownership proof, and a purpose stated with enough specificity to be tested are all litigated regularly.
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CORP-07 · 07

Director Duties as Insolvency Approaches: Who Is Owed What

8 MIN · CORP

Distress does not hand the board a new master. It changes who has standing to complain and how every decision will be read afterward. This brief separates the rule from the folklore.

  • Delaware rejected a separate fiduciary duty owed to creditors in the zone of insolvency; directors continue to owe duties to the corporation itself.
  • Once a corporation is actually insolvent, creditors may pursue derivative claims on the corporation's behalf, but direct fiduciary claims remain unavailable.
  • Distribution statutes bite before insolvency does: dividends, redemptions, and distributions have solvency and surplus limits with personal exposure attached.
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CORP-08 · 08

Related-Party Transactions: Disclosure, Approval, and Cleansing

9 MIN · CORP

A conflicted transaction is not automatically improper. It is automatically reviewable. This brief sets out the approval architecture that decides which standard a court applies and what the record has to show.

  • Conflicted transactions are governed by state entity law. Delaware and Model Act states share the same architecture but differ in defined terms and conditions.
  • The three classic routes are disinterested director approval, disinterested owner approval, and proving the transaction was entirely fair to the company.
  • Delaware amended Section 144 in 2025, restructuring the safe harbors and addressing controlling-stockholder deals, so the current text must be read directly.
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CORP-09 · 09

The Corporate Opportunity Doctrine: When a Deal Belongs to the Company

9 MIN · CORP

A fiduciary who finds a good deal has to ask whose deal it is. This brief works through the tests courts apply, the safe harbor of presenting it first, and how charter waivers change the analysis.

  • The doctrine asks whether the opportunity was in the company's line of business, whether it had an interest or expectancy, and whether it could have taken it.
  • Presenting the opportunity to a disinterested board and receiving a documented refusal is the cheapest and most reliable protection available.
  • Delaware permits a charter to renounce interest in specified classes of opportunities, which is standard practice for venture and private equity investors.
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CORP-10 · 10

Post-Closing Purchase Price Adjustments: Working Capital and Disputes

10 MIN · CORP

The true-up looks like arithmetic and behaves like a contract dispute. This brief covers how the target is set, why methodology fights beat math fights, and what the referee is actually allowed to decide.

  • A working capital adjustment has three load-bearing parts: a defined target, an agreed accounting methodology, and a referee mechanism with a bounded mandate.
  • Most disputes come from methodology conflicts — reserves, cut-offs, and classification — rather than from arithmetic errors in the closing statement.
  • Objection windows are short and usually drafted as conditions, so a missed deadline can make the other side's statement contractually final.
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CORP-11 · 11

Successor Liability: When a Buyer Inherits the Seller's Problems

9 MIN · CORP

The point of an asset purchase is to choose which liabilities come along. Four common-law exceptions and a stack of statutes say otherwise. This brief maps where the general rule breaks.

  • The general rule is that an asset buyer takes the assets without the seller's liabilities, and that rule holds in most transactions most of the time.
  • Four exceptions recur across states: express or implied assumption, de facto merger, mere continuation, and a transaction structured to escape debts.
  • A minority of states apply a product-line or continuity-of-enterprise theory that can reach a buyer with no continuity of ownership at all.
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Scope

Questions this desk answers

  • Is our corporate record defensible?
  • Who indemnifies whom, and up to what?
  • What did we actually represent?
  • How will this earnout be measured?
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