300 Brainscape Flashcards
Test
Answer
Q001. - Types of Business Structures
A001. - 1 sole proprietorships - 2 general partnerships - 3 limited partnerships - 4 limited liability partnerships (LLP) - 5 joint ventures - 6 limited liability companies (LLC) - 7 corporations
Q002. - Advantages of a Sole Proprietorship
A002. - 1 easy to form & operate - 2 business can be sold without approval from others - 3 owner has right to make all business decisions - 4 profits are not shared w/others
Q003. - Disadvantages of a Sole Proprietorship
A003. - 1 the owner suffers all of the loss - 2 capital is limited by what the owner has or can borrow - 3 unlimited personal liability
Q004. - Definition of Partnership
A004. - An assn of two or more persons and/or entities to carry on a business as co-owners for profit (not including passive co- ownership & not-for-profit unincorporated assns)
Q005. - Elements of Co-ownership in a Partnership
A005. - 1 profit sharing (is not always in equal increments) - 2 joint control (each partner has = right to participate in mgmt) - 3 RUPA states that partner is no longer co-owner of partnership property
Q010. - Unanimous Consent of Partners is Needed for;
A010. - 1 admission of a new partner - 2 amendment of partnership agreement - 3 assignment of partnership property - 4 making partnership a surety or guarantor - 5 admitting to a claim a/g partnership in court - 6 any action outside the scope of the business
Q011. - Partner Liability:
A011. - 1 each partner is jointly & individually liable for all debts (creditors required to attempt collection from partnership 1st) - 2 still liable to 3rd party despite agreement (meaning that if any partner pays more than required the others are to reimburse the overage) - 3 incoming partners are liable for existing debts to the extent of their capital contributions (unless agreed otherwise) - 4 outgoing partners are liable for existing & subsequent (if notice is not given to 3rd parties) liabilities
Q012. - Partnership Terminates when:
A012. - 1 dissolution (stop carrying on business together) - 2 remaining partners elect to wind up & terminate partnership
Q013. - Distribution Order upon Termination:
A013. - 1 creditors (including partner loans to partnership) - 2 equity due to/from each partner
Q014. - Priority of Creditors:
A014. - 1 partnership creditors —> 1st to partnership assets, excess to personal creditors - 2 personal creditors —> 1st to personal assets. excess to partnership creditors
Q015. - Creation of Limited Partnership
A015. - 1 file certificate w/the SOS (to include names of all general partners) - 2 requires @ least 1 general & 1 limited partner - 3 contributions may be in the form of —> cash, services performed & property (also includes promises of the previous)
Q016. - Limited Partner CAN do this without the Risking Loss of Limited Liability:
A016. - 1 act as agent or employee of partnership - 2 consulting with & advising general partner - 3 voting on amendments to the partnership agreement - 4 voting on: dissolution, winding up, loans, change in the nature of the business or removal of a general partner - 5 bringing derivative lawsuit on behalf of the partnership - 6 being surety for partnership
Q017. - Limited Partnership on Sharing of Profits (Losses)
A017. - 1 shared as agreed upon in agreement - 2 if no agreement, then based on % of capital contributions
Q018. - Termination of Limited Partnership Occurs When:
A018. - 1 completion of time period - 2 specified event in the agreement - 3 unanimous written consent of all partners - 4 court decree - 5 event that causes business to become illegal - 6 withdrawal of GENERAL partner (unless ALL partners agree to continue)
Q019. - Characteristics of LLC’s:
A019. - 1 all owners have limited liability (liability limited to capital contributions + equity in the LLC) - 2 separate legal entity (can sue & be sued in own name) - 3 must have LLC in name - 4 adopt agreement & file w/SOS - 5 has personal property interest in LLC (no specific interest) - 6 member has mgmt interest - 7 member may assign financial interest (unless otherwise specified)
Q020. - Liability Provisions of LLP Partners:
A020. - 1 each partner is a limited partner - 2 specified amounts of liability malpractice insurance REQUIRED (takes place of “general” partner) - 3 retain unlimited liability for OWN negligence & wrongful acts - 4 partners avoid some personal responsibility for mistakes or malpractice of other partners
Q021. - Advantages of sole proprietorship
A021. - - No need to file with government (unless operating under name other than sole proprietor) - Business can be sold without approval from others
Q022. - Disadvantages of sole proprietorship
A022. - - Cannot raise capital from partners or shareholders - Unlimited liability
Q023. - Examples of associations that cannot be partnerships
A023. - - Passive co-ownership of property - Not-for-profits: labor unions, charities, clubs
Q024. - 2 elements determining whether co-ownership (and hence partnership) exists
A024. - - Profit sharing (need not be equal) - Joint control (but the right to manage may be contracted away to a managing partner)
Q025. - 5 characteristics of partnerships: - Duration - Transfer of ownership - Lawsuits - Partners’ liability - Formation
A025. - - Duration: limited - Transfer of ownership: requires agreement - Lawsuits: partnership may sue and be sued as separate entity - Partners’ liability: unlimited for partnership debts - Formation: easy, can be informal
Q026. - Definition of limited partnership
A026. - - Consists of one or more general partners and one or more limited partners - Sole general partner may be a corporation
Q027. - 3 characteristics of a limited partner
A027. - - Contributes capital only - Liable only to extent of capital contribution - Does not participate in management
Q028. - Evidence of an implied partnership
A028. - - Agreement to share profits (prima facie evidence)
Q029. - Requirements to form partnership
A029. - - Written agreement needed only if partnership cannot be completed within one year - Filing not needed
Q030. - Definition of partnership interest
A030. - - Right to share in profits and return of capital contribution on dissolution - Is considered personal property
Q031. - Assignment of partnership interest: Rights of assignee
A031. - - Share of profits - Return of capital contribution
Q032. - Definition of partnership property
A032. - - Property acquired in name of partnership - Property acquired with partnership funds - Property acquired by partner in his/her capacity as partner
Q033. - Definition of silent partner
A033. - - Does not participate in management - Unlimited liability
Q034. - Partners’ share in profits and losses
A034. - - Equal unless stated otherwise in partnership agreement - Losses are shared per profit-sharing proportions unless stated otherwise in partnership agreement
Q035. - Partners owe fiduciary duty to one another - details:
A035. - - May pursue self-interest if it’s not competition - Any wrongly derived profits must be held by partner for others - Must abide by partnership agreement - Liable to other partners for liability caused by going beyond actual authority
Q036. - Types of authority whereby partners can bind partnership
A036. - - Actual authority - Apparent authority - Authority by Estoppel - Implied authority
Q037. - Definition of apparent authority
A037. - - Created when parties misrepresent to others that they are partners - Liable to third parties as if they were actual partners
Q038. - Definition of partnership by Estoppel
A038. - - Parties misrepresent to others that they are partners and others are hurt as they rely on this
Q039. - Implied authority of partners
A039. - - Examples: buy and sell goods, receive money, pay debts for partnership - Third parties can rely on implied authority even if secret limitations (among partners) exist
Q040. - Liability of partnership for acts by partners
A040. - - Not liable for acts outside of express, implied, or apparent authority - Liable for partner’s torts committed in course and scope of business and for partner’s breach of trust - Creditors must try to collect from partnership before individual partners
Q041. - Unanimous consent of partners needed (so no apparent authority) for:
A041. - - Admission of new partner - Amending partnership agreement - Assignment of partnership property - Making partnership a surety or guarantor - Admitting to a claim against partnership in court - Submitting partnership claim to arbitrator - Any action outside scope of partnership business
Q042. - Personal liability of partners
A042. - - Joint and several liability - Partners may agree to spilt liability according to any proportion, but third parties can collect full amount from an individual partner
Q043. - Dissolution of partnership can occur by:
A043. - - Prior or present agreement among partners - Partner’s withdrawal, death, or bankruptcy if remaining partners do not choose to continue partnership within 90 days
Q044. - Order of distribution on termination of partnership
A044. - - 1. To creditors (including partners as creditors) - 2. Allocation of profit or loss per profit-sharing agreement - 3. Allocation of remaining capital according to partners’ capital balances - Partners are personally liable to partnership for capital deficiency and to creditors for insufficiency of partnership assets
Q045. - Limited partners invest, not manage; can do the following without risking loss of limited liability:
A045. - - Act as agent or employee of partnership - Advise general partner on partnership business - Vote on or approve of changes in partnership business - Bring lawsuit on behalf of partnership - Being surety for partnership
Q046. - Profit and loss sharing for limited partners
A046. - - Losses and any liability are limited to capital contributions - If no profit-sharing agreement, then profits and losses are shared based on percentages of capital contributions
Q047. - Admission of general and limited partners
A047. - - Admission of limited partner requires written approval of all partners - Admission of general partner requires approval of general partners only
Q048. - Fiduciary duties of general and limited partners
A048. - - General partners owe fiduciary duty to general and limited partners - Limited partners do not owe fiduciary duty
Q049. - Withdrawal of general and limited partners
A049. - - Withdrawal of general partner causes dissolution of partnership unless prior or present agreement among partners to continue business - Withdrawal or death of limited partner does not cause dissolution
Q050. - Order of distribution on dissolution of limited partnership
A050. - - Same as general partnership - General and limited partners share equally
Q051. - Definition of joint venture
A051. - - Association of two or more persons (or entities) organized to carry out a single business undertaking (or series of business undertakings) for profit
Q052. - Differences between joint venture and partnership
A052. - - Each joint venturer is not necessarily an agent of other joint venturers - Death of joint venturer does not automatically dissolve joint venture
Q053. - Advantages of LLC
A053. - - Limited liability for all members: limited to capital contribution and any equity in LLC - Limited liability is retained even if members fail to follow usual formalities in conducting business
Q054. - Formation of LLC
A054. - - Members adopt operating agreement and file it with Secretary of State; required to be in writing - Members form articles of organization - Initials LLC or LC required in company name
Q055. - Profit and loss sharing in LLC
A055. - - According to operating agreement - In absence of other agreement, members divide profits and losses equally
Q056. - Member-managed and manager-managed LLCs: authority and compensation
A056. - - All members have authority to bind LLC unless LLC is manager-managed (then only managers have authority) - Member who is not manager has no right to compensation - Managers receive compensation according to agreed contract
Q057. - Duties of members (if member-managed) and managers of LLC
A057. - - Fiduciary duty - Duty of due care - Duty of loyalty
Q058. - Dissolution of LLC occurs when:
A058. - - All members agree in writing (prior or present) - Member withdraws, dies, goes bankrupt, or becomes incompetent - Court order
Q059. - Formation of LLP
A059. - - File articles of LLP with Secretary of State - Firm’s name must include initials LLP or RLLP - Most states require only majority approval of partners to become LLP
Q060. - Characteristics of LLP
A060. - - Works well for professionals who want to do business as professionals in a partnership but still pass through tax benefits while limiting personal liability of the partners - Most partnership law applies to LLP
Q061. - Liability provisions of partners in LLP
A061. - - Unlike traditional partnerships, LLP has no general partner with unlimited liability - Regulations require liability malpractice insurance - Partners retain unlimited liability for their own negligence - Partners avoid some personal liability for mistakes or malpractice of other partners
Q062. - Advantages of corporate structure
A062. - - Limited liability for shareholders: risk only their investment - Transferability of interest through sale of shares - Continuous life unless dissolved, merged, or otherwise terminated - Separate legal entity: can hold and convey property, can contract with shareholders or third parties, can sue and be sued - Easy to raise large amounts of capital by issuance of stocks and bonds
Q063. - Disadvantages of corporate structure
A063. - - Tax burden: may be double taxation when income is taxed at corporate level and then dividends are taxed at shareholder level - Costs of incorporating - Formal operating requirements
Q064. - Characteristics of foreign corporation
A064. - - Definition: corporation doing business in a state other than the one in which it is incorporated - “Doing business” includes maintaining an office or selling personal property in state - “Doing business” does not include defending against a lawsuit, holding bank account, using mail to solicit orders, collecting debts, using independent contractors to make sales
Q065. - Promoter of corporation: characteristics
A065. - - Forms corporations and arranges capitalization - Has fiduciary relationship with corporation - Is not an agent of the corporation (because it is not yet in existence)
Q066. - Articles of Incorporation (charter) contain:
A066. - - Proposed name of corporation - Purpose of corporation - Powers of corporation - Name of registered agent of corporation - Name and address of each incorporator - Majority vote (or sometimes two-thirds vote) required to amend Articles of Incorporation
Q067. - Uncertificated securities
A067. - - Securities not represented by written documents
Q068. - Authorized stock
A068. - - Amount and types permitted to be issued in Articles of Incorporation
Q069. - Issued and unissued stock
A069. - - Issued stock: authorized and delivered to stockholders - Unissued stock: authorized but not yet issued
Q070. - Outstanding stock
A070. - - Issued and not repurchased by the corporation (i.e., owned by shareholders)
Q071. - Treasury stock
A071. - - Issued but not outstanding; corporation repurchased it - Are not votable and do not receive dividends - Corporation does not recognize gain or loss on transactions with its own stock - Must be purchased out of unrestricted retained earnings - May be distributed as part of stock dividend - Can be resold without regard to par value or preemptive rights - No purchase of treasury stock may be made if it renders corporation insolvent
Q072. - Par-value stock
A072. - - Amount is set in Articles of Incorporation - Stock should be issued for this amount or more - May subsequently be traded for any amount - Creditors of corporation may hold purchaser liable (for difference between amount paid and par value) if stock originally purchased at below par (“watered stock”), unless purchased in good faith without notice that sale was below par
Q073. - No-par stock
A073. - - Issued without a set par value - May have a stated value
Q074. - Stated capital (legal capital)
A074. - - Number of shares issued times par value (or stated value) - Dividends may not be declared or paid out of stated capital - Increase stated capital: Exercise of stock option; Small common stock dividend - Do not change stated capital: Acquisition or reissuance of treasury stock under cost method; Stock splits; Payment of organization costs
Q075. - Retained earnings (previously “earned surplus”)
A075. - - Cumulative amount of income (net of dividends) retained by the corporation during its existence
Q076. - Surplus (of corporation)
A076. - - Excess of net assets over stated capital
Q077. - Capital surplus (of corporation)
A077. - - Surplus [excess of net assets over stated capital] less retained earnings
Q078. - Contributed capital
A078. - - Total consideration received by corporation upon issuance of stock
Q079. - Characteristics of common stock
A079. - - Entitled to dividends if declared by the directors - Shareholders entitled to share in final distribution of assets - Votes may be apportioned to shares by one vote per share or other ways (one vote per ten shares, etc.) - Corporation may issue more than one class of common stock with varying terms (no voting rights, different par value, etc.)
Q080. - Characteristics of preferred stock
A080. - - Usually nonvoting - Dividend usually a fixed rate - May be cumulative (dividends in arrears must be paid) or noncumulative (dividend will not be paid once it has passed); held to be implicitly cumulative unless different intent shown - Participating: may participate further in corporate earnings remaining after a fixed amount is paid to preferred shares - Callable: may be redeemed at a fixed price by the corporation - Convertible: gives shareholder option to convert to common stock at a fixed exchange rate
Q081. - Powers of corporation
A081. - - To acquire or retire their own shares (typically limited to amount of surplus) - To make charitable donations - To guarantee obligations of others only if in reasonable furtherance of corporation’s business - Loans to directors: only with shareholder approval - Loans to employees: do not need shareholder approval
Q082. - Liability of corporations for crimes or torts
A082. - - Corporations are liable for crimes they are capable of committing - Punishment for crimes usually consists of crimes or forfeiture; rarely, prison sentences for directors - Corporations are liable for damages resulting from torts committed by officers, directors, agents, or employees within the course and scope of their corporate duties
Q083. - Ultra vires acts
A083. - - Definition: acts beyond the scope of the corporate powers (as defined in Articles of Incorporation) - State may dissolve corporation for ultra vires act - Stockholders have right to object to ultra vires acts - Directors or officers may be sued by shareholders or by corporation itself for ultra vires acts
Q084. - Powers and duties of directors
A084. - - Cannot bind corporation except as board member at a board meeting - Declaration of dividends - Selection of officers - Must comply with Articles of Incorporation; cannot amend Articles - Delegate authority to officers and agents - Not entitled to compensation unless so provided in articles, bylaws, or a resolution of the board passed in advance
Q085. - Liability of directors
A085. - - Directors must exercise ordinary care and due diligence in performing their duties - Directors are personally liable for torts committed while acting for corporation - Business judgment rule: if acting in good faith, not liable for errors of judgment unless negligent - May be held liable for wrongs of other directors if director intentionally or negligently does not prevent them - Personally liable for ultra vires acts of the corporation unless they dissented on the record
Q086. - Negligence of directors
A086. - - Directors are liable for negligence if their action was the cause of the corporation’s loss - Corporation may indemnify directors against suits if acted in good faith and in best interest of corporation - Corporation may purchase liability insurance for directors
Q087. - Fiduciary duty of directors
A087. - - Owe fiduciary duties of loyalty and due care to the corporation - Corporation may deal with other corporation in which director has interest if one of the following: - 1) Conflict of interest is disclosed or known to board and majority of disinterested members approve - 2) Conflict of interest is disclosed or known to shareholders and majority of voting shareholders approve - 3) Transaction is fair and reasonable to corporation
Q088. - Characteristics of officers (as contrasted with directors)
A088. - - Is agent of corporation and can bind corporation if acts are within scope of authority - Selected by directors for a fixed term
Q089. - Stockholder’s right to transfer stock
A089. - - Stock certificates are negotiable instruments - Reasonable limitations on transfer may be imposed; must be plainly printed on certificate
Q090. - Stockholder’s voting rights
A090. - - Right to vote for election of directors, decision to dissolve the corporation, and any other fundamental corporate changes - Governed by the charter and the class of stock owned - Can assign voting rights (vote by proxy) - Requiring majority approval of shareholders: amendment of Articles of Incorporation; fundamental changes such as a merger, consolidation, or sale of all assets
Q091. - Stockholder’s right to dividends
A091. - - No right to dividends unless declared by board of directors - Dividends become a liability of corporation only when declared, even for cumulative preferred stock - Cash dividends may be paid out of unrestricted retained earnings unless corporation will be insolvent because of dividend
Q092. - Stockholder’s preemptive right
A092. - - Right to subscribe to new issues of stock at fair market value so that ownership will not be diluted without the opportunity to maintain it - Usually applies to common stock only - No preemptive right unless provided in Articles of Incorporation
Q093. - Stockholder’s right to sue
A093. - - Stockholder may sue corporation on own behalf if interests have been directly injured - Stockholder may sue others on behalf of corporation (derivative suit) if a duty to the corporation is violated - In derivative suit, stockholder must first demand that directors sue in name of corporation (suit may be barred if directors make good faith business judgment that suit is not in corporation’s best interest) - In derivative suit, damages go to corporation
Q094. - Stockholder’s right on dissolution
A094. - - Right to a pro rata share of distribution of assets after creditors have been paid
Q095. - Stockholder’s liability
A095. - - Generally limited to price paid for stock - If corporate veil is pierced, court disregards corporate entity and holds stockholders personally liable - Majority shareholders owe fiduciary duty to minority shareholders and to corporation
Q096. - Examples of piercing the corporate veil
A096. - - Corporation used to perpetrate fraud (e.g. forming an under-capitalized corporation) - Owners/officers do not treat corporation as separate entity - Shareholders commingle assets, bank accounts, financial records with those of corporation - Corporate formalities not adhered to
Q097. - Merger
A097. - - Union of two corporations where one is absorbed by the other - Surviving corporation issues its own shares to shareholders of original corporations
Q098. - Consolidation
A098. - - Joining of two or more corporations into a single new corporation - All assets and liabilities are acquired by the new company - New corporation is liable for debts of old corporations
Q099. - Requirements to accomplish a merger or consolidation
A099. - - Boards of both corporations must prepare and submit plan to shareholders of both corporations - Approval of board of directors of both companies - Shareholders of both corporations must be given copy or summary of merger plan - Majority vote of shareholders of each corporation - Surviving corporation gets all assets and liabilities of merging corporations - Dissatisfied shareholders of subsidiary may dissent and assert appraisal rights, thereby receiving the fair market value of their stock
Q100. - Dissolution of corporation
A100. - - Liquidation (winding up of affairs and distribution of assets) occurs in the following order: - 1) Expenses of liquidation and creditors - 2) Preferred shareholders - 3) Common shareholders - Dissolution may be voluntary (board of directors passes resolution) or involuntary (by state for cause)
Q101. - Subchapter S corporation
A101. - - Avoid double taxation by not paying tax at the corporate level; instead, corporation income flows through to the income tax returns of individual shareholders - Shareholders report the income or loss even if income is not distributed to them - Rules involving criteria to be met to be taxed as Subchapter S corporation often change, e.g.: - 1) Number of shareholders S corporation can have - 2) Which types of entities cannot be shareholders - 3) Citizenship of shareholders - 4) How much of corporation’s income can come from passive income
Q102. - What is a general partnership?
A102. - An association of two or more persons to carry on as co- owners a business for profit.
Q103. - What is a joint venture?
A103. - An association of two or more persons in a single business venture.
Q104. - What is the difference between a general partnership and a joint venture?
A104. - A general partnership can mean an ongoing relationship whereas a joint venture is usually for a one-shot deal.
Q105. - What is a Limited Partnership (LP) ?
A105. - A partnership with at least one general partner and one limited partner.
Q106. - What distinguishes a Limited Partnership from a General Partnership?
A106. - In a limited partnership, limited partners will enjoy Limited Liability!
Q107. - What is a Limited Liability Partnership (LLP) ?
A107. - A partnership that CARRIES MUCH GREATER PROTECTON from liability than exists in a general or limited partnership.
Q108. - What does Limited Liability mean?
A108. - Only liable up to personal investment.
Q109. - What does Liability mean?
A109. - Legal responsibility
Q110. - What is General Partnership Law governed by?
A110. - Model acts that the states adopt
Q111. - What is the Uniform Partnership Act (UPA) and Revised Uniform Partnership Act (RUPA)?
A111. - Model acts that govern partnership law.
Q112. - Joint ventures are essentially identical to partnerships and are governed by what?
A112. - UPA or RUPA, depending on the jurisdiction
Q113. - What law governs Limited Partnership Law in most jurisdictions?
A113. - The Revised Uniform “Limited” Partnership Act (RULPA)?
Q114. - What act was amended to provide limited liability for partners?
A114. - RUPA
Q115. - RUPA Is functionally a form contract and provides what?
A115. - Default rules
Q116. - By agreement, partners may vary most RUPA provisions but not prejudice rights of thrid parties. T or F
A116. -1
Q117. - Is a written agreement required in a written partnership?
A117. - No, unless the partnership will last more than a year
Q118. - Is an official filing required to form a General Partnership?
A118. - No
Q119. - What are the characteristics of a General Partnership?
A119. - 1. Unlimited Liability for Partners - 2. Pass-thru Taxation - 3. An association of two or more persons to carry on as co- owners a business for profit.
Q120. - Under RUPA, what is the name of the voluntary statement that can be filed in the Secretary of State’s office?
A120. - Statement of Partnership Authority
Q121. - How does pass-thru taxation work?
A121. - 1. The partnership files an informational return but pays no taxes. - 2. Individual partners pay tax on allocated income, whether or not it is distributed.
Q122. - When defining the term ASSOCIATION in the definition of a general partnership, what does Delectus Personae mean?
A122. - Voluntariness. - 1) Partners choose with whom they’ll become partners. - 2) Existing partners must consent to the addition of new partners.
Q123. - When defining the term ASSOCIATION in the definition of a general partnership, what does Intent mean?
A123. - Not an intent to be “partners”, but an intent to enter into the type of business relationship that the law deems a partnership. - CONTENT CTLS FORM.
Q124. - When defining the term ASSOCIATION in the definition of a general partnership, what does “two or more persons having legal capacity mean?
A124. - Minors can become partners
Q125. - What does the term Business for Profit exclude?
A125. - Charitable, religious, & fraternal groups
Q126. - What does Co-ownership mean?
A126. - 1. Community of Interest: Sharing capital, control, profits/losses
Q127. - The sharing of profits and losses is prima facie evidence of a partnership, unless the profits were received in payment of what?
A127. - 1. Debt - 2. Wages of an employee - 3. Rent to a landlord - 4. Annuity to a widow or rep of a deceased person - 5. Interest on a loan - 6. Consideration for the sale of goodwill
Q128. - What are Purported Partners?
A128. - Purported Partners. - Where persons who are not partners are treated as such on the Estoppel theory.
Q129. - What is partnership by Estoppel?
A129. - Not a true partnership, but is a method of fixing liability on one who has held themselves out as a partner or has allowed others to them as partners.
Q130. - What actions deem a partnership by Estoppel?
A130. - 1. Words or conduct that represent a partnership - 2. Detrimental actions taken by the plaintiff in reliance on the representation - 3. Representation was reasonably believed by plaintiff
Q131. - What is the Aggregate Theory versus Entity Theory?
A131. - The Aggregate Theory is held by UPA where the partnership is not a separate entity from the partners. - The Entity Theory held by RUPA recognizes the partnership as a separate entity for most purposes. - Pass-thru taxation still exists in both cases.
Q132. - What does having a separate entity mean in regards to a General Partnership?
A132. - That the partnership itself continues to exist, even though the partners may come and go.
Q133. - Regarding Contractual Liability to third parties, the ACT of a partner in the ordinary course of partnership business BINDS the partnership with what exceptions?
A133. - A partner’s act in the ordinary course of business does not bind the partnership when: - 1)The partner had no authority to act for the pship in the particular matter - AND - 2) The person with whom the partner was dealing knew or had received notification that the partner lacked authority
Q134. - If a partner does not act in the ordinary course of partnership business, then that act can only bind the partnership when what occurs?
A134. - When the other partners authorize the act
Q135. - A partner binds the partnership and the other parnters if the partner acts with what types of Authority?
A135. - Actual Authority - Apparent Authority
Q136. - What is Actual Authority?
A136. - Expressed or Implied
Q137. - What is Implied Authority?
A137. - Customary - Incidental - Emergency
Q138. - What is Apparent Authority?
A138. - Authority that is Clearly seen or understood
Q139. - In what instances can Apparent Authority NOT exist?
A139. - 1) When the third party knows of a partner’s lack of authority, or - 2) The partner’s action requires unanimity (ie extraordinary contract)
Q140. - What does the “Scope” of Authority mean?
A140. - The “range” of authority covered
Q141. - The scope of Authority in a Partnership is determined by what?
A141. - 1) Past practices of the partnership - 2) Practices of similar businesses in the area
Q142. - Give examples of Implied and Apparent Authority.
A142. - Hire/fire employees, open bank accts, buy supplies, sell inventory, rent office space
Q143. - After a falling out with Partners B and C, Partner A of the ABC Furniture Co. is forbidden - by majority vote - to sell any - partnership property - without the consent of the other partners. If A sells to a customer a couch and the company’s fleet of seven delivery trucks, which of the two sales if any are within the scope of apparent authority?
A143. - The sale of the couch is probably within the scope of apparent authority, but the sale of the trucks probably is not.
Q144. - If a partner does not have actual or apparent authority, can the partnership still be liable for the act of the partner?
A144. - Yes, if the partnership ratifies or formally approves the action.
Q145. - What is a tort?
A145. - A wrongful act
Q146. - Generally, are Partnerships liable for the Torts of their partners?
A146. - Yes
Q147. - What is the key question when determining if a Tort has been committed?
A147. - Was the partner acting within the scope of partnership business?
Q148. - What are the three types of torts?
A148. - Intentional - Unintentional (Negligence) - Strict Liability
Q149. - For Intentional Torts, when is the Partnership liable for the Torts of their partners?
A149. - When the partner is attempting to advance partnership interests
Q150. - Here is an example of an Intentional Tort a Partnership is probably liable for.
A150. - In attempting to acquire more prominent shelf space for the partnership’s products in a grocery store carrying those products, partner A gets into a fist fight with an employee of a competitor also seeking the shelf space. - The partnership is probably liable.
Q151. - For Negligence/unintentional cases, when is a partnership liable for the Torts of their partners?
A151. - When the partner is performing partnership business if using partnership owned means to do it. - If using personal means to do partnership business, then, the partnership is liable if the business is a regular part of partnership business.
Q152. - What does RUPA impose Strict Liability on a partnership for?
A152. - Misapplication of Funds received in the course of its business
Q153. - Under RUPA, contract and tort liability are typically joint and several. What does this mean?
A153. - That a creditor may sue any one partner and hold that partner completely liable without suing the others.
Q154. - RUPA and most UPA states require in cases of contract and tort liabilities that Assets of the Partnership be exhausted before the partnership creditor can proceed against what?
A154. - Individual assets of Partners
Q155. - If a partner joins an Existing Partnership, the new partner is generally liable for all subsequent debt, but is liable for preexisting debt how?
A155. - Only out of her Firm Contribution. - In other words, liable for preexisting debt only to the extent of the amt contributed when joined the partnership.
Q156. - RUPA provides that “Property transferred to or otherwise acquired by a partnership is property of the partnership and not of the partners individually.” True or False
A156. -1
Q157. - Consistent with earlier UPA rules, RUPA provides that property is Partnership Property if acquired in the name of whom?
A157. - 1. the Partnership - 2. In the name of the Partner or Partners with at least one of the following indications: - In the instrument that transferred title: - a. The person’s Capacity as partner - b. The Existence of the Partnership
Q158. - Property is presumed to be partnership property when what occurs?
A158. - If purchased with Partnership Assets
Q159. - When is property Separate from the partnership?
A159. - When property is acquired in the name of one or more partners without indication of: Partnership Capacity, or Existence of the Partnership, or without the use of Partnership Assets.
Q160. - Partnerships have Entity Ownership of partnership property. What is Entity Ownership?
A160. - Partnership Property is owned by the Partnership Entity, not by the partners in common.
Q161. - A partner’s Partnership Interest is considered what?
A161. - Personal Property
Q162. - What does Partnership Interest give the partner the Right to?
A162. - 1. Share in the partnership’s Profits - 2. Share in the partnership’s Net Assets upon dissolution.
Q163. - The Creditor Restriction relating to Partnership Property is what?
A163. - No Creditor of an Individual Partner may attach partnership property to satisfy an Individual Debt.
Q164. - What is the proper approach for creditors of Individual Partners?
A164. - The Charging Order
Q165. - What is a Charging Order?
A165. - The judge orders the other partners to pay any Distribution Due to the debtor partner to that Partner’s Creditor instead.
Q166. - What does Assignment mean relating to Individual Partner debt?
A166. - Debtor partners may Assign (or creditors may seize) ONLY the Individual Partner’s Interest in the Partnership (i.e. profits and net assets)
Q167. - What is the rule regarding using PARTNERSHIP PROPERTY to satisfy the debts of Individual Partners?
A167. - Individual Partners MAY NOT ASSIGN and creditors of Individual Partners MAY NOT SEIZE Partnership Property to satisfy the debts of individual partners.
Q168. - Can an Individual Partner assign his Partnership Interest to an Individual Creditor?
A168. - Yes
Q169. - If an individual partner does assign to an individual creditor his or her partnership interest, does the creditor become a Partner?
A169. - NO
Q170. - A promoter, like a shareholder, officer, or director is not liable on contracts the promoter makes on behalf of the corporation? t or f?
A170. - False! Generally promoters are personally liable on contracts that they enter into on behalf of the corporation to be formed!
Q171. - What must be included in the A.O.I?
A171. - 1. Name - 2. Name & address of registered agent - 3. Name & add of each incorporator - 4. # of shares authorized - 5. One or more classes of stock must have voting rights
Q172. - What are valid reasons for the courts to pierce the corporate veil?
A172. - 1. Commingle funds - 2. Inadequate cap when formed - 3. Illegal or defrauding
Q173. - What’s the minimum # of director’s for a corporation?
A173. - One! however, the AOI or bylaws may require as many as desired without limitation!
Q174. - What’s the minimum # of officers for a corporation?
A174. - One! The duty of the officer is to record the min of director’s and shareholder meetings and to authenticate corporation records. - However, corporations are free to provide for more officers in the bylaws!
Q175. - What’s the procedure for a fundamental change?
A175. - 1. Board Resolution (majority) - 2. Notice to shareholder - 3. Shareholder approval (majority) - 4. Filing of articles
Q176. - What are the fundamental corporate changes that req shareholder approval?
A176. - 1. Dissolution - 2. Amendments to the AOI - 3. Mergers, cons, share exchanges - 4. Sale of substantially all of the corporations assets outside the regular course of bus
Q177. - When does a shareholder of common and/or preferred have a right to a dividend?
A177. - Generally, shareholder do not have a right to dividends unless & until a dividend is DECLARED by the BOD!
Q178. - Once a div is declared, shareholders have the status of secured creditor’s. T or F?
A178. - False! Unsecured!
Q179. - Adv of cum preferred stock is?
A179. - even if div is not declared in a particular year, it accumulates & must be paid b4 common shareholders get anything.
Q180. - What’s the main point regarding the inspection rights of shareholders?
A180. - Shareholders may inspect for any proper purpose (to start a derivative suit or to solicit shareholders to vote for certain directors), but shareholders may also be denied inspection for improper purposes (to get names for a mailing list).
Q181. - Which of the following bus’s can be formed without filing a formation doc w / the state: partnership, LP, LLC or Corp?
A181. - just a regular partnership (general partnership)
Q182. - How is a limited partnership similar to a corporation?
A182. - They both can be formed only by compliance with statute & filing with SOS, & both provide LIMITED LIABILITY for investors (except the general partners of course).
Q183. - Which of the following bus’s offer flow-thru taxation to it’s owners: partnership, LP, LLC or corporation?
A183. - PARTNERSHIP, LP, LLC ( although the owners of a LLC may opt to be taxed as a corporation) & corporations that elect “S-Corporation” status offer flow-thru taxation for their owners!
Q184. - A cop. is a legally separate entity distinct form its shareholders. To transfer interest in corporation, one must simply . - A partnerships( LP and GP) requires to transfer interest in the partnership. - A limited liability company can follow rules, depending on how it is taxed.
A184. - 1.SELL HIS/HER STOCK - 2. the consent of the other partners - 3. THE PARTNERSHIP OR CORPORATION
Q185. - A Corporation, initial BYLAWS shall be adopted by or or the board of directors may ratify the incorporator’s initial bylaws. Generally, the bylaws are the rules of conduct for the corporation and are contained in the articles of incorporation as they are usually bulky. - The typically note such items as the company name, the comp. address, the names and the addresses of persons composing the initial board of directors, the number of authorized shares, the incorporator’s name and address, and the registered agent’s name and address, among other items.
A185. - 1. THE INCORPORATORS OR THE BOARD OF DIRECTORS - 2. NOT - 3. THE ARTICLES OF INCORPORATION
Q186. - What corporation can : - have more than 100 shareholders - have a nonresident alien as a shareholder - has a disadvantage of double taxation when - it pays dividends to its shareholders
A186. - C corporation
Q187. - Answer YES or NO for PROPRIETORSHIP, S CORPORATION C CORPORATION AND LLPARTNERSHIP - 1. Tax- free distributions and contributions - 2. Earnings accumulate tax-free - 3. Not subject to personal holding tax - 4. No double taxation of income - 5. Single individual as management - 6. Corporation as member/multiple members allowed
A187. - PROPRIETORSHIP: 1. Yes, 2. Yes, pass through individuals but no entity tax, 3. Yes, 4. Yes, 5. Yes, 6. No - S CORPORATION 1. Yes, under certain circumstances, 2. Yes, pass through individuals but no entity tax, 3. Yes, 4. Yes, 5. Yes, 6. No - C CORPORATION 1. No, 2. No, 3.No, 4. No, 5. No, 6.Yes - LLPARTNERSHIP: 1. Yes, 2. Yes, pass through individuals but no entity tax, 3. Yes, 4. Yes, 5. Yes, 6. Yes
Q188. - What Require shareholder’s approval and what not? - Dissolution - Purchase of 55% of another corporation stock - Merger
A188. - Dissolution and Merger Require shareholder’s approval
Q189. - A is an association of persons or entities with the intent of engaging in a Single Business Venture for PROFIT
A189. - JOINT VENTURE
Q190. - is the simplest form of business ownership. It is NOT considered an entity separate from the business; nothing needs to be file unless req. by the state.
A190. - A SOLE PROPRIETORSHIP
Q191. - List major disadvantages and advantages of sole proprietorship.
A191. - disadvantages: - 1. is personally liable fro ALL obligations of the business. - 2. limited life - advantages: - 1. not double taxation - 2. sole decision maker
Q192. - The key difference between a Joint Venture and a GP is the fact that JV is formed for . - JVs are treated as a Partnerships in most legal aspects
A192. - SINGLE TRANSACTION OR PROJECT OR RELATED SERIES OF TRANSACTIONS
Q193. - A GP is similar to a sole proprietorship EXCEPT
A193. - that there are at least TWO partners
Q194. - List disadvantages and advantages of GP.
A194. - disadvantages : - 1. partners are personally liable for obligations of the partnership - 2. Transfer of partners interest must be approved by ALL GPs., - 3. limited life of the GP - Advantages: - 1. no double taxation
Q195. - All partnerships are assumed to be unless otherwise stated.
A195. - GP
Q196. - is a change in the relationship of the partners caused by any partner ceasing to be associated in the carrying on of the business.
A196. - DISSOCIATION
Q197. - In case of - partners change but the partnership may or may not continue. - In case of business is wound up, then the entity is terminated.
A197. - DISSOCIATION - DISSOLUTION
Q198. - When a partner Dissociates, the partner’s right to participate in management ceases. - Actual authority ends but authority continues until the third party given notice.
A198. - APPARENT
Q199. - Partners are for all contracts entered into and All torts committed by other partners within the scope of the partnership business or which are authorized. - Under liability , each partner is personally and individually liable for the amount of all partnership obligations.
A199. - PERSONALLY LIABLE - JOINT AND SEVERAL - ENTIRE AMOUNT - 100%
Q527. - What are the different levels of a partnership interest?
A527. - 1. General partner - 2. Limited partner - 3. Minimal - 4. Secret - 5. Silent
Q528. - What events may result in a dissolution of a partnership?
A528. - A dissolution of a partnership occurs upon admission of a new partner or departure of an existing partner. - Such event may be the result of death, incapacity, illegality, agreement, withdrawal, war, court decree and bankruptcy.
Q529. - To what extent may a partner be held liable for debts and liability of a partnership?
A529. - 1. New Partner - liable for pre-existing debt only to extent of cap cont. May become personally liable by assumption or novation. - 2. Leaving partner - liable for pre-exist debts to date of leaving. Not liable after as long creditors had notice. - 3. Criminal liability - limited to personal participation. Not liable for crimes of other partners. - 4. Torts - general partners are liable. Limited are NOT! - 5. Deceased partners estate - liable for partnership debts while he was a partner.
Q530. - How does the dissolution of a partnership affect the partner’s authorities & liability? What types of notice should be given to third parties?
A530. - Dissolution will terminate partner’s authority to enter into new obligations so long as 3rd party has notice. - 3rd parties should be given actual notice (given to those with prior partnership dealings) & constructive notice (given to other 3rd parties).
Q531. - What are the liabilities of a retired partner?
A531. - Existing liability - fully liable - Future liability - may be liable unless appropriate notice is given!
Q532. - What are the characteristics of a limited partnership?
A532. - 1. Names are usually not identified with the bus. - 2. Liability of limited partners is restricted to cap cont. No personal liability. - 3. Limited partner may NOT engage in management! - 4. Must have at least ONE general! - 5. Limited one’s possess same non-management rights as general one! - 6. Limited partner may participate in profits and losses as specified by partnership agreement. - 7. Limited partner can’t bind partnership.
Q533. - Discuss the formation & dissolution of a limited partnership.
A533. - Formation - certificate must be filed with state where located. Certificate should include name, purpose, location, term, cap and contr for each partner. - Dissolution - assets will be distributed in the following order: to creditors, distributions in arrears, cap cont’s and undistributed profits.
Q534. - Actual Authority
A534. - All authority that a principal expressly gives to an agent plus any authority that can reasonably be implied from the express grant
Q535. - Agent
A535. - One (agent) who acts on behalf of another (principal)
Q536. - Apparent Authority
A536. - Authority that a third party reasonably believes an agent has based on the principal’s holding the hange out as being the principal’s agent.
Q537. - Appraisal Rights
A537. - Shareholders who are dissatisfied with most fundamental corporate changes have an opportunity to dissent and demand that they corporation pay them the fair value of their shares rather than remain shareholders of a fundamentally changed corporation.
Q538. - Articles of incorporation
A538. - Formation filing documents of a corporation and are filed with the state in which the business is located.
Q539. - Articles of Organization
A539. - Formation filing documents of a Limited Liability Corporation.
Q540. - Authorized Shares
A540. - Shares described in the articles
Q541. - Business Judgment Rule
A541. - A director will not be liable to the corporation for acts performed or decisions made in good faith, in a manner the director believes to be in the best interest of the corporation, and with the care an ordinarily prudent person in a like position would exercise.
Q542. - Bylaws
A542. - Contains the rules for running the corporation. - They are not part of the articles of incorporation and are not required to be filed by the state.
Q543. - C Corporation
A543. - A corporation that is taxed as an entity distinct from its owners.
Q544. - Certificate of Authority
A544. - Authority granted by a state authorizing a foreign corporation to transact business within the state
Q545. - Charging Order
A545. - Court order used by a creditor of an individual partner may obtain an interest against an individual partner’s share of profits.
Q546. - Closely held Corporation
A546. - The articles of incorporation can eliminate the board of directors and provide that they shareholders shall have the power of the board, but this is not typical expect in small corporations.
Q547. - Common Stock
A547. - Class of stock that will carry with it all rights of stock ownership
Q548. - Confessing a Judgment
A548. - Admitting liability in a lawsuit.
Q549. - Corporate Opportunity Doctrine
A549. - If a director is presented with a business opportunity that would be of interest to his corporation, generally the duty of loyalty prohibits the director from taking the opportunity himself.
Q550. - Corporation
A550. - Legal entity distinct from its owners and managers. - They are created by complying with a state incorporation statute.
Q551. - Corporation by Estoppel
A551. - Under the Estoppel doctrine, a party who treats a business as if it were a validly formed corporation will be estopped (legally barred) from claiming in a legal proceeding that the corporation was not validly formed. - This applies to third parties who treat the business as a corporation as well as to the business itself
Q552. - Cumulative Preferred Shares
A552. - Shares with a preference usually are entitled to a fixed amount of money before distributions can be made with respect to nonpreferred shares. - With cumulative preferred shares, if a dividend
Q553. - De Facto Corporation
A553. - If all the requirements for incorporation are not met, the business might still be treated as a corporation (and protect its owners, officers, and directors from personal liability). - If the incorporators made a good faith attempt to incorporate, and operated as if they had incorporated, the business will be treated as a corporation in all respects, except the state may bring an action challenging the corporation’s status.
Q554. - De Jure Corporation
A554. - If all the requirements for incorporation are met, the corporation is said to be “de jure” and its existence will be recognized for all purposes
Q555. - Debt Securities
A555. - Debt Securities are bonds. - It represents a creditor-debtor relationship with the corporation whereby the corporation has borrowed funds from “outside investors” and promises to pay.
Q556. - Derivative Action
A556. - When a corporation has a legal cause of action against someone but refuses to bring the action, the shareholders may have a right to bring a shareholder derivative action to enforce the corporation’s rights. - Such an action may be brought against the director of the corporation or outsiders.
Q557. - Directors
A557. - Individuals with the general authority and responsibility for management of the corporation. - In most corporations, the board of directors delegates the power to run the corporation on a day-to-day basis to the officers.
Q558. - Dissociation
A558. - Change in the relationship of the partners caused by any partner ceasing to be associated in the carrying on of the business. - The remaining partners have the right to continue the business.
Q559. - Dissolution
A559. - Upon dissolution, the partnership is terminated and the business must be wound up
Q560. - Dividends
A560. - Distribution of corporate profits as ordered by the directors and paid to the shareholders
Q561. - Domestic Corporation
A561. - Corporation incorporated within the state
Q562. - Equity Securities
A562. - Stocks - An instrument representing an investment in the corporation whereby its holder becomes a part owner of the business.
Q563. - Fictitious Name Statutes
A563. - State laws that require persons conduction a business under an assumed name to file with the state the name under which the business is conducted and the real names and addresses of all person conducting the business
Q564. - Fiduciary Duty
A564. - Duty of utmost loyalty and good faith owed by an agent to her principal
Q565. - Foreign Corporation
A565. - Corporation doing business in a state other than its state of incorporation
Q566. - Fundamental Changes
A566. - Issues that might fundamentally change the nature of the entity
Q567. - General Partner
A567. - Person in either a general or limited partnership with unlimited personal liability and the right to take part in the management of the business.
Q568. - Greenmail
A568. - When a corporation is faced with the prospect of being taken over and the BOD wants to resist the takeover attempt, it will pay the person or company attempting the takeover to abandon its takeover attempt
Q569. - Incorporator
A569. - The party responsible for forming the corporation by filing articles of incorporation with the state.
Q570. - Indemnification
A570. - Duty of a business entity to reimburse those properly acting on behalf of the entity for losses incurred.
Q571. - Issued Shares
A571. - The corporation issues some or all of the authorized shares.
Q572. - Joint and Several Liability
A572. - Liability whereby creditors may sure partners jointly or sue partners individually
Q573. - Joint Venture
A573. - An associate of persons with the intent of engaging in a single business venture for profit.
Q574. - Limited Liability (of shareholders, limited partners, and LLC members)
A574. - The creditors are prevented from accessing the personal assets of the individual. - Their liability is limited to their investment in the entity.
Q575. - Limited Liability Company (LLC)
A575. - Form of business entity that offers its owners (called members) one of the main advantages of the corporate form of business (ie they are not personally liable for the obligations of the company) and all of the tax advantages of a partnership. - It is a hybrid business organization that combines characteristics of corporations, partnerships, and limited partnerships.
Q576. - Limited Liability Partnership (LLP)
A576. - An association of 2 or more persons who agree to carry on as co-owners a business for profit. - An LLP differs from a general partnership in that a partner in an LLP is not personally liable for the obligations or liabilities of the partnership arising from errors, omissions, negligence, malpractice, or the wrongful acts committed by another partner or by an employee, agent, or representative of the LLP. - Neither are the partners liable for partnership contracts.
Q577. - Limited Partner
A577. - Partner with limited liability as to his personal assets, risking only his investment in the limited partnership. - A limited partner is not an agent of the partnership.
Q578. - Limited Partnership
A578. - A partnership made up of one or more general partners and one or more limited partners.
Q579. - Locking up the Crown Jewels
A579. - When a corporation is face with the prospect of being taken over and the board of directors wants to resist the takeover attempt, it will give a third party an option to purchase the company’s most valuable assets.
Q580. - Members
A580. - Owners of a limited liability company.
Q581. - Noncumulative Preferred Shares
A581. - Shares with a preference are usually entitled to a fixed amount of money before distributions can be made with respect to nonpreferred shares. - Unless the dividend is cumulative the right to a dividend preference is extinguished if it is not declared for that year.
Q582. - Officers
A582. - Parties elected by the board of directors to managed the corporation on a day-to-day basis. - They are agents of the corporation.
Q583. - Outstanding Shares
A583. - Shares in the shareholders hands
Q584. - Par Value
A584. - Specific face value placed on stock
Q585. - Piercing the Corporate Viel
A585. - In some circumstances, the courts will hold the shareholders, officers, or directors of a corporation liable because the legislative privilege of conducting business in corporate form is being abused.
Q586. - Preemptive Rights
A586. - When a corporation proposes to issue additional shares of stock, current shareholders often want to purchase some shares in order to maintain their proportional voting strength through special rights referred to as “preemptive rights” that must be granted in the articles of incorporation
Q587. - Preferred Stock
A587. - Ownership interest in a company that is preferred in some manner (dividends or assets) over the common stockholders in the case of liquidation.
Q588. - Promoter
A588. - Individuals who form a corporation. - Responsible for the procurement of commitments for capital that will be used by the corporation after formation. - Promoters enter into contracts with third partiers who are interested in becoming shareholders and might also enter into contracts for goods or services to be provided to the corporation once its formed.
Q589. - Proxy
A589. - Written authorization given to third parties for the purposes of voting shares on behalf of the shareholder.
Q590. - Quorum
A590. - Minimum number of parties that must be present for a valid vote or transaction
Q591. - Registered Agent
A591. - The person on whom process may be served if the limited partnership, LLC, or corporation is sued.
Q592. - Revised Model Business Corporation Act (RMBCA)
A592. - Uniform law governing corporations that has been adopted by a slight majority of the states
Q593. - Revised Uniform Limited Partnership Act (RULPA)
A593. - Uniform law governing limited partnerships that has been adopted by a majority of the states
Q594. - Revised Uniform Partnership Act (RUPA)
A594. - Uniform law governing partnerships that has been adopted by a majority of the states
Q595. - S Corporation
A595. - Corporation electing to be taxed like a partnership and yet retaining other advantages of the corporation form
Q596. - Scorched Earth Policy
A596. - When a corporation is faced with the prospect of being taken over and the board of directors wants to resist the takeover attempt, it will sell off assets or take out loans that would make the company less financially attractive.
Q597. - Self-Tender
A597. - When a corporation is faced with the prospect of being taken over and the board of directors wants to resist the takeover attempt, it will make an offer to acquire stock from its own stockholders and thus retain control in order to prevent a takeover.
Q598. - Share Exchange
A598. - Transaction in which one corporation acquires of all outstanding shares of one or more classes of stock of another corporation. - Both corporations continue to exist as separate entities.
Q599. - Shareholder/Stockholder
A599. - Party owning an interest in a corporation. - Has a limited right to manage.
Q600. - Shark Repellant
A600. - When a corporation is faced with the prospect of being taken over and the board of directors wants to resist the takeover attempt, it will amend the articles of incorporation or bylaws to make a takeover more difficult.
Q601. - Short-Form Merger
A601. - A merger whereby a parent corporation owning 90% or more of a subsidiary corporation may merge the subsidiary into the parent without the approval of the shareholders of either corporation or the approval of the subsidiary’s board.
Q602. - Sole Proprietorship
A602. - One person owns the business and manages all of its affairs. - The sole proprietor is not considered an entity separate from the business.
Q603. - Statement of Authority
A603. - Document filed with the secretary of state, stating that the partnership has expanded or curtailed a partner’s authority to enter into transactions on behalf of the partnership. - However, the filing of a limitation does not give third parties constructive knowledge of the limitation.
Q604. - Statement of Denial
A604. - A partner listed in a filed statement of partnership authority may effectively deny her authority by filing a statement of denial with the secretary of state.
Q605. - Stock Dividends
A605. - Dividends in the corporation’s “own authorized but unissued shares”
Q606. - Stock Subscriptions
A606. - Contracts committing parties to the purchase of stock.
Q607. - Treasury Shares
A607. - Issued shares that are sometimes repurchased by the corporation (called “issued but not outstanding”).
Q608. - Ultra Vires Act
A608. - An unauthorized act. - Under the RMBCA, a corporation may include a clause in its articles state the business purpose for which the corporation was formed. - A number of states require a purpose clause. - If a corporation undertakes business activities outside the clause (or outside the business permitted by statute) it is said to be acting “ultra vires” and may be challenged by adversely affected parties
Q609. - Unlawful Distribution
A609. - A distribution that causes a corporation not to be able to pay its debts as they become due in the regular course of business or causes the corporation’s total assets would be less than its total liabilities
Q610. - Voting Agreements
A610. - Shareholders agree among themselves to vote their shares as the majority of signers directs
Q611. - Voting Trusts
A611. - An agreement of shareholders under which all the shares owned by the parties to the agreement are transferred to a trustee, who votes the shares and distributes the dividends in accordance with the provisions of the voting trust agreement.
Q612. - Watered Stock
A612. - Stock that is issued in exchange for property worth less than the par value of the stock (the difference between the par value and the value of the property is deemed to be “water”)
Q613. - White Knight
A613. - When a corporation is faced with the prospect of being taken over and the board of directors wants to resist the takeover attempt, it will find a company that the directors want to merge with.
Q614. - Winding Up
A614. - Liquidation that involves the process of collecting the corporate or partnership assets, paying the expenses involved satisfying creditors’ claims, and distributing the net assets of the business to the appropriate party.
